The people of Arizona deserve elections that are free, fair, transparent, and lawful. As the top election official in our state, Secretary of State Adrian Fontes should be working every day to ensure this happens. And he should be providing an Elections Procedures Manual (EPM) that gives impartial direction to county recorders to ensure uniform and correct implementation of election law.
This shouldn’t be that hard…or controversial.
But Adrian Fontes took it upon himself to produce one of the most radical EPMs in Arizona’s history. In fact, several of the “rules” in his EPM even go as far as to criminalize activity that is protected under the First Amendment—creating an unconstitutional chilling effect on protected political speech. Apparently, Adrian Fontes hasn’t read the United States Constitution or the Arizona Constitution.
Because of this illegal EPM, we sued him. And last week, a Maricopa County Superior Court ruled in our favor, finding that Fontes’ EPM contains speech restrictions that violate the Arizona Constitution, misstatements and modifications of statutes, and failures to identify distinctions between guidance and legal mandates.
So, how did Fontes respond? Did he realize the error of his ways? Will he now properly understand his role and amend the EPM to align with the law? No. Instead Adrian Fontes has responded how you would expect someone to respond when he knows he can’t win. He’s resorted to maligning our organization in the media…
The Maricopa County Superior Court ruled against provisions of Arizona’s 2023 Elections Procedures Manual (EPM) on Tuesday.
The EPM, drafted and passed under Democratic Secretary of State Adrian Fontes, was challenged in court earlier this year by the public policy nonprofit, Arizona Free Enterprise Club (AFEC).
Maricopa County Superior Court Judge Jennifer Ryan-Touhill ruled that Fontes’ 2023 EPM contained speech restrictions that violated the Arizona Constitution, as well as misstatements and modifications of statutes, and failures to identify distinctions between guidance and legal mandates.
Ryan-Touhill ruled that the EPM’s provisions on speech were unnecessary, vague, overbroad, and serving as universal prohibition on conduct.
“The EPM’s language has restricted what the Secretary finds acceptable regarding behavior, both speech and acts. Our state constitution guarantees a right to speak freely and is only restricted for an abuse of that right,” wrote Ryan-Touhill. “[M]any of the prohibitions listed in the EPM are free speech and protected by both the Arizona Constitution and the U.S. Constitution. What, for example, constitutes a person communicating about voter fraud in a harassing manner? Or, for that matter, ‘posting’ a sign in an intimidating manner? How does a person either do this behavior — whatever it means — or avoid it? And what content printed on a t-shirt might be offensive or harassing to one and not another? What if the t-shirt says, ‘I have a bomb and I intend to vote!’? Where does the Secretary draw the line?”
Ryan-Touhill highlighted 13 instances of “problematic language” within Fontes’ 2023 EPM in her ruling:
[N]o electioneering may take place outside the 75-foot limit if it is audible from a location inside the door to the voting location.
Any activity by a person with the intent or effect of [ ] harassing, [ ] (or conspiring with others to do so) inside or outside the 75-foot limit at a voting location is prohibited.
The officer in charge of elections has a responsibility to train poll workers and establish policies to prevent and promptly remedy any instances of voter intimidation.
The officer in charge of elections should publicize and/or implement the following guidelines as applicable:
The inspector must utilize the marshal to preserve order and remove disruptive persons from the voting location.
Openly carrying a firearm outside the 75-foot limit may also constitute unlawful voter intimidation, depending on the context.
Aggressive behavior, such as raising one’s voice or taunting a voter or poll worker.
Using [ ] insulting [ ] or offensive language to a voter or poll worker. Disrupting voting lines.
Following voters or poll workers coming to or leaving a voting location, including to or from their vehicles.
Intentionally disseminating false or misleading information at a voting location. . . .
Directly confronting, questioning, photographing, or videotaping voters or poll workers in a harassing [ ] manner, including when the voter or poll worker is coming to or leaving the polling location.
Asking voters for “documentation” or other questions that only poll workers should perform.
Raising repeated frivolous voter challenges to poll workers without any good faith basis, or raising voter challenges based on race, ethnicity, national origin, language, religion or disability.
Posting signs or communicating messages about penalties for “voter fraud” in a harassing or intimidating manner.
Judge Ryan-Touhill assessed that the EPM’s provisions modified the criminal intent and effect of crimes outlined by Arizona laws against harassment and voter intimidation or threats.
“The Secretary has no authority to change a mens rea, regardless of the objective of the language,” said Ryan-Touhill. “Moreover, neither law allows for a subjective belief of the alleged target of the crime but rather focuses upon the acts of the criminal (e.g., force, violence, infliction) or the victim (‘a reasonable person’).”
AFEC President Scot Mussi said in a press release that he was happy to see the court protect Arizonans’ First Amendment rights within elections.
“The judge correctly realized that certain portions of Secretary Fontes’ illegal and radical manual were nothing more than a brazen attempt to destroy the integrity and transparency of state elections,” said Mussi. “Secretary Fontes and his team of leftwing ideologues must conform the entire manual to state law as is their statutory duty.”
The court ordered the sections of the EPM containing speech restrictions to be unenforceable.
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If Adrian Fontes likes spending time in court, he’s going to have a fun time in 2024. In case you’ve lost count, Arizona’s Secretary of State has been sued three times over his Elections Procedures Manual (EPM) in just the last two weeks. That’s what happens when you produce one of the most radical EPMs in Arizona’s history.
At the end of January, Senate President Warren Petersen and House Speaker Ben Toma filed a lawsuit against Fontes over a variety of provisions in his EPM that violate or conflict with current election laws in our state. But the party was just getting started.
Last week, the Arizona Republican Party, the Republican National Committee, and the Yavapai County GOP also sued Fontes for his blatant attempt to rewrite election law through his EPM. And on the same day, we filed our own lawsuit against Fontes over the promulgation of certain unlawful rules set forth in his EPM.
The reality is that, in his role as Secretary of State, Adrian Fontes is supposed to provide an EPM that gives impartial direction to county recorders to ensure uniform and correct implementation of election law. Instead, he prescribed certain rules without the power to do so and moved forward with an EPM that contains several “rules” that are unconstitutional.
Arizona’s leading legislative Republicans are taking the state’s Secretary of State to court in advance of the 2024 election cycle.
On Wednesday, the State Senate Republican Caucus announced that President Warren Petersen and House Speaker Ben Toma filed a challenge in Maricopa County Superior Court over the recently published Elections Procedures Manual (EPM), “requesting the court throw out a number of provisions in the EPM, which violate or conflict with current Arizona election laws.”
“Both the Secretary and our Governor have a track record of not following the law. As a result, I’m taking action to protect the integrity of our elections,” said President Petersen. “This reckless EPM opens the door to unlawful activity and undermines the voter confidence measures Republican lawmakers have implemented over the years.”
Toma added, “The Arizona Legislature is taking steps necessary to protect the integrity of Arizona’s elections…. Secretary Fontes has exceeded his jurisdiction, using the EPM to exercise lawmaking powers that do not belong to him. Our lawsuit aims to halt this overreach and nullify the unlawful provisions in the manual to ensure a fair and lawful electoral process for all Arizonans.”
The lawsuit, which was filed by attorneys of Statecraft PLLC and Snell & Wilmer L.L.P., asked the Superior Court for a preliminary injunction prohibiting the implementation or enforcement of the 2023 EPM to the extent it purports to:
Allow county recorders to merely move to inactive status – rather than cancel the registrations of – voters who affirmatively stated on juror questionnaires that they do not reside in the relevant county and have not responded within 35 days to a notice from the county recorder;
Prohibit county recorders from relying on information provided by third parties in determining whether there is reason to believe a registered voter is not a United States citizen;
Delay implementation of statutorily required maintenance of the active early voting list until January 2027;
Excuse mistakes or errors in the statutorily required registrations of paid or out-of-state ballot measure petition circulators;
Compel county boards of supervisors to reflexively vote to adopt only the returns provided by the election official when conducting a canvass; and
Authorize the Secretary of State to certify a statewide canvass that consists of returns of fewer than fifteen counties.
The legislative Republicans will have stiff opposition in court from the trio of statewide Democrats who were responsible for producing and approving this EPM: Secretary of State Adrian Fontes, Governor Katie Hobbs, and Attorney General Kris Mayes. When Fontes issued the 2023 EPM at the end of last year, he said, “Free, fair and secure elections have been this group’s commitment to the voter from the very beginning. This is what happens when a committed group of leaders comes together to serve their community. It’s good for our democracy and it’s good for Arizona.”
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.
Arizona has a new Elections Procedures Manual for the 2024 cycle, though litigation is all but certain from state Republicans.
On Saturday, just before the statute-mandated deadline of December 31, Democrat Adrian Fontes issued the 2023 Election Procedures Manual, after securing approvals from his fellow Democrat officeholders, Governor Katie Hobbs and Attorney General Kris Mayes. In a statement to accompany the release of the manual, Fontes said, “Free, fair and secure elections have been this group’s commitment to the voter from the very beginning. This is what happens when a committed group of leaders comes together to serve their community. It’s good for our democracy and it’s good for Arizona.”
For the first time since 1978-1979, Democrats control 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 Election Procedures Manual without initial interference from opposing political voices, as required by law every two years.
Arizona Republicans were quick to push back against the elections manual and signaled a willingness to challenge the legality of its contents in court. House Speaker Ben Toma stated, “A lawful Elections Procedures Manual is paramount for the integrity of our elections. It’s been a top priority of the Arizona House Republican Caucus. I’m disappointed that SoS Fontes refused to correct many objections we raised in our comment to the EPM draft. We are preparing for litigation.”
The speaker’s reference to previous ‘objections’ harkened to an August public comment letter, which was submitted by Senate President Warren Petersen and Toma to the Arizona Secretary of State’s Office after they reviewed the draft manual. Then, the legislators had identified their chief concern with Fontes’ initial offering, which was the “unlawful delay in the implementation of a 2021 state law that helps prevent voter fraud by requiring county recorders to remove any voters registered on the active early voter list who have not cast a ballot during two consecutive election cycles and have not responded to notification from the recorder that they wish to continue participation.” Petersen and Toma asserted that the consequence of this delay would be the perpetuated issuance “of ballots being sent to the homes of voters who may have moved or no longer wish to participate in this process, opening the door for ballots getting into the hands of unintended individuals.”
In a new statement after the release of the approved EPM, Petersen said, “We warned the SOS early on that we would sue if the Elections Procedure Manual was not corrected to reflect the laws passed by the legislature. Unfortunately that did not happen. I imagine there will be many plaintiffs joining the Senate in protecting our elections.”
Arizona Republican Party Chairman, Jeff DeWit, also promised legal action against the manual, calling it an “egregious destruction of election fairness by the Democrats.”
The AZGOP shared four “concerning elements” from its cursory review of the manual: limitation of free speech, restriction of voter challenges, exclusion of Republican oversight, and refusal to heed legal precedent. In its press release, the state Republican party charged Fontes with “trying to take powers from the state legislature that are not his to take.”
Representative Alexander Kolodin weighed in on the EPM, writing, “Fontes’ EPM is not an Elections Procedures Manual, it is a how-to manual to disenfranchise Republican voters and a breathtakingly unlawful power grab. It cannot be allowed to stand!”
While most Arizona Republicans are united in opposition to the 2023 EPM, so, too, are Democrats in their support of the Secretary of State’s submission. 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.