A lawsuit by the head of the Arizona Republican Party claiming that there are hundreds of thousands of people registered to vote in the state who are dead or who have moved is pure speculation and should be dismissed, according to an attorney for Secretary of State Adrian Fontes
In new filings, Assistant Attorney General Kara Karlson pointed out that Gina Swoboda claims at one point in her lawsuit sets the figure of ineligible voters on the rolls at "at least 500,000.'' But she noted that Swoboda, who sued in her capacity as chair of the state GOP, as well as her allies, also claim that "other reliable data sources show that Arizona has between 1,060,000 and 1,270,000 unaccounted for voters on the state rolls.''
Karlson told U.S. District Court Judge Dominic Lanza he needs to pay attention to that.
"Plaintiffs' numbers are so disparate that it can mean only one thing: Plaintiffs are guessing,'' she said, which is hardly the basis for a federal court lawsuit.
More to the point, Karlson said the state is complying with what is required under the National Voter Registration Act, saying what the GOP chair and her allies are calling for actually is illegal.
"Speculative purging of voter rolls is precisely the type of discriminatory and unfair registration laws and procedures that NVRA is meant to prevent,'' she said.
Fontes isn't the only one arguing that the lawsuit, filed last month, is flawed.
Voto Latino and the Arizona Alliance of Retired Americans, both groups with Democratic links that have been involved in litigation over voting rights, filed their own arguments urging Lanza to dismiss the case.
Attorney Andrew Gaona said the lawsuit is flawed because it offers "no clear allegation'' as to how the efforts by Fontes to maintain accurate voter registration lists falls short of what federal law requires. And he echoed Karlson's comments that what Swoboda seeks actually could result in harm to some Arizonans.
"The NVRA does not require -- but instead expressly prohibits immediate removal of many voters, even if they may seem ineligible, to guard against wrongful disenfranchisement,'' Gaona wrote.
In some ways, this new lawsuit against Fontes, a Democrat, is an extension of multi-year attacks on registration and voting procedures by Republicans who have argued that election outcomes are being influenced by ineligible voters. Several GOP-sponsored laws have been struck down by a different federal judge.
Republican lawmakers tried again in the last two years to make further changes in election laws, ranging from making it easier to remove people from active early voting lists if they don't use it every election cycle to changes in who can monitor the process of verifying signatures on early ballot envelopes. All were rejected by Democratic Gov. Katie Hobbs.
Going to federal court with a legal challenge avoids a gubernatorial veto.
This lawsuit, Karlson said is based solely on claims by the plaintiffs that they fear ineligible voters may be able to cast a ballot, something they said undermines confidence in Arizona elections as a whole.
"This fear is unfounded,'' she told Lanza. And she pointed out that the 2020 and 2022 lawsuits spawned many legal challenges attacking the veracity of the results.
"All of these lawsuits failed,'' she said, though 2022 candidates like Kari Lake and Abe Hamadeh, who lost their races for governor and attorney general, respectively, are still pursuing appeals.
"In short, despite intense scrutiny of Arizona's elections since 2020, there is no evidence that Arizona elections are not secure and properly conducted in accordance with the law,'' Karlsons aid. "And even plaintiffs agree there is no evidence supporting their fear of ineligible voters casting ballots in Arizona.''
What the challengers are basing their lawsuit on are not specific instances of ineligible voters casting a ballot but instead a question of statistics.
Attorney Andrew Gould, who filed the lawsuit, says there are more registered voters statewide -- both active and inactive -- in several counties than there are residents who are 18 or older. Overall he claims there is a statewide registration rate of 90.8%.
By contrast, he said, data from the U.S. Census Bureau puts the average figure nationally at 69.1%. And Gould, citing the same data, said the expected registration rate for Arizona should be 69.9%.
All that, he contends, leads to the conclusion there are "at least 500,000 registered voters on the voter rolls who should have otherwise been removed.''
Karlson said the problems start with how the challengers apparently don't understand the numbers.
It starts with that 90.8% figure.
She said that is based on federal figures showing the "citizen voting age population'' of Arizona at about 5.32 million in 2022. At the same time there were 4.83 million registered.
"However, there were only 4,143,929 active registered voters in 2022, resulting in an active registration rate of 77.8%'' using the challengers' figures of voting-age population, Karlson said. And she told the judge that, comparing apples to apples, this actually is lower than the national active voter registration rate of 85.4%.
Karlson also told Lanza there is a procedure to place voters on the "inactive'' list, including returned mail and the failure of the person to respond to multiple notices. And even then, she said, it is federal law that requires the state to keep registrants on inactive status for two election cycles before they can be entirely removed.
"Thus, as a function of federal law, a person who moved out of Arizona in 2019 would generally still be included in certain voter registration statistics,'' Karlson explained.
She also argued there is no basis for claims that Arizona is laxer in keeping the voter rolls clean than other states. That includes sending out nearly a million confirmation notices to voters in 2022 and removing 432,498 voters from the rolls, for an 8.9% removal rate.
"This is a bit higher than, but generally consistent with, the national average removal rate of approximately 8.5% of registrants,'' she said, saying that was higher than 28 other states.
The fight over statistics aside, Karlson said there is a simpler reason for Lanza to throw out the case. She said the lawsuit is based on the challengers' claim of a lack of confidence in Arizona elections. But that, absent actual evidence, doesn't provide grounds to sue.
"Plaintiffs are not entitled to bring a federal lawsuit just to confirm that law are being followed to their liking,'' Karlson said. "Plaintiffs' wish the secretary (of state) comply with NVRA (which he is already doing) is insufficient to establish standing.''
She also urged Lanza to reject as "too speculative'' the argument by the individual plaintiffs -- Swoboda, Scot Mussi, president of the Free Enterprise Club, and Steven Gaynor who has unsuccessfully run for office as a Republican -- that ineligible voters have an opportunity to vote which risks dilution of their legitimate votes. The proof, Karlson said, is the admission by challengers that there is no evidence that the counties they complain about actually have an above-average voter participation rate than the rest of the country or state which would be an indication of ineligible voters.
No date has been set for a hearing.
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