In 1993, Congress passed a sweeping law to make it easier for Americans to vote and maintain their registration, but it took more than two decades and a 2018 lawsuit to force Arizona to agree to fully comply.
A January settlement among the Arizona secretary of state and the League of Women Voters of Arizona, Mi Familia Vota and Promise Arizona has brought the state closer to full compliance and set a Jan. 31 target date for technological updates.
But ensuring the technology works could delay the full fix until after the March presidential preference election.
The agreement is enforceable through Dec. 31. 2023, essentially when Secretary of State Katie Hobbs’ term ends, unless there are delays to system upgrades, which would extend the agreement accordingly.
Petra Falcon, executive director of Promise Arizona, said she’s optimistic the settlement will force timely changes to ensure Arizona protects citizens’ voting rights. But given Arizona’s past troubles, she said her positive outlook is largely based on plaintiffs’ ability to seek court enforcement if fixes are “unduly delayed.”
“To their credit, they accepted an agreement,” she said of state officials. “But we shouldn’t have to be bird-dogging them all the time. It shouldn’t have taken us to go to court to say you’re violating our rights.”
The lawsuit revealed that since 2016 the registrations of nearly 390,000 Arizonans were not automatically updated when those voters changed the address on their driver’s licenses, as required by federal law.
Attorneys for the American Civil Liberties Union, which represented the plaintiffs, alleged the number of affected voters was likely significantly higher given that the violations appeared to date back to the early 1990s, when the National Voter Registration Act was enacted.
The lawsuit also revealed that the state wasn’t consistently providing other mandated voter protections, including language assistance for Spanish speakers and Native Americans. Social service agencies that were legally required to offer Arizonans an opportunity to register to vote, weren’t doing so, and employees at those agencies weren’t given adequate training.
The National Voter Registration Act, commonly known as the Motor Voter Act, aimed to help millions of citizens register to vote for the first time or update their registration records. Congress passed the law after finding that “discriminatory and unfair registration laws and procedures” across the U.S. disproportionately reduced voting by various citizens including racial minorities.
The NVRA requires states to accept voter registration applications by mail and offer registration services at motor vehicle offices, military recruitment centers and all government facilities that provide services to people with disabilities or lower incomes.
The settlement mandates that the state modify its online motor vehicle services to guarantee people applying for driver’s licenses or renewing their licenses are given an opportunity to register to vote.
Additionally, it requires that all address changes reported to the Arizona Department of Transportation through the department’s website for driver’s license transactions also serve as a “change of address for voter registration purposes or initial voter registration” unless an individual opts out.
Change-of-address procedures on the ADOT website will ask whether an individual wants to register to vote or update their voter registration. The affirmative option will be preselected and the individual who wants decline must select the opt-out option.
State must show progress on settlement
Problems with Arizona’s system included difficult-to-find instructions for updating registrations; being directed from ADOT to another site, Service Arizona, where voters reenter their information; and the transfer of voter registration information to elections officials.
The new system will carry out voter transactions on the ADOT site and, as required by federal law, automatically update voter registration unless the voter opts out.
ADOT must forward data necessary to register a voter for the first time to the Secretary of State’s Office.
Sarah Brannon, an ACLU attorney involved in the lawsuit, said the online changes are the most significant that Arizona must make to comply with federal voting-rights laws. Voting rights advocates have long believed the state’s online system contributed to problems that forced voters to cast provisional ballots because of address issues.
“We were confident — which is why we filed the lawsuit — that this factored into the mismatch of addresses for individual’s voter registration and their ADOT address,” she said. “We’re looking forward to that problem being resolved.”
To guarantee the state fix is working, the settlement requires the secretary of state to appoint a coordinator responsible for compliance with the NVRA and settlement agreement. Likewise, ADOT must appoint a contact to work with the state elections NVRA coordinator.
Brannon said the settlement has protections to spot problems early.
Beginning March 1, ADOT must collect monthly the number of complete voter registration files forwarded to the secretary of state, the changes of addresses by the MVD and number of transactions in which an individual opted out of voter registration. ADOT must report that data to the secretary of state each month and to lawyers for the plaintiffs every three months.
Every three months, the state elections NVRA coordinator will review that data and identify potential data discrepancies, such as large drops in voter registrations.
If significant discrepancies are found, the state NVRA coordinators must resolve the issues. And beginning March 1, the secretary of state must provide to the plaintiffs or post on its website a report that includes the collected data and any new or revised NVRA-related policies.
Equitable voting rights at stake
Ruben Reyes served in the military and grew up in a border Texas community where he says prejudice was part of life and voting turnout was dismal, so he sees casting a ballot as a civic responsibility that ensures his voice is heard on who represents him and his community.
Reyes, an immigration attorney, said voting procedures in Arizona are often confusing or burdensome, which disenfranchises voters. He doesn’t think that’s an accident.
Arizona is among the states that had to get federal approval for all voting changes — until 2013, when the U.S. Supreme Court eased restrictions. At the time of the court decision, the Voting Rights Act required 15 states with histories of racial discrimination, including Arizona, to seek clearance for changes to prevent racial disparities for voters.
Reyes wants to know why it took a lawsuit and the counting of nearly 390,000 Arizona voters whose rights may have been violated before Arizona agreed to update its voter-registration systems to meet decades-old federal voting laws.
“I’ll be honest, it seems that there is definitely a part of the political establishment that believes that by repressing certain participants, often people of color, people who are poor, that they have a greater chance of maintaining political power,” he said.
Reyes said he registers for an early ballot but will often check prior to an election to confirm his registration is current. He said without same-day voter registration options, Arizonans must be diligent about ensuring their right to vote.
A 2018 Arizona Republic analysis found nearly 1.1 million Maricopa County residents had been purged from the voter rolls since the 2008 election, and about half were removed after mail from the elections department was returned undelivered — typically signaling the person has moved — triggering additional notices and a waiting period before removal.
Voting-roll purges often disproportionately affect poor and minority voters who move more often.
Across Arizona, an estimated 50,000 provisional ballots, and an additional 11,000 out-of-precinct ballots from Maricopa County voting centers, were cast as of early November 2018 following that month’s election.
Voters can cast a provisional ballot in certain circumstances, including when they don’t have proper ID or if their name doesn’t appear on the polling book, a list of voters registered to vote in a precinct. However, if you cast a ballot in the incorrect precinct in Arizona, your ballot isn’t counted. Poll workers are supposed to look up a voter’s address and direct them to the proper polling place.
Inconsistent training among volunteer poll workers can contribute to mix ups. Falcon, of Promise Arizona, said the lawsuit centered on voters who updated their address with ADOT but found that the state wasn’t properly updating their voter registration, either because of the flawed online system or because tax-payer funded employees weren’t properly updating voter registrations.
“Frankly, the community has been doing its job by engaging people in elections, in understanding you’ve got to register vote, you’ve got to wait in line, and when you move, don’t forget that you have to go to update your voter registration,” she said. “Then, people go to a voting booth and your name is not on the register because guess what … somebody at the state didn’t push a button.”
The problem may have led to voters falling off the rolls despite having updated their voter registrations.
Will the settlement, a new voting portal help Arizona voters?
Arizona elections officials told The Republic in 2018 that they had known for at least a decade that the state’s voter-registration system doesn’t comply with federal law.
They also said they had no way of knowing how many Arizonans had been unable to vote in elections, since the NVRA was enacted in 1995, because they were purged from the rolls following out-of-date addresses stemming from state violations of voting laws. That’s because the state had no process to track voters affected by the routine removals.
Even the judicial official in the lawsuit and election officials under former Secretary of State Michele Reagan disagreed on how a voter should handle address problems when voting.
Arizona requires individuals to vote in their precinct. So a voter who changed residences and updated their voter registration since the last election should vote in the polling site for their new address.
The federal judge in the lawsuit refused the plaintiff’s 2018 request for immediate measures to protect a voter whose registration still reflects their old address, despite having moved and updating their license address, saying that a voter in this scenario may cast a provisional ballot at the new precinct, update their voter address on site and their vote will count.
However, in 2018, election officials warned against the judge’s direction. Given differences among counties and elections officials, officials said their vote may not count, and directed Maricopa County voters to go to a voting center where address information may be updated on site or go back to their old polling site.
Reagan told The Republic that updates to state systems were already in place but that such changes likely wouldn’t be complete until 2019.
Hobbs, elected secretary of state in 2018, told The Republic on Wednesday that system changes have already greatly improved and the remaining fix is on track. She said election procedures vary by county and referred to the state elections manual, which outlines steps for provisional ballots.
The 2019 manual clarifies that counties may provide voting centers that can accommodate every ballot in the county, eliminating provisional ballots. And poll workers at traditional polling sites must inform voters of their correct polling location based on their current residential address, if it doesn’t match the address on the voter registration rolls.
If a voter moves within a county, at the new correct polling place, the voter can cast a provisional ballot to update their voter registration record with their new address.
If a voter moves to another Arizona county they must update their voter registration to vote in the election. On Election Day, they are not allowed to cast a provisional ballot at the polling place that corresponds with their new address. If a registrant moves to a different county during the 29-day period preceding the election, the voter remains qualified in the former county and must vote in the former county.
Brannon, the ACLU attorney, said that regardless of any pending fixes, voters whose addresses weren’t properly updated should immediately check to see if updates with the state are necessary to vote in upcoming elections.
“This is not a retroactive fix, this a moving forward fix,” Brannon said. “So if you changed your address with ADOT in the past and have not updated your voter registration, it’s possible that your voter registration is still outdated and may present challenges in getting your ballot or voting on Election Day.”
Hobbs encouraged voters to use my.arizona.vote, a secretary of state voting information website launched in December, to ensure their registration status is accurate.
“I would recommend that everyone who wants to check their status before the election to do it now,” she said. “They can also look at their voting history, they can find their polling location.”
Reach the reporter at firstname.lastname@example.org and follow her on Twitter @diannananez.