Richer v. Fontes

Since 2005, Arizona law has required everyone registering to vote to submit documentary proof of citizenship (DPOC) if they want to be a “full ballot” voter (i.e., a voter who can vote in federal, state, and local elections). Voters who do not provide DPOC are registered as “federal-only” voters and may only vote in elections for President of the United States and the United States Congress.  

In September 2024, Arizona discovered a technical error between Arizona’s voter registration system and its Department of Transportation. The error marked almost 100,000 Arizona voters who got their driver’s licenses before 1996 as “full ballot” voters, even though it was unknown whether those voters had provided DPOC with their voter registration application since the requirement went into effect and were not previously notified of this error. In response, Arizona Secretary of State Adrian Fontes issued guidance instructing counties that these voters should receive the full ballot containing all federal, state, and local races for the November 2024 election. 

On September 17, 2024, Stephen Richer, the Maricopa County Recorder, filed an emergency petition for special action with the Arizona Supreme Court and requested expedited review. He argued that Secretary Fontes acted outside of his authority when issuing the guidance because Arizona law required all voters to submit DPOC to be “full ballot" voters. 

Secretary Fontes’ September 18 response highlighted the closeness of the election and the confusion that would ensue if approximately 100,000 voters who had always voted a “full ballot” were suddenly unable to do so. Additionally, he argued that nearly 100,000 Arizona voters should not be punished for a previously unknown, state-caused technical error based on fears that non-citizens were among those voters.  

On September 18, 2024, the League of Women Voters of Arizona (LWVAZ) filed an amicus brief opposing Recorder Richer’s emergency petition as violative of the Fourteenth Amendment’s Due Process Clause, which has been held to apply when a state-sponsored election procedure is flawed or unfair. It explained that, if the emergency petition were granted, the effect would be equivalent to changing a voting law at the last minute for a group of voters that had always understood themselves to be “full ballot” voters under Arizona law.  

On September 20, 2024, the Arizona Supreme Court ruled that the nearly 100,000 affected voters could receive “full ballots” in the November election, allowing them to vote in federal, state, and local races. The court stated these Arizona voters should not be kept from voting a “full ballot” due to the state’s administrative error. It held that stripping almost 100,000 voters of their “full ballot” status for this election would violate due process. The voters impacted by the technical confusion will be able to vote as “full ballot” voters in the November 2024 general election. In a September 20 press release about the decision, Secretary Fontes’ office advised that, after the general election, election officials will reach out to the impacted voters for DPOC to update their records and registration status.  

LWVAZ was represented in this matter by Fair Elections Center and the Arizona Center for Law in the Public Interest.