Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. Arizona Attorney General Tom Horne today issued a legal opinion that impacts how people can vote next year. The opinion states that Arizonans who register to vote using a federal form will only be able to vote in federal elections. Those who register using a state form will be allowed to vote in all elections. Horne’s legal opinion comes after a U.S. Supreme Court ruling that prohibits Arizona from changing federal registration guidelines to include state requirements regarding proof of citizenship. Phoenix attorney Joe Kanefield, a former elections director for Arizona, joins us now to discuss the issue. Good to have you here. Thanks for joining us.
Joe Kanefield: Thanks Ted.
Ted Simons: Was this a surprise, this opinion?
Joe Kanefield: No. Not necessarily because after the U.S. Supreme Court opinion a while back we expected there would be some questions remaining. The court said the state could not refuse to accept federal forms, the federal form used by folks who register. But it left open the question of what happens when people use that form who don't comply with Arizona's registration requirements which include providing evidence of the United States citizenship when registering to vote.
Ted Simons: That basically is what the opinion is saying. It’s saying you can vote but you can only vote federal. You can't vote state.
Joe Kanefield: Yes, except only for those individuals that registered using the federal form that didn't provide evidence of U.S. citizenship. That's a very small number of people. I can't emphasize that enough that when we talk about two registration systems here we don't want anyone to believe that that means half the people are going to be registered only for federal elections and half for state and local elections. Really, about 99 percent of the people including those that register using the state form and those that register using the federal form are able to provide evidence of citizenship and meet the requirements. It's only a small percentage of people that use the federal form, the numbers I have are less than one percent of the people register using the federal form, and of that less than 10 percent of that, those individuals, were unable or did not provide evidence of U.S. citizenship. A small fraction of people that this impacts. It's not creating a major new registration system.
Ted Simons: And we should mention on those federal forms you are told under penalty of perjury as far as saying that you are indeed a citizen. It's not like it's scot-free there, you just right whatever you want to right there. They are noted there would be a penalty here.
Joe Kanefield: That's right. So when they do sign the form they do attest that they are U.S. citizens.
Ted Simons: It sounds from a distance here that this has got court challenge written all over it because basically the Attorney General is preventing registered voters from voting.
Joe Kanefield: Well, the Attorney General himself points out that there have been challenges in other jurisdictions, not Arizona where states have created two systems of registration, but he also notes that in all those challenges it didn't involve a situation quite like we have here where we have an evidence based requirement for people to register, show citizenship. If they don't, if they use the federal form and they are not able to provide it because they have not been instructed by the federal officials as to what Arizona's specific requirements are, then we would still let them vote because the federal law clearly says those individuals using that form have to be allowed to vote in federal elections, but it doesn’t say, no court has said that you must allow them to vote in the state and local elections. This is a little unique question, not that it won't be challenged but it would be one of first impression.
Ted Simons: Indeed, if it is challenged that will be the second plate spinning here. We already have another challenge regarding the U.S. Elections Commission I think along with Kansas, correct?
Joe Kanefield: Correct. The Attorney General and the Secretary of State both brought a challenge against the Election Assistance Commission, the federal agency that is charged with implementing the federal form, and the specific lawsuit deals with the federal government and this specific commission's failure to instruct Arizona voters who use the federal form about Arizona specific requirements. So this is in the nature of what we call a mandamus action or action to compel them to do what's required because in the U.S. Supreme Court's opinion on this subject, the court specifically said that states get to set the qualifications for their voters. The federal government can't change that. The fact that a state may require you to prove you have met those qualifications is a right enjoyed by the state, so a little bit of a disconnect because federal officials have to allow people to use the form but federal officials won't instruct Arizona voters using it about their specific requirements so that’s what that lawsuit is about. If the court rules in favor of the state of Arizona, state of Kansas, then really a lot of what is in the opinion is not relevant.
Ted Simons: Indeed, but back to the opinion, how much does it change things logistically? Can it be doable in time for next year's elections? What do you hear from elections officials?
Joe Kanefield: Absolutely. I talked to state and local officials to get a sense of what their thinking is. As a former state election officials myself, I know these things create a tremendous amount of work. The feedback that I heard was that this wasn't unexpected and they are ready to do this. It will be quite a bit of work but from the Maricopa County example there are 3,500 different ballots with all the different precincts and different parties. That means there will be 7,000 ballots, double that number, because they have to have one ballot which is federal candidates for these people who didn't provide evidence of citizenship and a different ballot style for everyone else. But they say they can do it.
Ted Simons: If they can do it, how much will it cost?
Joe Kanefield: That I don't know. It will increase costs, that's for sure.
Ted Simons: Last question before you go, the whole idea of noncitizens trying to vote, which is what this addresses, how much of a problem is that?
Joe Kanefield: I don't think it's a major problem frankly. But I do think that the state of Arizona and the citizens who passed Proposition 200 in 2004 overwhelmingly have every right to put procedures and laws in place to guard against any abuse of the elective franchise. If it means providing evidence of citizenship when registering or identification at the polls, the voters spoke clearly. They are okay with those requirements even though I think we recognize that it's not a huge problem which is a good thing. It means the system is working, the laws are working to prevent that kind of flaw from occurring.
Ted Simons: Yet I can hear critics now saying this makes voting more difficult. By making it more difficult it's not making it easier.
Joe Kanefield: I don't agree. I think that like I said this is a fraction of a percent of the voters that register to vote in Arizona. Most voters can use a driver's license number to provide evidence of citizenship. Those that don't have a driver's license there are other ways of establishing citizenship. Election officials have bent over backwards to put procedures in place that enable everyone to provide evidence and the proof that they need to become properly registered to vote.
Ted Simons: Joe, thank you very much.