Tens of thousands of Arizona voters who never provided the legally required documented proof of citizenship cannot be kicked off the registration rolls, Attorney General Kris Mayes concluded Monday.
In an extensive official opinion, Mayes acknowledged that a glitch in how information was stored and recorded was discovered last year when the Motor Vehicle Division was telling county recorders that people who wanted to register to vote had to have a state driver’s license that was issued after Oct. 1, 1996. That is when Arizona began requiring proof of citizenship to get a license.
But it turns out that some of those on the list actually had licenses that predated the proof-of-citizenship requirement.
The Arizona Supreme Court agreed to let those in this category vote in the 2024 election. But the justices did not address what would happen going forward.
Now Mayes is saying that county recorders —who have a list that could involve hundreds of thousands of those affected—cannot unilaterally cancel the registration of these individuals.
In fact, the attorney general said, even the failure of those affected to respond to notices asking for such proof cannot become the basis for removal. She said only if recorders have “affirmative evidence” someone is not a citizen can they initiate the cancellation process.
“County recorders may take steps to inquire whether the affected voters are U.S. citizens, including by asking them to provide satisfactory evidence of citizenship,” Mayes wrote.
“If an affected voter responds by providing such evidence, that should dispel doubt,” she continued, “but if an affected voter does not respond, the mere lack of response does not, under current law, authorize the county recorder to cancel the voter’s registration, in whole or in part.”
Secretary of State Adrian Fontes, who sought the legal opinion, said that makes sense.
“The opinion stands for the notion that these folks have a right to vote,” he told Capitol Media Services.
“And it falls to the government to prove otherwise—which is the way every other accusation, every other denial of rights exists,” Fontes said. “So the burden has shifted back to where it belongs.”
The new opinion is the latest twist in what has been a flurry of disclosures and accusations after then-Maricopa County Recorder Stephen Richer discovered close to last year’s election that there was a problem with the system set up to verify citizenship through Motor Vehicle Division records.
That 1996 Arizona law requires proof of legal presence to get a driver’s license. And a 2004 law mandates proof of citizenship to register.
That 2004 law says anyone with a post-1996 license is presumed to have furnished that proof. But anyone registering to vote for the first time after 2004 or changing registration who has one of those pre-1996 licenses was supposed to be required to provide citizenship proof.
What happened, though, is that if someone with a pre-1996 license changed an address on a license after 1996 or got a duplicate, the coding reported to county election officials used that later revision date, showing, incorrectly, that was a post-1996 license and, therefore, proof of citizenship had been provided.
There was a lot of finger pointing, with election officials blaming it on MVD and an aide to Gov. Katie Hobbs saying it is the fault of how the counties were making the inquiry.
The Supreme Court ruled that it would be wrong to deny those affected the right to vote a full ballot in 2024 as the problem was not the fault of the voters. And the justices said it would be improper to try to remove them from the rolls so close to the election when they would have little time to dig up and provide citizenship proof and be entitled to “due process” before their voting rights could be curtailed.
A spokesman for MVD said that steps have been taken to ensure the problem does not repeat itself.
All that, however, still left open the question of what happens now to those who fell victim to that glitch.
Mayes said Arizona law gives county recorders only limited powers.
What that does require, she said, is for county recorders to notify new applicants for voter registration within 10 days if they do not also provide proof of citizenship. Absent that proof, said Mayes, the recorder then must reject the applications.
But the attorney general said that Proposition 200—the 2004 requirement for proof of citizenship—only empowers a recorder to reject an application to vote in elections if the documentation is missing. What it does not do, she said, is entitle recorders to go back and cancel a prior registration which was presumed valid.
“Here, county recorders already accepted the voter registration of the applications of the affected voters long ago,” Mayes said.
“Indeed, many of the affected voters have been voting for years (and some for as many as 20 years),” she continued. “The idea of ‘rejecting’ their applications now would be like an employer ‘rejecting’ job applications of thousands of longtime employees.”
Put simply, Mayes said, a move to cancel the existing registrations would not be rejecting their applications—again, from a long time ago—but would be tantamount to “terminate their current status.”
Less clear is how many of the 4.47 million registered voters are affected.
At one point the estimates reached as high as 300,000 and as low as 98,000.
Fontes said even now it’s hard to come up with a precise figure.
Mayes said one part of that problem is those licenses issued before Oct. 1, 1996 did not require proof of citizenship. But she said that some of these people may have subsequently submitted other evidence like passports, birth certificates, naturalization papers or tribal identity numbers.
“And it may be impossible to fully answer that question now, because county recorders are not required to keep documents submitted as evidence of citizenship for more than two years,” Mayes said.
Fontes said the same is true for people who have upgraded their licenses to a Real ID, which is a form of identification that can be used for air travel. And to do that, he said, they had to provide citizenship proof.
It’s not just Mayes who concluded that those affected should be allowed to continue to cast ballots. Gina Swoboda who chairs the Arizona Republican Party said she agrees with the conclusion by the Democratic attorney general that the power of county recorders to cancel registration is limited.
“If the recorders have affirmative proof that one of the voters is a non-citizen, they may initiate a notice and cancellation process,” said Swoboda, who previously worked in the Secretary of State’s Office. “But they may not otherwise do so because of this error.”
Fontes acknowledged that during the legal debate about 2024 election eligibility he said he would set up a portal that would allow those who believe they were affected to find out and take some action. But he said Monday that, based on subsequent conversations with county recorders, the decision was made to let each county—the ones that have the voter registration records—to “take care of their own voters.”
None of this affects registrations going forward.
Mayes says if someone seeks to register with a driver’s license the MVD says was initially issued prior to Oct. 1, 1996, counties can register that person to vote in all elections only if the applicant also submits evidence of citizenship.
But the National Voter Registration Act allows people to register to vote in federal elections without such documented proof. And in that case, Mayes said the applicant who doesn’t prove citizenship can be registered as a “federal only” voter who can cast ballots in presidential and congressional races.