Arizona Eagletarian

Arizona Eagletarian

Thursday, October 10, 2013

To Suppress or not to suppress... revisited UPDATED 10-10-13 11:05am MST

Shortly after posting the other day about the flip-flopping engaged in by the Arizona Republic editorial board on the subject of voter suppression, I got hold of an email written by attorney Greg Jones. In addition to his private practice, Greg chairs the Maricopa County Democratic Party Election Integrity committee.

As you may know, the crux of the situation is that Arizona Attorney General Tom Horne issued an official opinion to provide political cover for Secretary of State Ken Bennett. Bennett wants to prevent any Arizona voter who registers to vote using the federal form from voting for any office other than federal offices. Federal offices being President of the United States, US Senators and members of the US House of Representatives.

Critics said the opinion smacked of politics, and they predicted it will add to problems at the polls, which recently have seen long lines of voters and late results.
“It’s part of the war on voters,” said Sam Wercinski, executive director of the Arizona Advocacy Network. “They’re trying to roll this back because of our Supreme Court victory in June.”
The opinion will create more confusion for voters as they try to sort out how they registered to vote and more cost to the taxpayer for running those elections, he said.
Both Wercinski and Alessandra Soler, executive director of the Arizona Civil Liberties Union, noted that a voter’s signature on the federal form is an oath that the individual is a U.S. citizen. That should be proof enough of citizenship, they argue.
Soler said Horne’s opinion contradicts the 20-year-old National Voter Registration Act because it makes registration and voting more complicated. 
“Horne is introducing more complexity into an already confusing election system,” she said.
In Maricopa County, Elections Director Karen Osborne said she and elections officials statewide have been working on how to roll out the two-track system, anticipating that would be a consequence of the high-court ruling.
She estimated the county will have to double the number of “ballot styles” to 7,000 to accommodate the change. 
For every precinct, there will have to be one ballot for local, state and federal races and a separate ballot with only the federal races on it.
Osborne figures that will cost an extra $250,000.
Osborne also is working on a letter to the 900 or so Maricopa County voters affected by the opinion.
“I’m trying to craft a letter that’s not rude,” she said. The message: You can still vote, but only in federal contests. Likewise, these voters should not sign petitions or local or state nominating petitions, she said.
Isn't it special that she doesn't want to be rude? The REAL message is that lawful Arizona voters will not be allowed, until a court overrules Horne's stupid opinion, to vote for governor, attorney general, state legislature, corporation commissioner or any local office.

Anyway, here are some of Greg's insights:

This AG opinion is especially something that should not be taken at face value. It was generated by a beleaguered AG who is trying to survive the effect of two major scandals and pending litigation of campaign improprieties. 
When I heard over the past couple of weeks that this was coming, it was clear to me that it was being used by Horne as a vehicle of his rehabilitation with the single-minded GOP base.
The issue involves a few thousand voters but it has always been clear that it is seen as necessary to prevent illegal [undocumented] Hispanic immigrants from voting (regardless of whether there was ever any evidence that they were trying to do so.)
Thus, it resonates with the far right wing of the party. In my opinion, no AZ politician is more willing to do what it takes to stay in office than Tom Horne.
Likewise, Ken Bennett intends to use this to make himself relevant and to boost his conservative credentials. He is running for Governor but is not a favorite of the far right and is not particularly well known by the average person. This will allow him to publicize himself and his office as the new program is rolled out while giving himself cover from blame.
He can point to the Opinion and say the AG says he has to do it this way and not have to answer tough questions about alternatives (like the status quo) and most importantly, the cost.
This... is a policy decision that Bennett wants to avoid responsibility for... the legislature should be required to decide if AZ is going to have 2 separate registration rolls and whether the enormous cost of doing so is justified.
Note that Karen Osborne's estimate of $250,000 is without reference to a specific breakdown of cost components. Therefore, she probably just plugged in a number. Can there be any doubt that she low-balled the estimate?

The opinion itself is one of the most politically driven AG opinions I have ever seen. It is made to order and is a piece of advocacy rather than an objective opinion of the law as AG Opinions are supposed to be (and traditionally have been). 
Horne has explained the Supreme Court decision in Arizona v. Inter Tribal Council as a clear victory for the State. This, however, is his way of hiding the fact that he actually lost. Yet, now Horne hopes to get away with claiming he is protecting Arizona from rampant voter registration fraud. 
It is a weak opinion legally. The worst part in my mind is the fact that he states -- without support -- the conclusion that Arizona must have two separate voter registration rolls and two different ballots for elections where a federal office is on the ballot. 
Throughout the opinion, he discusses all the reasons why Arizona could have two rolls but never circles back to explain why we must. Legal reasoning for requiring two rolls is extremely tenable.
I do not concede that Arizona can get away with this plan of implementing two rolls. It is potentially, but not necessarily, permissible. 
I strongly disagree, however, that Arizona has no alternative but to implement a system of two separate voter rolls and two separate ballots. 
There is a perfectly acceptable alternative that is not even discussed as a possibility: maintaining the status quo. 
US District Court Judge Roslyn Silver ruled that Prop 200 was partially invalid. At that time, the State and County election officials followed the rule that they had to accept registrations with the federal form and put those voters on the rolls as a valid eligible voter. 
Except that the Maricopa County officials still blocked several hundred Arizona State University students from voting. Perhaps the 900 voters Osborne noted above are those ASU students.

Why did the State not already go with a dual system then if it is so clearly required and no alternative exists? 
Instead, for the 2012 election, Bennett revised the state Elections Manual. It included specific instructions on how counties had to treat those registering with the federal forms in order to comply with the National Voter Registration Act and the Help America Vote Act
That manual was more or less followed (except that Maricopa County brazenly violated it) for the 2012 election. Those procedures were explicitly approved by the Supreme Court in a 7-2 opinion written by Scalia. 
We can easily stay within the requirements of Prop 200 while maintaining the existing procedure. 
To suggest that Arizona has to find a way to change everything to try to keep the proof of citizenship requirements of Prop 200 is preposterous. 
On the issue of cost, I recently attended a meeting of the Maricopa County Elections Community Network at which this anticipated program was discussed by the Maricopa County Elections representative. She referred to the work necessary to implement this anticipated system as “ginormous”. She also said that “nobody wants this.”
Nobody yet knows what is going to be required to maintain the two separate rolls but it will not be limited to simply printing up additional ballots.
Osborne's low-ball cost estimate apparently was just for printing extra ballots and did not include the extra training or additional IT (information technology/computer) costs. Poll workers will have two separate lists to review for eligibility and two separate ballots that may be given to a voter.
This means extensive training of all the volunteers at all the polling places. 
The County may not admit to it but I can tell you there are already lots of major problems at polling places every election that call into question the training of volunteers or the competency of some poll workers to be trained. (I can provide extensive documentation from the last election.) 
Adding two additional items (federal-only roll and federal only ballot) adds a couple of new layers of complexity. Trainers will have to explain why this is being done and exactly how to handle it. 
How much more complicated will the issues surrounding provisional ballots become?
Of course, if nobody knows about those complicated legal issues or processes, will the counties simply try to put those away in file 13?

I can guaranty that this is something that poll workers will get wrong on a regular basis and then what happens?. What if a voter is shown to be on the federal roll but says she should be on the state? Is she given a provisional state ballot? Why not? What if she insists? Does she get both? Some policy maker needs to identify the projected cost realistically for creating this unprecedented scheme and then to be responsible for undertaking the change, notwithstanding the enormous new costs. 
You can bet there will be substantial additional costs, well above the figure Osborne cited. Who will pay those costs?
In his dissent, Justice Alito (page 7 his dissent to the Inter Tribal Council opinion, which is on page 42 of this pdf) stated that it would be “burdensome for a State to maintain separate federal and state registration processes with separate federal and state voter rolls.” 
This is why no state has found it practical to thumb their nose at the federal government and have two rolls—because it would be too burdensome. And yet, Bennett and Horne intend to have the State plunge headlong into this enormously burdensome process without any public input or legislative consideration of the cost. 
Even though every other state decided it was too costly to try, Arizona will be doing it based upon a half-baked plan of two ambitious politicians desperate for publicity.
Compliance with HAVA brings federal funding for elections that will immediately be at risk. 
In addition to the cost, numerous statutory and regulatory hurdles will have to be addressed to implement a such new system.
Various statutes (Arizona Revised Statutes Titles 16 and 19) dictate what must be done with respect to rolls and ballots. Those will have to be revised. 
The State Election Procedures Manual, immediately becomes obsolete and will have to be rewritten. The manual provisions were written to be consistent with federal statutes (NVRA and HAVA) as well as the Gonzalez (Inter Tribal Council) case. Doing so will very likely cause them to be inconsistent with the federal laws. 
The confusion that will certainly ensue will cause how many people's votes to not be counted? Enough to ensure Horne is re-elected? Do we really want that to happen? When votes are not counted, you can count on litigation. But will Horne and Bennett count, instead, on getting the dubious vote counts certified such that courts will be unable to change anything?

In contrast to all of the change and increased cost the Horne and Bennett scheme promises, remember that when a person signs the federal voter registration form, they are doing so under penalty of perjury. It is a felony to register and another to vote when a person is not lawfully entitled to do so.

Over the last several election cycles, how many people have voted fraudulently in Arizona?

Horne and Bennett have claimed nobody verifies information from the federal form. They both know, however, that election officials are provided with information from the Social Security Administration to check citizenship status of registrants at the time the registration is processed. 
The name and last 4 digits are checked against the SSA database and the election officials get back notification that the identity matches and it shows if they are a citizen (as opposed to someone with a green card who obtains a Social Security Number to authorize them to legally obtain work). 
My purpose in writing is to express my strong opposition but, more importantly, to raise timely issues and questions that need to be posed to the elected officials. 
I am happy to answer any questions you may have or cooperate in any way in obtaining verification of any facts I have discussed.
Greg Jones can be reached at his law office (480) 444-9999.


The Center for Media and Democracy's PR Watch today carries this story about Arizona and Kansas implementing an ALEC model bill for this two track voting process.
State officials in Arizona and Kansas are developing a new scheme to implement an American Legislative Exchange Council (ALEC)-approved bill requiring proof of citizenship at the polls. 
The new ploy is an effort to sidestep the U.S. Supreme Court's voting rights decision earlier this year in Arizona v. Inter Tribal Council of Arizona, which rejected an Arizona law requiring that voters show proof of citizenship to register to vote. In a 7-2 decision, the Court majority found that the law imposed additional restrictions beyond those in the federal National Voter Registration Act (NVRA), and because the Constitution's Elections Clause gives Congress the final word on election procedures, the legislation was preempted.

But Arizona and Kansas are now asserting the ruling only applies to federal elections, and are creating "two-tiered" ballots to try thwarting the decision. Voters who showed proof of citizenship to register will be allowed to vote in all local, state, and federal elections. Those who used the federal NVRA registration form -- which requires voters swear under threat of perjury that they are U.S. citizens, but doesn't ask for physical proof like a passport -- will be prohibited from participating in local and state elections; these voters will only be allowed to vote in federal races.
See more in the rest of the CMD story (link provided above).


  1. Have any of the usual suspects in the Arizona Legislature spouted off about how Secretary Bennett and AG Horne have usurped their authority?