Arizona Secretary of State Adrian Fontes is facing a lawsuit over the use of unstaffed drop boxes to collect mail-in ballots.
Arizona Free Enterprise Club (AFEC) filed the lawsuit on Tuesday in the Yavapai County Superior Court.
AFEC argued that Arizona law requires drop boxes for mail-in ballots — or, early voted ballots — must be located at polling places and monitored by election workers. Based on that reading of statute, AFEC declared that the current Election Procedures Manual (EPM), enacted in 2019 by the former secretary of state and now-Gov. Katie Hobbs, and Fontes’ draft EPM unlawfully allowed unstaffed drop boxes.
“With no basis in statute, and supported by nothing more than executive fiat, the Secretary has authorized election officials throughout the state to employ unstaffed drop-boxes as another manner by which voters may cast their votes early,” said AFEC.
AFEC noted that the EPM provisions on the drop boxes contained zero citations to Arizona law, although the EPM issued over 1,000 citations across its pages elsewhere. AFEC said the omission was purposeful.
“The EPM’s omission of citations to Arizona’s statutes was surely not an oversight. When a statute supports an EPM regulation, the EPM cites it,” said AFEC. “Apparently, though, the EPM’s authors could find no enabling statute supporting unstaffed drop-boxes.”
Since the EPM doesn’t require these unstaffed drop boxes to be located at or near an election official’s building, they have been established at locations like churches, elementary schools, restaurants, humane societies, libraries, fire departments, and community centers. It also doesn’t place any restraints on the number or geographic distribution of the drop boxes per county.
According to AFEC, state law only allows two destinations and two entities for ballot submissions: the office of a designated election official, usually the county recorder, or a polling place, and a federal postal worker or voter’s designated agent. AFEC said that unstaffed drop boxes were therefore an impermissible intermediary in the chain of custody.
Unlike U.S. Postal Service (USPS) mail collection boxes, unstaffed drop boxes don’t have federal legal protections that impart prison sentences for crimes such as obstruction of mail passage, destruction of mail, and vandalism of a mailbox. Unstaffed drop boxes also don’t enjoy a specialized law enforcement division dedicated to investigating postal crimes, like the USPS.
Additionally, unstaffed drop boxes aren’t required to have locks: they may be secured with a “tamper-evident seal.”
Unlike the USPS, which requires the swearing-in of mail carriers, any individual designated by election officials as a “ballot retriever” may transport the contents of unstaffed drop boxes. Also, drop box contents aren’t scanned, counted, or entered into a record of sorts like their USPS counterparts.
AFEC also argued that USPS mailboxes offer an additional level of security through the untold diversity of their contents, whereas election drop boxes are clearly known to contain only ballots and theoretically become susceptible to bad actors.
“A USPS mailbox is further likely to contain different varieties of mail at any given time. From the outside, it is impossible to determine whether a particular mailbox contains early voted ballots,” said AFEC. “By contrast, an unstaffed drop-box contains only completed ballots. From the outside, one can know with certainty that the contents of a ballot drop-box are completed ballots, likely a significant number of them.”
Additionally, AFEC claimed that unstaffed drop boxes increased the likelihood of voter intimidation by independent actors seeking to prevent illegal ballot submissions.
AFEC President Scott Mussi said in a statement that unstaffed drop boxes jeopardize the safety and security of elections.
“Our lawsuit contends that state statute limits the use of drop boxes to locations that are monitored by election workers, which can include existing polling locations and the county elections office. Despite this limitation, election officials and the existing election procedure manual are ignoring statute and have been setting up unmanned drop boxes all throughout the state,” said Mussi. “We believe the use of drop boxes must be in accordance with state law, and we are hopeful that our lawsuit will result in election officials ending their use at illegal locations for the 2024 election.”
An expansive interpretation of state law concerning elections wouldn’t be an unusual trait of the Hobbs EPM. In September, the Yavapai County Superior Court ruled that Fontes was perpetuating an incorrect interpretation of “registration record.” AFEC also sued in that case.
Fontes had argued that the term “registration record” in voter signature verification law meant that other documents in a voter’s record besides the registration form could be used to verify signatures. The court invalidated the expansive interpretation of the term, thereby invalidating the corresponding portion of the Hobbs EPM.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Arizona elected officials stood with Israel after the American ally suffered a shocking and horrific terrorist attack late last week.
After Israel was attacked by Hamas terrorists on Friday night (Arizona time), state politicians offered their thoughts, prayers, and messages of unwavering support for the Middle Eastern democracy.
Governor Katie Hobbs wrote, “I condemn the horrific terrorist attack on Israel by Hamas. Arizona stands with the people of Israel and supports their right to self defense. My heart breaks for the families of those who have been killed, injured or captured.”
I condemn the horrific terrorist attack on Israel by Hamas. Arizona stands with the people of Israel and supports their right to self defense. My heart breaks for the families of those who have been killed, injured or captured.
Attorney General Kris Mayes stated, “Deeply shocked and heartbroken by today’s terrible Hamas terrorist attacks in Israel. My heart goes out to the families mourning their lost loved ones. Arizona stands resolutely in support of Israel.”
Deeply shocked and heartbroken by today’s terrible Hamas terrorist attacks in Israel. My heart goes out to the families mourning their lost loved ones. Arizona stands resolutely in support of Israel. https://t.co/arvkaKKyqs
— AZ Attorney General Kris Mayes (@AZAGMayes) October 7, 2023
Secretary of State Adrian Fontes added, “This has been a tough day for the world. I unequivocally condemn today’s terrorist attacks in Israel and am thinking of the victims and their loved ones. Every nation should have the right to defend itself. Democracy must be protected wherever it is in jeopardy.”
This has been a tough day for the world. I unequivocally condemn today’s terrorist attacks in Israel and am thinking of the victims and their loved ones. Every nation should have the right to defend itself. Democracy must be protected wherever it is in jeopardy.
Treasurer Kimberly Yee also weighed in, saying, “I stand with Israel. The United States has enjoyed a longtime friendship and allied relationship with Israel, a shining light of democracy in the Middle East. As a former State Senate Majority Leader and now as Arizona Treasurer, I have fought against BDS efforts to boycott and harm Israel. Please join me in praying for protection over the people of Israel against these evil Hamas terrorist attacks. May God bless the United States and Israel.”
— Arizona Treasurer Kimberly Yee (@AZTreasurerYee) October 9, 2023
Many members of Arizona’s Legislature also shared their solidarity with Israel over the weekend.
Senate President Warren Petersen spoke for his Republican conference, stating, “Arizona Senate Republicans stand in support of Israel, one of our nation’s most important allies. We strongly condemn the horrific violence happening against innocent Israeli civilians and Americans. We send prayers for strength, courage and comfort as the Israeli people battle against pure evil.”
Arizona Senate Republicans condemn the horrific violence happening against civilians and Americans in Israel. – @votewarren ⬇️ pic.twitter.com/tyPJQsXgkb
Representative Alma Hernandez wrote, “While I don’t post during Shabbat I must break that today. Israel is at war and my heart is breaking for what is happening and unfolding there. Innocent Israelis murdered, walking on the streets, elderly being murdered while waiting at bus stops, women and children being kidnapped, raped and murdered on video. All while Palestinian terrorist are celebrating on the streets. I can’t believe this is happening today. My heart is shattered.”
While I don’t post during Shabbat I must break that today. Israel is at war and my heart is breaking for what is happening and unfolding there. Innocent Israelis murdered, walking on the streets, elderly being murdered while waiting at bus stops, women & children being kidnapped,…
— (((Rep.Alma Hernandez))) (@almaforarizona) October 7, 2023
Arizona Senate Pro Tempore, T.J. Shope, expressed his prayers for the American ally.
Representative Consuelo Hernandez said, “Praying for the people of Israel who were infiltrated by Hamas terrorist. So many more Israelis will be killed for the simple reason of being Jewish and existing. You are not alone. The world is watching.”
Praying for the people of Israel who were infiltrated by Hamas terrorist. So many more Israelis will be killed for the simple reason of being Jewish and existing. You are not alone. The world is watching. https://t.co/rv3zSF3twN
Representative Jacqueline Parker praised Israeli leadership and response to the attacks, saying, “At least there’s one righteous super power left in the world with competent leadership. I pray for Israel’s safety & swift victory.”
At least there’s one righteous super power left in the world with competent leadership. I pray for Israel’s safety & swift victory. 🙏🙏🙏 https://t.co/u5WYoiIzz8
Representative Seth Blattman added, “This is a horrifying surprise attack on the people of Israel. I stand with Israel as it defends itself against Hamas in this ongoing assault.”
This is a horrifying surprise attack on the people of Israel. I stand with Israel as it defends itself against Hamas in this ongoing assault.
Other municipal and county officials also issued their own statements in reaction to the events from the weekend.
Phoenix Mayor Kate Gallego posted, “I’m proud to stand with Israel and condemn Hamas’s attacks on innocent people in the strongest terms. Here in Phoenix, our police are stepping up patrols near synagogues – and our hearts are with our many friends throughout Israel.”
I’m proud to stand with Israel and condemn Hamas’s attacks on innocent people in the strongest terms.
Here in Phoenix, our police are stepping up patrols near synagogues—and our hearts are with our many friends throughout Israel.
Representative Alexander Kolodin recognized the increased security provided by Phoenix law enforcement, stating, “Grateful to the Phoenix Police for this extra degree of vigilance. We American Jews are tremendously luck to live in a country where officers of every faith are willing to risk their lives to protect our ability to worship freely.”
Grateful to the @PhoenixPolice for this extra degree of vigilance. We American Jews are tremendously lucky to live in a country where officers of every faith are willing to risk their lives to protect our ability to worship freely.https://t.co/vP13f1j04b
Maricopa County Attorney Rachel Mitchell also shared her prayers for Israel.
Praying for Israel.
— County Attorney Rachel Mitchell (@Rachel1Mitchell) October 7, 2023
Peoria Mayor Jason Beck told AZ Free News that “Israel is a home away from home for me and my family. It has a sacred history and is one of the few places in the region that respects the personal beliefs of their citizens. I’m both saddened and angry at what these acts of terrorism have done to the people of Israel. I am taking action by sending body armor to Israel for the protection of the brave soldiers who will defend their homeland and our Western values. The Biden administration should be ashamed of their recent actions that opened up funding to Iran. Iran is who has openly trained and funded Hamas and other affiliates that don’t recognize Israel’s right to exist. They seek to wipe Israel off the face of the earth. I stand with the men and women of Israel in this fight and pray that God will protect their homeland.”
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
Secretary of State Adrian Fontes appears to be in a tug-of-war with Governor Katie Hobbs to determine who is worse at their job. It’s been well-documented that since she took office, Hobbs has been off to a rough start with high-profile staff exits, breaking the veto record after killing the bipartisan “Tamale Bill,” and alienating many Democrats by signing the Republican budget. But over the past eight months, Fontes has been working just as hard in the battle to see who’s more incompetent. Not only has he failed to perform the necessary voter list maintenance—leaving 14 Arizona counties in violation of Section 8 of the National Voter Registration Act—but he rushed through a version of the Elections Procedures Manual (EPM) that is filled with unlawful provisions.
Now, Secretary of State Fontes has been dealt another major blow after a superior court judge ruled against him…
Last week, a superior court judge ruled that Secretary of State Adrian Fontes and his predecessor, now-Gov. Katie Hobbs, enforced an Election Procedures Manual (EPM) that ran afoul of voter signature verification law. The problematic EPM in question was crafted by Hobbs in 2019.
The ruling came in the case Arizona Free Enterprise Club v. Fontes. Contrary to the law, Fontes claimed to the court that the term “registration record” was ambiguous and up for interpretation — meaning, he could decide what constituted a valid signature record for the purposes of verifying the validity of a ballot signature. For that reason, Fontes said that the lawsuit against his administration should be dismissed.
Judge John Napper disagreed, rejecting the motion to dismiss last Friday; he stated that only a voter’s signature used to register to vote was valid. Napper ordered Fontes to adhere to the definition of “registration record” for the purposes of signature verification.
“Here, the langu[ag]e of the statute is clear and unambiguous. The statute requires the recorder to review the voter’s registration record. The common meaning of ‘registration’ in the English language is to sign up to participate in an activity,” wrote Napper. “No English speaker would linguistically confuse the act of signing up to participate in an event with the act of participating in the event [….] Applying the plain and obvious meaning of ‘registration,’ the legislature intended for the recorder to attempt to match the signature on the outside of the envelope to the signature on the documents the putative voter used to register.” (original emphasis included)
Fontes petitioned the court to interpret the law to mean that other documents could be included in the definition of “registration record” based on a change of the law from reading “registration form” to “registration record.” Fontes argued that “record” was a more expansive term meant to encompass a greater set of documents than “form.” Fontes also argued that the term was ambiguous and therefore up to interpretation.
Napper rejected these arguments. The judge explained that the term change only expanded the “volume of documents” for signature verification to allow for review of multiple forms comprising a registration record. Napper also declared that the statute wasn’t ambiguous at all.
“That limitation remains the same, documents are part of the ‘registration record’ only if they involved the voter’s ‘registration,’” stated Napper. “[T]he recorder is to compare the signature on the envelope to the voter’s prior registrations (the record).”
Napper also declared that the Arizona Free Enterprise Club (AFEC) correctly defined “registration record,” unlike Fontes and former Secretary of State Katie Hobbs (now governor) per her 2019 EPM. Napper ruled that Hobbs’ 2019 EPM violated the law.
“The 2019 EPM creates a process that contradicts the plain language of A.R.S. §16-550(A),” stated Napper. “Therefore, this portion of the EPM and the instruction from the Secretary do ‘not have the force of law.’”
Napper’s ruling acknowledges a major issue: in the four years of its use, Hobbs’ unlawful 2019 EPM signature verification instruction has carried “the weight of the law.”
Mi Familia Vota also intervened in the case and requested dismissal of AFEC’s lawsuit. They claimed that any real or existing issues with the EPM didn’t matter because Fontes would produce a new EPM this December that could potentially adhere to state law. Napper also rejected this argument. The judge pointed out that those in the executive branch, including Hobbs, have consistently failed to produce a valid EPM, including in 2021.
“While the production of a new EPM is statutorily required, the multiple offices of the executive branch have not consistently adhered to the statute’s dictates,” said Napper. “They were unable to produce an EPM in 2021. This is why the 2019 manual carries the force of law to this day. The Court has been unable to find any authority suggesting a case is not ripe for decision because a government actor may choose a different course of conduct in the future.” (emphasis added)
The case is ongoing, with a status conference scheduled later this month.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
The people of Arizona deserve elections that are both accessible and secure—where it is easy to vote and hard to cheat. It is the duty of the legislature to pass bills that ensure this, the Governor to sign those bills into law, and the Attorney General to enforce those laws.
But the Secretary of State’s role is different. This elected official is supposed to provide an Elections Procedures Manual (EPM) that provides impartial direction to county recorders to ensure uniform and correct implementation of election law. But just like his predecessor in this role before him (now-Governor Katie Hobbs), our current Secretary of State Adrian Fontes has filled his EPM with unlawful provisions…
