Maricopa County Recorder Adrian Fontes is spoiling for a fight over voter-registration procedures meant to keep undocumented immigrants from voting.

The newly elected Democrat says the restrictions may have denied as many as 58,000 U.S. citizens in Maricopa County the right to vote, a fear critics of the law argued at the U.S. Supreme Court.

So Fontes is changing the process immediately.

"We are not in the business of creating obstacles to citizens to exercise their constitutional rights," Fontes told The Arizona Republic.

But experts say his new process could break the law.

The statute "seems pretty clear-cut to me," said Republican election attorney Joe Kanefield, who was state elections director in the Secretary of State's Office when the law was passed. "If a voter-registration form is received and does not contain evidence of citizenship, the registrar shall reject it."

Not one to shy away from conflict, Fontes said he's itching for a court fight.

"They can bring it," he said. "... I'm not interested in the status quo. I'm interested in doing what’s right."

Even if that means going against state statute?

"That's what they said during slavery," he replied.

Forms without proof of citizenship filed away

The controversy started this spring when a bunch of dusty boxes were found in a warehouse.

Fontes discovered up to 100,000 state-issued voter-registration forms that employees had filed for more than a decade without saving the information in the voter database.

Staffers explained that the applicants had failed to provide proof of citizenship. Proposition 200 passed by Arizona voters in 2004 requires aspiring voters to submit a passport, birth certificate, naturalization number, tribal membership or driver's license obtained after 1996 to participate in elections.

When proof is missing on a state-issued voter form, the law requires county recorders like Fontes to send reminder letters to applicants. If there is no response, recorders reject the applications and take no further action.

But Fontes wants to do more.

He has hired additional employees to research the citizenship status of would-be voters through the state Motor Vehicle Department, which began verifying citizenship for driver's licenses two decades ago. If the Recorder's Office finds proof of citizenship for a prospective voter in the database, Fontes has directed staffers to add that voter to the rolls.

A recent sample of 74 forms pulled from warehouse boxes and checked against the MVD system found 43 citizens whose voter registrations were denied because they failed to submit proof, Fontes said.

The sample is far from scientific. But if the rate holds, it could mean as many as 58,000 eligible voters in Maricopa County have been disenfranchised, he said.

"I'm very confident my worst nightmares will come to pass, and that makes me sick to my stomach," Fontes said.

The recorder said he sought legal advice on the new process, though he would not clarify if he received clearance from Maricopa County Attorney Bill Montgomery, his office's counsel, or cleared it himself. Fontes is a licensed attorney.

Fontes insisted he is on solid ground.

A full reading of both Arizona law and the Secretary of State's Elections Procedure Manual, last updated in 2014, directs the secretary of state to research and fill in missing information for voters if it can be found, he said.

Without changes, a complicated system created by the courts in the wake of challenges to Proposition 200 sets up a dangerous double standard, he said. Recorders are allowed to search the MVD to add eligible voters to the rolls if applicants use a federal registration form that doesn't ask for evidence of citizenship.

Questions about new procedure

Fontes seems alone, at least publicly, in his legal interpretation.

"I think (his actions) would be very problematic," Kanefield said. "... He would be acting outside his powers carefully scripted by statute."

Those sentiments were echoed by three people who worked on the implementation of Proposition 200 at the Arizona Secretary of State's Office and Maricopa County Recorder's Office and prepared its legal defense for the U.S. Supreme Court at the Arizona Attorney General's Office. They declined to comment on the record because of their current positions at other government agencies.

Recorders at Arizona's two largest counties besides Maricopa — Republican Virginia Ross of Pinal County and Democrat F. Ann Rodriguez of Pima County — say their offices have always rejected state-issued voter applications that lack proof of citizenship.

"We follow what's in the manual," Ross said. "If (Fontes is) going to propose some different legislation, there's a process for that. Bring it to the recorders to decide if we want to move forward on proposing some type of change like that" to the Arizona Legislature.

With five new county recorders in the state, clarification may be needed, Rodriguez said.

This week, all 15 recorders plan to meet with the Secretary of State's Office to discuss the agency's proposed updates to the elections manual. Fontes said the edits specifically prohibit recorders from following his new process.

"I understand where Adrian is coming from," Rodriguez said. "I think as a group we need to address that. But I don't think it should be addressed in the procedures manual. I think it should be addressed at the state Capitol."

The Arizona Secretary of State's Office declined to comment.

"Our office does not have a role, nor the authority over the nuts and bolts of processing voter registration," spokesman Matt Roberts said in an email. "I would suggest asking the experts (other County Recorders) if they follow what is outlined in the Procedures Manual and state statute."

Maricopa County Attorney's Office spokeswoman Amanda Jacinto said the office does not comment on advice given to county officials nor "take credit for any decision made by another elected official."

Former Maricopa County Recorder Helen Purcell, who was unseated by Fontes after nearly three decades, and a spokeswoman for Arizona Attorney General Mark Brnovich did not return requests for comment.

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