Originally Published: November 8, 2017 6 a.m.
PHOENIX — A new lawsuit charges that thousands of Arizonans are illegally being denied the right to vote in federal elections.
Legal papers filed Tuesday in federal court here acknowledge that state law requires would-be voters to produce certain identification when registering. That requirement has been upheld in prior court rulings.
But attorneys for the League of United Latin American Citizens and the Arizona Students Association point out that the U.S. Supreme Court has said that state law does not — and cannot — prevent people from registering to vote for federal elections using a federally approved registration form. And they contend that those whose state registrations are rejected for lack of citizenship proof are not informed of that option.
“At least 26,000 voters in Maricopa County alone have been disenfranchised by these policies,” the lawsuit states. But the problem is not limited there.
The lawyers say they’ve sampled more than 2,000 state registration forms which were rejected because applicants had failed to provide the required proof of citizenship. Of that group, fewer than 15 percent successfully registered after receiving notice of the rejection.
“Therefore, many eligible voters across Arizona have been disenfranchised by these unnecessary bureaucratic policies,” the lawsuit states.
The lawyers want U.S. District Court Judge David Campbell to order counties to register people for federal elections if their state registration forms are otherwise valid, regardless of whether they have provided the citizenship proof.
They also want Campbell to tell counties that before they can reject a state registration form they must try to match the information with data from the Motor Vehicle Division. With only certain exceptions, an Arizona driver’s license issued after Oct. 1, 1996, is proof of citizenship.
Matt Roberts, press aide to Secretary of State Michele Reagan, said her office will have no comment until it reviews the complaint.
There also was no comment from Maricopa County Recorder Adrian Fontes. The recorders from the state’s other 14 counties were not named as defendants in the complaint even though the attorneys said they found similar problems in most of them.
The legal fight has its roots in Proposition 200, a 2004 ballot measure which was part of a broader effort aimed at those not in the country legally.
It requires both proof of citizenship to register and identification when casting a ballot. Proponents said it would ensure that election results are not affected by those voting illegally.
Legal efforts to kill the ID provision failed. And Arizona has been allowed all along to require documented proof of citizenship for those who use state-designed forms to register.
Other than a license, other acceptable proof includes copies of birth certificates, passports, naturalization documents and tribal identification.
But Congress, in approving the National Voting Registration Act, directed the federal Election Assistance Commission to design a single national voter-registration form to simplify the process. More to the point, that form requires no proof of citizenship but only that those signing up swear, under penalty of perjury, that they are eligible to vote.
In 2013, the U.S. Supreme Court rejected an attempt by Arizona and Kansas, which had a similar law, to enforce the proof-of-citizenship requirement on those using the form. But the justices said states are free to ask the commission to change the form.
That request was rejected. And the Supreme Court two years ago rejected a new appeal filed by Arizona, forever putting to rest the question of the scope of the 2004 law.
Attorney Spencer Scharff said that, technically speaking, the state is complying: If a would-be voter submits the federal form, he or she is registered for federal elections. The problem, he said, is that someone who lacks the required ID pretty much has to know about that option.
It starts with the fact that what’s generally made available is only that state form, the one that requires citizenship proof.
“The state form does not inform the voters of this critical distinction, nor do nearly all county recorders’ offices,” the lawsuit states. And Scharff said that is “in clear violation” of federal court orders.
He pointed out that the federal judge in the earlier case required the secretary of state and all recorders and election directors to “ensure that all written materials regarding the process for registering to vote” must inform people that they may apply using the federal form and that it does not require the proof of citizenship.
“This notification is absent from nearly all written materials distribution by election officials regarding voter registration,” the lawsuit states. In fact, the state forms tells voters that the proof of citizenship “is an unqualified requirement for voter registration.”
“Therefore, when the state form is distributed to voters at local agencies, registration drives, libraries, and other locations, voters are not aware of the federal form option,” the lawyers said. And Scharff said only Apache and Yavapai counties provide such information on their websites.
“Indeed, most recorders’ websites have instructions regarding the documented proof of citizenship requirement that inform voters that they ‘must also include proof of citizenship or the form will not be processed’ while failing to explain that this is not the case with respect to federal forms for federal elections,’’ the lawsuit states.
And Scharff said the forms prepared by Reagan’s office for recorders to send to voters whose registration forms lack the proof of citizenship does not inform them of the federal form option.
The attorneys are telling Campbell that the ability to register, at least for federal elections, goes beyond those who may not possess proof of citizenship. They point out that some people sign up to vote at registration drives, including at local libraries or agencies, but may not be carrying a birth certificate or other citizenship proof.