State fighting bid by AZ GOP to deny certain overseas votes

In legal papers filed in Maricopa County Superior Court, the Arizona Attorney General's Office acknowledges that the voters in question have never lived in Arizona. They were born elsewhere and live overseas but are U.S. citizens because of their parents.

Under the terms of a 2005 Arizona law, they have been allowed to vote absentee, just the same as their parents who at one time lived in Arizona and have kept their state registrations.

The Arizona Republican Party and the Republican National Committee, in a lawsuit filed last year, contend that it violates a provision in the Arizona Constitution which says voting is available only to those who have at some point resided in the state.

But the Attorney General's Office, representing Arizona Secretary of State Adrian Fontes, is telling a judge that lawmakers were well within their powers when they unanimously adopted the 2005 law, which was sponsored by then- Rep. Doug Quelland, a Phoenix Republican. 

"The Legislature protected the right to vote for a discrete group of U.S. citizens who would otherwise lose that most fundamental right,'' Assistant Attorney General Karen Hartman-Tellez wrote. 

Put another way, if the children of U.S. citizens from Arizona who are living overseas — and are U.S. citizens themselves — cannot vote in Arizona, then they would have no right to vote anywhere.

"The court should not construe a constitutional provision intended to ensure the fundamental right to vote as preventing the Legislature from ensuring that right for children of overseas voters,'' Hartman-Tellez said.

The federal Uniformed and Overseas Voters Absentee Voting Act permits Americans residing overseas to vote by mail in federal elections in the state in which they had lived. That includes people in the military as well as civilians currently living overseas.

But attorney Kory Langhofer, representing the state GOP, said federal law still leaves it to the states to "prescribe substantive prerequisites'' for voting in both federal and state elections.

He said the federal law says all this is contingent on meeting state requirements. And Langhofer contends the 2005 state law violates a provision in the Arizona Constitution which says voting is available only to those who have at some point resided in the state. 

He wants the law voided.

Of note is that the legal fight, which started last year, is over a relative handful of voters.

Five counties responded to subpoenas about these overseas voters who have never lived in the state: Maricopa, Mohave, Pima, Pinal and Yuma. All totaled, they came up with 405 people who fit the category.

But Langhofer and the GOP are pursuing the case because they believe those in this group are far more likely to be Democrats. He said more than 56% are registered with the Democratic Party versus 8.4 who signed up as Republicans, with the balance having no party affiliation or being signed up with a minor party.

In comparison, he said Republicans represent 35.5% of the overall electorate in these counties, versus Democrats at 27.7%.

"By any metric, (the law) is causing, on net, an electorate that is more Democrat in its composition than it would be if the franchise were limited to individuals who had established domicile in Arizona,'' Langhofer told the judge in the case, Michael Herrod.

Hartman-Tellez, for her part, said that is irrelevant.

She said even the GOP has conceded in its filing that party affiliation does not conclusively determine who someone will vote for in a general election. And there is no evidence of whom any of these people actually voted, she said.

As to why the Republican Party suddenly filed suit in 2025 over a 20-year-old law, Hartman-Tellez cited a statement given by Gina Swoboda. At the time, Swoboda was chair of the party and was tracking all of the ballots from overseas voters — military, civilians and the children of citizens — that were cast in the 2020 general elections.

"A large percentage of ballots were being cast for Democrats,'' she said.

Swoboda said that didn't make sense. "The military, by and large, tend to lean to the right," she said in her statement, adding that in 2020, the Republican Party's election observers said of these ballots, "'They're Biden. They're Biden. They're Biden' ... 'Something's wrong. Something's wrong.'"

Langhofer told Herrod that the 2005 law is an "unconstitutional expansion of the electorate to include ineligible individuals.'' He said that deprives other parties — like the Arizona Republican Party and the Republican National Committee — of "a fair process and accurate result.''

It's not just Langhofer who, legal issues aside, framed the issue through a political lens.

"Democrats want to cheat in our elections by allowing votes from people who have never established legal residency,'' said Michael Whatley when the lawsuit was filed in 2005. At the time, he was chairman of the Republican National Committee.

"The RNC is defending the rights of Arizona voters to stop this unconstitutional law in its tracks,'' said Whatley. He has since left that position and is now running for the U.S. Senate from North Carolina.

One thing not addressed in the lawsuit is why the people at issue here never resided in the United States. Langhofer said that it is not relevant to his argument about the constitutionality of the 2005 law.

But he has a theory about who is not included. "It bears noting, however, that, by and large, these individuals almost certainly are not the children of military service members,'' Langhofer told the court.

He said those taking advantage of the 2005 law would not only have been born overseas but never resided in the United States during at least the next 18 years.

"Given that continuous military deployments never extended beyond roughly 220 days or 440 days in any given time period, it is implausible that a military service member's child would spend her entire life residing overseas,'' Langhofer said. "And if she does, it is for reasons that are unrelated to her parent's service obligations.''

Herrod has not said when he will rule.