by Corinne Murdock | Sep 6, 2023 | News
By Corinne Murdock |
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.
by AZ Free Enterprise Club | Aug 26, 2023 | Opinion
By the Arizona Free Enterprise Club |
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…
>>> CONTINUE READING >>>
by Daniel Stefanski | Jul 29, 2023 | News
By Daniel Stefanski |
Two Arizona Republican legislators are raising concerns over a draft of the new Elections Procedures Manual (EPM) from Secretary of State Adrian Fontes.
On July 18, Representatives Jacqueline Parker, the Chairwoman of the Arizona House Committee on Municipal Oversight & Elections, and Alexander Kolodin, the Committee’s Vice Chair, transmitted a letter to Secretary Fontes, highlighting certain issues with the initial copy of the EPM that they had seen from his office.
The lawmakers were grateful that Fontes allowed them to see his draft, and they expressed optimism that “with legislative guidance, the 2023 EPM will not meet the same fate as the 2021 EPM, and that Arizonans will be assured that all drafts, including the final draft presented to the Governor and Attorney General, are legally consistent with Arizona election law.” They called the 2021 saga “both unprecedented and unacceptable,” writing, “Your predecessor’s failure to issue a lawful EPM ultimately led a court to decide that the 2019 EPM was in effect for Arizona’s 2022 elections, rather than an updated, legally compliant 2021 EPM.”
In their letter to Secretary Fontes, Parker and Kolodin identified eight possible violations of Arizona statutes in four chapters of the draft EPM:
– Chapter 1: Early Voting
o “Part I, page 5 moves ‘date of birth’ from required information to additional information that may be provided by a voter to receive an early ballot.”
o “Part I, page 3 allows the County Recorder to send a requested early ballot ‘after 5:00pm the 11th day preceding the election if the County Recorder has sufficient time to do so.”
o “Part I, page 16 requires the County Recorder or officer in charge of elections to supply printed instructions that ‘provide the voter instructions on how to make their intent clear if they inadvertently mark the target area for a candidate or ballot measure.’”
o “Part I, page 18 includes the exclusion of an established Ballot Replacement Center.”
– Chapter 2: Ballot-by-Mail Elections
o “Part I, page 31 refers to ‘precinct with 300 or less registered voters.’”
– Chapter 7: Pre-Election Procedures
o “Part II, page 34 allows the officer in charge of elections to allocate specified duties to any board member as deemed appropriate, including ‘taking appropriate measures to preserve order, prevent voter intimidation, and manage voter lines.’”
– Chapter 8: Election Day Operations
o “Part III, page 8 adds additional examples ‘potentially intimidating conduct’ that supersedes statutory law.”
o “Part III, page 19 adds language that prohibits a challenger from speaking to a challenged voter to ‘prevent harassment and intimidation of the challenger voter.’”
The two Representatives also requested that “future drafts of the EPM contain statutory references for each provision to provide county officials with the statutory source of each EPM provision.” Parker and Kolodin pointed out two sections in the draft EPM where there were no statutory references – as examples to illustrate their issue.
As they concluded their letter to the state’s elections chief, the legislators commented that they “are looking forward to seeing these provisions addressed prior to the EPM’s submittal to the Governor and the Attorney General on October 1, 2023.” They promised to communicate in a timely manner with the Secretary’s Office “about any other concerns that might arise,” and they asked for a written response to their letter by July 25.
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
by Corinne Murdock | Mar 6, 2023 | News
By Corinne Murdock |
The state is facing a lawsuit filed Monday over an alleged violation of state law with the early ballot signature verification process outlined in the secretary of state’s Election Procedures Manual (EPM). The plaintiffs requested special action relief due to an alleged lack of an equally plain, speedy, and adequate legal alternative remedy for their grievance.
Statute requires that envelope signatures match those on the voter’s registration record. If not, the county recorder must contact the voter and confirm that the voter personally completed and signed the early ballot affidavit.
However, the current EPM — written by Gov. Katie Hobbs in her former capacity as the secretary of state — instructs county recorders to validate early ballot affidavits if they determine the signature matches any signature in any election-related document available to them. The lawsuit argued that the EPM’s allowed materials aren’t legally considered “registration records” and therefore not lawful comparative references for conducting signature validation.
“[T]he signatures encompassed within the EPM’s errant instruction cannot be used either to effectuate the registration of an individual or to lawfully amend an existing registration,” stated the lawsuit.
Arizona law doesn’t explicitly define the term “registration record.” However, the lawsuit argued that the natural understanding of the term relates to a document effectuating or amending voter registration that contains voter-supplied information required by federal and Arizona law, as well as a signed certification attesting to the provided information.
“A properly executed and submitted registration form, as may be amended and updated by the registrant from time to time, ‘constitute[s] an official public record of the registration of the elector,’” stated the lawsuit. “Accordingly, the ‘record of the registration of the elector — i.e., her “registration record,” consists of the complete and facially valid federal and state forms submitted by that individual, and any amendments thereto made by the submission of new forms, an early ballot request form, a response to an Active Early Voting List notice, or a provisional ballot envelope.”
Citizens may register to vote using forms provided by the federal or state government; both forms require full name, residential address, date of birth, a government-issued ID number, political party affiliation if applicable, and a signed, sworn attestation of eligibility (including U.S. citizenship). An Arizona voter registration form also requires telephone number, location of birth, occupation, father’s last name or mother’s maiden name, age, proof of citizenship, and statements affirming residency, status of any other existing registration, and any absence of disqualifying felony conviction.
The lawsuit stated that the named defendant, Secretary of State Adrian Fontes, has gone beyond his lawful jurisdiction and gone against statute by upholding Hobbs’ EPM. Fontes refused to heed lawmakers’ requests to reject Hobbs’ EPM earlier this year.
Plaintiffs in the lawsuit are the Arizona Free Enterprise Club (AFEC), a nonprofit social welfare corporation specializing in limited government that includes election integrity; Restoring Integrity and Trust in Elections, a Virginia-based nonprofit social welfare corporation specializing in election integrity; and Dwight Kadar, a Yavapai County resident and elector.
AFEC President Scot Mussi told AZ Free News that Hobbs’ EPM essentially rewrote state law to make invalid voting easier.
“The current election procedures manual adopted by the Secretary of State has rewritten state law regarding signature verification for mail-in ballots,” said Mussi. “The result is a process that invites questionable methods and opportunities for abuse during the signature review process. It’s time for the courts to bring this illegal EPM practice to a halt.”
Early ballot voters aren’t required to prove their identity through documents or additional personal information, like a birthdate or Social Security number. The sole validator for early ballot voters is the affidavit form signature on the exterior of the envelope housing the ballot. By signing the affidavit form, a voter attests under penalty of perjury that he has not voted and will not vote in any other jurisdiction, that he has registered to vote in the correct county, that he understands that multiple voting is a felony, and that he personally voted the ballot enclosed and signed the affidavit.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
by Corinne Murdock | Jan 22, 2023 | News
By Corinne Murdock |
On Tuesday, lawmakers asked Secretary of State Adrian Fontes to reject the Election Procedure Manuals (EPM) drafted by Governor Katie Hobbs when she was the secretary of state, per recent court decisions.
The dubious EPMs were the 2019 and 2021 versions drafted by Governor Katie Hobbs during her service as secretary of state. Court decisions in Brnovich v. Hobbs, McKenna v. Soto, Leach v. Hobbs, and Leibsohn v. Hobbs declared that these EPMs weren’t in line with state law.
In a joint statement issued Tuesday, State Reps. Jacqueline Parker (R-LD15) and Alex Kolodin (R-LD03) insisted to Fontes that the court decisions merited review of the EPMs. Parker chairs the House Committee on Municipal Oversight & Elections, and Kolodin serves as the vice chair.
“Recent Arizona court decisions give us serious concerns about the lawfulness of former Secretary Hobbs’ 2019 EPM and 2021 draft EPM,” said Parker and Kolodin. “Arizona law purports to authorize the EPM to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency in voting procedures throughout the state. But we question whether these mandates have been followed. We hope Secretary Fontes more fully evaluates where the prior Secretary overstepped her bounds and look forward to hearing how those errors will be corrected.”
Parker and Kolodin asked Fontes to include them in the stakeholder input process. They asked Fontes whether he would disregard Hobbs’ 2021 draft EPM; if he believed the 2019 EPM followed and carried the enforcement of state statute; and for his supplementation of any guidance, statements, emails, or directives that Hobbs or her agents gave to county election officials concerning the 2022 General Election not written in the 2019 EPM.
The duo also asked Fontes for copies of any and all drafts of the 2023 EPM, as well as communications regarding third-party input or proposals. They set next Tuesday, Jan. 24, as their deadline.
Brnovich v. Hobbs ruled that the 2021 draft EPM failed to meet statute deadline. McKenna v. Soto and Leach v. Hobbs determined that the 2019 EPM language added onto statute language and was therefore impermissible. Finally, Leibsohn v. Hobbs ruled that Hobbs’ electronic registration process for signature gathering was deficient and non-compliant with state statute.
When former attorney general Mark Brnovich rejected the 2021 draft EPM over concerns later confirmed by court decisions, Hobbs insisted that his grievances had no merit.
It appears that Fontes wouldn’t disregard Hobbs’ EPMs, regardless of court decisions. Fontes supported the Arizona Supreme Court decision upholding the 2019 EPM in McKenna v. Soto.
“This effectively shifts the burden from the petitioner (voter) to the government, maximizing all voters’ voices in the process,” stated Fontes. “This is a MASSIVE WIN for voters!”
Fontes also told his GOP opponent in the secretary of state race, Mark Finchem, to read the EPM last September.
Fontes’ office didn’t issue an immediate public response to the request letter. However, he did advertise an upcoming panel with Maricopa County Recorder Stephen Richer.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
