Arizona GOP Threatens Litigation Against Dem Secretary of State

by Mark Schwendau

Arizona Senate President Warren Petersen (R) is threatening legal action against Secretary of State Adrian Fontes (D) over his current draft of a revised Arizona Elections Procedures Manual (EPM). Petersen and Arizona House Speaker Ben Tomawrote Fontes on Monday laid out multiple issues with the manual due to get its biennial update.

One of the biggest issues Petersen has with the revision is it has a “delay in the implementation of a 2021 state law,” which routinely purges the active early voting list for those who have not voted in the past four years.  Such voters must be purged as they also “have not responded to notification” from their county recorder’s office.

“Our current Secretary of State has a history of distorting our elections laws and pushing the envelope on questionable procedures,” Petersen said. “My hope is that he will update the EPM with our corrections before submitting it to the Attorney General and Governor for approval. Failure to do so will result in legal action.”

Arizona Republicans have also criticized Fontes for decreasing the time frame of public comment to two weeks from a month. The document is almost 300 pages which many argue requires more than two weeks to read and understand. Fontes came out in the media on Aug 10, saying he would not extend the timeframe in his proposal.

An Aug 1 press release:

“As a former County Recorder, I understand how important this manual is for the dedicated Arizonans who are entrusted with one of the toughest and most important jobs in our democracy,” Secretary Fontes said in his press release.

“In an atmosphere of heightened scrutiny of our elections, local and county officials need clear guidance based on law. Now that we are at the start of our public comment period, I look forward to continuing this important conversation about a document that is essential to the running of safe, secure, and accurate elections in every corner of our state.”

Fontes made it a point in his version of the manual to make sure it only includes the necessary rules for counties to abide by, according to Votebeat’s Jen Fifield in June.

Arizona procedures require him to submit the manual revisions for approval to Gov. Katie Hobbs and Attorney General Kris Mayes on Oct. 1.

This is not the first time Arizona officials have fought over the manual. In April of 2022, Attorney General Mark Brnovich, a Republican, sued then-Secretary of State Katie Hobbs over her version of the Elections Procedures Manual—the manual required approval from the attorney general and governor. The lawsuit came half a year after the deadline Hobbs met to submit the draft on Oct. 1, 2021.

Yavapai County Superior Court Judge John Napper tossed Brnovich’s lawsuit in June of 2022, shortly before the state’s primary election, saying Hobbs “properly exercised her discretion” drafting the manual. Judge Napper determined Brnovich failed to negotiate with Hobbs or explain how the manual was unlawful.

As a result, Judge Napper ordered Hobbs to use her revised manual, approved from 2019, and placed responsibility on Brnovich for causing the state to use an older manual because he filed the lawsuit several months after the approval deadline of Dec. 31.

The voters of Arizona have indicated in referendums they want votes hand counted with no more use of electronic voting machines but these desires are not legally binding in the EPM.

Fontes wrote an opinion letter where he cited case law explaining county supervisors have only those powers “expressly conferred by statute” and cannot act outside of those. He also wrote that under federal law, the state must follow the plan for using secure voting systems under the Help America Vote Act. He noted there are no processes for how hand counting should work.

Fontes argued that could lead to a lack of proper ballot tracking and security. He argued the time needed could threaten a county’s ability to “timely canvass election results within 20 days of the election, as required by state law.”

But Republican attorney and state Rep. Alexander Kolodin disagrees,  saying that a few sections of the statute and the manual imply that it’s a choice whether to use machines, including a line that says rules “apply to all elections where tabulating devices are used,” and another here it provides a rule for any election “in which the votes are cast on an electronic voting machine or tabulator.”

This latest draft Arizona Elections Procedure Manual is on the secretary’s website here.

Copyright © 2023 by Mark S. Schwendau

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Mark S. Schwendau is a retired technology professor who has always had a sideline in news-editorial writing where his byline has been, “Bringing little known news to people who simply want to know the truth.”  He is a Christian conservative who God cast to be a realist.  His website is www.IDrawIWrite.Tech.

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