Voters wait in a long line outside of the vote center at the Tolleson Civic Center on Nov. 5, 2024. Photo by Caitlin Sievers | Arizona Mirror
A federal judge has thrown out a lawsuit launched by Arizona Republicans claiming that the state is violating federal law by failing to clean up the state’s voter registration list, saying there is no legal grounds to sue.
Arizona Republican Party Chairwoman Gina Swoboda, Arizona Free Enterprise Club President Scot Mussi and Republican businessman Steven Gaynor — who unsuccessfully ran to be the state’s top elections official in 2018 — filed the lawsuit in federal court earlier this year, alleging that Secretary of State Adrian Fontes’ inaction violates the National Voter Registration Act. The trio claim that the Democrat has failed to purge over a million ineligible and unaccounted for voters from Arizona’s voter registration rolls, diluting their votes as eligible voters and costing the Arizona Republican Party time and resources on voter education and mobilization campaigns.
The NVRA directs states to make reasonable efforts to maintain their voter rolls.
But in an order issued Thursday, U.S. District Court Judge Dominic Lanza dismissed the lawsuit, siding with Fontes’ argument that the Republicans don’t have sufficient standing to sue his office.
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Standing is established when a plaintiff suffers a concrete, specific injury, Lanza wrote, that presents an imminent threat and can be resolved by the court. Filing a lawsuit based on the claim that the government broke the law doesn’t constitute standing, and neither does challenging an action that the plaintiff disagrees with, he wrote. A recognizable right needs to have been violated for the court to weigh in on the matter.
“…(A) citizen does not have standing to challenge a government regulation simply because the plaintiff believes that the government is acting illegally,” Lanza wrote, citing a U.S. Supreme Court ruling earlier this year in an abortion case. “A citizen may not sue based on an asserted right to have the Government act in accordance with law. Nor may citizens sue merely because their legal objection is accompanied by a strong moral, ideological, or policy objection to a government action.”
In his 19-page ruling, Lanza picked apart the theories presented by the three Republicans as proof that they have standing to sue Fontes, finding them all to be insufficient. In their lawsuit, Mussi, Swoboda and Gaynor alleged that their votes were being unfairly diluted by the vast number of votes potentially cast by ineligible voters.
The trio claim that between 500,000 and 1.27 million voters remain on the voter list despite being dead or having moved. Those numbers were drawn from the number of voters who didn’t respond when Fontes’ office sent out 752,387 voter registration confirmation notices to Maricopa County residents. More than 130,000 were subsequently removed but the remainder didn’t respond and weren’t removed from the voter rolls.
The lawsuit also uses 2022 voter registration data and U.S. Census Bureau statistics to argue that Apache, La Paz, Navajo and Santa Cruz counties have “implausibly high” voter registration rates.
Lanza wrote that seeking redress based on vote dilution is too hypothetical. The purported injury depends on too many steps to be true, he said. An ineligible person must request an early ballot or show up to vote at the polls, they must then cast a ballot, that ballot must be tabulated by election officials and there must also be a high enough number of identical cases for the claim of vote dilution to be considered.
And the Republicans presented no evidence of that occurring, just speculation that it could happen.
On top of that, Lanza noted, the courts have concluded that the tabulation of some invalid votes by itself isn’t reason enough to support a claim of vote dilution. Vote dilution hurts everyone equally — meaning that it can’t be used by an individual to establish standing to sue because of a personal injury — and there needs to be proof that the invalid votes hurts one group of voters over another.
During oral arguments, the attorneys for the Republican plaintiffs disavowed that they were alleging any partisan impact by their claims, conceding their alleged injury was shared equally by all voters.
Another theory that a lack of confidence in the system could dissuade the trio from voting in future elections was also dismissed as hypothetical. And choosing not to vote constitutes inflicting injury to themselves rather than suffering it from Fontes’ actions, Lanza pointed out.
“‘Respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending,’” the judge wrote, citing a 2013 ruling from the U.S. Supreme Court.
The last argument that Fontes’ inefficient voter list maintenance incurred costs for the Arizona Republican Party in its efforts to reach out to and mobilize voters was also rejected. Organizations, Lanza said, need to show that a government action impacts them before they use their resources to respond. Choosing to spend money and advocate against a government action that an organization has a grievance against isn’t tantamount to a personal injury and doesn’t create standing to sue.
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