Republicans wrongly accuse Dem lawmaker’s son of voting twice in 2010

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Arizona voters make their way to a polling place to cast their ballot during the midterm elections on Nov. 6, 2018. Photo by Ralph Freso | Getty Images

Editor’s note: This story and headline have been updated to reflect that election records show that Daniel Epstein did not cast a ballot in Maricopa County in 2010. A previous version of this story cited inaccurate records in the complaint that was filed with the attorney general’s office.

A conservative activist and Republican election attorney filed a complaint with the attorney general’s office accusing a Democratic lawmaker’s son of illegally voting in both Arizona and California in 2010. But election officials say the man did not vote in Arizona that year. 

The complaint, filed with the attorney general’s Election Integrity Unit by activist Peggy McClain and attorney Timothy La Sota, alleges that Daniel Epstein voted in the 2010 general election in both Arizona and California, and that the ballots he’s cast in Arizona in recent elections are illegal because he’s currently a resident of New York.

La Sota included voting records allegedly showing that Epstein voted in both Maricopa and Los Angeles counties in November 2010. 

But according to Epstein’s voter history file, which Arizona Mirror obtained from the Maricopa County Recorder’s Office, he didn’t actually vote in the county in the 2010 general election.

Elections records show that he voted in Maricopa County in 2008, 2014, 2016, 2018 and 2020. And the Los Angeles County registrar and recorder’s office confirmed that Epstein voted there in 2010 and 2012. 

La Sota said the information he cited in the complaint about Epstein’s 2010 voting history in Arizona came from i360, the voter data program that the Arizona Republican Party uses. He also said the county’s records could be inaccurate.

“There was no reason to doubt the reliability of our data,” La Sota, adding that the double voting allegation was “not even the thrust of the complaint.”

La Sota added, “If there’s a mistake on our side, we will set the record straight.”

The complaint largely focuses on the allegation that Epstein is a New York resident, and therefore prohibited from voting in Arizona. 

According to election attorneys, determining residency can be murky.

Epstein is registered to vote at his parents’ home in Tempe, and voted in Arizona elections in 2008, 2014, 2016, 2018 and 2020, according to the records from the county recorder’s office. But the complaint also cited numerous postings on Epstein’s Facebook page that suggest he is actually a full-time resident of New York City.

The complaint cites posts in which Epstein, an aspiring actor, promoted a project at a theater in New York in 2017. He graduated from New York University in 2018, posted about subletting an apartment in Queens in 2019, and posted in February of this year that he would soon be visiting Arizona for a few days. Epstein is currently raising money for a theater production New York that he’s participating in, according to online information that the complaint cited.

In order to vote in Arizona, state law requires that someone be a resident, meaning a person must have an “actual physical presence” in the state and have an “intent to remain.” A temporary absence does not result in a loss of residency, as long as a person has an “intent to return following his absence.”

“The bottom line is that Mr. Epstein lives in New York City. Though he previously was an Arizona resident, he is no longer one and cannot legally vote here,” McClain’s complaint reads.

The complaint said it’s unclear how Epstein votes from New York. Epstein regularly votes by mail, and the complaint said he appears to be on the state’s Permanent Early Voter List.

Determining residency may not be so simple.

Arizona courts have traditionally granted a lot of leeway in determining whether someone qualifies as a resident of a certain area, at least when it comes to candidates for the legislature. Most recently, in 2018 the Arizona Supreme Court allowed ousted lawmaker Don Shooter to remain on the ballot under a Yuma address, despite strong evidence that he lived primarily in a different legislative district in Phoenix at the time. At the time, he claimed as his residence a Yuma apartment that did not have electricity.

Eric Spencer, a Republican election attorney and former state election director, said residency rules are similarly murky for voters. “Intent to return” can be a subjective determination, he said. Among the things can help determine that a voter has no intent to return to Arizona would be having a full-time job in another state, the length of time he’s had that job, whether he still has an Arizona driver’s license, whether he owns a home out of state, and which address is on that person’s government documents.

“To the extent that you can divine someone’s intent to return, maybe you can get at this issue. Otherwise, it remains a pretty perplexing inquiry that is pretty fact intensive,” Spencer said.

Arizona courts have taken a “pretty permissive approach to residency,” said Democratic elections attorney Roy Herrera. If Epstein hasn’t set foot in Arizona in months or years, that could go a long way toward showing that he’s no longer a resident of the state. But if he visits the state periodically, pays any taxes here or has other ties, Herrera said that could muddy the waters.

“When you’ve got somebody who’s accused of that saying, ‘My intent is to be an Arizona resident’ … it’s hard to kind of defeat that,” Herrera said.

La Sota told the Mirror the ruling in Shooter’s case, which he believes the Arizona Supreme Court decided wrongly, makes it more difficult to establish that someone isn’t a resident of a particular area. But he noted that there were differences with Shooter, who had a long history of service as a state legislator in Yuma.

“Mr. Epstein talks about coming home to visit Arizona for a couple of days. That certainly doesn’t sound like somebody who still considers Arizona home,” he said.

La Sota said he doesn’t know whether Epstein is registered to vote in New York and that he’s trying to find out.

Voting illegally would be a class 5 felony, punishable by nine months to two years in prison.

Had Epstein double voted in Arizona and California in 2010, he likely would still be in the clear. Though double voting was illegal in this state in 2010, the Arizona Court of Appeals effectively barred enforcement of it, at least for that year. The law that La Sota and McClain accused Epstein of violating prohibited people from voting more than once in the same election..

In 2015, the appellate court threw out the conviction of Carol Hannah, a Bullhead City woman who voted in the 2010 general election in both Arizona and Colorado. A three-judge panel unanimously ruled that, because none of the same candidates or races were on the ballot in Arizona and Colorado, Hannah did not actually vote twice in the same election. 

The only way someone could have voted twice in the election in different states was if there was a presidential race on the ballot, the court ruled. There was no presidential election in 2010. The only way Hannah could have broken the law barring double-voting was if she wasn’t legally eligible to vote in Arizona, which she was. Whether she was lawfully registered in Colorado was a matter for officials in that state, the judges decided.

Lawmakers amended that law in 2017 to ensure that voting in multiple states in the same general was against the law.

Epstein did not return messages from the Mirror and it is unknown if he has an attorney.

Mitzi Epstein also did not return messages. An attorney representing her campaign, Roopali Desai, said the lawmaker first learned of the allegations from an article on the website The Center Square, and that she hadn’t seen the complaint. She has represented District 18, which covers Ahwatukee and parts of Chandler and Tempe, since 2017.

Most of the voter fraud cases that the attorney general’s office prosecutes involve double voting. The office has successfully prosecuted about 17 cases of double voting since 2010, and has dismissed nine others without charges. Ryan Anderson, a spokesman for Attorney General Mark Brnovich, said the office’s Election Integrity Unit currently has 10 active investigations, not including the complaint against Epstein.

Arizona in 2009 joined Crosscheck, a program in which states exchanged voter registration information to catch people who were registered to vote or cast ballots in multiple states. Secretary of State Katie Hobbs pulled Arizona from the Crosscheck program in 2017, citing concerns about the security of voter registration information. Arizona is now part of a similar program called the Electronic Registration Information Center

The complaint comes as Republican lawmakers and even President Donald Trump seek to cast doubts on the security of voting by mail and as Democrats advocate for all-mail elections this year to prevent people from going to the polls amid the COVID-19 outbreak. Though Republicans allege that voting by mail is susceptible to fraud, states that conduct all-mail elections say fraud hasn’t been an issue. About 80 percent of Arizonans cast their ballots by mail.