Arizona Supreme Court Says 100,000 People Who Watched 'Friends' The First Time Can Still Vote

The court is in no mood for shenanigans.

Image via Unsplash

On Friday, the Arizona Supreme Court ruled that nearly 100,000 voters across the state will be able to cast full ballots in November.

The ruling came in response to a petition filed by Maricopa County Recorder Stephen Richer, who asked the court to declare as a matter of law that voters who were innocent victims of a statewide computer glitch should be barred from voting in state and local elections in November.

Democratic Secretary of State Adrian Fontes, who had previously instructed local county recorders to permit the affected voters to cast ballots in both federal and state elections, opposed Richer’s petition. And on September 20, the high court sided with Fontes, ensuring that a bunch of people who can definitely drive a stick shift will still be able to vote the full ballot this November. Probably.

Arizona’s History of Voter Suppression

In Episode 58 of the podcast, we broke down Arizona’s convoluted proof of citizenship requirements. While 38 states have some form of voter ID law, Arizona requires its residents to show proof of citizenship to register to vote in the first place. That requirement flagrantly violates the National Voter Registration Act of 1993, AKA the “Motor Voter” bill, that drastically expanded voter registration by requiring states to accept a simple, uniform application at various government agencies including the department of motor vehicles. The application requires voters to attest under penalty of perjury that they are US citizens, but does not require proof. Arizona fought all the way to the Supreme Court to be able to impose an additional proof of citizenship requirement on registrants, ultimately losing in 2013.

Rather than give up its illegal voter suppression scheme, Arizona instead created two classes of voters: “Full Ballot” voters, who are entitled to vote in every election in the state; and “Federal Only” voters, who register using the Motor Voter application without providing one of Arizona’s state-approved proof of citizenship documents such as a post-1996 drivers’ license, birth certificate, passport, or certificate of naturalization — the latter of which costs $555 for a copy.

“Federal Only” voters receive a special ballot, printed at taxpayer expense, which allows them to vote for the US House of Representatives, Senate, and the presidency, but not in local races. Republicans recently tried to strip out the right to vote for President as well, although that proved to be a bridge too far for even the Roberts Court (but not for Justices Thomas, Alito, and Gorsuch).

The Glitch

On October 1, 1996, the Arizona Motor Vehicle Division (MVD) began to require drivers to show proof of citizenship to receive an initial drivers license, but not for subsequent renewals. That’s why a post-1996 license qualifies as proof of citizenship under Arizona law, but one issued before that date does not.

In order to determine whether a voter received a license before or after October 1, 1996, the Secretary of State’s office queries the MVD database for the driver’s “license issuance date.”

But MVD database was created in the 1990s, years before the state created its two-tiered voter registration system. It did not occur to the people coding it that the information would be used to disenfranchise anyone, and so MVD’s computers automatically update the “license issuance date” field if a driver requests a replacement license because their physical license has been lost or stolen. The computer then updates the “license issuance date” to the day that the replacement was issued.

In practice, that means that an Arizona resident who initially applied for a drivers’ license in 1995 without showing proof of citizenship and then lost his license and got it replaced in 2019 would be recorded as having a “license issuance date” five years ago, making it appear to the system that he presented proof of citizenship upon qualifying and is entitled to vote the “Full Ballot.”

Of course, most of us lose our drivers license every few years and have to have it replaced — life happens. But that, along with Arizona Republicans’ dogged efforts to craft a two-tiered ballot system to fight an imaginary problem of non-citizens voting, created an actual problem that threatened to disenfranchise tens of thousands of people.

One Measly Guy

Two weeks ago, Richer discovered one noncitizen registered to vote in Maricopa County under a pre-1996 initial license, something he himself described as an “anomaly.” To his credit, Richer, who is a Republican, immediately notified Fontes and Governor Katie Hobbs. Upon further examination, the governor’s office determined that 97,928 “Full Ballot” voters were affected by this glitch, amounting to roughly two-and-a-half percent of the state’s voters.

Although Richer made clear that he did not believe that the affected voters were noncitizens, he argued that such voters should nevertheless be restricted from voting in state and local elections:

I understand that these voters have done nothing wrong. I know that the vast majority of these voters are United States citizens who can provide documented proof of citizenship. Nonetheless, they do not fall into the pre-Proposition 200 exemption, and I do not believe I have satisfactory documented proof of citizenship.

Richer requested that Fontes issue guidance as to “whether the law requires that these voters submit documented proof of citizenship in order to vote a full ballot for the November 2024 election.”

Fontes determined that the “license issuance date” computer glitch means only that those voters’ citizenship is unconfirmed. It is possible that each and every one of those nearly 98,000 voters could have produced alternative documentary proof of citizenship had they been asked (which they were not). It is even possible that those voters did produce documentary proof of citizenship, such as a US passport or birth certificate, in 1995 when they got their initial licenses, since the application documents were not noted in the MVD computer system.

Fontes directed county recorders to maintain the status quo and allow the affected voters to vote the “Full Ballot.” That decision comports with the Supreme Court’s 2006 opinion in Purcell v. Gonzalez that states should not change election rules “on the eve of an election,” because such changes could disenfranchise voters on the basis of an inadequate factual record.

The Lawsuit

On September 17, Richer filed an Emergency Petition for Special Action seeking an immediate declaration by the state’s Supreme Court that Fontes’s guidance was invalid, as well as declaratory relief that the voters should be reclassified as “Federal Only” voters “unless and until the voters provide” documentary proof of citizenship.

Time was of the essence, since Arizona was scheduled to begin mailing Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) ballots to members of the armed forces on Saturday, September 21.

Had Richer’s position been adopted, the state would have been required to mail “Federal Only” ballots to affected service members instead of “Full Ballots,” along with notices to all 98,000 affected voters telling them to come in and show proof of citizenship to restore their full voting access. Instead, three days later — and just one day before the UOCAVA deadline — the Arizona Supreme Court sided with Fontes.

First, it held that the burden was on Richer and the other County Recorders to provide affirmative evidence that any individual affected voter was a noncitizen. Second, the court reaffirmed that Purcell was appropriate here “where there is so little time remaining” before the general election.

And then the Arizona state Supreme Court did a thing you don’t typically see in judicial opinions. It thanked Stephen Richer for filing his losing lawsuit in the section ordering relief:

Accordingly, and upon consideration,

IT IS ORDERED accepting special action jurisdiction.

IT IS FURTHER ORDERED denying Richer’s request for relief.  Nonetheless, we commend Richer for seeking a judicial determination of the appropriate scope of his authority under Arizona law.

Essentially, the judges commended Richer for appearing in timely fashion and asking for a ruling instead of acting unilaterally and lawlessly to undermine democracy.

Thank You, Indeed

By bringing this lawsuit, Richer preempted action by other, less trustworthy election officials. For example, Cochise County Recorder David Stephens is an election denying, Trump-supporting weirdo, who tried (but failed) to disrupt the 2022 midterms by forcing an illegal hand recount. After that, Stephens attended a “Ballot Integrity Summit” to learn to subvert election results in 2024 if necessary. Stephens has wrested virtually unfettered control over the vote count from the election board in Cochise County, a Republican stronghold that backed Trump by nearly 20 points in 2020. Stephens will now be forced to allow affected voters to vote the full ballot, a critical issue in a year when the state is running an abortion referendum.

Republicans have not, as yet, seized on the Arizona decision, likely because disenfranchising a bunch of people who were old enough to drive when hair metal was cool probably hurts the GOP more than it helps them. As the Washington Post notes, “About 36,500 of the voters are registered as Republicans, about 27,000 as Democrats and about 34,500 as unaffiliated or third party.” Still, it’s not hard to imagine that some of the state’s 15 county recorders would have challenged Fontes’s edict in court, or even outright defied it in an attempt to affect the outcome of the abortion referendum.

While that wouldn’t have directly affected either the Presidential election or Ruben Gallego’s Senate race against Kari Lake, the Demented Queen of the Election Denialists, the ensuing chaos might have provided Trump and his allies an opening to claim fraud or massive voting by noncitizens. And some percentage of those 100,000 affected voters would likely have interpreted the reclassification as blanket disenfranchisement, or otherwise been so furious/confused that they wound up staying home in November. In a state that backed Democrat Joe Biden by just 10,457 votes over Donald Trump in 2020, every vote matters.

The court’s decision does allow county recorders to disqualify voters on a case-by-case basis, though. Arizona law provides that, when a county recorder “obtains information… and confirms that the person registered is not a United States citizen,” they can cancel that voter’s registration in 35 days unless the person provides satisfactory evidence of citizenship. That means Stephens and those like him have until October 1, nine days as you’re reading this, to kick as many voters off the rolls as they can, one by one. (Presumably, he’ll start with the registered Democrats.)

In 2020, Richer, a Republican, pushed back hard against members of his own party who lied about a stolen election in Arizona. This July he lost his primary to Justin Heap, who helped spread Trump’s lies about nonexistent election fraud in Arizona. It’s clear that Richer understood this case to be his swan song.

“AZ Supreme Court ruled for defendant (Fontes),” he tweeted Friday. “The 100k registrants will continue to vote a full ballot this election. Thank God. Thank you Arizona Supreme Court for your extremely quick and professional review of this matter.”