By Rachel Leingang, Votebeat Arizona | July 13, 2022
One of the most significant election bills this legislative session is provoking an outcry from voting advocates who say it could disenfranchise naturalized citizens and other voters by canceling their registrations. It was quietly signed into law by Gov. Doug Ducey earlier this month, even though the governor had previously vetoed a similar bill.
At least one group told Votebeat they intend to challenge the new law in court.
Ducey signed House Bill 2243 last week after previously vetoing a substantially similar bill in late May, House Bill 2617. Both bills call on county recorders to compare voter rolls to other databases and sources, like driver’s licenses in other states, death records, and jury questionnaires.
In a letter explaining his veto of the original legislation, Ducey pointed to a provision of the bill that required recorders to cancel voter registrations if they received information that the voter wasn’t a qualified elector. He said that provision was vague and could result in “bad actors” falsely asserting someone wasn’t qualified to vote in Arizona.
Voting rights groups, too, said HB 2617 could lead to people submitting lists of voters they contended weren’t qualified based on any number of likely discriminatory factors, requiring a recorder to investigate and potentially remove voters.
But Ducey said he largely agreed with the bill’s other provisions, setting the stage for lawmakers to tweak the bill to try to get Ducey’s approval.
That’s exactly what happened.
The new version says recorders must “obtain,” rather than “receive and confirm,” information that indicates someone isn’t eligible to vote. That change partly addresses the issue, said Jon Sherman, the litigation director for the Fair Elections Center, because it leaves discretion to the administrators to proactively investigate ineligible voters rather than forcing them to act on outside tips.
A spokesman for Ducey said he signed the second bill because the changes addressed his concerns about due process.
Voter advocates feel differently. They point to a remaining provision directing recorders with “reason to believe” a voter isn’t a citizen to check whether the person is in the Systematic Alien Verification for Entitlements, a federal database most often used by agencies to verify immigration status for the purposes of receiving benefits.
The law “could be easily manipulated by vigilantes who are using racist attacks against people in our voter database,” said Alex Gulotta, the Arizona director of All Voting Is Local.
The database could be inaccurate or out of date, and federal officials have in the past said it isn’t meant to be used this way. Voting advocates say relying on it could violate state and federal law.
“I think they were just very focused on the third-party false accusation problem, which has been reduced but not eliminated, but they haven’t focused at all on the discrimination problem,” Sherman said.
Multiple groups, including the Arizona Association of Counties, wrote letters to Ducey asking him to veto HB 2243 and pointing out concerns over the “reason to believe” provision.
“Page 6, lines 7-8 uses the phrase ‘who the county recorder has reason to believe’ – upon what is this based? Is it up to each Recorder to decide?” wrote Jennifer Marson, the executive director of the Arizona Association of Counties.
Sherman said the new law will most affect naturalized citizens who are registered to vote in Arizona. And while a person would get notice and an opportunity to submit information within 90 days before getting removed from the rolls, that presumes that the person is still at the same address, isn’t traveling, and is able to quickly confirm citizenship, he said.
“This provision is an open invitation to discriminate on the basis of race, ethnicity, dress, English proficiency or lack thereof. It allows any county recorder to act on their mere suspicions or bias and queue someone up for extra unwarranted scrutiny, even in the absence of any concrete information that they’re, in fact, not a United States citizen. And it’s illegal for that reason,” Sherman said.
Liz Avore, the vice president of law and policy at the Voting Rights Lab, said the law could also affect people who get misidentified because they share a name with others, despite their citizenship status, because the law doesn’t lay out detailed criteria for how to match people correctly.
“It will very likely result in eligible Arizona citizens not being able to cast their ballot. And that’s problematic when you have people being deprived of their voice in a democracy,” Avore said.
And she pointed out another provision in the law that could lead to eligible voters getting removed from the rolls: It requires the Arizona secretary of state to send monthly reports to recorders comparing the state’s driver’s license database to the voter registration database and identify if people changed their addresses or are not U.S. citizens.
That provision requires use of information that could be outdated — people who were not citizens when they got their licenses may have become citizens afterward, she said. (In Arizona, driver’s licenses don’t expire for decades.) She pointed to a botched 2019 Texas plan to use license data for citizenship purposes, which identified many actual citizens who naturalized after getting a license, ultimately leading to a lawsuit and the resignation of that state’s secretary of state.
Why did Ducey sign?
Despite those concerns, Ducey’s spokesman, C.J. Karamargin, said the new bill addressed the problem Ducey had with the previous bill.
“What we asked for in the veto letter is what we wanted to see, and it was added,” Karamargin said.
The governor’s office didn’t respond to further questions about voting advocates’ concerns over the bill.
The bill also had considerable support on the right. Proponents of the previous bill had urged Ducey to sign it, saying it helped ensure election integrity and provided more “trust and confidence” in the process. A coalition of conservative groups that wrote to Ducey said the bill would have put processes in place that regularly removed people who became ineligible for various reasons, including moving, death, or felony convictions. They also said the bill included safeguards and enough notice to make sure people didn’t get removed erroneously.
After the veto, backers didn’t give up. Arizona Sen. Warren Petersen, a Republican, noted on the Senate floor in late June that an amendment to HB 2243 — previously a bill that simply called for voter registrations to be canceled if a person moved to another state — addressed Ducey’s problems by adding more notice requirements but that it was “otherwise identical” to the previous bill.
Rep. Joseph Chaplik, who sponsored HB 2617, said on Twitter that he “worked every angle” to get his bill’s provisions signed into law as part of HB 2243. Describing HB 2617 in a committee hearing earlier this year, Chaplik said the bill essentially created a “maintenance program” to make sure ballots go only to qualified voters. (Chaplik didn’t respond to requests for comment.)
SAVE isn’t a catch-all
In a letter urging Ducey to veto HB 2243, Secure Democracy USA said the language change “somewhat reduces” the potential for abuse, but the remaining “reason to believe” provision still obligates county recorders to act on suspicions of people who could claim someone isn’t a citizen by requiring them to search for that voter in the SAVE database.
And, the election policy advocacy group notes, SAVE is not considered a definitive source of citizenship: It doesn’t contain U.S.-born citizens, for instance, and may not contain all naturalized citizens or children who become citizens based on their parents’ naturalization , unless they file certain forms.
“Pursuant to this new legislation, one eligible, registered Arizona voter could cause another
eligible, registered Arizona voter to be subjected to an inaccurate citizenship verification process that may well result in their removal from the rolls or, at a minimum, force them to needlessly provide proof of citizenship once again,” Secure Democracy USA’s Senior Director of Advocacy Charley Olena wrote.
Gulotta, of All Voting Is Local, said the SAVE database is “woefully out of date” and not intended to be used to identify citizenship for voter registration purposes. There is not a national database of all U.S. citizens, Sherman said.
SAVE’s outdated records could erroneously show a person as a noncitizen even if they have since been naturalized, critics said, or produce false matches of people with the same names and birthdates.
Using SAVE to clean voter rolls isn’t a new idea. In 2013, for example, Florida tried something similar to the new Arizona law after first trying to find noncitizens using driver’s license data, which resulted in tens of thousands of eligible voters caught in the dragnet. Kris Kobach, the former Kansas secretary of state and one-time vice chairman of President Trump’s quickly disbanded voter fraud commission, told the Washington Times in 2017 that the commission’s work would include comparing voter rolls to SAVE.
In previous years, the Department of Homeland Security and the Justice Department have warned that SAVE was not designed for voter registration searches and isn’t a complete accounting of citizens.
Another problem, the Voting Rights Lab’s Avore noted, is officials need an identification number related to immigration for a person to look them up in the database, not just a name or birthdate. A county recorder would not have that information, she said.
“I don’t think that the election officials are going to have the ability to actually use the database well,” Avore said.
Is the bill illegal?
Opponents of the bill contend that it’s illegal — for several different reasons. And they’ll be suing.
Sherman, of the Fair Elections Center, said his organization will be adding legal claims against HB 2243 in an ongoing lawsuit against another Arizona bill, HB 2492, a proof-of-citizenship law for voting that has drawn multiple lawsuits, including one from the U.S. Justice Department.
Multiple voting rights advocates said those two bills are this legislative session’s most consequential changes to election policy and could cause the most problems for voters.
“The two bills that do real, substantive damage are these two bills. If you look at what changed in Arizona election law that is really going to hurt people going forward, it’s these two,” Gulotta said.
Sherman said HB 2243 violates the U.S. Constitution and the National Voter Registration Act.
“Even if it’s not discriminatory on its face, it doesn’t create a racial classification on its face, it is an open invitation, it declares open season for discrimination on the basis of race, ethnicity, dress, English proficiency, anything else,” he said.
Secure Democracy USA also alleged the bill violates federal civil rights laws, specifically the 1964 Civil Rights Act, because it subjects some voters to different verification processes than others (checking some through SAVE but not all).
“This open-ended license for arbitrary and discriminatory treatment of voters will be readily struck down by a federal court and, accordingly, waste taxpayer dollars,” Secure Democracy USA wrote.
Additionally, the bill may have been enacted illegally, the counties association contends. In Arizona, the Voter Protection Act prohibits the Legislature from easily amending or repealing voter-approved ballot measures and referendums. They need a three-fourths vote to make any changes to voter-protected laws, and even then, those changes have to “further the purposes” of the voter-approved measure.
In the counties association’s letter to Ducey, the group notes that several provisions of a voter-protected part of state statutes are now in conflict with the changes to law from HB 2243. (Those statutes became voter-protected because of a 2004 ballot proposition that required photo ID to vote and proof of U.S. citizenship to register to vote, in addition to limiting public benefits to citizens.) The bill itself didn’t change the voter-protected statutes in question, but it created conflicting directives to recorders and essentially “forces County Recorders to violate voter protected statutes,” Marson wrote.
And the Legislature did not get a three-fourths majority when passing the bill; it passed on party lines in both chambers. Because there was a major amendment to HB 2243 late in the process, much of the bill did not go through committee votes or the rules committee hearings that would indicate whether it was legal.
“If signed, this bill is an illegal enactment,” Marson wrote, “because the bill passed with only a simple majority in both chambers.”
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