Secretary of State Adrian Fontes speaks to the press after the final meeting of Gov. Katie Hobbs' Bipartisan Election Task Force on Oct. 24, 2023. Photo by Caitlin Sievers | Arizona Mirror
Arizona Secretary of State Adrian Fontes on Monday defended his decision to withhold the names of 218,000 voters who are improperly registered to vote from conservative and Trump-aligned groups seeking the data.
“I don’t want blood on my hands,” Fontes said during a hearing in Maricopa County Superior court on Monday, explaining his rationale for not releasing the records prior to the November election.
The conservative non-profit America First Legal, led by Stephen Miller, a former senior advisor to Trump and the architect of the former president’s anti-immigration policies, filed a lawsuit to compel Fontes’ office to produce the records after it refused to do so.
America First Legal and Jennifer Wright, the former head of the Arizona Attorney General’s Election Integrity Unit, represented Strong Communities Foundation of Arizona, a nonprofit led by conservative activist Merissa Hamilton, in the suit.
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According to the lawsuit, after learning about a glitch in the state’s driver’s license database that resulted in improper voter registration for more than 200,000 Arizonans, Hamilton’s group filed a public records request seeking “a subset of the Statewide Voter Registration Database that contains only those registered (active and inactive) voters that” were part of the data glitch.
A few days later, the Secretary of State’s Office responded, saying that the records “will be made available for inspection at the soonest available time and to the extent the law allows access. But no access will occur before the 2024 General Election.”
Fontes’ office said that releasing the information now “would create confusion, chaos, uncertainty and consternation among the public — all of which is avoidable, and indeed must be avoided amid an ongoing election during which we expect to receive record turnout.”
Fontes told the court that he worried about Hamilton’s plans to share the data with members of the Arizona Legislature. If the data is released, Hamilton told the court that she would share it with county recorders as well as with legislative leadership and leaders of the legislature’ election committees, which have been hotbeds for conspiracy theories.
“I’m going to fight like hell for a lot of those folks from having this list. They will not act responsibly with this list,” Fontes said of state lawmakers, adding that to understand his reservations “all you have to do is look at their Twitter accounts.”
The Arizona Legislature has been a breeding ground for conspiracy theories surrounding elections, going back to 2020 when some state lawmakers held a news conference where they made spurious accusations of election fraud. They held the event at a Phoenix hotel because then-Speaker of the House Rusty Bowers would not allow it at the Capitol.
Leadership of the Arizona Senate hired conspiracy theorists with no auditing background to conduct a partisan hand-count of the 2020 election — based on the premise that the election had been stolen from Donald Trump — only to find more votes for President Joe Biden than the original count, and no evidence of fraud. The Legislature’s two election committees, and particularly the one in the Senate, have often amplified known election deniers and other conspiracy theorists.
Former and current members of the Legislature have also encouraged people to watch drop boxes for evidence of voter fraud, even though no cases of widespread fraud have been proven.
Fontes argued before the court Monday that state lawmakers could not be trusted with the voter data and voiced concerns about the possibility of third parties gaining access to the data, which Fontes said is incomplete.
The glitch, which was first discovered last month, meant that some Arizonans who received a driver’s license prior to 1996 were inaccurately labeled as having provided proof of citizenship, a requirement to register to vote in the Grand Canyon State.
The error in the database used by the state’s Motor Vehicles Division affects people with pre-1996 licenses who have since received replacements. The voters affected have been registered to vote for decades, but were never required to prove their citizenship because of the “data coding oversight” in the system, according to the Secretary of State’s Office.
The office has said the affected voters include 79,000 Republicans, 61,000 Democrats and 76,000 listed as “other party.”
Arizonans who cannot provide proof of U.S. citizenship are only permitted to vote in federal races, after voters in 2004 approved a ballot measure requiring proof of citizenship to register to vote.
Arizona is the only state that requires proof of citizenship to register to vote. Federal only voters in Arizona, like all voters in other states, sign a sworn statement pledging that they are U.S. citizens.
After Maricopa County Recorder Stephen Richer asked the Arizona Supreme Court last month to order county elections officials to send the affected voters a federal-only ballot, the high court ruled that there was nothing in state law allowing county recorders to unilaterally change the registration status of the voters.
But the court noted that state law allows for challenges to individual voters’ registration status, and that county recorders should deal with any such challenges to the registration of the impacted voters.
Fontes said that his office believes strongly in transparency but that releasing the list could cause harm to voters. He also voiced concerns about possible violence. Fears of unproven voter fraud have led to real world acts of violence and federal officials are warning that those beliefs could spur others to further violence as the election draws near.
“We’re already in danger. You’ve already seen the threats. We’ve already seen people leave the profession,” Fontes told the court, saying that he and others in his profession now expect to be the targets of violent threats. “Those [voters on the list] have chosen nothing.”
Fontes also said that the records — in the form that Hamilton’s group requested — are not available. He added that while there are likely 218,000 voters impacted, the number of voters without actual documented proof of citizenship could be much smaller, but work is still being done to identify those people.
The court also heard from Hamilton, the conservative activist who requested the records.
Hamilton admitted to the court that her organization consists largely of conservatives but she argued that her non-profit is non-partisan and has not endorsed candidates. A quick overview of Hamilton’s posts on the social media site X, formerly Twitter, shows that Hamilton endorsed a number of Republican and conservative causes.
“VOTE JUSTIN HEAP FOR RECORDER,” Hamilton wrote in one post on X. In another, she tells a user they “don’t deserve freedom” for sharing a story critical of Heap.
Justin Heap is a Republican state representative from Mesa and the Republican candidate for Maricopa County Recorder in the November election. While Heap refuses to answer questions about whether he believes the 2020 and 2022 elections were stolen from Republican candidates, he has close ties to election deniers and has voted for proposed legislation based on election fraud conspiracy theories.
Hamilton told the court that she does not engage with any groups or people who promote violence or harassment. The Arizona Mirror confirmed that Hamilton was an administrator of a group chat for America First Polling Project.
AFPP leaked chat logs, made available to reporters by the group Distributed Denial of Secrets show the organization collaborated with militia groups to monitor ballot drop boxes in 2022. The chats also showed how election misinformation led members of the group to make violent threats.
Hamilton was asked repeatedly by an attorney representing Fontes’ office if she could guarantee that if the data was released, it would not fall into the hands of anyone besides members of the Arizona Legislature and county recorders.
“You cannot guarantee to this court what these people will or will not do with it, can you?” attorney Craig Morgan asked Hamilton for a second time.
“I disagree with the basis of your question,” Hamilton answered, saying she refused to impugn the motives of members of the state Legislature.
Attorneys representing Hamilton said that elected officials could be trusted with the information and disagreed with an argument made by the Secretary of State that releasing the data could violate the federal Driver’s Privacy Protection Act which oversees what information can or cannot be shared.
The group’s suit initially requested the records be released before early voting began on Oct. 9.
There is no evidence that a significant number of the voters affected, who have all lived in Arizona for decades, are undocumented immigrants. Data has indicated that voting by non-citizens is extremely rare.
Gov. Katie Hobbs has ordered an independent audit of the Motor Vehicle Division’s registration system in light of the discovery of the improperly registered voters.
Maricopa County Superior Court Judge Scott Blaney did not indicate when he expected to make a ruling in the case.
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