By Howard Fischer
Capitol Media Services
PHOENIX -- A judge has rebuffed a bid by a group that backs additional restrictions on voting that sought to outlaw the use of "drop boxes'' that can make it easier for some people to return their early ballots.
Yavapai County Superior Court Judge John Napper acknowledged Thursday that state law makes mention of boxes that are "staffed by certain election officials.''
That term, he said, is not defined in the Elections Procedures Manual, essentially guidance issued by the Secretary of State's Office to election officials.
But the manual allows counties to set up unmonitored drop boxes wherever they want and then permit "retrievers'' to collect them to have them tallied. And some counties are following suit.
Tim La Sota, representing the Arizona Free Enterprise Club, argued that the manual cannot allow things that are not specifically authorized by the Legislature. And that, said La Sota, includes drop boxes.
But Napper, in a 7-page opinion, said that lawmakers clearly are aware that they have effectively authorized unmonitored drop boxes.
He pointed out, for example, that the latest manual requires that a fire suppression device be placed inside all drop boxes "that are placed outdoors or not within the sight of election officials.''
"Therefore, the definition of 'staffed' in the EPM clearly does not require a drop box to be indoors or be monitored at all times,'' the judge wrote.
More to the point, Napper said that lawmakers reenacted statutes related to drop boxes after the new manual was published.
He said, in essence, that if they did not want unmonitored drop boxes they had an opportunity at that point to make them illegal. But they did not do that.
Napper also rejected another claim by the Free Enterprise Club that sought to restrict how counties can verify if a signature on an early ballot envelope is valid.
La Sota argued that Arizona law spells out that the only way to determine that is to compare it to the person's original voter registration record. But county recorders, relying on the Elections Procedures Manual and its broader definition of what is a "registration effort,'' have also been using other signatures they have on file electronically, including those on ballot envelopes from prior elections.
Napper said there's nothing wrong with that.
Here, too, the judge said, the Legislature effectively ratified what's in the manual when they altered the laws dealing with signatures.
"The Legislature had every opportunity to eliminate 'prior early ballot affidavits' as a comparison tool but chose not to do so,'' Napper wrote.
"Nothing in these amendments suggest the Legislature found the EPM's working definition of 'registration record' was improper,'' he continued. "The Legislature also chose not to provide a definition of registration record in the amended or newly enacted statutes.''
Maricopa County Recorder Stephen Richer, in a social media post, praised the ruling -- and chided those who insisted that the procedures he and other county election officials were using under the guidance of Secretary of State Adrian Fontes was illegal.
"The amount of crowing I heard from people who know nothing about the law, who said that the mere filing of this complaint meant that the use of past election ballot envelopes to verify signatures in past elections -- unreal,'' he wrote.
"Counties can can continue using past affidavit envelopes,'' Richer said. "And 'staffing drop boxes'' does not mean somebody has to stand by the drop box 24-7.''
This isn't the first foray into voting and election matters for the Free Enterprise Club which lobbies on behalf of limited government growth.
It worked to have Republican lawmakers put a measure on the 2022 ballot to require those using early ballots to not just sign them but include a birth date and a state-issued number or the last four digits of a social security number. Proposition 309 also would have imposed new identification requirements on those who show up at a polling location.
Voters rejected it with 51.8% in opposition.
The organization also is trying to void something voters did approve last year: Requiring public disclosure of the true source of funds spent to influence elections. Proposition 211, which passed by a margin of nearly 3-1, is designed to end the ability of donors to hide their identity by giving cash to support or oppose candidates or ballot measures through other organizations.
A trial judge threw out the challenge in June and the case is now on appeal.
But the Free Enterprise Club did get the Arizona Supreme Court to rule that voters have no constitutional right to block lawmakers from cutting -- or even eliminating -- taxes, a move that thwarted a 2022 bid to give Arizonans the last word on $1.9 billion in tax cuts enacted by the Republican-controlled Legislature.
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