PHOENIX (CN) — A federal judge will likely dismiss a lawsuit challenging Arizona’s compliance with the National Voting Rights Act.
Three registered voters in Maricopa County, including Arizona Republican Party Chair Gina Swoboda, sued Secretary of State Adrian Fontes in June, claiming his failure to remove ineligible voters from the state’s voter rolls threatens to dilute the weight of their votes and diminish their confidence in election integrity.
But U.S. District Judge Dominic Lanza remains unconvinced, so far, that the plaintiffs have shown a concrete injury required to establish standing. He released a tentative order dismissing the case in November, reflecting his skepticism.
“Nothing you’re alleging is violating your clients right to vote,” the Donald Trump appointee said during a motion to dismiss hearing Tuesday afternoon.
Representing the lead plaintiff Scot Mussi, Dallin Holt of the Phoenix law firm Holtzman Vogel specified the injury isn’t to the right to vote but to the value of the vote itself, being diluted by the potential casting of votes by those who shouldn’t be registered. He argued the threat of dilution undermines confidence and discourages civic participation, which creates a “like harm” to a direct violation of the right to vote.
The plaintiffs cast a wide net when making their claim — based on data from the U.S. Census Bureau, state voting surveys and countywide death counts, they say that the voter rolls contain between 500,000 and 1,270,000 ineligible voters who should have been removed in accordance with the National Voting Rights Act.
“There are at least four counties that have an impossible registration rate when compared to federal survey data,” Holt said.
Lanza agreed there are too many people registered but added: “There’s a bunch of steps between over registration and your vote being diluted. This is the type of generalized, nonspecific injury that does not hold standing.”
He told the plaintiffs that their injury cannot be a nebulous lack of confidence or a fear of potential vote dilution, but instead must be a tangible result of Fontes’ actions or inaction.
“How was one of your three clients injured because too many people were registered in Greenlee County?” Lanza asked.
Holt answered, “It’s a simple question of ‘Do they live here and are they part of the diluted class?’”
For vote dilution to be considered a legal injury, though, there must be a specific group of voters that is harmed to the benefit of another group. Ninth Circuit precedent holds that a general dilution that affects voters equally isn’t specific enough to constitute harm.
Holt’s arguments go directly against that precedent.
“The answer cannot be ‘the more people you disenfranchise, the less standing someone has to sue you,’” he said. “The fact that he’s doing such a bad job maintaining voter rolls does not protect him from litigation.”
To Lanza’s point, Fontes argues that the existence of extra people on the voter rolls doesn’t translate to ballots being sent to and cast by ineligible voters. Instead, the NVRA requires that the secretary of state keep voters on the rolls for certain periods of time after they move out of state or fail to respond to a change of address notice.
In a motion to dismiss, Fontes noted that Arizona removed more ineligible voters from its rolls in 2022 than any state other than Washington, and did so at a rate 4.5% higher than the national average. He added that the vast range of ineligible voters offered by the plaintiffs is evidence that they are merely guessing.
Kara Karlson of the state attorney general’s office explained one way the data the plaintiffs are using may be unreliable. If a registered voter changes addresses within Arizona, and a new voter moves into the first voter’s old house, the rolls may reflect for some time that both voters are registered to that address.
“That doesn’t mean there are twice as many voters at that house than there should be,” Karlson told Lanza.
Despite widespread, unproven claims of voter fraud in the 2020 and 2022 elections, there have been no similar claims made about the most recent election in November. Still, Holt impressed upon Lanza that the injury isn’t speculative.
“Mr. Mussi’s harm exists,” he said. “This is not a future harm. His has a present lack of confidence that the elections are not being administered properly.”
“Properly,” Lanza replied. “It’s a vague word that’s doing a lot of the work.”
He challenged Holt to show him a concrete injury beyond feeling, but Holt only repeated that Fontes’ actions “might lead to the dilution of his vote.”
“Might lead,” Lanza echoed doubtfully.
He said he’d issue his actual ruling as soon as possible.