By Howard Fischer
Capitol Media Services
PHOENIX -- Attorney General Kris Mayes is taking a legal swat at Republicans who are trying to take away the right to vote from the adult children of Arizona residents who are living overseas.
In new court filings, Mayes is urging Maricopa County Superior Court Judge Michael Herrod to reject a plea by the Arizona Republican Party and the Republican National Committee to void a 2005 law that extended the right to vote in federal elections in Arizona to the children of Arizona residents living overseas -- even if they have never resided in the state.
The federal Uniformed and Overseas Citizens Absentee Voting Act specifically allows Arizonans who are overseas to keep that residency status for purposes of voting by mail. That includes those in the military as well as U.S. citizens who are living outside the country.
She also acknowledged that the Arizona Constitution says that no one is entitled to vote here unless they have resided in the state "for the period of time preceding such election as prescribed by law.''
But Mayes is telling Maricopa County Superior Court Judge Michael Herrod that language does not preclude state lawmakers from deciding -- as they did in 2005 -- that the children of those otherwise eligible Arizonans living elsewhere, people who are otherwise entitled to vote under federal and state law, also can be considered Arizona residents for voting purposes. And she said that makes sense given that children who have not established their own residency are generally considered to have acquired the residency status of their parents.
"In other words, for the children of an overseas parent who is registered in Arizona, the children are considered to reside in Arizona -- the same way their parents is considered to reside in Arizona,'' Mayes wrote. "Said another way, (the 2005 law) simply extends the same treatment of children of overseas voters registered in Arizona that it extends to their parents.''
And the fact they never lived in Arizona, she said, is irrelevant.
But attorney Kory Langhofer who is representing the challengers, said that 2005 law not only violates state constitutional provisions but also makes no sense. He said that, as worded, it means anyone born overseas to someone who has Arizona residential status also gets that status -- regardless of how old that child becomes or even whether still living with the parents.
All that, however, leaves a key question: Why sue now, two decades after it was adopted?
There's a political component.
Attorney Kory Langhofer who is representing the challengers, says that overseas voters -- including those who have never resided in the state -- skew heavily Democratic.
In Maricopa County, for example, he said just 18.2% of overseas voters are registered Republican. Another 51.3% are Democrats, 26.5% with no party affiliation and 4% who are signed up with other recognized parties.
By contrast, of the more than 2.6 million people currently registered to vote in the state's largest county, 35.5% are Republicans versus 28.2% Democrats.
And RNC Chairman Michael Whatley clearly sees all this through a partisan lens.
"Democrats want to cheat in our elections by allowing votes from people who have never established legal residency,'' he said in a prepared statement when the lawsuit was filed. "The RNC is defending the rights of Arizona voters to stop this unconstitutional law in its tracks.''
But Mayes, in her filings, is pointing out something else to Herrod, something not mentioned in either the lawsuit or by Whatley in his accusations of Democratic cheating: The original 2005 measure actually was sponsored by a Republican legislator -- and approved without a single dissenting vote by members of either party in the Republican-controlled Legislature.
Only now, Mayes said, do GOP officials find fault with the legislation.
It's difficult to say how much difference having those adult children registered to vote in Arizona makes in the outcome of races.
Langhofer said that out of more than 4.47 million people registered to vote in the state there appear to be at least 12,615 UOCAVA voters statewide. He said the litigation will help uncover how many of those are children who were born elsewhere and never have resided in Arizona -- the people his clients want to keep from voting.
But whatever the number, he contends that allowing them to vote "inflicts a competitive injury'' to the Republican Party by adding people to the rolls he says cannot legally be there -- and who are "disproportionately non-Republican in their partisan affiliation.'' And that, he is telling Herrod, gives the GOP the legal standing to go to court to seek to have the law voided.
Not true, said the Democratic attorney general in her request to have the judge toss the case.
She said to gain legal standing -- the right to sue -- someone must show "a distinct and palpable injury giving the plaintiff a personal stake in the controversy's outcome.''
What the GOP is alleging here, Mayes said, is that the party is suffering "competitive injury'' based on the lower percentage of overseas voters registering as Republicans.
The flaw, she said, is that UOCAVA voters are not "inherently politically aligned.'' And Mayes said their eligibility to vote does not deprive the Republicans of votes or give votes to a competitor.
Beyond that, Mayes said there's nothing in the GOP complaint that says the statute is designed or implemented in a way that would tend to create a disparity between voter of one party or another.
"Nor could they, because (the 2005 law) merely allowed for the possibility of registering to vote,'' she said. "And a voter's party choice and ballot selections are entirely beyond the control of the state.''
Mayes also is brushing aside allegations in the complaint by Gina Swoboda, who chairs the Arizona Republican Party, that her vote is "diluted'' by extending the right to vote to the children of overseas voters.
Finally, there's the fact that the constitutional provision says that the amount of time someone needs to have resided in the state is "prescribed by law.'' And in this case, Mayes said, the Legislature did just that: prescribed by the 2005 law that adult children of Arizona residents who are living overseas are entitled to the residency status of their parents.
What the case comes down to, the attorney general, is a bid by Republicans to deny the vote to certain people whom the Legislature has decided are entitled to be considered Arizona residents.
"This court should not read the Arizona Constitution to deprive U.S. citizens of their right to vote, as protected by UOCAVA,'' she wrote.
No date has been set for a hearing.
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