Mayes asks judge to toss GOP lawsuit over certain overseas voters

In new court filings, Mayes urges a Maricopa County judge to reject a plea by the Arizona Republican Party and the Republican National Committee to void a 2005 law. It extended the right to vote in federal elections in Arizona to the children of Arizona residents living overseas, even if they have never resided in the state.

The federal Uniformed and Overseas Citizens Absentee Voting Act specifically allows Arizonans overseas to keep their residency status for purposes of voting by mail. Included are those in the military as well as U.S. citizens living outside the country.

Mayes acknowledged the Arizona Constitution says no one is entitled to vote here unless they have resided in the state “for the period of time preceding such election as prescribed by law.’’

But Mayes is telling Superior Court Judge Michael Herrod that language does not preclude state lawmakers from deciding — as they did in 2005 — that the children of people living elsewhere who are otherwise entitled to vote under federal and state law also can be considered Arizona residents for voting purposes. She said that makes sense given that children who have not established their own residency are generally considered to have acquired the residency status of their parents.

“In other words, for the children of an overseas parent who is registered in Arizona, the children are considered to reside in Arizona — the same way their parent is considered to reside in Arizona,’’ Mayes wrote. “Said another way, (the 2005 law) simply extends the same treatment of children of overseas voters registered in Arizona that it extends to their parents.’’

But attorney Kory Langhofer, who represents the Republican challengers, said the 2005 law not only violates state constitutional provisions but also makes no sense. He said that, as worded, it means anyone born overseas to someone who has Arizona residential status also gets that status — regardless of how old that child becomes or even whether they are still living with the parents.

The lawsuit comes two decades after the law was adopted. There’s a partisan reason for that.

Langhofer said overseas voters, including those who have never resided in the state, skew heavily Democratic.

In Maricopa County, for example, just 18.2% of overseas voters are registered Republicans, he said. Another 51.3% are Democrats, 26.5% have no party affiliation and 4% are signed up with other recognized parties.

By contrast, of the more than 2.6 million people registered to vote in the state’s largest county, 35.5% are Republicans versus 28.2% Democrats.

RNC Chairman Michael Whatley clearly sees this through a partisan lens.

“Democrats want to cheat in our elections by allowing votes from people who have never established legal residency,’’ he said in a prepared statement when the lawsuit was filed. “The RNC is defending the rights of Arizona voters to stop this unconstitutional law in its tracks.’’

But Mayes, in her filings, is pointing out something else to Herrod, something not mentioned in either the lawsuit or by Whatley in his accusations of Democratic “cheating”: The original 2005 measure was sponsored by a Republican legislator — and approved without a single dissenting vote by members of either party in the Republican-controlled Legislature.

Only now, Mayes said, do GOP officials find fault with the legislation.

It’s difficult to say how much difference having those adult children registered to vote in Arizona makes in the outcome of races.

Langhofer said that out of more than 4.47 million people registered to vote in the state, there appear to be at least 12,615 Uniformed and Overseas Citizens Absentee Voting Act voters statewide.

Whatever the number, he contends allowing them to vote “inflicts a competitive injury’’ to the Republican Party by adding people to the rolls he says cannot legally be there, who are “disproportionately non-Republican in their partisan affiliation.’’ That gives the GOP the legal standing to go to court to seek to have the law voided, he is telling the judge.

Not true, said the attorney general in her request to have the judge toss the case.

She said to gain legal standing, the right to sue, someone must show “a distinct and palpable injury giving the plaintiff a personal stake in the controversy’s outcome.’’

What the GOP is alleging here, Mayes said, is that the party is suffering “competitive injury’’ based on the lower percentage of overseas voters registering as Republicans.

The flaw, she said, is that Uniformed and Overseas Citizens Absentee Voting Act voters are not “inherently politically aligned.’’ Their eligibility to vote does not deprive the Republicans of votes or give votes to a competitor, Mayes said.

Beyond that, Mayes said there’s nothing in the GOP complaint that says the statute is designed or implemented in a way that would tend to create a disparity between voters of one party or another.

“Nor could they, because (the 2005 law) merely allowed for the possibility of registering to vote,’’ she said. “And a voter’s party choice and ballot selections are entirely beyond the control of the state.’’

Mayes also is brushing aside allegations in the complaint by Gina Swoboda, who chairs the Arizona Republican Party, that her vote is “diluted’’ by extending the right to vote to the children of overseas voters.

Finally, there’s the fact that the constitutional provision says the amount of time someone needs to have resided in the state is “prescribed by law.’’ And in this case, Mayes said, the Legislature prescribed by the 2005 law that adult children of Arizona residents living overseas are entitled to the residency status of their parents.

What the case comes down to, Mayes said, is a bid by Republicans to deny the vote to certain people whom the Legislature has decided are entitled to be considered Arizona residents.

“This court should not read the Arizona Constitution to deprive U.S. citizens of their right to vote, as protected by UOCAVA (the Uniformed and Overseas Citizens Absentee Voting Act),’’ she wrote.

No date has been set for a hearing.