“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. Maricopa County Recorder Justin Heap said he plans to soon refer suspected noncitizen voters identified via a federal system to law enforcement for prosecution and change their registration status, but election lawyers and experts questioned whether his office is following the correct legal process. Heap, a Republican, said during a live interview on Friday with KTAR News that he would send the referrals “probably by the beginning of next week.” He also plans to move the voters to “not eligible” status pending receipt of documents proving their citizenship, per a letter he sent on March 11 to Secretary of State Adrian Fontes, a Democrat. The document was obtained by Votebeat via a public records request. His remarks came a month after his office said in a press release that it had identified 137 noncitizens on the county’s voter rolls while attempting to confirm the citizenship status of 61,681 voters impacted by a longstanding state record-keeping error . In that release, his office had said it would refer the voters to the Arizona Attorney General’s Office and Maricopa County Attorney’s Office. Heap’s office ran the voters’ information through a database maintained by the U.S. Department of Homeland Security that last year was overhauled by President Donald Trump’s administration, which has encouraged election officials to use it to check voter citizenship. But experts have raised questions about the accuracy and reliability of the revamped database, called Systematic Alien Verification for Entitlements, or SAVE. It has produced false positives in several states, including Texas , raising questions about whether the number of noncitizens Heap announced could be inflated . In addition, Heap appears to be using a process outlined in the state’s election rulebook that applies to new registrants suspected of being noncitizens, rather than following requirements in a state law that lays out how to notify and remove potential noncitizens who are already on the voter rolls. Several election experts and lawyers told Votebeat that Heap’s planned process is questionable, and may not meet legal requirements for notifying voters. “He hasn’t notified them appropriately under the statute,” said Gina Swoboda, a former election official, previous chair of the Arizona GOP, and a current Republican candidate for secretary of state. “He cannot do this.” Bo Dul, a former state election official and lawyer who previously worked under Democratic Gov. Katie Hobbs and now specializes in election litigation at the law firm of Coppersmith Brockelman, said it seemed as if Heap was “confusing the procedures” for handling potential noncitizen registrants versus already-registered voters. Heap’s office has not responded to eight requests for comment from Votebeat since Feb. 13 on its handling of the potential noncitizen voters. But Heap wrote in his letter to Fontes that his office “remains confident in the procedures we have followed and in the administrative decisions made in this matter.” “The Maricopa County Recorder’s Office is committed to upholding the highest standards of election administration, ensuring that voter registration records are accurate, and maintaining the integrity and public trust that Arizona voters expect from their election officials,” he wrote. Calli Jones, a spokesperson for Fontes, said Heap’s initial statement “significantly overstated the seriousness of the issue of ineligible voters,” but that state election officials are “absolutely confident that his staff will continue to follow the law when beginning the statutory process of correcting the voter’s record.” She did not immediately respond to a follow-up request to explain how Heap’s planned process complied with the law. Heap appears to be using process for new registrants flagged by the SAVE system In his letter to Fontes, Heap said he has not yet cancelled any of the voter registrations he referenced in his press release, but the flagged voters “will be placed into a ‘not eligible’ status pending resolution of the citizenship documentation requirement.” He appears to be following a process laid out in the state’s elections procedures manual for handling new applicants for voter registration who are flagged as noncitizens by the SAVE system. That database was initially designed in the 1980s to check immigrants’ eligibility for public benefits. In Arizona, election officials have sometimes used it to verify a registrant’s citizenship, but its use was limited because it long required specific identification numbers that local election officials didn’t have for most voters. State law mandates that county recorders “use all available resources to verify the citizenship status” of those registering to vote without providing a passport, birth certificate, or similar document. The manual instructs recorders on what to do if a voter registration applicant is flagged as a potential noncitizen in SAVE. They are to register the voter with “not eligible” status, and then send a letter to the registrant within 10 business days to inform them of the issue. To vote, the registrant must provide documentary proof of citizenship by 7 p.m. on Election Day. If, after the next regular general election, the voter has still not provided proof of citizenship, their registration may be canceled. But last year, the Trump administration revamped the SAVE system to add data on U.S.-born citizens and allow states to upload thousands of names to it at once — as Heap’s office did while trying to confirm the citizenship status of the tens of thousands of Maricopa County voters affected by the state’s error. Through no fault of their own, those voters had been erroneously marked in the state’s system as having provided documented proof of U.S. citizenship when registering to vote. In reality, it is unclear whether they did so. Maricopa County officials flagged the problem in September 2024, and the state’s top court later ruled that the voters would be allowed to vote a full ballot in the general election. All were longtime residents of the state and many had been registered to vote for years. The largest group of affected voters were Republicans. Lawyers, experts say recorders must send notice, then cancel registration of suspected noncitizen voters, per state law Dul, of Coppersmith Brockelman, said Heap is using the wrong process. “If somebody is already registered, no matter what the reason is to cancel them, to take them off the voter rolls, you have to follow the statutory process for canceling a voter registration,” she said. The process outlined in state law requires the county recorder to send suspected noncitizens notices requesting documented proof of their citizenship status, and allow them 35 days to respond. 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. Heap said in his letter to Fontes that the voters whose status he is preparing to change — along with all of the others impacted by the state error — were sent an initial notice requesting proof of citizenship, an apparent reference to mailings by his office last year. The first version of the notice sent by his office last year was incorrect , setting off widespread confusion , and affected voters were later mailed a second one , with an added explanation in bold at the top explaining that the initial mailing was a mistake. That second notice advised the voters that they had been impacted by the state error, and requested that they provide documents proving their citizenship. It said voters who did not provide a passport, birth certificate, or similar document would be moved to “federal-only” status, meaning that they would only be eligible to vote in federal contests, such as presidential and congressional races. Under state law, voters must prove their citizenship to vote in local and state elections. It did not say that voters could see their registration status shift to ‘not eligible,’ nor that their registration could be canceled. There is no evidence that Heap has yet sent affected voters any additional notices, though his office did not respond to multiple requests for comment seeking to confirm that. Following his office’s Feb. 13 press release, Votebeat requested copies of any notice sent by his office to suspected noncitizen voters. In a response on Feb. 23, records custodians told Votebeat that no such documents existed. Since then, Votebeat has filed several additional records requests for any notices sent by his office. Heap’s office recently denied those requests, citing an exemption in state records law called “best interest of the state,” which allows officials to withhold public documents in certain circumstances when disclosure could cause irreparable harm to government functions or the public. Specifically, the office said that disclosing the records could interfere with “ important law enforcement activities” — even though Heap said Friday that his office has yet to refer the voters to law enforcement. Heap also didn’t reference additional notices in his letter to Fontes. Instead, he said the voters would “receive a formal notice” after they were moved to “not eligible” status. Swoboda said the letters that Heap’s office sent to voters in June “does not in any way count as a notification.” Dul agreed, saying it was “not a sufficient cancellation notice.” “‘We have reason to believe that you are, in fact, not a citizen, based on our search of ‘x’ database, and you have ‘x’ amount of days to provide documentary proof of citizenship or you shall be canceled,” Swoboda said. “That’s the notice that he has to send.” Tom Collins, a former assistant attorney general and executive director of the Arizona Citizens Clean Elections Commission, which is nonpartisan, said government lawyers regularly argue in court that notices sent by public agencies were sufficient even if they didn’t check all of the boxes that statute requires. Still, he said attorneys should advise government officials to “give the notice the statute called for.” “My advice, in my position, would be to say, ‘No, we ought to send them the correct notice,” he said. Swoboda said that Heap has “no business canceling anybody,” reiterating that she did not believe he was following proper procedures. “They’re going to sue the shit out of him,” she said. Sasha Hupka is a reporter for Votebeat based in Arizona. Contact Sasha at shupka@votebeat.org .
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