Vote dilution an injury to Az voting rights? A federal judge has doubts

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.