Heap Says "Immediately." 25 Cleared Citizens Have Waited 25 Days

On Sept. 28, Maricopa County Attorney Rachel Mitchell told the county that 52 of the 60 voters Recorder Justin Heap had flagged as possible noncitizens were, in fact, U.S. citizens. Twenty-five days later, 25 of those citizens are still marked "not eligible" on Maricopa County's voter rolls, early ballots are already moving, and a judge hears the state's lawsuit over it this morning.

Heap's position is that the fix is easy and the delay is someone else's fault. In a statement Thursday, he said "my office will immediately restore these individuals to full-ballot status" once Attorney General Kris Mayes or Mitchell hands over the citizenship documentation Arizona law requires.

Mitchell's position is that it was never her job to do that.

Superior Court Judge Adele Ponce has set an Order to Show Cause hearing for 11 a.m. today, Friday, Oct. 23, on the lawsuit Mayes and Secretary of State Adrian Fontes filed Wednesday against Heap.

The state is asking the court to:

The suit landed the day before the deadline to request an early ballot, with Election Day less than two weeks away. Update: Judge Ponce sent both sides into a settlement conference Friday afternoon. Details at the bottom of this story.

Both sides now cite the numbers from the Sept. 28 press conference:

It was not a quick review. Mitchell said MCAO put two full-time and two part-time investigators on the 60. Detectives went back to homes repeatedly, conducted dozens of interviews and pulled records from multiple databases. Some of the people they visited were wary of a county detective at the door, so detectives had to win them over, "even in cases where it was eventually learned that the person did nothing wrong."

Mitchell was careful about who the eight are. "All eight of the noncitizen voters are in the US legally. Most have lived in the US for decades. One person has been here more than 72 years."

The eight showed no partisan pattern: five had no party, two were Republicans and one was a Democrat. Their voting was sporadic, with gaps of years between ballots, and no more than three of the eight voted in any single election. The oldest vote dates to 2012. Mitchell said nothing her office found would have changed the outcome of any past election. Asked whether there was any organized effort to push votes, she said, "We have not seen that. No."

Seven of the eight came onto the rolls the same way, through the Motor Vehicle Division. All eight got their first Arizona driver's license before Oct. 1, 1996, the day MVD started requiring proof of citizenship.

MVD grandfathered in the older licenses, then displayed the renewal date instead of the original issue date. "So because of this, someone who never had to prove citizenship can appear, at least on paper, to be a US citizen," Mitchell said. Once that registration reaches the Recorder, state law presumes it valid.

The eighth case was a handwritten 2012 form on which a family member checked "No" next to "Are you a citizen of the United States?" The voter was still added to the rolls.

Detectives found that most of the people they interviewed did not remember registering, or being asked whether they wanted to. In one case, the signature on the registration form had been carried over from a driver's license issued years earlier. One of MCAO's own detectives renewed his license during the investigation. Nobody showed him the screen before he signed a pad with room for nothing but his signature.

Mitchell called this a continuation of the flaw former Recorder Stephen Richer found in 2024. Her office is drafting legislation that would require a record of who registers each voter and would separate MVD data from voter registration data. In the meantime, she wants MVD workers and third-party vendors trained to ask people whether they want to register before filling out any form, and to show them the completed citizenship questions before they sign.

No charging decision has been announced for the eight. Voting while ineligible is a felony in Arizona and a misdemeanor federally. Mitchell said it is a strict liability offense under state law: being ineligible and voting is the crime, whatever the voter intended.

She also signaled the problem with prosecuting anyway. She said she would weigh whether a jury would be willing to convict someone when her office cannot show the person even intentionally registered. That matters in a case where most of the voters did not remember being asked.

Part of what makes intent hard to prove is a gap in the registration paperwork. A registration code tells investigators a form came in person through MVD or a third-party vendor, but not which. An online code doesn't say who submitted it or from where. Petition circulators have to sign their name to the petitions they collect. Nobody signs anything as the person who registered a voter.

After running voters through the federal SAVE tool, Heap placed the flagged registrants in "not eligible" status earlier this year. That status blocks a regular ballot unless the voter supplies documentary proof of citizenship.

The Mayes and Fontes lawsuit argues that status is meant for new applicants, not people already on the rolls. All 25 have been registered since at least 2024, many of them for decades, so the filing calls the label "therefore inapplicable to them." According to the suit, vital records show 22 of the original 60 were born in Arizona, and one of the 25 is a military or overseas voter.

An AG's office letter earlier this week counted 24 cleared citizens not yet restored. By Wednesday's filing the number was 25.

Heap says Mitchell's office advised him to cancel the registrations, and that he has spent weeks waiting for documentation. He called the lawsuit partisan political theater.

Mitchell's office says that never happened. In a statement Thursday, she said Heap put the voters in that status against her office's guidance. She also said Arizona law does not allow a voter to be parked in a suspended category while under investigation, and does not let the County Attorney stand in for the Recorder in gathering proof of citizenship. Her office added that there is "no reason to question the citizenship of 52 voters."

This morning, MCAO's communications office pointed The Arizona Inquirer to that statement and the Sept. 28 press conference, and said no other information is available.

The other 147 referred voters are still unresolved, and the account of who is handling them has changed.

On Sept. 28, Mitchell said the two offices agreed to split the 147 and that MCAO had "probably about 20 more that we need to look at." This morning, MCAO told The Arizona Inquirer that the Attorney General's Office is handling the 147 and directed status questions there.

That could mean the cases were handed off since September, or that the same split is now being described differently. Either way, no office has publicly said how many of the 147 have been reviewed, how many are citizens, or how many are still marked "not eligible."

In September, Mitchell was asked whether she worried about casting doubt on the election a week before ballots dropped. Her answer now applies to everyone in this dispute: "If it is a small amount, then I mean that's incumbent upon you all to report it's a small amount."

It is a small amount. Eight noncitizens, all here legally. Zero elections changed. And 25 citizens who, as of this morning, still can't get a regular ballot.

This story draws on the full video of the Maricopa County Attorney's Sept. 28 press conference, MCAO's Oct. 22 statement and its Oct. 23 response to our questions, the Recorder's published statement, and reporting on the Mayes and Fontes complaint by AZ Mirror, Votebeat, KJZZ, ABC15, 12News and Arizona's Law. We have not yet reviewed the court file directly. The count of affected voters differs between the AG's letter (24) and the lawsuit (25), and quotes from the press conference were checked against the full video record. We are looking for anyone among the 52 cleared voters willing to talk about receiving a "not eligible" notice, and for MVD or third-party vendor staff who handle registration at license renewal. We contacted the Maricopa County Attorney's Office, which responded. The Attorney General's Office and the Maricopa County Recorder's Office have not yet responded. This story will be updated after today's hearing.

Update Oct. 23, 3 p.m.: Judge Adele Ponce did not rule from the bench Friday. She sent the Recorder and the Attorney General's Office into a settlement conference Friday afternoon and told them to resolve the 25 voters' status. In court, the AG's office said it had the voters' driver's license records ready to hand over. Heap's attorney, James Rogers of America First Legal, said the Recorder could restore the voters the same day once he reviews those records, provided they meet the statutory requirements, and said one of the 25 has already been restored after that voter brought proof of citizenship to the Recorder's Office. Heap told KTAR the issue is paperwork, not citizenship: "if they're citizens, and we're not arguing they're not." If there is no deal, the case returns to court Monday. Friday is also the last day early ballots go out by mail. Hearing details are from KTAR and KJZZ reporting. The Arizona Inquirer will update again when the voters are restored or the court rules.