By Howard Fischer
Capitol Media Services
PHOENIX — A conservative legal group is accusing Secretary of State Adrian Fontes of trying to mislead voters and get them to reject a Republican ballot measure to make changes in state election laws.
In a new lawsuit, America First Legal says that Fontes is required by law to prepare a neutral explanation of the effect of each measure on the ballot. That explanation, along with a description of the effect of voting for or against it, appears on the actual ballot that people are voting.
But attorney James Rogers contends that what Fontes prepared for Proposition 144 runs afoul of that law. He said it omits critical information about what is in the measure and misleads voters about the effects of some of the provisions.
And now he wants Maricopa County Superior Court Judge Adele Ponce to order the secretary to reword it.
Fontes press aide Calli Jones said the explanation is legal and provides voters what they need to know.
Prop. 144 proposes multiple changes in law that its prime sponsor, Scottsdale Republican Rep. Alexander Kolodin, contends would make elections "more secure.''
One key provision would spell out that "only citizens may register to vote in Arizona elections.'' It also says that Arizona elections "shall be decided solely by the votes of eligible citizen voters.''
But the explanation that Fontes prepared mentions none of that.
Fontes' position has been that all that already is state law — and nothing in Prop. 144 would change all that. And Jones said that, given the amount of space on each ballot to provide the explanation, "reiterating their talking points about requiring citizenship and voter ID was taking up unnecessary space.''
The explanation that Fontes prepared does mention another provision in the ballot measure that would prohibit foreign nationals from contributing or spending to influence elections in Arizona.
What's wrong with that, Rogers said, is that Fontes' explanation says that restriction is "similar to prohibitions that already exist in federal law.''
Rogers told Ponce that isn't true, as federal law restricts only contributions to candidates. What's in Prop. 144, he said, also covers money spent to affect ballot measures.
But much of what's behind the lawsuit appears to relate to putting a controversial provision in the Arizona Constitution to require every person to show valid identification before casting a ballot in each election, "whether voting in person or by any other method, as prescribed by law.''
Fontes does mention that in his description.
But the ballot measure does not explain exactly how that would work for the more than 80% of Arizonans who vote by mail. Instead, it leaves it to future legislatures to work out the details.
What Prop. 144 does appear to do is give lawmakers wide legal berth into making that decision.
It would put language into the Arizona Constitution that all new election laws — including on early and mail voting — are presumed to be legal as long as they are connected to a "legitimate state interest.'' And that covers everything from getting timely election results to "preserving public confidence in the integrity of elections.''
Fontes, in his explanation, boiled that down to telling voters that if Prop. 144 is approved, it would create a new standard under which courts would have to review election laws "which may make it harder to challenge election laws.''
Rogers called that "a contested legal conclusion and litigation prediction, not a statement of the essential change in existing law.'' And he wants Ponce to remove that language.
Jones said there's nothing wrong with the explanation Fontes prepared.
"What was included by the office was necessary, neutral, and provided voters with the needed information regarding the legitimately proposed statutory changes,'' she said. "We have a responsibility to make sure people know what these referrals actually do and how they may change existing law, not regurgitate talking points.''
Rogers, however, sees something more sinister in all of this.
He pointed out that Kolodin is now the Republican nominee for secretary of state, meaning he will face off in November against Fontes, a Democrat.
Rogers told Ponce he is not arguing that Fontes is disqualified from preparing ballot explanations because of his "political interests.'' But he said that those interests "explain how the ballot language came to resemble an argument against Proposition 144 and underscore the need for exacting judicial review.''
"Secretary Fontes had one job here: tell Arizona voters the truth about what's on their ballot,'' Rogers said in a prepared statement.
"Arizona law requires official ballot language to be impartial, accurate, and free from advocacy,'' he continued. "Secretary Fontes' description of Proposition 144 fails all of these requirements.''
No date has been set for a hearing.
This is actually the second lawsuit over Proposition 144.
In an earlier challenge, Randy Keating, a member of the Tempe City Council, sought to block the measure from the ballot with charges that the proposal ties together too many unrelated provisions alongside the new voter ID requirement. That, he argued, violates the Arizona Constitution because it prevents voters from considering each proposal individually.
But Ponce, who heard that case, threw out the lawsuit concluding that everything in Proposition 144 is "topically related'' and "sufficiently interrelated.''
That ruling is being appealed to the Arizona Supreme Court.
