A Maricopa County Superior Court
judge has ordered the names of 218,000 voters who are improperly
registered to vote due to a data “glitch” can be released to a
Trump-aligned group and GOP lawmakers who are seeking the data.
The conservative non-profit America First Legal, led by Stephen Miller,
a former senior advisor to Trump and the architect of the former
president’s anti-immigration policies, filed a lawsuit to compel Fontes’
office to produce the records after it refused to do so.
America First Legal and Jennifer
Wright, the former head of the Arizona Attorney General’s Election
Integrity Unit, represented Strong Communities Foundation of Arizona, a
nonprofit led by conservative activist Merissa Hamilton, in the suit.
According to the lawsuit, after learning about a glitch in the state’s driver’s license database
that resulted in improper voter registration for more than 200,000
Arizonans — all of whom had been residents of the state for decades, and
many registered for just as long — Hamilton’s group filed a public
records request seeking “a subset of the Statewide Voter Registration
Database that contains only those registered (active and inactive)
voters that” were part of the data glitch.
A few days later, the Secretary of
State’s Office responded, saying that the records “will be made
available for inspection at the soonest available time and to the extent
the law allows access. But no access will occur before the 2024 General
Election.”
During a hearing earlier this week,
Secretary of State Adrian Fontes argued that releasing the data could
result in harassment or violence against those who appear on the list.
He also argued that restricting the access of the list to county
recorders, Hamilton and Republican leadership in the state legislature
could also lead to voter information being misused or leaked to bad
faith actors.
“At several points during his
testimony, the Secretary argued that he would withhold the requested
information if his act of withholding ‘could save just one life,’ or
words to that effect,” Maricopa Superior Court Judge Scott Blaney wrote in his ruling.
“If the Court were to adopt this standard — that a public official may
withhold public records whenever he subjectively believes such
withholding could somehow ‘save even one life’ — the Court would be
adopting an impermissibly broad, arbitrary standard where the best
interest of the state exception swallows the entirety of the Arizona
Public Records law.”
The glitch, which was first
discovered last month, meant that some Arizonans who received a driver’s
license prior to 1996 were inaccurately labeled as having provided
proof of citizenship, a requirement to register to vote in the Grand
Canyon State beginning in 2005.
The error in the database used by the
state’s Motor Vehicles Division affects people with pre-1996 licenses
who have since received replacements. The voters affected have been
registered to vote for decades, but were never required to prove their
citizenship because of the “data coding oversight” in the system,
according to the Secretary of State’s Office.
The office has said the affected
voters include 79,000 Republicans, 61,000 Democrats and 76,000 who
aren’t a member of either party.
Arizonans who cannot provide proof of
U.S. citizenship are only permitted to vote in federal races, after
voters in 2004 approved a ballot measure requiring proof of citizenship
to register to vote.
Arizona is the only state that requires proof of citizenship to register to vote. Voting by undocumented immigrants is incredibly rare.
The court rejected Fontes’ claims
that voters on the list could face potential harassment or violence,
saying that the claims “were not credible and not supported by
evidence.” Blaney also swept aside an argument made by Fontes that the
records are not available in the form that Hamilton’s group requested.
“There is no exception under the
Public Records Law for ‘imperfect or unreliable’ information,” Blaney
said. “An agency cannot withhold records because it believes that these
records contain imperfect or unreliable information. Indeed, when public
agencies make mistakes, the public has an even greater interest in the
disclosure of such information.”
The court ordered Fontes to produce
the list by noon on Monday, along with communications with “county
recorders that contain any dataset” of the impacted voters as well as
communications about the issue with the Governor’s Office, Arizona
Department of Transportation Motor Vehicle Division, Arizona Department
of Health Services and the Arizona Legislature.
The lists or “information that
includes any personally identifiable information” can only be
distributed to county recorders, the president of the Arizona Senate,
the speaker of the state House of Representatives and members of the
House and Senate Elections committees. However, the court’s limitation
on sharing of data ends after November 6.
The court also awarded Hamilton
attorney fees, a common practice when someone wins a public records
lawsuit against a government agency.
A spokesman for Fontes’ office said
they are reviewing the decision and intend to file an appeal. The case
will likely make its way to the Arizona Supreme Court.
Voting advocacy groups voiced their concern Thursday over the court’s decision.
“At this point, releasing the
incomplete and unvetted names of the affected voters this close to the
election will in no way benefit voters,” Alex Gulotta, All Voting is
Local Arizona state director, said in a statement. “In fact, the
decision could allow the opportunity for bad actors to target hundreds
of thousands of eligible voters, whether through challenges or other
threats. We are disappointed in the result because we know it will lead
to more distractions and attempts to sabotage our elections.”
Hamilton and the conservative legal group behind the fight applauded the judge’s decision, calling it a win for transparency.
“When Secretary Fontes discovered the
glitch that allowed 218,000 individuals to register without providing
proof of citizenship, he should have immediately shared the list of
affected individuals with Arizona’s county recorders, who are in charge
of verifying the citizenship of voters,” James Rogers, America First
Legal Senior Counsel, said in a statement. “Instead, he has jealously
guarded the list, refusing to share it with anyone.”
“Our only intent has always been to ensure the Recorders and Legislative leadership can do their jobs!” Hamilton said on X,
formerly Twitter. “And legal voters are enfranchised with confidence
that their government is following the law in the operation of the
elections!”
Although Hamilton’s group is
nonpartisan and does not endorse candidates, it does advocate for
conservative causes and the officials who push them. And Hamilton
personally has endorsed a number of Republicans on social media.
“VOTE JUSTIN HEAP FOR RECORDER,” Hamilton wrote in one post on X. In another, she tells a user they “don’t deserve freedom” for sharing a story critical of Heap.
Heap is a Republican state
representative from Mesa and the Republican candidate for Maricopa
County Recorder in the November election. While Heap refuses to answer
questions about whether he believes the 2020 and 2022 elections were
stolen from Republican candidates, he has close ties to election deniers and has voted for proposed legislation based on election fraud conspiracy theories.
Hamilton, likewise, is closely allied with people who have pushed evidence-free claims about election fraud.
Hamilton told the court that she does
not engage with any groups or people who promote violence or
harassment. But she was closely tied to a group that, in 2022, collaborated with militia groups to monitor ballot drop boxes in Arizona.
The Arizona Mirror confirmed that
Hamilton was an administrator of a group chat for America First Polling
Project. Leaked AFPP chat logs, made available to reporters by the group
Distributed Denial of Secrets, show how the organization worked with those militias and how election misinformation led members of the group to make violent threats.
Hamilton was asked repeatedly by an
attorney representing Fontes’ office if she could guarantee that, if the
data was released, it would not fall into the hands of anyone besides
members of the Arizona Legislature and county recorders.
“You cannot guarantee to this court
what these people will or will not do with it, can you?” attorney Craig
Morgan asked Hamilton.
“I disagree with the basis of your
question,” Hamilton answered, saying she refused to impugn the motives
of members of the state legislature.
The Arizona Legislature has been a
breeding ground for conspiracy theories surrounding elections, going
back to 2020 when some state lawmakers held a news conference where they
made spurious accusations of election fraud. They held the event at a
Phoenix hotel because then-House Speaker Rusty Bowers would not allow it
at the Capitol.
Months later, GOP leaders of the
Arizona Senate hired conspiracy theorists with no experience in auditing
or election administration to conduct a partisan hand-count of the 2020
election — based on the premise that the election had been stolen from
Trump — only to find more votes for President Joe Biden than the
original count, and no evidence of fraud.
And the Legislature’s two election committees have often amplified known election deniers and other conspiracy theorists.
Former and current members of the Legislature have also encouraged people to watch drop boxes for evidence of voter fraud to back up false claims that have been spread since 2020.