The voters are among 60 people whose ballots had been referred for review after Heap flagged them as potentially ineligible noncitizens. The Maricopa County Attorney’s Office later found that 52 of the 60 were citizens. But the lawsuit says 25 of those citizens still have registration records marked “not eligible.”

Mayes and Fontes are asking the court to order Heap to change the registrations immediately, send mail ballots to voters signed up to receive them and provide regular, non-provisional ballots to affected voters who vote in person. The lawsuit says the voters risk losing their constitutional right to vote if their status is not corrected in time.

Seventeen of the 25 are on Arizona’s Active Early Voting List and should have received ballots earlier this month, according to the lawsuit. Another is registered as a military or overseas voter. The complaint says Heap’s office had updated the records of 27 of the 52 citizens identified by investigators, but does not explain why the remaining records had not been changed.

“Recorder Heap’s nondiscretionary duty is clear here — and he is simply refusing to follow the law,” the lawsuit states. Mayes argues that “not eligible” is a temporary status for people initially registering to vote and that state law does not allow Heap to apply it to already-registered voters without confirming they are not citizens.

Mayes wrote to Heap on Monday demanding that the records be corrected. She asked the court to act by Thursday afternoon, saying the approaching election meant continued use of the status could prevent properly registered voters from casting counted ballots. The lawsuit says Heap had not responded to her letter or corrected the registrations by the time it was filed.

Heap said in September that his office would restore voters to the rolls if County Attorney Rachel Mitchell’s investigation confirmed they were citizens. His office did not respond to questions about the registrations, according to the report.

Mitchell announced Sept. 28 that investigators found no evidence of an effort to get noncitizens to vote. Of the 60 people referred to her office who had cast ballots, eight were not U.S. citizens; Mitchell said all were in the country legally. Voting as a noncitizen is a felony in Arizona, and Mitchell had not decided whether to file criminal charges.

The dispute stems from a long-running Motor Vehicle Division data error that affected voters whose first Arizona driver’s licenses predated a 1996 requirement to show proof of citizenship. When Arizona voters approved a citizenship-documentation requirement for voter registration in 2004, state driver’s licenses were accepted as evidence. The error caused some older licenses to appear as though the holders had provided citizenship documents when they had not.

A former Maricopa County recorder identified the coding problem shortly before the 2024 election. The error has affected more than 80,000 registered voters in Maricopa County and about 218,000 statewide, according to the report.

Maricopa County Supervisor Steve Gallardo, the board’s only Democrat, asked Mayes to investigate the recorder’s office over the voter records. Republican supervisors Thomas Galvin and Debbie Lesko also said the registrations should be restored, while emphasizing that citizens should be able to vote and noncitizens should not.