Last week, just days before Election Day, the right-wing activist group Citizen AG filed lawsuits in federal courts in Arizona and Pennsylvania, alleging that each of those states’ secretaries of state had not maintained their state’s voter registration rolls in compliance with the National Voter Registration Act. Each complaint asserts the respective state failed to make the required “reasonable effort” to remove the names of ineligible voters from “the official lists of eligible voters” because of death, criminal convictions, changes in residence, or voters’ own requests.
Citizen AG, which is legally known as the 1789 Foundation, Inc., sees its mission as both ensuring that states “inspect their voter rolls and remove ineligible voters prior to election day” and “assisting those counties who have not done so on their own volition” by deploying registered voters to mount challenges to others’ registrations county-by-county. And the number of voters impacted by this purported failure is hardly small. In Arizona, Citizen AG estimated Secretary of State Adrian Fontes had not removed “over 1.2 million inactive and ineligible voters who failed to respond to confirmation notices and did not vote in two subsequent federal elections;” in Pennsylvania, they claimed that number was closer to 278,000 voters.
One can only guess at the real reason Citizen AG belatedly filed these suits, but one possibility is that they never expected to win.
Why then, especially given how close this election is expected to be in Arizona and Pennsylvania, did Citizen AG wait so long to file its suits? After all, other, similar cases were brought by the Republican National Committee last March, yet in Michigan and Nevada, the GOP lost, as I noted less than two weeks ago. Similarly, although the Arizona court did order Fontes to make available to Citizen AG certain voter roll maintenance records, Citizen AG was denied the emergency relief it sought in both Arizona and Pennsylvania — orders that would have forced each state to remove hundreds of thousands, if not over a million in Pennsylvania’s case, voters from their rolls.
The secretaries of state responding to these lawsuits say Citizen AG is misinterpreting data. For example, in the Pennsylvania case, Secretary of State Al Schmidt argued there is not a one-to-one correlation between the notices his office sends to voters who have appeared to move and voters themselves. Rather, “Pennsylvania counties often send more than one notice to the same voter,” he explains. He also notes that Citizen AG assumes the number of inactive voters is “static,” without appreciating that it changes every day to reflect events ranging from deaths to re-registration.
One can only guess the real reason Citizen AG belatedly filed these suits, but one possibility is that they never expected to win. Rather, they might have filed these suits more for their out-of-court utility. Specifically, I can envision a universe where after the election, Citizen AG’s filings — which are not themselves indicia of the merits of a lawsuit, much less their likelihood of success — are circulated and touted as “evidence” of voter fraud if Vice President Kamala Harris wins the presidential election in either of these states. Indeed, by touting the purported significance of the data attached to Citizen AG’s filings, Trump supporters could blame any Harris victories on a pool of ineligible voters — maybe even noncitizen voters — and the Democratic officials who were warned that their rolls were flawed but refused to take action. (Citizen AG founder Ryan Yoder did not immediately respond to my requests for comment.) The significance of this kind of data for those complaining of voter fraud and/or ineligibility is all the more important when one remembers the 60-plus lawsuits filed by Donald Trump’s campaign or other Republican entities and candidates after the 2020 election. Again and again, those lawsuits complained of voter machine error and/or deliberate misconduct, but without any proof beyond vague witness declarations or technical data that did not reflect what it was promised it would reveal. This time, rather than relying on ballot manipulation, GOP candidates, surrogates and organizations have coalesced around a different supposed bogeyman: the ineligible voter. And Citizen AG’s misuse of the states’ own data compilations, which include, as the Arizona judge concluded, “hypothetical calculations based on two-year-old data,” could end up starring in post-election narratives, if not in new lawsuits. Of course, the lawsuits could have been genuine, last-ditch attempts to stop what Citizen AG believes is unlawful conduct. But something tells me we could see their allegations in circulation again as soon as later this week.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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