Court rules against Arizona Secretary of State Fontes over elections manual

By Howard Fischer
Capitol Media Services
PHOENIX -- The Court of Appeals has tossed out a set of rules adopted by Secretary of State Adrian Fontes, saying he didn't follow proper procedures in adopting them.
In a ruling late Thursday, the judges said there are clear state law that require the public be given at least 30 days to comment on proposed regulations. But they pointed out that Fontes, in enacting the Elections Procedures Manual ahead of the 2024 election, provided just a 15-day window.
A spokesman for Fontes said he disagrees with the ruling and vowed to appeal to the Arizona Supreme Court.
But less clear is the effect of the ruling.
The lawsuit, filed early last year, asked that Fontes be barred from using the manual for the 2024 election. That, however, is no longer in play. And the appellate judges said their ruling will not affect any election before there is a final decision, presumably after the Supreme Court acts.
More to the point, the court, in deciding the case strictly on the time to comment, sidestepped the substantive objections by the Republican National Committee and the state and Yavapai County Republican parties, to what Fontes put in the manual. That includes, things like the rules allowing those without documented proof of citizenship to vote in federal elections.
So that leaves those objections legally unresolved -- and, absent a court order, leaves Fontes free to include those disputes provisions in the manual he now is preparing for the 2026 election.
But what the ruling does do, unless overturned, is ensure that anyone objecting to what is in the new manual has at least 30 days to comment.
At the heart of the dispute is the Elections Procedures Manual.
Arizona law, as approved by the Legislature, governs how elections are supposed to be conducted. The manual, which is not only authorized by law but legally required, serves as more of a "how to'' for local election officials, filling in the fine details on everything from how to handle voter registration through rules for people dropping off their ballots as well as procedures for counting and recounts.
It's provisions also have the force of law, with violations considered criminal offenses.
It has generally been noncontroversial.
But that changed as Republicans became unhappy with some of the rules that have been promulgated by Democratic secretaries of state, first with Katie Hobbs and now with Adrian Fontes. And they and their political allies have filed a series of lawsuit alleging that what's in the manuals -- there are supposed to be new ones before every election -- is not within what the law allows.
In this case, the challenges ranged from when a county recorder has to demand "documentary proof of citizenship'' to register to vote to whether election officials should count ballots cast in the wrong precinct.
Maricopa County Superior Court Judge Frank Moskowitz tossed the case out last year, ruling that nothing in the manual conflicts with state law. That led to this appeal.
The appellate judges, however, never addressed those issues. Instead, they concluded that Fontes failed to follow the law in adopting the latest version of the manual.
Specifically, they noted that Fontes published a 259-age draft on July 31, 2023, allowing comment for 15 days.
On Aug. 15, the Republican National Committee submitted a formal complaint, not just about specific provisions but the "unnecessarily restrictive'' and short public comment period.
Fontes did submit a revised draft to the governor and attorney general on Sept. 30, saying it has been posted for public comment "in keeping with the good practice of the prior administration,'' that being Hobbs. And he said suggestions had been incorporated "where appropriate.''
A final, 268-page version was adopted Dec. 30, leading to this lawsuit.
Judge Lacey Gard, writing for the appellate court, said that broke the law.
She said the state Administrative Procedures Act clearly requires that any state agency must provide "at least 30 days'' to "afford persons the opportunity to submit in writing statements, arguments, data and views on the proposed rule.'' More to the point, Gard and her colleagues rejected arguments by Fontes that what is in the manual are not "rules'' that are governed by the APA.
"There is no dispute that the EPM constitutes a collection of rules,'' she wrote. And Gard also said that the Secretary of State's Office is an agency subject to the APA and that the Legislature never exempted it from the act.
Finally, the appellate court rejected Fontes' contention that it would be impractical for him to have to comply with the APA as well as the procedures required when adopting the manual.
Gard acknowledged that living within the Administrative Procedures Act would require Fontes -- and future secretaries -- to start the biennial process of crafting a new manual earlier than current practice.
"But they are not inconsistent, do not directly conflict, and do not create impossible barriers to complying with both,'' she wrote.
There have been other successful legal challenges what Fontes has placed in the manual.
Last year, Maricopa County Superior Court Judge Jennifer Ryan-Touhill said the secretary had gone too far with rules about what people can wear at polling places to their activities outside.
Fontes said these were designed to prevent voter intimidation. But the judge said they ran afoul of First Amendment rights.
And in a separate case, Maricopa County Superior Court Judge Scott Blaney ruled that Fontes has no legal authority to tell county supervisors they must certify election results by a certain date, even if they have questions.
Blaney also voided another provision in the manual that would have allowed him to conduct a statewide canvass and leave out the votes of the counties when supervisors have balked at doing the required certification. The judge said that conflicts directly with state law which he said trumps anything in the manual.
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