As the close of voter registration approaches in Arizona for the November 6 midterms, it is more than likely that thousands — if not tens of thousands — of registered voters who recently moved inside the state will be walking into a trap on Election Day.
At best, they will face an annoying and inconvenient runaround to find a polling place to cast a ballot that will count. But just as likely many voters who moved to another county will find that their voting status has been suspended for the 2018 election.
The reasons for this likely quagmire are numerous. Some of the blame falls on Arizona residents who moved and didn’t revise their voter registration information. But a larger share of the blame falls on the state, especially two agencies involved in elections, for a series of uneven, bureaucratically opaque, and even legally dubious moves that don’t come down on the side of ensuring that all already-registered voters can participate.
The first culprit is the Arizona Department of Transportation, which runs the Motor Vehicle Division (MVD), where 384,000 residents who moved since November 2016 renewed their driver’s licenses online, but did not check a “register to vote” box that would have used their new address to update their voter registration file. In addition to being poorly labeled, by implying that the box only pertained to prospective voters, that opt-in check-off violates Section 5 of the National Voter Registration Act (NVRA), which says driver’s license information “shall” be used for voter registration and updates — including new addresses.
The second culprit is the Arizona Secretary of State’s office, which has not gone to bat for the recently relocated residents. Instead, it has hidden behind a don’t-blame-us and legalistic defense, first pointing to MVD’s driver’s license protocols, which they admit violate the NVRA (but say will be fixed in 2019); and then saying the state office lacks legislative authority to use that address change data — even though it is in the state computer systems that it routinely accesses to manage their statewide voter database.
To make matters worse from the point of view of what’s most helpful to voters, a U.S. District Court last week sided with these two Arizona agencies, after being sued in late August by a coalition of voting rights law groups seeking an order telling Secretary of State Michele Reagan to notify these 384,000 individuals that their registration may be out of date. Arizona U.S. District Court Judge James Teilborg ruled that it was too late in 2018’s election cycle to try to notify the voters who moved and got new driver’s licenses — but did not check the MVD’s box — without causing confusion and a costly mailing.
When talking to lawyers for the voting rights groups and a Secretary of State spokesman about this case and its impact on voting in the 2018 elections, one hears many measured comments typical of legal professionals. The voting rights lawyers say they tried to negotiate solutions, but were stonewalled without explanation. Secretary Reagan’s spokesman carefully places the blame on another agency that their office does not control, and said it is working toward a more pro-voter solution after the election.
“The changes are scheduled to be implemented in 2019 working with ADOT. We can’t command ADOT to do anything. They are their own sovereign agency,” Secretary of State spokesman Matt Roberts said, referring to revising MVD’s online portal so drivers will only check a box if they do not want their license address to be used for voting. “The DOT, we agree, has likely been out of compliance with the NVRA for a very long time. And we’re glad at this point that we are going to get ADOT to make those changes to the online environment, and perhaps look at legislative solutions to allow the Secretary of State to make those changes unilaterally, which we don’t have at this time.”
But this is not the end of this story. It turns out that the Secretary of State is using recent MVD address data for other voter registration purposes before 2018 midterms — but just not to update the records of 384,000 people who moved inside their state since the 2016 election. That address data was used to create a statewide list of eligible but unregistered voters who were sent a postcard mailing from the Secretary several weeks ago, urging them to register before the November election. That’s part of an interstate program that the state joined that requires identifying and contacting eligible but unregistered voters.
In other words, if one digs into the weeds around how Arizona is using driver’s license address data that its state agencies collect for voter registration purposes, what it is doing is inconsistent at best. More judgmentally, it has been violating federal law, the NVRA — despite last week’s federal court ruling ordering no action before November—and the top state election officer’s spokespeople are offering porous explanations for why it is not evenly reaching out to all of its residents. These assessments may be in the nooks and crannies of law and policy; however, the impact will be seen on November 6, 2018.
“It’s political stubbornness,” said Stuart C. Naifeh, senior counsel for Demos, a national voting rights law group that is working with the League of Women Voters of Arizona, Mi Familia Vota Education Fund, Promise Arizona, the American Civil Liberties Union and others on this lawsuit and related NVRA issues. “And in any case, we were not asking them to import the [MVD updated] addresses, we were asking them to do essentially exactly what they were going to do under ERIC [Electronic Registration Information Center] — send people a notice telling them their registration appears to be out of date. And yes, the impact on voters could be profound. They don’t seem to see the irony in their sending multiple pieces of mail that won’t be delivered [mail-in ballots to past addresses of people who have moved] while complaining that they can’t afford to send one that will straighten out the problem.”
Secretary Reagan’s communications director, Roberts, stopped responding to emails when asked to explain how the same MVD address data cannot be used to update voter rolls but can be used to find and encourage eligible voters to register this fall.
A federal judge leaves voters in Limbo
This confluence of events is extraordinary. Two Arizona state agencies have been violating federal voting rights law for years, yet an obstinate Secretary of State will not act to help her state’s registered voters — including members of her party — to cast ballots that will count later this fall. Moreover, federal Judge Teilborg, as reflected in his ruling, is resentful that he had to deal with this case on the eve of the close of 2018 registration in Arizona. He chided the voting rights groups for suing in August as an “unreasonable and prejudicial delay,” rejecting their explanation that they had been negotiating with the two state agencies since late last year to resolve different NVRA violations. That leads to the real-life bottom line, which is that thousands of Arizonans may find themselves in an avoidable Election Day snarl. And thousands may not be able to cast ballots that count.
These events are unfolding against a political backdrop in a state where Democrats may be on the verge of picking up an additional Senate seat, if polling is accurate. This cloud surrounding uncertain voter registrations is particularly true for one subset of the 384,000 voters who renewed their driver’s licenses online — 63,000 registered voters who moved outside of their prior county, according to state-generated numbers in Teilborg’s ruling.
To have their votes count, Arizona ballots must be cast in the right county and precinct, the ruling explained. All voters who moved to a new county must re-register. (The only exception is if those people moved after the close of voter registration, which in 2018 is October 9 in Arizona. They can vote at their old poll.) As the ruling said, “Anyone who attempts to vote in a county in which they are not registered is effectively an unregistered voter and, therefore, ineligible to vote, even if they are registered in another county.”
Voters who moved within their county must show up at the correct precinct tied to their new address to have their vote count. If they go to their previous polling place, they are supposed to be told by poll workers to go to their correct new precinct, where they must submit a provisional ballot (that will be segregated and later verified before counting). If those voters insist on filing that provisional ballot at their old poll, it will not count.
Teilborg’s ruling, in a footnote, calls these prospective Election Day runarounds “some inconvenience,” but concludes that they are not going to impede large numbers of voters. He cited records that “only 3,970 OOP ballots” — which stands for out of precinct ballots, which did not count—were cast in 2016, a decrease from 10,979 such ballots in 2012 and 14,885 such ballots in 2008. “It stands to reason that sending out a last-minute notice to 384,000 people to attempt to salvage a maximum of 3,970 ballots from being cast OOP would likely cause more harm and confusion among voters than good,” he concluded, before denying a motion for injunctive relief.
Thus, it is likely, given the Secretary of State’s refusal to apply address changes gathered by the Motor Vehicle Division to existing voter registrations, that thousands of Arizonans will experience avoidable snafus as they try to vote on Election Day. The numbers may be as relatively small as 4,000 votes, as Teilborg estimated, or closer to 15,000 based on the high turnout 2008 presidential election, or even higher — especially if those 63,000 people who moved to another county do not re-register. No one can truly predict.
“MVD does not maintain records as to whether an individual changed her voter registration address at the same time,” Teilborg’s ruling noted. In other words, the only thing that’s certain, looking at how Arizonans will vote on Election Day in November, is the state could have stopped some predictable voter chaos.
That scenario has left voting rights groups and other advocates trying to alert several hundred thousand Arizona residents who updated their driver’s licenses since the 2016 election that they should go online and verify their voter registration information. Meanwhile, the NVRA litigation and state’s procedural remedies will continue.
“The federal court got the law wrong on the NVRA,” said Demos senior counsel Stuart Naifeh. “But with the election so close, our clients are focusing on trying to help clean up the mess themselves and make sure as many voters as possible are aware of the problem and can fix it in time, rather than trying to get an appellate decision reversing the district court, when that decision would likely come too late to make much of a difference.”