An organization that convinced federal judges last month to toss out Arizona's proof-of-citizenship requirement to register to vote now is seeking a court order that could further delay a final count on Tuesday's election.
The Mexican American Legal Defense and Educational Fund late Friday asked the 9th Circuit Court of Appeals to order officials in the state's 15 counties to count the votes of those who cast "provisional ballots'' because they did not show up on the voter registration rolls. And the reason they didn't show up on the rolls is that they didn't get registered because they didn't provide proof of U.S. citizenship as required by a 2004 voter-approved Arizona law.
On Oct. 26, though, the appellate court declared that requirement invalid. Based on that, MALDEF attorney Nina Perales said those who were wrongfully denied registration should have their votes counted.
"The right to vote is fundamental,'' she said.
Perales said the request is justified.
In other circumstances, she said, courts can provide remedial relief to those who were injured by the acts of government, either by ordering they be allowed to do what was denied or providing them with financial compensation. That, she said, is not an option here.
"The voters who are in this position won't be able to vote again in this election,'' Perales said.
"This isn't something that can be compensated later by money or by voting some other election,'' she continued. "And the individuals who are in this position wanted to vote in this election. And they have a right to vote in this election.''
Perales said she does not know how many ballots might be affected.
An estimated 84,000 provisional ballots were cast statewide but set aside for one reason or another.
Some were because people who were registered to vote did not bring the required identification to the polls. They have until 5 p.m. Tuesday to provide the documents.
But there is no count of how many of those provisional ballots are from people who were not on the registration rolls. Perales said she personally knows of only two, both in Pima County.
The MALDEF filing brought an angry reaction from Secretary of State Ken Bennett. He said the request, if granted, would create a "logistical nightmare'' for counties.
Aside from that, Bennett argued MALDEF has no legal basis for its argument.
He said the law in effect on Oct. 4, the last day to register for the general election, required applicants to provide proof of citizenship. Bennett said election workers followed that law and should not now be required to go to extraordinary lengths because of a subsequent court ruling.
In Maricopa County, which has about 55,000 provisional ballots, County Recorder Helen Purcell criticized MALDEF for its late filing.
She said the organization should have sought a court order immediately after the Oct. 26 ruling. Purcell said that would have made it easier to put these into a separate stack and await direction from the court.
Perales countered that she did not know until after Tuesday's election that anyone who had been denied registration actually had voted anyway.
She specifically efforts by Jai Nitai Holzman and SevaPriya Barrier, both of whom she identified as native-born U.S. citizens, to register to vote in Pima County after moving to Arizona in September from Washington, D.C. County officials said they would not complete the registration process because they had not submitted proof of citizenship.
Perales said the pair, after learning of the Oct. 26 court decision, contacted various state and local offices but were told they still could not vote because they said the 2004 law was still in effect.
Despite that, both went to the polls on Nov. 2. They were given provisional ballots because their names were not on the registration list -- ballots that remain uncounted.
"But for the continued application of the invalid provisions of Proposition 200 (the 2004 initiative), they would have been added to the voters rolls, cast regular ballots on Election Day and had those ballots counted in the election,'' Perales argued in her legal filings.
The court's Oct. 26 decision was based on the conclusion by the court that the requirement to provide proof of citizenship runs afoul of the National Voter Registration Act.
Judge Sandra Ikuta, writing the majority ruling for the three-judge panel, said that law spells out what states can and cannot require. And she said proof of citizenship is not among those items state officials can demand.