By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The Trump administration on Tuesday filed suit against Secretary of State Adrian Fontes for refusing to hand over voter registration and election records.

Legal papers filed in federal court contend the U.S. Attorney General’s Office, run by Pam Bondi, has authority to enforce various federal election statutes. These include the requirement of state officials to do “list maintenance” to keep voter registration lists current and accurate.

To that end, Harmeet Dhillon, Bondi’s assistant attorney general in charge of the civil rights division, said her agency sent a letter to Fontes asking that he produce various records and information and send them, encrypted, to the Department of Justice.

That specifically includes the statewide vote registration list. And Dhillon said that includes everything in there, including a registrant’s full name, date of birth, residential address, and the person’s state driver’s license number or last four digits of the Social Security number.

Fontes refused, citing state and federal privacy laws he contends prohibits him from producing everything Dhillon’s office is seeking.

Now Dhillon is asking U.S. District Court Judge Susan Bolton to declare that the secretary’s refusal violates the federal Civil Rights Act. And she wants the judge to order Fontes to produce all of what she has demanded within five days of any court order.

The lawsuit is not a surprise. In fact, it was just a matter of time before Arizona found itself in Bondi’s crosshairs.

“The Department of Justice has now sued 23 states for failing to provide voter roll data and will continue filing lawsuits to protect American elections,” the attorney general said in a prepared statement. And she said more lawsuits will come “to protect American elections.

“Accurate voter rolls are the foundation of election integrity,” Bondi continued. “Any state that fails to meet this basic obligation of transparency can expect to see us in court.”

Fontes said he is prepared for the legal fight.

“I don’t necessarily want to go to jail,” he told Capitol Media Services. “But I’m willing to go to jail.”

To drive home the point, Fontes said he will tell Jesus Oeste, a top official at the Department of Justice who has been pushing the issue, what he has told others.

“He can pound sand,” the secretary said.

The press release claims the attorney general is “uniquely charged by Congress” with the enforcement of various federal laws. That includes the National Voter Registration Act and the Help America Vote Act, which Bondi’s office say were designed by Congress “to ensure that states have proper and effective voter registration and voter list maintenance programs.”

The legal papers say the 1960 federal Civil Rights Act requires state and local officials to retain and preserve voter registration and related records for 22 months after any election. Dhillon argues that law spells out that, on demand of the attorney general, anyone with custody of those records must make them “available for inspection, reproduction, and copying” by the attorney general or her representative.

“None of those things are true,” Fontes said. “In fact, both state and federal law prevent me from releasing information that they’re asking for.”

He said that includes the federal Privacy Act of 1974, which generally limits agencies from sharing personal data without written consent. And Fontes said there also are various state privacy laws.

“There’s personal identifying information in what they’re asking for,” he said.

For example, he said, there are things like complete dates of birth and Social Security numbers in what is being requested. That kind of information, said Fontes, could subject Arizonans to identify fraud or theft.

“And we’re not going to do that,” he said. “Part of my job is to protect this sensitive information.”

Fontes said it would be one thing if the only thing being demanded are the same things that already are public record in Arizona voter rolls, like names, addresses and party affiliations, things anyone can access.

“We’d give it to them,” he said.

Tied up in all of this is the question of why the Trump administration wants all this information.

The president has continued to argue, since losing in 2020 that there was cheating and fraud and even has pressured Bondi to investigate that election. There also are concerns the Department of Justice may be sharing voter registration data with the Department of Homeland Security.

“I don’t know what their actual motive is since it has shifted several times,” Fontes said

“If you look back through the correspondence, they’ve used a variety of different justifications for their request, which means either they are hiding their actual justification or they don’t have a real justification,” he said. “In either of those cases, they don’t get the information. Tough!”

And Fontes said he is not worried about the litigation.

“The request is unprecedented,” he said. “And they will lose in court.”

The lawsuit Tuesday by the Department of Justice comes the same day a federal judge ruled that a private foundation is entitled to pursue its demand for certain voter records from Fontes, at least for the time being.

In a new order, U.S. District Court Judge Michael Liburdi said the Public Interest Legal Foundation has cited sufficient reasons for its need for what is in certain reports given to the state by the national Electronic Registration Information Center. He said that includes allowing the foundation to evaluate Arizona’s compliance with its obligations under state and federal law to maintain accurate voter registration lists.

Liburdi acknowledged Fontes claims that it is federal law — and not his own decision — that precludes disclosure.

But the judge said that, at least as this point, the lawsuit is focused on Fontes denying release of the records. Liburdi said whether disclosure would violate federal law is a question to be answered later, once arguments are presented, rather than simply tossing the case now and precluding the foundation from pursuing its claim against the secretary.

Fontes had no immediate response to that ruling.

Central to the case is that National Voter Registration Act. One provision directs states to administer voter registration lists to ensure eligible voters remain registered while permitting removal through specified methods of those who have died or moved.

Liburdi said the NVRA requires states to maintain for at least two years — and make available for public inspection — “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters,” tough there are “limited exceptions.”

The judge said the federal law “authorizes private enforcement of these requirements.”

One way Arizona seeks to maintain accurate records is through the ERIC system. That includes making reports to states of voters who have died.

But ERIC also furnishes “retraction reports” after learning that voters were erroneously listed as deceased. It is those reports that the foundation wants — and Fontes has refused to provide.

Liburdi said legal precedents say it takes more than a simple denial of information to sue for records under the NVRA. What’s needed, he said, is a showing of a “concrete and particularized harm from governmental failures to disclose.”

At this point, the judge said, the foundation, which bills itself as a nonpartisan public interest organization, has met the minimal standards.

One provision of its lawsuit claims the refusal prevents it from evaluating whether Arizona is complying with federal list-maintenance obligations, including removing dead registrants from the rolls. The foundation also argues that not getting the requested record interferes with its ability to speak and educate people about matters of public importance, “namely, erroneous disenfranchisement of voters and voter roll accuracy.”

“The foundation’s alleged injuries bear a sufficient nexus to the NVRA’s purposes,” Liburdi wrote. “The statute aims to ‘protect the integrity of the electoral process’ and ‘ensure that accurate and current voter registration rolls are maintained,” the judge continued. And, in this case, he said the “retraction reports” being sought concern voters who may have been erroneously removed from the rolls.

What all that means, Liburdi said, is that the allegations themselves are sufficient to form the basis of a federal court lawsuit. He said that, at this point “whether the foundation can ultimately prove its claim” is legally irrelevant.