By Howard Fischer
Capitol Media Services
PHOENIX -- Secretary of State Adrian Fontes does not have to follow complex and potentially lengthy procedures every time he wants to alter the state's Elections Procedures Manual, the Arizona Supreme Court ruled Thursday.
In a brief decision, the justices rejected arguments by the Arizona Republican Party and the Republican National Committee there is nothing legally wrong with Fontes providing just 15 days for individuals and others to comment about provisions in the manual which is meant to provide a guide for county election officials about how to deal with everything from voter registration through counting of ballots.
Fontes told Capitol Media Services the justices got it right. And he lashed out at Republicans for "the abject, stupid waste of money that this lawsuit is in the first place.''
But Thursday's ruling may not be a total victory for the Democratic secretary of state. Instead, it sends the case back to the Court of Appeals to decide the legality of what Fontes actually put in the manual.
That is crucial: Fontes lacks the legal authority to direct county officials to do anything that conflicts with state law. And the Republican challengers contend that he has gone too far on rules on everything from when a county recorder has to demand "documented proof of citizenship'' to register to vote to whether election officials should count ballots cast in the wrong precinct.
Fontes insisted there's nothing more to fight, saying he has altered the verbiage they found offensive in the 2025 version of the manual now being reviewed.
That, however, may not be the case. And there was no immediate response from lawyers for the GOP about
Arizona elections are governed by laws approved by the Legislature.
But decades ago, lawmakers directed whoever is the secretary of state to also craft a manual to deal with some of the finer details that are not specifically addressed in state law.
And there are a lot.
The 2023 version -- the one at issue in the lawsuit -- runs 385 pages. And its topics range from dealing with security issues for tabulation machines to procedures used to send out early ballots for those who have signed up.
What has changed in the last few years is that voters have selected Democrats to be the secretary of state -- first Katie Hobbs and now Fontes -- and Republicans were unhappy with some of the rules. Unable to work things out, it resulted in a series of lawsuits.
This one, filed last year, started with the argument that Fontes was acting illegally by providing just a 15-day comment period on the draft manual before finalizing it, all he said is required.
Republicans countered that what's in the manual are rules. And what that means, they said, is they can be approved only by following procedures in the Administrative Procedures Act that applies to other agencies.
Fontes agreed to extend the comment period to 30 days.
But his lawyers argued that actual compliance with the APA would require the secretary of state to first publish a notice of proposed rulemaking, accept public comment for at least 30 days, and then have a period for live proceedings. And the process would have to restart if there were substantive changes.
On top of that, the APA requires that any rule be submitted to the Governor's Regulatory Review Council within 120 days.
More to the point, Fontes argued that the laws governing the manual override the normal rulemaking procedures. And he said following that process would make it near impossible to meet the legal requirements to draft a new manual by Oct. 1 of ever odd-numbered year.
The justices, in their unanimous Thursday order, apparently agreed, reinstating a trial court decision that the manual is exempt from the APA.
But the challenges to the manual in this case and other involve more than procedures for its adoption.
For example, there's the issue of what constitutes "voter intimidation.''
As originally crafted, Fontes included language to prohibit "any activity by a person with the intent of effect of threatening, harassing, intimidating, or coercing voters.'' And that would have applied both within 75 feet around polling places where political activity is forbidden as well as outside that perimeter.
Challengers to that language in multiple lawsuits have said that is overly broad, applying even in cases where someone felt intimidated but that was not the intent of the person who was acting. And then there were questions about how much the state can restrict actions of those outside that 75-foot limit.
When judges in two separate cases agreed, Fontes altered the language in the proposed 468-page draft manual now being prepared. He told Capitol Media Services that makes any further challenge to the provision legally moot.
But that conclusion, however, is far from clear: His revised language still contains things that may still draw objections.
For example, the proposed new manual contains examples of what would be considered intimidation or harassment. That includes yelling at people who are within 75 feet of a drop box returning their early ballots. Also over the line, according to the revised language is openly carrying firearms within 250 feet of a ballot drop box or visibly wearing body armor within that same perimeter.
Fontes said he believes that language is legally defensible.
"I'm still going to try to protect voters when they're standing in line,'' he said. "I don't think that someone with a long rifle should be screaming at voters who just are peacefully assembled, trying to stand in line to vote.''
And he acknowledged that issue and others may remain.
"Are they going to keep suing me because they think it's more important to have someone screaming and yelling at voters on Election Day?'' he asked. "I'll keep fighting that fight.''
No date has been set for arguments before the appellate court.
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