The Arizona Court of Appeals ruled against the Elections Procedures Manual (EPM) produced by Secretary of State Adrian Fontes.
Judge Lacey Gard reversed and remanded a lower court decision dismissing the case, Republican National Committee, et al. vs. Adrian Fontes, et al., last summer. Gard ruled the EPM fell under the Arizona Administrative Procedure Act (APA), a “plain reading” of the statute contrary to what the lower court ruled. Gard also dismissed Fontes’ arguments for his right to not comply with the APA because the APA and EPM statutes conflict.
“[The APA] unambiguously states that all agencies are subject to the APA’s rulemaking procedures unless ‘expressly exempted,’” stated Gard. “The APA and EPM statutes impose duties on the Secretary that may require him to begin promulgating the EPM earlier, but they are not inconsistent, do not directly conflict, and do not create impossible barriers to complying with both.”
Gard further ruled Fontes violated the APA by not allowing public comment on the proposed EPM for the full 30 days, instead only opening up review for 15 days.
Gard noted at the end of her ruling that she wouldn’t address other claims by the Republican National Committee challenging eight specific provisions of the EPM, since she arrived at the conclusion that Fontes’ promulgation of the 2023 EPM failed to “substantially comply” with requirements set forth by the APA for the rulemaking process.
The Republican Party of Arizona (AZGOP) sued Fontes over the EPM last February, along with the Arizona legislature leadership at the time (Senate President Warren Petersen and then-House Speaker Ben Toma) and the Arizona Free Enterprise Club. In a statement on Thursday’s ruling, the AZGOP claimed the appeals court found the EPM to be unconstitutional.
AZGOP Chair Gina Swoboda said the ruling confirmed the extent of the unlawfulness of Fontes’ EPM in the Thursday statement. Swoboda characterized Fontes and his EPM as an attempt “from the radical left to illegally assume control” of Arizona elections.
“This opinion from the court shows just how much Secretary Fontes and his allies in the Governor’s and Attorney General’s offices overreached in their partisan efforts to hijack our elections through this blatantly political manual,” said Swoboda. “As we have highlighted to the court, the most-recent elections manual contained many provisions that ran utterly contrary to Arizona law, giving the Democrat machine a clear advantage at the ballot box for years to come.”
Beyond the lack of compliance with APA, GOP leaders’ objections to the Fontes EPM concerned conflicts with state election law: accepting voters who declared themselves noncitizens on juror questionnaires; allowing voters who failed to submit or couldn’t achieve verification of their Documentary Proof of Citizenship (DPOC); allowing first-time, federal-only voters to provide only an ID and not DPOC for mail-in voting; not requiring county recorders to check federal databases for citizenship reviews; restricting public review of voter signatures on mail ballots; allowing Active Early Voting List voters to receive ballots outside the state for certain elections; requiring denial of early ballot challenges received prior to the return of an early ballot; and allowing out-of-precinct voters to cast provisional ballots.
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Arizona’s former secretary of state, state senator, and 2020 election auditor, Ken Bennett, will serve as chair of AUDIT USA.
AUDIT USA — Americans United for Democracy, Integrity, and Transparency in Elections — is a nonprofit dedicated to public oversight of elections that best deters election fraud. Bennett, a Republican, will lead AUDIT USA, though it maintains a bipartisan cohort and its co-founder is a self-described “progressive Democrat.”
AUDIT USA’s current efforts focus on establishing Auditable Ballot Examination (ABE), an audit system independent of the Election Management System enabling officials and voters to verify election outcomes through access to anonymized digital ballot images. ABE reportedly boasts the capability of sorting by race, precinct, overvotes, undervotes, and write-in candidates promptly.
AUDIT USA offers a version of ABE that operates as a beta to showcase its capabilities.
AUDIT USA worked on ABE-prompted bipartisan legislation in 2023 that gained the support of Democratic Secretary of State Adrian Fontes.
“In an era where democracy faces unprecedented challenges, every vote must be verifiable, and every citizen must have access to clear, trustworthy election data,” stated Bennett in a press release.
Fontes, in a statement, said he welcomed the proof of clean elections that the proposed audit system would afford.
“[This tool would] get rid of the election fraud nonsense,” said Fontes. “Get rid of the lies and the conspiracy theories once and for all.”
Other goals of AUDIT USA include email-enabled excel spreadsheets hyperlinked to securely stored, cloud-based ballot images; optimizing platforms to become more user friendly; and improving verification systems to increase the accuracy and speed of cross-check examinations of election results.
Bennett served as the Arizona Senate’s liaison during the audit of Maricopa County’s 2020 election results conducted by private data firm Cyber Ninjas. Around that stint in elections oversight, Bennett served in the State Senate from 1999 to 2007 and then 2023 to 2025.
Bennett capitalized on that latter return to the Arizona legislature to advocate for election integrity improvements. He was the lawmaker who led on the ABE-inspired legislation in 2023, and in 2024 he attempted to realize the proposal again through a $2 million designation from the budget to pay for the creation of the analytical tool.
In that 2023 proposal, SB1324, Bennett’s pitch to lawmakers cited the close loss endured by now-Congressman Abe Hamadeh in the attorney general’s race. Bennett argued that voters would have more confidence if they could see for themselves that the 280-vote lead by Mayes was truly owing to thousands of voters declining to vote in that race.
Governor Katie Hobbs ultimately vetoed the bill after it was substituted for HB2560 with its similar provisions. Hobbs claimed the bill would create problems with anonymity and both misinformation and disinformation.
AUDIT USA co-founder John Brakey served under Bennett as deputy liaison for the 2021 election audit. Brakey currently serves as the organization director. Other members: secretary and treasurer Arlene Leaf, and board members Bill Risner, Bennie Smith, Lynn Bernstein, and Susan Pynchon.
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Arizona Republicans scored a significant victory in court over the state’s top elections official.
On Thursday, Arizona House Speaker Ben Toma championed a recent court ruling from Maricopa County Superior Court Judge Scott Blaney over contested provisions within the 2023 Arizona Elections Procedures Manual (EPM). According to a release issued by the Arizona House of Representatives, “the court sided with Speaker [Ben] Toma and Senate President Warren Petersen in their legal challenge, declaring that the Secretary overstepped his authority and infringed on the Legislature’s exclusive lawmaking powers.”
🚨Arizona House Speaker @RepBenToma Hails Court Victory as Major Win for the Rule of Law and Election Integrity:
“This is a clear victory for the rule of law, the separation of powers, and the integrity of our elections. The Legislature is the lawmaking body of this state, and… pic.twitter.com/bYC7IIRDZK
Speaker Toma released a statement in reaction to the decision, saying, “This is a clear victory for the rule of law, the separation of powers, and the integrity of our elections. The Legislature is the lawmaking body of this state, and today’s decision reaffirms that foundational principle. Secretary Fontes attempted to overstep his authority, but the court recognized these actions for what they were – unlawful and unenforceable. I am proud to have led this fight to protect the constitutional role of the Legislature and to ensure that Arizona’s election laws are upheld as written. It’s a win for all Arizonans who value fair, transparent, and accountable election policies.”
President Petersen said, “A win today on our lawsuit against the Secretary of State. Judge said the SOS exceeded his lawful authority at least 4 times in his drafting of the elections procedure manual. The voter rolls must be cleaned up.”
A win today on our lawsuit against the Secretary of State. Judge said the SOS exceeded his lawful authority at least 4 times in his drafting of the elections procedure manual. The voter rolls must be cleaned up.
In a comment to AZ Free News, Petersen added, “We’re disappointed that the judge delayed the effective date of the AEVL provision but everything else was a big win. We will continue to do all we can to secure our elections and boost voter confidence.”
Arizona House Republicans shared that the court ruling “invalidated multiple provisions in the EPM, including:
A rule altering how voter registrations are managed for non-residents, in violation of Arizona statutes.
A rule excusing errors in circulator registrations, undermining strict compliance requirements for initiatives and referendums.
A rule limiting the role of county Boards of Supervisors during the canvassing process and improperly allowing the Secretary to exclude county results from the statewide canvass.”
While this past election cycle has come and gone, Fontes will have one more opportunity to fashion an EPM before the next one, and he has Democrat allies in Governor Katie Hobbs and Attorney General Kris Mayes to potentially rubberstamp his schemes yet again. Arizona legislative Republicans are awaiting the next installment of the EPM to ensure that any out-of-order provisions will be quickly discovered and challenged in court to protect the integrity of Arizona elections.
Fontes dropped the current EPM just before the statute-mandated deadline of December 31, 2023, after securing approvals from Hobbs and Mayes. For the first time since 1978-1979, Democrats controlled the top three statewide offices in Arizona (Governor: Bruce Babbitt, Attorney General: John LaSota, Secretary of State: Rose Mofford). One of the most significant consequences of securing this power trifecta is the ability to negotiate, craft, and green light the state’s Elections Procedures Manual without initial interference from opposing political voices, as required by law every two years.
At the end of January, Petersen and Toma filed a challenge in Maricopa County Superior Court over Fontes’ EPM, which has been ongoing up until (and through) this week’s decision.
When the EPM was published at the end of last year, Governor Katie Hobbs, who preceded Fontes, said, “Partisan politics should have no role in how we run our elections. This EPM builds on the 2019 EPM and 2021 draft EPM from my tenure as Secretary of State and will ensure dedicated public servants from across the state will have the guidelines they need to administer free and fair elections. Together, we can protect our democracy and make sure every Arizonan has the opportunity to have their voice heard.”
As Secretary of State, Hobbs was required to finalize the EPM in 2021, but a divided government shared with Republican Governor Doug Ducey and Attorney General Mark Brnovich stymied the quest to secure a green light for the manual. Hobbs and Brnovich were also mired in an ongoing political feud, which resulted in legal bar charges that the Secretary of State brought against the state’s top prosecutor and several of his attorneys. After receiving Hobbs’ updated manual, Brnovich sued the SOS “to compel her production of a lawful EPM.” Brnovich alleged that “the SOS failed to provide the Governor and Attorney General with a lawful manual by October 1, 2021, as required, and instead included nearly one-hundred pages of provisions not permitted under the EPM statute.” The challenge from the former Attorney General was rendered unsuccessful, and the state was forced to revert to the previous cycle’s EPM (2019) to govern the 2022 races.
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
Cochise County approved the election results, despite their hand count audit failing to count nearly 60 percent of the required number of ballots.
The Cochise County Board of Supervisors accepted and certified their canvass during a brief special meeting on Wednesday.
The county’s election director, Marisol Renteria, presented the canvass alongside Joe Casey. Casey said that Secretary of State Adrian Fontes and Cochise County Attorney Brian McIntyre gave election officials permission to certify the election despite the incorrect hand count total.
“On November 19, it was brought to our attention that there was an incorrect calculation done on the number of hand counts for early voters but at this time we had contacted the secretary of state and county attorney’s office and we’re in agreement that we are ready to certify the election,” said Casey.
Casey noted that the discrepancies found within their undercounted hand count audit were within the “acceptable margin of error.” Indeed, Fontes’ office has marked the status of the county’s hand count as “completed,” having discrepancies “within the acceptable margin.”
None of the supervisors questioned or challenged the audit undercount, contributing to the brevity of the meeting at just seven minutes long.
My Herald Review first reported on the county’s failure to audit all the required ballots.
Hand count audits ensure the accuracy of the machine ballot counting.
The report from the county’s election director, Marisol Renteria, showed that the county audited only 200 ballots rather than the nearly 500 required. State law requires auditing one percent of the total number of cast early ballots. Cochise County based their one percent off of the initial batch of early ballots tabulated on Election Day, rather than the total number of early ballots cast.
Casey noted that the county experienced other issues during the election as well. This included vote center wait times reaching well over two hours, a bomb threat on Election Day at vote center two, and a power outage on November 13 lasting about five hours.
“We did deal with some challenges, some abnormalities and some incidents throughout the last few weeks,” said Casey.
Supervisor Peggy Judd — who made the motion to accept the results — thanked the elections staff, and added that they weren’t at fault for the election issues, including the recently-discovered audit undercount.
“No one can be blamed, it was just something that was going to happen. It would have happened to anyone. I’m glad it wasn’t me,” said Judd.
Judd and fellow supervisor Tom Crosby faced indictments for felony-level election interference and conspiracy over their delaying certification of the 2022 election results. Judd and Crosby maintained concerns over election equipment malfunctions that occurred and desired a complete audit of in-person election day ballots.
Last month, Judd pleaded guilty to election interference and entered into a plea deal for a misdemeanor, avoiding the felony punishments: 90 days’ minimum unsupervised probation and a $500 fine.
Supervisor Ann English commended the elections staff for finding solutions to the problems presented during the election. English remarked that this time around, the county had “an efficient, effective election.”
This election, the county had 82,200 registered voters, with a 72 percent voter turnout (almost 60,000 voters).
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Senate President Warren Petersen announced on Monday morning that he received the list of 218,000 voters registered without proof of citizenship.
These 218,000 voters (an increase from the initial estimate of nearly 100,000) had obtained their driver’s licenses prior to the 1996 requirement to apply with proof of citizenship, went on to get a duplicate license, and then registered to vote for the first time or re-registered to vote after 2004. For over 20 years, they were caught up in a compatibility error between the Arizona Department of Transportation (ADOT) and the state’s voter registration system.
Later in the day, Fontes announced that voters can check whether they’re one of the affected voters through my.arizona.vote.
The Arizona Supreme Court ruled in September that these voters caught up in the compatibility error would be allowed to vote the full ballot. America First Legal sued Fontes last month to obtain access to that list of voters.
“This morning I authorized receipt of those names,” said Petersen. “We will do everything we can to make sure our elections are run with integrity.”
Judge ruled AZSOS must release 218k names that he had refused to disclose. This morning I authorized receipt of those names. We will do everything we can to make sure our elections are run with integrity. Special thanks to @merissahamilton@America1stLegal@JenWEsq!
After Petersen announced receipt of the list, Fontes held a press conference discussing the impact of the court-ordered release.
“Let me be very clear about that: every single person on that list has sworn under penalty of perjury that they are a U.S. citizen and eligible to vote,” said Fontes. “They’ve done the exact same thing that every other citizen of the United States of America has done. But because here in Arizona we have that extra thing that needs to be done, that extra documented proof of citizenship — that is not required anywhere else in the country — we find ourselves in this quagmire.”
Fontes assured voters that they had the right to not be harassed at their homes or have others demand identification from them. Fontes said that any harassing of the 218,000 voters would be subject to prosecution.
“If anyone does do this sort of thing, please contact our office or your local law enforcement agency. Voter harassment and intimidation is a violation of the law,” said Fontes.
Fontes said that his office would be contacting the county recorders about voters on the list within the next few days and week. The secretary of state said that their office would work “later this year” to collect the appropriate documentary proof of citizenship.
Fontes discouraged the 218,000 voters on the list from contacting their local election officers presently, due to the busy nature of the ongoing election.
“You are under no obligation whatsoever to provide documented proof of citizenship if you’re on this list,” said Fontes.
Fontes said he is “not happy” with the court order, and blamed the focus on the 218,000 voters on the “lies and conspiracies” by individuals concerned with election integrity, which he characterized as “folks who mean this democracy harm.”
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