Arizona Supreme Court’s Swift, Common Sense Voter Roll Decision Promotes Election Integrity

By Daniel Miller. 

The current political climate is rife with controversy surrounding election procedure. Here in Arizona, a clerical error made national news when the Maricopa County Recorder’s Office discovered that nearly 100,000 voters were registered to vote in state and local elections without having met the proof of citizenship requirement. But rather than resulting in a drawn-out politicized controversy, the Recorder, the Secretary of State, and the Arizona Supreme Court acted quickly and sensibly to maintain ballot access.

Proof of Citizenship Requirements to Vote: Federal and Arizona Law 

Both state and federal elections require U.S. Citizenship for registration. Citizens may register to vote in federal elections by attesting to U.S. Citizenship, under penalty of perjury, without providing documentation. However, states may enforce a citizenship documentation requirement for non-federal elections. Arizona has passed two such requirements, the latest of which was upheld earlier this year for use in state elections by the U.S. Supreme Court. The first documentation requirement, which passed by proposition in 2004 and went into effect in January of 2005, was also the subject of a 2013 U.S. Supreme Court decision which found that the requirements could not be enforced for federal elections. As a result, Arizona has a bifurcated registration requirement structure, where an attestation of citizenship is sufficient to receive a “federal only” ballot while documentation proving citizenship is required to receive a “full ballot” for state, local, and federal elections.  

In 1993, Congress passed the National Voter Registration Act (NVRA). The legislation provided a streamlined process for voter registration, directing the states to allow voters to register at the same time as their application for a driver’s license. As a result, under Arizona statute, obtaining an Arizona Driver’s License is sufficient for full-ballot voter registration, as long as documentation proving citizenship is provided at that time. 

Arizona Statutes Created Tension with the NVRA

A.R.S. § 28-3171(A)(1) stipulates that an Arizona driver’s license is “valid until the applicant’s sixty-fifth birthday.” A license issued to an applicant turning sixteen years old today will be valid for 49 years, until the year 2073. This raises no issues with voter registration procedure, because proof of citizenship is obtained at the time of application pursuant to A.R.S. § 41-1080. Non-citizens may register for a driver’s license with documentation that they are lawfully present within the United States, but without proof of citizenship they cannot register to vote. For all applicants who obtained their driver’s license after October 1996, the system works seamlessly. Still today, providing an Arizona Driver’s License Number on an Arizona voter registration application remains the easiest way to register for a full ballot.

But Arizona only considers driver’s licenses issued after October 1996 to be valid proof of citizenship because the NVRA’s motor-voter requirement was implemented at that time. Many long-time Arizona residents obtained their driver’s license prior to October 1996, obtained a duplicate license at some point after October 1996, and registered to vote sometime after 2004. These voters have received a full ballot for many years, despite never being required to show proof of citizenship. 

A computer glitch mistakenly recognized these voters’ pre-1996 licenses as valid proof of citizenship. Because Arizona driver’s licenses remain valid for decades, the initial issuance date of the license has not changed. That initial issuance date is what matters for voter registration purposes. But in the Arizona Motor Vehicle Division records, the issuance date is updated when a driver obtains a duplicate license (with changes like a new name or address). Because a post-1996 duplicate changed the issuance date of the license, 97,928 Maricopa County voters were marked as eligible for a full ballot without technically meeting the new requirements. 

The clerical error was discovered during the Recorder’s routine voter roll maintenance. In response, Maricopa County Recorder Stephen Richer and Arizona Secretary of State Adrian Fontes coordinated “friendly” litigation before the Arizona Supreme Court to obtain an answer prior to the election on the question of whether these voters qualified for a full ballot, rather than a federal only ballot. 

The Decision in Richer v. Fontes

The Arizona Supreme Court ruled that these 97,928 voters remain eligible for a full ballot. The court explained that A.R.S. § 16-166(F), which mandates that the county recorder “reject any application for registration that is not accompanied by satisfactory evidence of citizenship,” cannot be used to retroactively deny an application that was accepted years ago. And even though A.R.S. § 16-165(A)(10) authorizes the county recorder to cancel voter registration upon receipt of information confirming that the registered person is not a U.S. citizen, there was no such information in this case. In fact, both parties agreed that the affected voters are likely citizens. Without confirming that the affected voters are not citizens, the recorder has no statutory authority to alter their registration. The court was therefore “unwilling… to disenfranchise voters en masse… [when] doing so is not authorized by state law and would violate principles of due process.” 

In other words, these voters have voted in Arizona elections for at least twenty years. Forcing nearly 100,000 voters to reapply for the full ballot would deprive voters of their long-exercised franchise without evidence of ineligibility. Additionally, the NVRA stipulates that state action altering the voter rolls cannot occur within 90 days of an election. This is a common sense requirement guarding against proposals that would be administratively onerous to enact in a brief period of time. In this case, allowing the change would result in many eligible voters being unable to vote due to being uninformed about new requirements. On balance, that is a far more pressing concern than speculation about non-citizen voters keeping a place on the rolls after somehow swindling the state for decades. 

Finally, and perhaps most importantly, this decision was handed down swiftly. Richer’s Emergency Petition was filed on September 17, Fontes filed his response on September 18, and the decision was ordered on September 20. Certainty about election law and efficiency of administration — especially in the weeks leading up to election day — contributes to public confidence in election procedure. The Arizona Supreme Court provided both in this case, a result which has bipartisan support.

Recent Developments

At the time of this writing, Secretary Fontes has issued an update raising the total number of discovered affected voters to approximately 218,000. In his statement, he acknowledged the decision in Richer v. Fontes, noting that the newly discovered affected voters will be treated in accordance with the ruling. It remains to be seen whether more affected voters will be found, but any voter who thinks they might be in the group impacted by the glitch now has certainty that their access to the ballot will remain intact for the upcoming election.