By Howard Fischer
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PHOENIX — A lawyer for Secretary of State Adrian Fontes told a federal judge Friday there is no basis for a claim by a Florida group that there are 1.2 million people who don’t belong on voter registration rolls — much less that any actually are casting ballots.

But Assistant Attorney General Karen Hartman-Tellez conceded Citizen AG probably is entitled to certain records they are seeking about what Fontes is doing to keep the voter rolls up to date. She said, though, the failure to produce the records may be due to a “miscommunication” between the group and the Secretary of State’s Office about what information was being sought and what actually is in the hands of the state agency.

Still, as of Friday, attorney Alexander Kolodin said no records have been produced. He told U.S. District Court Judge Steven Logan that the only way his client can prove its case — and he insisted that some numbers it already has back up that 1.2 million claim — is to force Fontes to surrender records he is required to keep under the National Voter Registration Act.

That, Kolodin said, will provide the basis for a requested order for Fontes to purge the rolls of those Citizen AG believes should not be there.
Hartman-Tellez acknowledged federal law does require the secretary to compile records of those who legally have to be removed from voter rolls.

The judge, however, also was concerned that Citizen AG didn’t even ask for the records until Oct. 4. It also took until just this past Wednesday — six days before the election — to —file suit.

Logan noted Citizen AG has filed only one similar lawsuit, that one in Pennsylvania, questioning whether the group was targeting only “swing” states where the race for president could go either way. He got Nicole Pearson, a staff attorney for the organization, to admit that filing suit here was not exactly random.

“We are only pursing the lawsuit where we have seen very serious and very egregious violations of the law,” she told the judge.

Regardless of what Logan rules, the complaint against Fontes about ineligible voters on the rolls is likely to play a role in what lawsuits are filed after this Tuesday. Republican contender Donald Trump raised the issue himself on Thursday at a campaign event in Glendale.

“I think we’re leading by a lot,” he said.

“They’re a bunch of cheats,” he said of the Democrats. “If we can keep that cheating down, we’re going to have a tremendous victory.”

Republican Kari Lake, running this year for U.S. Senate, continues to argue that she lost the 2022 gubernatorial race to Democrat Katie Hobbs due to fraud. She also has declined to say she will accept the results if the official numbers show Ruben Gallego wins that Senate seat.

The question of what happens after Tuesday is not academic. In court, Pearson linked this legal fight over the records — those Citizen AG says it needs to prove its claim of ineligible voters — to whether voters accept the results of elections.

“People are discouraged by what they believe are inconsistencies,” she told the judge.

“They feel their vote doesn’t matter,” Pearson continued. “It’s about accountability. It’s about transparency.”

For Logan, however, the question most immediately turns on what are Fontes’ legal obligations and whether he has complied with them.
The lawsuit by Citizen AG actually has two main parts.

One is production of records about people who should have been removed from the rolls.

Under federal law, if there is evidence someone has moved or died, a notice is supposed to go out to the last known address, but forward-able, to find out if that person is still eligible.

In the meantime, he or she is put into a list of “inactive” voters. Still, anyone on that list can cast a ballot by providing proof of residency.

If there is no response and the person does not vote for two election cycles, the law says they have to be removed from the rolls entirely.
Citizen AG contends their calculations show there are about 1.2 million who fit into that list.

The second part of the lawsuit is a request that Logan order Fontes to immediate remove — or direct county election officials to remove — from the voter rolls anyone who did not respond to that confirmation notice and did not vote in either of the last two elections.

It began with that public records request on Oct. 4 for Fontes to show what has been done since the 2022 election to purge the rolls of those who fit that definition. His office, however, wrote back that there are no such records.

That led to the lawsuit filed on Wednesday.

Hartman-Tellez said there is such information — but not necessarily in the Secretary of State’s Office. She said each county does its own “list maintenance.”

That answer did not satisfy Logan.

He pointed out the National Voter Registration Act charges the secretary, as the state’s chief elections officer, with preparing reports and furnishing them to the federal Elections Assistance Commission.
It’s even more basic than that. Logan said the secretary is required to make available for public inspection all records of activities to maintain voter registration rolls.

“It’s federal law.” he said.

Then there’s the state’s own Public Records Law. Hartman-Tellez, however, said the county recorders are the ones who do the maintenance activities. But under questioning from the judge, she conceded she does not know if Fontes actually asked the counties for that information after getting the public records request.

“This is information the public deserves to know before the final opportunity to vote is gone,” Kolodin said.

Hartman-Tellez, however, said even if Fontes should have found a way to produce the records sought, there is no way to do that within the short time. But when asked by the judge to tell him how many people are on the rolls and should not be, she responded, “I can’t give you a number.”

All that left Logan frustrated. And he asked why Fontes, who is an attorney himself, was not in court to answer these questions.

“It’s four days before the election,” Hartman-Tellez responded, saying that the secretary was busy.

“I think we are all incredibly busy,” Logan responded. But he said that does not excuse people — himself included — from doing what the law requires.

Logan’s frustration, however, was not just with the Secretary of State’s Office. He noted the information sought involves those who got notices and did not vote in the 2020 or 2022 elections. That, the judge said, was something that could have been requested more than a year ago, not a month before the 2024 election.

Pearson said her organization did not exist before this year. She argued those voter purges can be done up to 90 days before an election, meaning that any request prior to August would have been premature.
There’s another timing issue.

Hartman-Tellez pointed out early voting started on Oct. 9. She also told the judge that about 2 million people — half of those on the active voter registration list — already have cast their ballots. Once the signatures on the return envelopes are verified, the ballots are separated, meaning there is no way to actually ferret out any votes cast by someone who should not be voting, even assuming that is the case.

The judge promised a quick ruling but did not set a deadline for himself.