9th Circuit Shuns ‘Hypothetical’ Voter Rolls Complaint in Election Hot Spot
Fred Lucas /
A federal appeals court sided with Arizona in a case over maintenance of voter registration lists, as the Justice Department separately is pressuring states to clean up their rolls.
Two voters brought the case in June 2024, alleging the state’s poorly kept voter rolls could open the door to fraud and thus dilute legitimate votes.
A three-judge panel of the 9th U.S. Circuit Court of Appeals determined the allegations were too speculative.
“Although plaintiffs allege that ‘known cases of voter fraud’ have occurred in Arizona, they do not allege that any of those cases were the result of inadequate list maintenance or that they affected the plaintiffs,” the opinion stated.
“Instead, they argue that they have alleged a ‘substantial risk’ of harm because ineligible voters listed on the rolls might vote in the future.”
The panel issued the opinion Tuesday, after the case was argued on March 2.
Arizona has been a hot spot over voting issues for years.
The battleground state went for Donald Trump in 2016 and 2024, but for Joe Biden in 2020. Earlier this month, the FBI obtained records related to the 2020 election in Maricopa County, the state’s largest jurisdiction.
After Trump alleged the 2020 election was stolen, the Arizona state Senate conducted a forensic audit of Maricopa County ballots in 2021. After losing the 2022 Arizona governor’s race, Republican candidate Kari Lake alleged irregularities out of Maricopa County. The 2021 audit flagged procedural problems, but affirmed Biden’s victory in the state. Courts dismissed Lake’s challenges.
The litigants in the voter rolls case were two Arizona registered voters, Scot Mussi and Steven Gaynor. They sued Arizona’s Democrat Secretary of State Adrian Fontes under the 1993 National Voter Registration Act, which includes a provision requiring states to update voter registration rolls by removing dead people or registrants no longer living in a voting jurisdiction.
Separately, the Justice Department is suing 29 states, including Arizona, to obtain voter registration lists to ensure compliance with the NVRA as well as the 2002 Help America Vote Act. Both laws require states to have proper and effective voter registration and voter list maintenance programs.
The Justice Department lawsuits assert the attorney general has the authority to enforce the two laws, while the federal civil rights law allows the department to demand the production, inspection, and analysis of the statewide voter registration lists.
The lawsuit by the two Arizona voters differs from the DOJ case, as voters alleged harm caused by the state’s management of voter rolls. The three Republican-appointed judges found their claims to injury speculative and unconvincing, and also upheld a lower court’s determination that they lacked standing to bring the case.
The plaintiffs asserted that between 500,000 and 1.2 million ineligible voters were on the state’s voter rolls, which, they argued, could dilute their votes.
However, the state argued that Fontes removed the second-highest number of ineligible voters from the rolls in 2022, trailing only Washington state, and did so at a faster pace than the national average, Courthouse News Service reported.
Judge Richard Clifton and Judge Jay Bybee, who are George W. Bush appointees, and Judge Eric Miller, a Donald Trump appointee, were unanimous in their opinion.
“Their injury is entirely hypothetical: Plaintiffs claim that including ineligible voters on the rolls ‘heightens the risk’ of ineligible ballots being cast and counted by offering ineligible voters ‘an opportunity’ to vote, ‘risking the dilution’ of plaintiffs’ ballots,” the opinion stated.
The judges added that this is “insufficient to plead an actual or imminent injury.”