Court asked to let votes of unregistered be counted
Howard Fischer Capitol Media Services | Posted: Saturday, November 6, 2010 12:00 am

PHOENIX - An organization that persuaded 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 U.S. 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 as a result of not providing proof of U.S. citizenship.

On Oct. 26, though, the appellate court declared that requirement in a 2004 law invalid. Based on that, MALDEF attorney Nina Perales said those who were wrongfully denied registration should have their votes counted.

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 is not an option here, she said.

"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 in some other election. 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 that 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 tried to vote anyway.

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