Arizona judge denies bid by Atty. General to force Sec. of State to produce election manual
By Howard Fischer
Capitol Media Services
PHOENIX -- An Arizona judge has swatted down a bid by Attorney General Mark Brnovich to force Secretary of State Katie Hobbs to produce an Election Procedures Manual to his liking.
In a ruling late Friday, Yavapai County Superior Court Judge John Napper said that Hobbs "properly exercised her discretion'' in coming up with rules for this year's elections. And he said she provided the biennial manual it by the Oct. 1 deadline to both Brnovich and Gov. Doug Ducey for their legally required review.
But Napper said that Brnovich, rather than negotiate areas of difference he had with Hobbs, simply rejected the proposal and refused to negotiate with her.
Worse yet, the judge said, Brnovich failed to explain how he reached the conclusion that what she put in the manual exceeded her authority or is contrary to state law.
Instead, Brnovich waited until April -- months after the deadline for adoption of the manual -- to file suit against Hobbs. And even that lawsuit, Napper said, lacked specific explanations of why he wanted changes.
The bottom line, the judge said, is that the failure of Brnovich to act sooner -- or negotiate -- convinces him to throw out the attorney general's complaint.
Friday's ruling is the latest in what have been a series of public squabbles and lawsuits between Brnovich, a Republican contender for U.S. Senate, and Hobbs who is hoping to be the Democratic nominee for governor.
Napper, in his 4-page ruling, made it clear he believes that the attorney general is at fault for this latest dust up.
He pointed out that Hobbs, in submitting the manual on Oct. 1, did it after consulting election officials statewide.
Napper, however, said the attorney general simply struck provisions he did not like.
"He simply stated, 'This proposed regulation exceeds the scope of the secretary's statutory authorization or contravenes an election statute's purpose, and therefore cannot be approved,' '' Napper said. And he said Brnovich also stated that certain regulations are "arbitrary and capricious.''
Only thing is, Napper said, Brnovich "failed to explain how he had reached these conclusions.''
Napper said that Hobbs subsequently sent letters and offered to meet to discuss the issues and negotiate a manual acceptable to her, Brnovich and Ducey, just like was done in 2019.
But there were no negotiations, the judge said, and the Dec. 31 deadline came and went. It was only in April that Brnovich, joined by the Yavapai County Republican Party, went to court and asked Napper to order Hobbs to produce what Brnovich concludes is a "legally compliant'' manual.
But even then, the judge said, the attorney general still didn't provide specifics to his legal objections.
Napper said Hobbs, in preparing the new manual, did nothing wrong -- and pretty much everything right.
"There is no dispute that the secretary met and consulted with each county board of supervisors or other officers in charge of elections,'' he wrote, producing the manual after getting input from each of them. And the judge said the manual also represented her policy decisions on a variety of issues ranging from early voting to producing, distributing, collecting, counting, tabulating and storing ballots.
"It is important to note, the draft Election Procedures Manual was supported by an overwhelming majority of the Arizona election officials,'' Napper wrote. "The AG has not produced any evidence to the contrary.''
The judge acknowledged arguments by Brnovich that the draft "omitted or misconstrued portions of statutes.'' And he said it also includes what Hobbs believes are "best practice recommendations'' which were not suitably labeled as such.
But none of that convinced Napper to rule that Hobbs broke the law and should be ordered, as Brnovich asked, to rewrite the manual.
"In a document totaling 296 pages, these deficiencies were limited,'' he wrote. "A majority of the document complies with the dictates of the Election Procedures Manual in Arizona law.''
Napper acknowledged that, strictly speaking, the dispute -- and his decision not to order Hobbs to redo the manual the way Brnovich wants -- leaves the county election officials without guidance on which they can rely to run this year's elections. But the judge made it clear who he holds at fault for that.
"The complaint (by Brnovich) was filed far to late for this to occur without disrupting elections that have already begun,'' Napper wrote.
But the judge said there is a fallback position.
He noted that Hobbs did prepare a manual in 2019, as required. And that one was approved by both Brnovich and Ducey.
"Election officials are following the 2019 Election Procedures Manual while adhering to any changes occurring since its submission,'' Napper said. "As the last approved Election Procedures Manual, it currently remains the Election Procedures Manual for Arizona elections.
Friday's ruling may not be the end of the fight.
In a prepared statement, Brnovich spokeswoman Brittni Thomason said her boss still believes that the manual Hobbs prepared is not lawful and that Brnovich is "exploring all options'' to ensure what he believes is required to ensure the integrity of the 2022 elections.
Thomason also said the delay in filing the challenge to the manual until April was justified, at least part because Hobbs had filed a complaint against him and his office with the State Bar of Arizona. Hobbs alleged that Brnovich violated ethical rules by representing her office and then taking a contrary position in court.
But that complaint was resolved by early February.
In a Twitter post, Hobbs called Friday's ruling "a win for the rule of law -- and for Arizona's voters.'' She said the lawsuit was simply a bid by Brnovich "to rewrite the election rules based on his own political preferences.''
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