America First Legal files amicus brief in Arizona lawsuit over 97,000 incorrectly listed voters

America First Legal (AFL) has filed an amicus brief in an Arizona lawsuit over 97,000 incorrectly listed voters, arguing that the affected voters should cast their ballots, but only be counted after the confirmation of their citizenship.

Merissa Hamilton, the president of Strong Communities Foundation of Arizona, announced on Wednesday that her group and a voter filed the amicus brief through AFL, after the Maricopa County recorder sued the Arizona secretary of state over the voter roll error.

"We argue that the AZ Supreme Court should reject the extreme proposals offered by the parties and take a more measured approach that ensures no legal citizens are disenfranchised while preventing non-citizens from accessing a ballot," Hamilton wrote in a post on X.

The lawsuit began after Arizona Secretary of State Adrian Fontes (D) said Tuesday that nearly 100,000 voters were incorrectly registered in the state as providing proof of U.S. citizenship, even though they had not done so. The error, which has occurred for about 20 years and over four administrations, was between the Motor Vehicle Division and the state’s voter registration system, which receives driver’s license information for registered voters.

The error was discovered by a Maricopa County worker who found a registered voter who hadn't provided proof of U.S. citizenship but was listed as a voter who could cast ballots in both federal and state elections. The voter had a green card but never cast a ballot, Fontes said.

Arizona is a state with the unusual situation of bifurcated elections, in which residents who provide proof of U.S. citizenship can vote in all elections while the others may vote only in federal elections, resulting in ballots cast by voters who haven’t proven their U.S. citizenship.

Since late 2004, state law has required residents registering to vote in the state to provide proof of U.S. citizenship.  

However, after the U.S. Supreme Court ruled in 2013 that Arizona must accept U.S. voter registration forms because of federal requirements under the 1993 National Voter Registration Act, the state allows residents registering to vote who don't provide proof of citizenship to receive ballots for federal races only.

Maricopa County Recorder Stephen Richer said that his office would sue the secretary of state’s office on Tuesday "regarding how to handle certain voters who need to provide documented proof of citizenship."

"It is my position that these registrants have not satisfied Arizona's documented proof of citizenship law, and therefore can only vote a 'FED ONLY' ballot," Richer added. "The Secretary argues that it is too close to the election to implement such a change and that it would be unduly burdensome on voters and deprive them of their voting rights. That is why we are going to the courts. To get a clear answer."

Rather than either putting the voters on the federal-only list or the full voter list, the AFL amicus brief argues that the "Court should order the Recorders to send full ballots to all Affected Voters on the early voting list but should order that all ballots returned by Affected Voters be segregated pending confirmation of the voter’s citizenship."

The voters' citizenship can be verified through the U.S. Department of Homeland Security’s Systematic Alien Verification for Entitlements database, according to the brief.