Attorneys for Scot Mussi, the president of the Arizona Free Enterprise Club, sent Democratic Secretary of State Adrian Fontes (pictured above) a letter earlier this month threatening litigation if Fontes did not clean up the state’s voter rolls. Attorneys Jason Torchinsky and Dallin Holt of Holtzman Vogel said they “determined that at least four counties have more registered voters than adult citizens over the age of 18.”
Apache County had the most number of voter registrations, with 117.4 percent, and Maricopa County was close to 100 percent with 97.8 percent.
The attorneys warned, “This letter provides statutory notice that Scot Mussi, acting as a registered Arizona voter with a substantial interest in secure elections, will bring a lawsuit against you and, if appropriate, against the counties named in this letter, if you fail to take specific actions to correct these violations of Section 8 within the 90-day timeframe specified in federal law.” In anticipation of the litigation, the letter asked Fontes and the 14 counties to “take steps to preserve documents.”
The letter said they compared “publicly available voter registration records with the U.S. Census Bureau’s 2017-2021 American Community Survey of citizen voting age population,” and found
“14 counties in violation of the National Voter Registration Act (NVRA), which requires states to maintain accurate and updated voter registration records.” Nationwide, “[a]ccording to the U.S. Census Bureau, only 72.7 percent of the citizen voting-age population was registered nationwide in the November 2020 election,” the letter stated.
The increase in Arizona’s voter rolls rose sharply after the last two general elections. “The U.S. Census Bureau further reported that Arizona’s statewide voter registration rates for the 2020 and 2018 elections were 76.4 percent and 68.6 percent of the citizen voting-age population, respectively,” the letter said. The increases were “8 to 50 percentage points” higher than previous national numbers and “4 to 48 percentage points” higher than previous state numbers.
After Apache County, the other counties with over 100 percent adult citizens registered to vote were Santa Cruz with 112.6 percent, La Paz with 100.5 percent, and Navajo with 100.1 percent.
Other counties had almost as alarming numbers, they reported. Nine counties had over 90 percent of adult citizens registered, “a figure that far eclipses the voter registration rate nationwide in recent elections,” and another county had over 80 percent registered.
The counties with over 90 percent, in addition to Maricopa County, were Yavapai with 99 percent, Mohave with 95.2 percent, Yuma with 94.3 percent, Coconino with 93.6 percent, Cochise with 93.4 percent, Pima with 92 percent, Pinal with 91.8 percent, and Gila with 90.6 percent. Graham County had 81.1 percent. Only one of Arizona’s 15 counties did not have “suspiciously high voter registration rates,” Greenlee County.
The NVRA, which is found at 52 U.S.C. 20501(b)(3) et seq., “obligates States to ‘conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters’ due to death or change of residence,” the letter said. It cited the U.S. Supreme Court decision in Husted v. A. Philip Randolph Institute which said, “federal law makes this removal mandatory.”
The NVRA requires states to remove the names of voters who are deceased or who have moved. The letter also cited the Help America Vote Act (HAVA), which additionally requires removing felons off the list. The letter mentioned case law which puts the responsibility of cleaning voter rolls primarily on state election officials; they “may not delegate the responsibility to conduct a general program to a local official and thereby avoid responsibility if such a program is not reasonably conducted.”
Torchinsky and Holt asked Fontes to respond within 45 days in writing, and have the counties respond with him or separately. They asked for a summary of what steps are being taken to clean off ineligible voters, including those who are deceased, felons, or who moved.
The NVRA contains a private right of action for plaintiffs to sue state election officials, and authorization for “reasonable attorney fees, including litigation expenses, and costs.” The letter asked to preserve records such as internal communications and emails within Fontes’ office regarding voter list maintenance, and emails exchanged between his office and other relevant government agencies and voting related organizations.
Republican lawmakers have tried unsuccessfully to get legislation passed requiring extra measures to ensure the voter rolls are regularly cleansed.
Complaints circulated after last fall’s election that the voter rolls swelled with inactive voters immediately prior to the election. Christian Lamar, a candidate who lost his race for state representative, noticed an increase in 7,423 inactive voters in his district, who were not part of the new voters that had registered in his district that year. Liz Harrington, a spokesperson for former President Donald Trump, tweeted, “Lawsuit filed in Maricopa County reveals ‘steroid-like injection ‘ of 225,171 ‘inactive’ voters just before Nov. 8.”
Fontes was threatened with a lawsuit on August 14 by Arizona legislative leadership over his proposed changes to the state’s Election Procedures Manual (EPM), which includes refusing to implement a 2021 law in the EPM cleaning up voter rolls.
The Phoenix-based Voter Reference Foundation posts the voter rolls from several states, and contains guides for each state on their voter registration and list maintenance. The Public Interest Legal Foundation has filed numerous lawsuits against state election officials around the country over failing to maintain accurate voter lists. Judicial Watch has also sued several states after threatening them with lawsuits.
– – –
Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Image “Sec State Adrian Fontes” by Adrian Fontes.
