“Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Arizona’s free newsletter here. After weeks of sparring with state prosecutors, Maricopa County Recorder Justin Heap referred potential noncitizens that he claims to have found on the county’s voter roll to the Arizona Attorney General’s Office on Friday. His referral comes after the attorney general’s office suggested it could take legal action against Heap unless he handed over information about the voters, according to public records obtained by Votebeat. Nicholas Klingerman, the chief counsel of the office’s criminal division, wrote in an April 2 letter to Heap that he was violating state law by failing to refer the alleged noncitizen voters for further investigation. On May 20, he sent another letter stressing those concerns and adding that Heap’s “current handling” of the voters’ registration status didn’t comply with state election law. “At this point, your insistence that you are following the law is wrong at best and purposefully misleading at worst,” Klingerman wrote in his letter, adding that Heap must refer the voters to state prosecutors by the end of the week. He said the Arizona Attorney General’s Office was prepared to “take all appropriate steps” to ensure that Heap “faithfully executed” state law. Richie Taylor, a spokesperson for the attorney general’s office, told Votebeat his office received the referral from Heap around 2 p.m. on May 22. In an April 10 response to Klingerman, Heap defended his delay in referring the voters to state prosecutors and said he was following the law. Judy Keane, a spokesperson for the Maricopa County Recorder’s Office, did not respond to a request for comment. Heap used SAVE database to identify 207 alleged noncitizen voters The correspondence came after Heap, a Republican who has expressed skepticism about the integrity of past elections, announced in February that his office had identified 137 potential noncitizens registered to vote while attempting to confirm the citizenship status of 61,681 voters impacted by a longstanding state record-keeping error . Of those 137, the recorder’s office said 60 had previously cast ballots. But experts have long warned that the database that the office used to identify the voters — called Systematic Alien Verification for Entitlements, or SAVE — is unreliable. Maintained by the U.S. Department of Homeland Security, it was revamped and expanded last year to be used as a mass voter verification tool. However, it has falsely flagged citizens as noncitizens in several states , raising questions about whether the number of noncitizens Heap announced could be inflated . At the time, Heap said he would refer the voters to both Attorney General Kris Mayes, a Democrat, and Maricopa County Attorney Rachel Mitchell, a Republican, for further investigation. In March, he sent information about 207 voters to the Maricopa County Attorney’s Office — significantly more than the 137 voters that he had previously said he suspected were noncitizens. His office didn’t respond to questions about where the additional 70 voters came from. Around the same time, Heap said that he intended to change the registration status of the voters. He wrote in a March 11 letter to Secretary of State Adrian Fontes , a Democrat, that he would move the voters to “not eligible status” and then send them notices informing them of the issue. To regain their eligibility, affected voters would be required to prove their citizenship with a document such as a passport or birth certificate by 7 p.m. on Election Day. If, after the next regular general election, they have still not provided proof of citizenship, their registration may be canceled. Prosecutor said Heap was using wrong process to handle potential noncitizen voters In that March letter, Heap appeared to be using a process outlined in the state’s election procedures manual that applies to new registrants suspected of being noncitizens. He also cited that process in his response to Klingerman, saying he was following the law — not violating it. “The recorder’s office has acted deliberately and in good faith to follow the process established by the legislature and reflected in the EPM,” Heap wrote in his April 10 letter. “That process is designed to protect both election integrity and the due process rights of affected voters. Premature referrals outside of that framework would undermine both.” But in his letter this week, Klingerman told Heap that his interpretation of state election law was “incorrect” and that he should be following the requirements in a separate state law that lays out how to notify and remove potential noncitizens who are already on the voter rolls. That process requires the county recorder to send suspected noncitizens notices requesting that they prove their citizenship within 35 days. If they don’t provide the necessary documents, the statute directs the county recorder to then cancel their registration and refer them to county and state prosecutors for further investigation. “Statute clearly mandates cancellation and criminal referrals after 35 days of discovering a noncitizen is registered to vote,” Klingerman wrote. “You cannot place ‘not eligible’ holds on these registered voters and fail to issue criminal referrals.” Klingerman’s arguments echoed those of several election experts and lawyers who raised questions about Heap’s planned process back in March. Heap’s office has not responded to repeated inquiries from Votebeat about the alleged noncitizen voters or its plans for them. Klingerman added that he was especially concerned that Heap was withholding information regarding the 60 potential noncitizens that the recorder’s office claimed had voted in prior elections. “Our elections are far too important for you to refuse to provide the names of suspected noncitizen voters,” he wrote. Sasha Hupka is a reporter for Votebeat based in Arizona. Contact Sasha at shupka@votebeat.org .
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