Can Arizona counties keep their own voter registration databases, and can the Secretary of State pass off public records requests for voter data to the counties?
Plain-English summary
Arizona Secretary of State Michele Reagan asked the AG four questions about how voter registration data is supposed to flow between Arizona's 15 counties and the statewide system, and about the Secretary's own obligations when public records or court discovery requests came in.
The AG's answers, in plain English:
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Counties can keep their own voter registration databases. Federal law (HAVA, NVRA) and state law (A.R.S. § 16-168(J)) both contemplate it. Maricopa and Pima counties did exactly that; Arizona's 13 rural "PowerProfile" counties used the state's database directly. But the official voter list for elections is the statewide database the Secretary maintains.
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Counties must transmit all voter registration information to the statewide database, in real time. That is not just basic name-and-address data. It includes voting history, permanent early voter list (PEVL) activity, ballot mail/return dates, reasons for early ballot rejections, provisional ballot info (including images of provisional ballot affidavits), precinct, all official correspondence between the voter and elections officials, and back-end audit data showing who changed what record and when.
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The Secretary cannot pass off proper public records requests to county agencies if she has access to or control over the requested data. She can object, assert privileges, redact sensitive information (SSNs, mother's maiden name, etc.), but she cannot just say "ask the county." Same answer for litigation requests under federal and state civil discovery rules: if the documents are in her possession, custody, or control, she has to produce them or get a court to excuse her.
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Same answer applies to litigation subpoenas. Two recent federal cases (Feldman v. Reagan and Project Vote v. Reagan, both D. Ariz. 2016) had ordered the Secretary, not the counties, to produce voter database information.
The bottom-line analytical move is HAVA's text. 52 U.S.C. § 21083(a)(1)(A)(viii) says the statewide database is "the official voter registration list for the conduct of all elections for Federal office in the State." HAVA expressly contemplates counties maintaining their own systems, but only as feeders to the statewide list. Anything not transferred up to the statewide database is not part of the official voter record.
Currency note
This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Arizona's election laws have seen significant statutory changes since 2017, particularly around early voting, voter ID, and registration verification. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Historical context: what the opinion meant in 2017
For the Secretary of State's office
The opinion put hard limits on a workaround the Secretary may have been considering: steering inbound records requests and litigation discovery to county recorders rather than producing the data herself. The AG said no. As the chief state election officer for HAVA and NVRA purposes, the Secretary is not allowed to delegate her federal obligations to local officials. She can object, redact, or get protective orders, but she has to face the request herself if she has the data.
For county recorders and county election offices
The opinion confirmed that counties retain the front-line role: registering voters, rejecting incomplete applications, contacting voters about issues, processing cancellations. But every piece of information they collect or generate has to be sent to the statewide database in real time and in a uniform format prescribed by the Secretary. Not periodic batch uploads, not just final-status records, every change as it happens, with audit trails.
For voter registration advocates and journalists making public records requests
The opinion was helpful for requesters in two ways. First, it cataloged the kinds of data the statewide database had to contain (a useful checklist for what to ask for). Second, it cut off the runaround: if you asked the Secretary for voter data, she couldn't just bounce you to all 15 counties. The Secretary could redact sensitive fields and assert privileges, but had to engage with the request herself.
For election-litigation attorneys
The opinion endorsed the practice that had emerged in the 2016 Feldman and Project Vote cases: subpoenas and discovery requests for statewide voter database data go to the Secretary, not (or not only) the counties. Federal Rule 26 "possession, custody, or control" includes the legal right to obtain documents on demand, which the Secretary unambiguously had over the statewide database under A.R.S. § 16-168(J).
For HAVA/NVRA compliance staff
The opinion lined up Arizona's framework with the federal compliance backbone. NVRA's "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters" is a broad standard, and the opinion's catalog of required data elements (per Project Vote v. Kemp, Long, etc.) was a useful baseline.
Common questions
Q: Did the Secretary of State have to host the only voter database in Arizona?
A: No. Counties could maintain their own (Maricopa and Pima did), but the statewide database is the official one for federal elections, and counties had to feed all their voter data into it in real time.
Q: What does "all voter registration information" actually include?
A: Per the opinion: name, party, registration date, residence address, mailing address, ZIP, phone (if given), birth year, occupation (if given), voting history for the prior four years, all PEVL/early-voting data (ballot requests, sent dates, return dates, rejection reasons), provisional voting history with affidavit images, precinct, all official communications between the voter and elections officials, and audit-trail data showing who changed what and when. Plus images of original registration forms, cancelled registrations, and applications to cancel.
Q: Could the Secretary withhold sensitive information from a public records request?
A: Yes, for legally protected categories: Social Security numbers, mother's maiden name, and other categories made confidential by A.R.S. § 16-168(F), § 16-153(A), and § 41-165(A). She could redact those fields before producing the records.
Q: What if the requester cited the wrong statute?
A: Did not matter. A "proper" public records request under either Arizona's public records law (A.R.S. § 39-121) or NVRA had to be answered by the agency with custody or control of the records. The requester's choice of statutory citation did not change the duty.
Q: What happens if the Secretary wrongfully refuses to produce records?
A: Under both federal and state law, a court could award the requesting party attorney's fees and costs. 52 U.S.C. § 20510(c); A.R.S. § 39-121.02.
Q: Could the Secretary still object to a discovery request in litigation?
A: Yes. The opinion was clear that the Secretary could seek protective orders, assert privileges, and take other appropriate steps. What she could not do was issue a blanket refusal or redirect to the counties when the data was within her possession, custody, or control.
Q: How did this fit with the Feldman v. Reagan and Project Vote v. Reagan cases?
A: Both 2016 federal cases ordered the Secretary (not Maricopa County, the co-defendant) to produce voter registration database information. The opinion treated those orders as direct application of the discovery rules to the Secretary's duty under A.R.S. § 16-168(J).
Q: What was the role of NVRA's chief state election official designation?
A: NVRA (52 U.S.C. § 20509) requires each state to designate a chief state election official responsible for state coordination. Arizona designated the Secretary (A.R.S. § 16-142(A)(1)). Per Harkless v. Brunner and United States v. Missouri, that official cannot delegate NVRA responsibilities to local officials and avoid responsibility if compliance is not reasonably ensured.
Background and statutory framework
The federal layer: HAVA and NVRA
The Help America Vote Act of 2002 (HAVA), passed in response to the 2000 Florida recount, requires every state to maintain a "single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level." 52 U.S.C. § 21083(a)(1)(A). That list "shall serve as the official voter registration list for the conduct of all elections for Federal office in the State." 52 U.S.C. § 21083(a)(1)(A)(viii).
HAVA explicitly allows counties to maintain their own databases (52 U.S.C. § 21083(a)(1)(A)(vi)) but requires that all county-held voter information be transmitted to the statewide list. Anything not transmitted is not part of the official voter record.
The National Voter Registration Act of 1993 (NVRA) requires states to produce certain voter registration records as public documents, with a private right of action to enforce that obligation. 52 U.S.C. §§ 20507(i), 20510. NVRA's records production requirement is broad: it covers "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." Federal courts have read this to include completed voter registration applications (Project Vote/Voting for America, Inc. v. Long, 4th Cir. 2012), the reasons applicants are rejected, each change in voter status, and the table-and-field documentation showing how the database is structured (Project Vote v. Kemp, N.D. Ga. 2016).
The state layer: A.R.S. § 16-168
Arizona implements HAVA and NVRA through A.R.S. § 16-168. The Secretary of State is the chief state election officer for both statutes. A.R.S. § 16-142(A)(1); 52 U.S.C. § 21003(e). The Secretary "shall develop and administer a statewide database of voter registration information that contains the name and registration information of every registered voter in this state." A.R.S. § 16-168(J).
A.R.S. § 16-168(C) catalogs the required content of that database (the long list above). Section 16-168(D) and § 16-163(D) extend it to include audit-trail data and images of cancelled and original registration forms.
County recorders must "provide for the electronic transmittal of [voter registration] information to the Secretary of State on a real-time basis" and in a standardized format. A.R.S. § 16-168(J).
Public records, discovery, and possession
Under Arizona public records law, "[a]ll officers and public bodies shall maintain all records . . . reasonably necessary or appropriate to maintain an accurate knowledge of their official activities," A.R.S. § 39-121.01(B), and those records are presumed open for inspection, A.R.S. § 39-121. Voter registration is statutorily designated as a public record. A.R.S. § 16-161.
For litigation, Federal Rule of Civil Procedure 26(a)(1)(A)(ii) and Arizona Rule of Civil Procedure 26.1(a) both reach documents in the party's "possession, custody, or control." Federal courts read "control" to include "the legal right to obtain documents upon demand." In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). The Secretary's authority under A.R.S. § 16-168(J) and HAVA gave her control over the statewide database content, regardless of whether the data physically lived on county servers first.
The non-delegation theme
A consistent thread in the opinion: HAVA and NVRA designate the Secretary as the state's responsible officer. Harkless v. Brunner (6th Cir. 2008) and United States v. Missouri (8th Cir. 2008) both held that the chief state election official cannot avoid federal compliance obligations by delegating them to local officials. The same logic supported the AG's conclusion that the Secretary could not avoid records production by pushing requesters to the counties.
Citations and references
Federal statutes and constitutional provisions:
- U.S. Const. art. I, § 4, cl. 1 (Elections Clause)
- 52 U.S.C. § 20507(i) (NVRA records-production duty)
- 52 U.S.C. § 20509 (chief state election official designation)
- 52 U.S.C. § 20510 (NVRA private cause of action)
- 52 U.S.C. § 21003(e) (HAVA chief state election official)
- 52 U.S.C. § 21083(a) (HAVA statewide voter list)
- 52 U.S.C. § 21084 (additional state requirements permitted)
Arizona statutes:
- A.R.S. § 16-142(A)(1) (Secretary as chief election officer)
- A.R.S. §§ 16-153(A), 41-165(A) (voter address confidentiality programs)
- A.R.S. § 16-161 (voter registration as public record)
- A.R.S. § 16-163(D) (cancelled registration recordkeeping)
- A.R.S. § 16-165 (voter cancellations)
- A.R.S. § 16-166 (county recorder duties)
- A.R.S. § 16-168 (statewide database)
- A.R.S. § 16-173 (county system documentation)
- A.R.S. § 39-121 et seq. (public records)
Cases:
- Wesberry v. Sanders, 376 U.S. 1 (1964) (state plenary power over election administration, subject to congressional authority)
- Carlson v. Pima Cnty., 141 Ariz. 487 (1984) (presumption of openness for public records)
- Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531 (1991) (definition of public record)
- Project Vote v. Kemp, 208 F. Supp. 3d 1320 (N.D. Ga. 2016) (NVRA records breadth)
- Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir. 2012) (NVRA covers completed registration applications)
- Harkless v. Brunner, 545 F.3d 445 (6th Cir. 2008) (chief state election official cannot delegate NVRA)
- United States v. Missouri, 535 F.3d 844 (8th Cir. 2008) (same)
- True the Vote v. Hosemann, 43 F. Supp. 3d 693 (S.D. Miss. 2014) (NVRA permits redaction of SSNs and full DOBs)
- In re Bankers Trust Co., 61 F.3d 465 (6th Cir. 1995) (control under Rule 26 includes legal right to demand)
- Feldman v. Reagan, 2:16-CV-01065 (D. Ariz. Apr. 15, 2016) (Secretary ordered to produce database content)
- Project Vote v. Reagan, 2:16-CV-01253 (D. Ariz. Apr. 27, 2016)
Source
- Landing page: https://www.azag.gov/opinions/i17-006-r17-005
- Original PDF: https://www.azag.gov/sites/default/files/2025-06/I17-006.pdf
Original opinion text
To:
Michele Reagan
Arizona Secretary of State
Questions Presented
Does federal or State law prohibit Arizona counties from maintaining separate, county-based voter registration databases?
If counties may legally maintain separate voter registration databases, what information is the county required to provide the statewide voter registration database? For example, must that include information on cancelled or rejected registrations and/or provisional voting information?
Is it lawful for the Secretary of State to refer proper public records requests to other agencies if the Secretary also has access to that information? Does the answer depend on what statute is cited by the requesting party?
Is the Secretary permitted to refer a request for production in litigation or subpoena to the county?
Summary Answer
No. Neither State nor federal law prohibits counties from maintaining their own voter registration databases so long as counties comply with the additional statutory requirements pertaining to independent databases. Nonetheless, the official voter registration database for all elections is the statewide database created and maintained by the Arizona Secretary of State's Office.
Under federal and State law, each county must provide all voter registration information it receives to the statewide voter registration database contemporaneously or as near as contemporaneously as possible. This information must include, among other things, an applicant or registered voter's name, address, correspondence with the counties, cancelled and rejected registrations, early and provisional ballot information, and records demonstrating when and how a change to a voter's or applicant's record was made.
No. The Secretary may not refer proper requests for public records of voter registration information to another agency if the Secretary has access to or control over that information, regardless of what statute (if any) the requesting party cites. The Secretary may, nevertheless, object to a records request or assert any applicable privilege.
No. The Secretary may not refer proper litigation requests for information to another agency if the Secretary has access to or control over those records. The Secretary may object to such discovery requests or assert any applicable privilege.
Background
Voter registration and election administration are primarily governed by State law. U.S. Const. art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations[.]"). State legislatures retain broad authority to prescribe voter registration requirements and administer voter registration and elections processes. Wesberry v. Sanders, 376 U.S. 1, 23 (1964) (States have "plenary power to select their allotted Representatives in accordance with any method of popular election they please, subject only to the supervisory power of Congress").
Two federal laws have helped standardize state voter registration practices: the National Voter Registration Act of 1993 ("NVRA") and the Help America Vote Act of 2002 ("HAVA"). NVRA requires each State to produce certain voter registration information as public records and provides a private cause of action if the State fails to meet any of NVRA's requirements. 52 U.S.C. §§ 20507(i), 20510. NVRA also requires States to maintain and produce "all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." 52 U.S.C. § 20507(i)(1).
HAVA, enacted in response to voter-registration and other elections-administration problems in the 2000 Presidential election, requires each State to maintain a "single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level." 52 U.S.C. § 21083(a)(1)(A). This statewide database "shall serve as the official voter registration list for the conduct of all elections for Federal office in the State" and must include, at a minimum, the name, registration information, and a unique identifier for each voter. 52 U.S.C. § 21803(a)(1)(A)(viii). Additionally, HAVA mandates that the voter registration database capture sufficient information to ensure compliance with NVRA, including inter alia, notices sent to notify voters of potential cancellation and steps they can take to avoid cancellation, as well as any response to voter provided. 52 U.S.C. § 21083(a)(2)(A). The voter registration database must be accessible to local election officials and must also cross-reference with other applicable databases, such as motor vehicle and death records, to allow for maintenance of the voter rolls. 52 U.S.C. § 21083(a)(1)(A)(iv)-(vii). These are minimum requirements; States are explicitly authorized to require voter registration databases to track additional information. 52 U.S.C. § 21084.
Nonetheless, HAVA expressly contemplates that a county may choose to maintain its own database. If it does, HAVA requires that the county transmit "[a]ll voter registration information" it maintains to the official statewide database. 52 U.S.C. § 21083(a)(1)(A)(vi) (requiring the statewide database to include "[a]ll voter registration information obtained by any local election official in the State"). Any information that is not transferred to the statewide voter registration database is not part of the official voter record. 52 U.S.C. § 21083(a)(1)(A)(viii).
Arizona law requires the Secretary of State, as Arizona's chief elections officer for HAVA and NVRA purposes, A.R.S. § 16-142(a)(1); 52 U.S.C. § 21003(e), to "develop and administer a statewide database of voter registration information that contains the name and registration information of every registered voter in this state." A.R.S. § 16-168(J). And like federal law, State law contemplates that counties may maintain their own voter registration databases. Maricopa and Pima counties maintain their own databases, while Arizona's thirteen rural, "PowerProfile" counties use the statewide database as their own. State law authorizes the Secretary to certify county databases to ensure the seamless transfer of information. Id.
County recorders, in turn, must "provide for the electronic transmittal of [voter registration] information to the Secretary of State on a real-time basis" and in a standardized format. A.R.S. § 16-168(J). County recorders remain the primary point of contact for individuals registering to vote. Arizona counties are responsible for (1) providing voter registration forms and information to voters, A.R.S. §§ 16-131, -141, -151(A); (2) rejecting applications that do not include sufficient proof of citizenship, A.R.S. § 16-166(F); (3) entering voter information, A.R.S. §§ 16-112(A), -120, -134(C) (noting a voter is registered when a complete application is received by a county recorder); (4) contacting voters regarding issues with their applications and voting status, A.R.S. § 16-134(B), -166; and (5) canceling voters, A.R.S. § 16-165. Only county recorders may change individual voter records, such as by updating a voter's address. See A.R.S. § 16-166(B) (requiring the county recorder to change the voter registration record when the voter provides new information).
Analysis
Neither Federal Nor State Law Prohibits Counties From Maintaining Their Own Voter Registration Databases.
As explained above, federal and state law not only permit counties to maintain voter registration databases, they expressly contemplate it. E.g., 52 U.S.C. § 21083(a)(iv); A.R.S. § 16-168(J). To ensure compliance with HAVA, "each county voter registration system is subject to approval by the Secretary of State for compatibility with the statewide voter registration database system," A.R.S. § 16-168(J), which is the State's sole official voter registration list, 52 U.S.C. § 21803(a)(1)(A)(viii).
Counties Must Provide the Statewide Database All the Voter Registration Information That They Maintain.
Both federal and state law impose requirements on the kinds of information counties must provide to the statewide database, which must include, at minimum:
Official communications by and between a voter or applicant and elections officials (52 U.S.C. § 20507(i), A.R.S. § 16-168(10));
The voter's voting history (52 U.S.C. §§ 20507(b)-(d), 21083(a)(1)(A), (a)(2), and (a)(4); A.R.S. § 16-168(C));
Permanent early voter list ("PEVL") and other vote-by-mail activities, including ballot requests, date that a ballot was sent, date the ballot was received, and the reason an early ballot was rejected (as applicable) (A.R.S. § 16-168(C)(11));
Provisional voting history, including reason for provisional ballot and an image of the provisional ballot affidavit (52 U.S.C. § 21083(a)(1)(A)(vi); A.R.S. § 16‑168(C)(10));
The voters' precinct (A.R.S. § 16-168(C));
The voter or applicant's status and information tracking back-end changes made to an applicant or voter's record (e.g. the date of party change and the user who made the change) (52 U.S.C. § 20507(i); A.R.S. § 16-168(D)(10)).
Federal law. As noted above, federal law requires any county that chooses to maintain its own database to transmit "[a]ll voter registration information" it maintains to the official statewide database, 52 U.S.C. § 21083(a)(1)(A)(vi). HAVA requires that the database "contain[] the name and registration information of every legally registered voter in the State and assign[] a unique identifier to each legally registered voter in the State[.]" 52 U.S.C. § 21803(a)(1)(A)(ii)-(iii). It further requires the Secretary to "provide such support as may be required so that local election officials are able to enter" into the statewide database "[a]ll voter registration information obtained by any local official in the State[.]" 52 U.S.C. § 21803(a)(1)(A)(vi)–(vii).
NVRA requires the State to maintain data used to process voter registration or "maintain the accuracy and currency" of the voter rolls. 52 U.S.C. § 20507(i). This includes not only the voter registration information on the face of the form and official correspondence with voters, but also a record of each change that was made to a registrant's information, such as a move to inactive status or cancellation, in order to ensure that elections officials are complying with NVRA. See, e.g., Project Vote v. Kemp, 208 F. Supp. 3d 1320, 1341–43 (N.D. Ga. 2016) (NVRA required, inter alia, the reason an applicant was rejected, each change in a voter's status, and whether the change was made mechanically or by staff, in addition to the definition of tables and data fields, with a schematic explaining their relationship).
State Law. State law requires "county recorders [to] provide for the electronic transmittal of [voter registration] information to the Secretary of State on a real-time basis." A.R.S. § 16-168(J). This information includes each voter's (1) full name, including title; (2) party preference; (3) date of registration; (4) residence address; (5) mailing address, if different from residence address; (6) zip code; (7) telephone number, if given; (8) birth year; (9) occupation, if given; (10) voting history for all elections in the prior four years, as well as any other information regarding registered voters that the county recorder or city or town clerk maintains electronically that is public information; and (11) all data relating to permanent early voters and nonpermanent early voters, including ballot requests and returns. A.R.S. § 16‑168(C)(1)‑(11). "Any other information regarding registered voters that the county recorder or city or town clerk maintains electronically" and "all data relating to . . . early voters" includes provisional voting history and the database also must include images of original voter registration forms, all cancelled registration forms, and applications to cancel registration. A.R.S. § 16-163(D).
In other words, state law requires Arizona's voter registration database to include a number of different types of data not present on the basic voter registration form, including voting history, PEVL participation, precinct number, and any other record associated with a voter's individual voting history. Id.
The statewide voter registration system is "the heart of our elections system," and the sole "official voter registration for the conduct of all elections for Federal office in the State." 148 Cong. Rec. H7837 (statement of Rep. Ney) (Oct. 10, 2002). If a county chooses to maintain its own database, it must transmit all the voter registration information it maintains to the official statewide database in the manner prescribed by the Secretary "to ensure that the submissions are uniform from all counties in this state, that all submissions are identical in format, including the level of detail for voting history, and that information may readily be combined from two or more counties." A.R.S. § 16-168(C). This requirement includes a continuing duty to provide an explanation of the county database system and any revision to the Secretary, A.R.S. § 16-173, so she can properly integrate that data into the statewide voter registration database as required by federal and state law.
The Secretary May Not Refer Public Records Requests to Another Agency if She Has Access to or Control Over the Information Requested.
State Law. Under Arizona law, "[a]ll officers and public bodies shall maintain all records . . . reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state." A.R.S. § 39-121.01(B). "Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during officer hours." A.R.S. §39-121. So, as a general rule, "all records required to be kept under A.R.S. § 39-121.01(B), are presumed open to the public for inspection as public records." Carlson v. Pima Cnty., 141 Ariz. 487, 491 (1984). And a record that is "required to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done," generally is a public record. Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 538 (1991) (quoting Mathews v. Pyle, 75 Ariz. 76, 78 (1952)).
State law specifically identifies voter registration information as "an official public record," A.R.S. § 16-161, and requires that non-confidential voter information be produced by the Secretary or other elections official upon the receipt of a proper request and payment of a fee, A.R.S. § 16-168(E). The Secretary is legally required to maintain such voter registration information in the "statewide database" that she must "develop and administer." A.R.S. § 16‑168(J). It is therefore likely a public record in her "custody," and she should respond to any proper request to produce it. See A.R.S. § 39-121; Rogers, 168 Ariz. at 538; Carlson, 141 Ariz. at 491 (hold[ing] that A.R.S. § 39-121.01(B) "requires the keeping of records sufficient to provide the public with 'knowledge' of all of the activities of a public officer and of the manner in which he conducts his office and performs his duty").
Nothing prevents the Secretary from interposing objections or asserting applicable privileges in response to any records request. And by law the Secretary may not provide sensitive information such as social security numbers, mother's maiden name, and other information exempted from disclosure by A.R.S. § 16-168(F). The Secretary also may not provide information on voters protected from disclosure pursuant to A.R.S. §§ 16-153(A) and 41-165(A).
Federal Law. NVRA requires "[t]he State to produce all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." 52 U.S.C. § 20507(i). This includes voter registration information. See, e.g., Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331, 336 (4th Cir. 2012) ("the phrase 'all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters' unmistakably encompasses completed voter registration applications").
In Arizona, the Secretary (or her designee) is "[t]he chief state election officer who is responsible for coordination of state responsibilities under [NVRA]." A.R.S. § 16-142(A)(1); see 52 U.S.C. § 20509 (requiring "[e]ach State [to] designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities under this chapter"). The Secretary therefore may not delegate the State's NVRA obligations to local officials. See Harkless v. Brunner, 545 F.3d 445, 452–53 (6th Cir. 2008) ("[T]he Secretary, as [the state's] chief election officer, is responsible for . . . implementation and enforcement of [NVRA]."); United States v. Missouri, 535 F.3d 844, 850 (8th Cir. 2008) ("Under the NVRA's plain language, [the State] may not delegate the responsibility to conduct a general program to a local official and thereby avoid responsibility if such a program is not reasonably conducted."). The Secretary may, however, redact certain sensitive information before producing records properly requested under NVRA. See, e.g., True the Vote v. Hosemann, 43 F. Supp. 3d 693, 736–39 (S.D. Miss. 2014) (redaction of social security numbers and full birth dates does not violate NVRA).
Similar to state law, nothing prevents the Secretary from interposing proper objections or asserting applicable privileges in response to any records request under federal law. If the State wrongfully fails to produce public records, a court may award the requesting party its attorney's fees and costs. 52 U.S.C. § 20510(c), A.R.S. § 39-121.02.
The Secretary May Not Refer Proper Litigation Requests to Another Agency If She Has Access to or Control Over Those Records.
The Federal Rules of Civil Procedure require a party to disclose "all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(ii). The Arizona Rules of Civil Procedure require disclosure of even more information, including a description of the factual basis of a party's claims or defenses, the legal theory on which the claim or defense is based, and documents or electronically stored information that the disclosing party plans to use at trial, for impeachment or "that is relevant to the subject matter of the action." Ariz. R. Civ. P. 26.1(a). Each party is required to serve its disclosures promptly and update or supplement a disclosure as new information is discovered throughout the course of litigation. See Fed. R. Civ. P. 26(c), (e); Ariz. R. Civ. P. 26.1(d).
Additionally, a party may "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1); Ariz. R. Civ. P. 26(b)(1)(A). One party may request that another produce "any designated documents or electronically stored information" in "the responding party's possession, custody, or control." Fed. R. Civ. P. 34(a)(1); Ariz. R. Civ. P. 34(a)(1). Additionally, "a nonparty may be compelled to produce documents and tangible things" pursuant to a subpoena. Fed. R. Civ. P. 34(c); Ariz. R. Civ. P. 34(c).
Documents are "within [a party's] 'possession, custody or control' . . . if the party has actual possession, custody or control, or has the right to obtain the documents on demand." In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); see also United States v. Int'l Union of Petrol. & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (citing Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984) ("Control is defined as the legal right to obtain documents upon demand.")).
The Secretary has possession, custody, or control over the information in the statewide database that she must "develop and administer." A.R.S. § 16-168(J). HAVA makes clear that such information is "defined, maintained, and administered at the State level[.]" 52 U.S.C. § 21083(A). And under NVRA, "[e]ach State shall maintain for at least 2 years and shall make available for public inspection . . . all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." 52 U.S.C. § 20507(i).
Accordingly, the Secretary may be required to disclose or produce information in the statewide database in both state and federal court. Indeed, in 2016, the Secretary was required to produce the voter registration database in two federal lawsuits, Feldman v. Reagan, 2:16‑CV‑01065 (D. Ariz. Apr. 15, 2016), and Project Vote v. Reagan, 2:16-CV-01253 (D. Ariz. Apr. 27, 2016). In Feldman, the Court specifically ordered that the Secretary (rather than co‑defendant Maricopa County) produce voter registration information from the database. 2:16‑CV-01065, ECF No. 44. Thus, although the Secretary may seek protective orders and take other steps, as appropriate, to protect certain information in response to a discovery request in litigation, she may not broadly refuse to disclose or produce information within her possession, custody, or control without legal justification.
Conclusion
The Arizona statewide voter registration database must contain complete information on the voter, official correspondence with state, county, and local elections officers, early voting information, provisional voting information, and any other records maintained by elections officials, as explained in sections A and B of this opinion. Furthermore, the Secretary is responsible for responding or objecting to proper public records requests or litigation-related discovery requests, as explained in sections C and D of this opinion.
Dominic Draye
Solicitor General
Attorney General's Office