The problems with the encryption of voter data at AZ could have been identified and resolved years ago

Data encryption issues affecting Arizona voter rolls just before the 2024 presidential election could have been identified and resolved years ago, according to an ABC15 investigation.

Six weeks ago, Maricopa County Recorder Stephen Richer and Arizona Secretary of State Adrian Fontes announced that they had found a data encryption error in Arizona’s driver’s license database that allowed at least one out-of-state registrar to vote.

“This is absolutely not a comfortable position,” Fontes said on September 17.

Because of the data errors, an estimated 218,000 people, 5% of all Arizona voters, may not have provided written proof of citizenship to register as required by Prop 200, which took effect in 2004.

Arizona is the only state that requires proof of citizenship for full voting, although people who don’t provide proof can sign an affidavit to vote only in federal races.

Multiple current and former election officials told ABC15 investigators that they were not aware of any data encryption issues prior to September 2024.

“The fact that it didn’t come to light sooner kind of baffles me,” said Sen. Ken Bennett, a Prescott Republican and former Arizona secretary of state.

“There was never anything wrong between 2009 and 2015 when I was secretary,” said Bennett, who said he communicated regularly with his elections staff and the 15 county recorders. “It would have raised the same big red flag.”

After Bennett left office, the issue came to light at least once.

2016 Non-Citizen Voter Case

ABC15 reported on this in October 2016 a non-citizen could register to vote in Maricopa County. At the time, Alan Faygenblat described his actions as an attempt to see “if the system really worked” in preventing voter fraud.

“I didn’t want to get in trouble,” he told ABC15 at the time.

Faygenblat was criminally charged with false voter registration and pleaded guilty in February 2017.

According to court records, Faygenblat was an Israeli citizen legally resident in the United States, but he incorrectly checked a box stating he was a citizen on Service Arizona’s website. He received a voter registration card in the mail.

“We have all these politicians,” Faygenblat said. “They have been in politics for many, many, many years and no one has discovered this.”

In 2016, the Maricopa County Recorder’s office described a loophole that allowed Faygenblat to register.

“Anyone who obtained a driver’s license after 1996 had to prove citizenship to the MVD. (The person) had gotten a driver’s license in 1994, so he didn’t have to prove his citizenship. However, for some reason he had to re-license after 1996 and at that time he was never scanned for citizenship,” a recorder spokesperson had told ABC15.

The then Recorder Helen Purcell rejected the idea that this could lead to widespread fraud.

“I think we checked it thoroughly enough, but that’s not the case,” Purcell told ABC15.

Eight years later, the same loophole was discovered by a new noncitizen who had registered to vote in Maricopa County.

Understanding the data errors

This month, ABC15 asked representatives from the Motor Vehicle Division, which manages the driver’s license database, why the agency had not fixed the error in 2016.

In an email, a spokesperson for MVD said the 2016 registration “was allowed because of the way the system has historically worked.”

“MVD identified a decades-old policy that allowed licenses issued after 1996, including duplicates issued after 1996, to be accepted as evidence of authorized presence for reinstatement and renewals,” he added. That policy was created in 1997 in response to a 1996 law. He also said MVD has now “changed the system to ensure election officials receive the information necessary for voter registration.”

The MVD policy was created years before the election law was changed in 2004 under Prop 200, which said driver’s licenses and IDs issued after October 1, 1996 could serve as proof of citizenship when first registering to vote.

These two laws weren’t perfectly aligned, but election officials were confident that MVD’s data would confirm whether someone had provided proof of citizenship and whether he or she had gotten their driver’s license or ID after 1996.

MVD now tells ABC15 that the data exchanged with the state’s voter database had the following problems:

• All pre-1996 driver’s license holders were also coded citizens, even if some were not. MVD did not require proof of legal status before 1996.
• MVD data did not necessarily show the original license issuance date. The agency used the most recent license date, which could be the date a duplicate, renewal, or reinstatement was created. This prevented a clear demarcation between permit holders before and after 1996.

The governor has ordered an audit to review MVD’s policies and procedures. Auditors want to determine how and when these data errors started and provide solutions to prevent future problems.
Multiple election cases

ABC15 also reached out to three election attorneys who have spent years working on lawsuits over Arizona’s proof of citizenship laws and their administration. No one had heard of widespread data errors until this year.

“We’ve had Republican, Democratic governors and secretaries of state and county reporters for 20 years, they’ve all had a hand in this, and no one has noticed,” said attorney Kory Langhofer.

They all said their own lawsuits and other voter investigations have rarely turned up unauthorized voters.

“In none of the cases was evidence prevented or presented that we have large numbers of non-citizens voting in our elections,” ASU election law professor Patty Ferguson-Bohnee said.

“Our shared expert on the plaintiff side found that sometimes mistakes were made,” said Ernest Herrera, attorney for the Mexican American Legal Defense and Educational Fund. “However, the federal court found that the system was generally reliable.”

Next steps

The miscoded voters have not been named, despite a court challenge to release a list.

The Arizona Supreme Court has ruled that they can vote normally on November 5.

Officials are still working on a plan to finalize voter rolls after the elections. Preliminary discussions are underway about requiring voters affected by the data error to provide proof of citizenship before voting in future elections if they want to continue voting with a complete ballot.

Do you have a story tip? You can reach ABC15 Senior Investigator Melissa via email at [email protected] or call 602-803-2506. Follow her on X (formerly Twitter) @Melissa Blasius or on Facebook.