Central Arizona National Lawyers Guild
July 5, 2017
Governor Doug Ducey
Secretary of State Michelle Reagan
1700 W Washington St
Phoenix, AZ 85007
Dear Governor Ducey and Secretary of State Reagan,
We write to you on behalf of the Central Arizona National Lawyers Guild, a coalition of lawyers, law professors, paralegals, law students, and activists across the valley, regarding the recent letter from the Presidential Advisory Commission on Election Integrity (“PACEI”) requesting “publicly available data” from state voter registration records.
We are deeply troubled by the request. The integrity of our election system and the protection of voter rights are of paramount importance, but we do not believe the requests made by this commission will be used to further those worthy goals. This commission was formed in the wake of the Trump Administration’s unfounded allegations that massive voter fraud occurred during the 2016 Presidential Election. Despite repeated requests for evidence to support those statements, none was provided.
Repeatedly election officials and governors have said no such fraud occurred. To continue to suggest that there was widespread voter fraud is to impugn the integrity of the voting systems of this country, including Arizona.
In the months since the election, evidence has come to light that a foreign adversary illegally accessed voter data in more than half of our states in an attempt to disrupt and influence our election. These hackers represent a far greater threat to voter integrity than the non-existent fraudulent voters. Efforts should be focused on that.
This request is an attempt to, at best, distract from other important issues while wasting taxpayer funds to investigate an issue fabricated from whole cloth. At worst, it is an attempt to gather sensitive information about voters to support a continuing effort to suppress voting rights. Either way, Arizona should not participate. Especially since Arizona has been in the crosshairs of the administration’s attempts to deport immigrants to turn over any voter data to this administration is to place our state’s citizens in jeopardy.
Not only is this request based on false accusations but there is no indication how the information will be used, who will have access to it, or what safeguards will be established. Moreover, it appears that the PACEI has failed to undertake or post a Privacy Impact Assessment or to designate a Chief Information Officer as required by the Federal Advisory Committee Act. Nor is there a System of Records Notice as required by the Privacy Act.
Further, the Commission has also committed three egregious security blunders – asking state officials to send data to an unsecure website, proposing to post the last four digits of the SSN (a default password for many commercial services) that will lead to more ID theft and financial fraud, and proposing to publish the home addresses of military families. Because of these and other problems, the Electronic Privacy Information Center filed a lawsuit July 3rd against the Commission asking for a temporary injunction.
Our state laws require an incredible amount of private information from a voter to register (A.R.S. §16-152). The person has to provide name including middle, address including mailing, party preference, telephone number, state or country of birth, date of birth and occupation, Indian census number, father’s name or mother’s maiden name, an identifier such as driver license number or state ID number, or last 4 digits of social security number. This is precisely the information sought for identity theft.
A.R.S. §16-152 (22) states, “ A statement that if an applicant does register to vote, the office at which the applicant submits a voter registration application will remain confidential and will be used only for voter registration purposes.” Thus by law this information must remain confidential and only used for voter registration purposes.
Arizona has established additional protections for voter information in A.R.S. §16-168(E)(F)(N). Section E says, “Precinct registers and other lists and information derived from registration forms may be used only for purposes relating to a political or political party activity, a political campaign or an election, for revising election district boundaries or for any other purpose specifically authorized by law and may not be used for a commercial purpose as defined in section 39-121.03.” Section F says, “Any person in possession of a precinct register or list, in whole or part, or any reproduction of a precinct register or list, shall not permit the register or list to be used, bought, sold or otherwise transferred for any purpose except for uses otherwise authorized by this section.”
Section F further provides that even if the records are reviewed at the office of the county recorder certain information shall be redacted including the month and day of birth date, the social security number or any portion thereof, the driver license number or nonoperating identification license number, the Indian census number, the father’s name or mother’s maiden name, the state or country of birth and the records containing a voter’s signature. To provide such information is a class 6 felony.
In Phoenix Newspapers, Inc v. Purcell, 187 Ariz. 74, 927 P. 2d 340 (1996) the court stated that section 16-168(E) “…protects registered voters from unwanted intrusions into their privacy caused by the wholesale distribution of registration information. Copies of the lists used for non-commercial purposes, unrelated to campaigns and elections, could lead to annoying situations for registered voters.” The court was concerned that such wholesale distribution of registration information “…might discourage some citizens from registering to vote while public policy strongly advocates greater voter registration and participation. This result would run counter to the perceived legislative purpose of enacting section 16-168(E) to encourage and facilitate public elections.” Over 1,000 Arizona voters have already told the Secretary of State that they do not want their records sent and some have said they would unregister to avoid personal data from being shared. This action would discourage voting.
Section N outlines the affirmative duties of the county recorders and secretary of state not to allow any person or entity to misuse voting information. Since we do not know for what purpose the PACEI has requested the data or how it will be used or protected, to provide that information to PACEI is to violate state law.
Arizona law also provides special confidentiality for certain voters (A.R.S. §16-153). Public employees, public officials, persons with an order of protection or injunction against harassment and others at that same address may request that the general public be prohibited from accessing the residential address, telephone number and voting precinct number for their safety. Those records have to be sealed and the affidavit is not public information but placing a voter record that has many redacted sections into a national database is a dead give away that the record is sealed. That information itself could only increase the danger to judges, peace officer, prosecutors, public defenders, victims of violence and their spouses and children. Arizona officials should not endanger their own constituents.
Voter privacy — and the secret ballot in particular – is integral to the American system of democracy. It is absolutely unprecedented for the federal government to demand the production of voter records from the states. Indeed, such a demand runs completely counter to the requirements of the Ninth and Tenth Amendments, which have reserved certain rights to the states, including the right to regulate the manner of voting. It is ironic indeed that this Republican administration, which for years has stood by its pledge to protect and preserve the rights of the states in these amendments, now is prepared to throw them all away because the President wants to pretend that he received more popular votes than his opponent. Compliance with this PACEI is a slap in the face to the principles America was founded on and to democracy. As custodians of voter data, you have a specific responsibility to safeguard voter record information. We thank you for refusing to send any information at all to this commission and urge you to stand strong on the principle of privacy and voter protection for all Arizona voters.
Dianne Post, Attorney
cc: County Recorders for the fifteen counties