On Tuesday, a judge considered the ongoing matter of Prop 140 in April Smith v. Fontes. The case involves a challenge of the validity of Arizona’s ranked choice voting initiative signatures.
At the end of the hearing, the number of challenged signatures was whittled down from over 40,000 to approximately 38,100 to be reviewed by a special master appointed by Maricopa County Superior Court Judge Frank Moscowitz.
Court observers are questioning if the outcome of the case has already been determined in Moscowitz’s mind.
It was evident that there was confusion between the judge and counsels for the plaintiffs, the Make Elections Fair Arizona PAC, and the Arizona Secretary of State on how to determine whether signatures already eliminated by County authorities or the Secretary of State would be present in either the full number of signatures or in “extrapolations.” The extrapolations are created by multiplying a 5% sample by 20 under existing statute to create a “validity rate” that can be applied to the sum total of signatures.
The hearing seemed expressly focused on how much of the evidence of duplicate signatures the court should exclude from consideration, rather than as the Supreme Court directed in Mussi v. Fontes, to “determine whether the exhibits prove any duplicate signatures by clear and convincing evidence.”
Judge Moscowitz appeared more concerned with determining how many exhibits do not prove duplicate signatures, saying, “They’re done. It’s over. It doesn’t matter if the remaining 31,000 or whatever it is are in fact duplicates and maybe double counted, maybe not give ’em credit and say they weren’t double counted. If you can get 4,800 that were double counted, it’s over,” describing what he expects to see in a brief from Make Elections Fair PAC.
Attorney Daniel Arellano, representing Plaintiffs April Smith, Nira Lee, and Joshua Davidian pushed back against this notion saying, “First of all, I just to be clear, I mean these all sound like categorical arguments to me, which I think are precisely what the Supreme Court said not to do. I’ve not seen briefing of this issue. There’s a preview of it. (…) I’ve not actually seen any legal argument on this, but as I listened to this argument here today, judge, I think, again, I forget if it’s Leah v. Hobbs or Leah v. Reagan, but one of the two definitely says that we get to invalidate signatures for reasons other than, in addition to, and outside of the 5% sample. And so if the premise of the committee’s argument is that it is, we have to go with what the county hasn’t validated because that is already multiplied times 20, and we can’t invalidate anything in addition to or separate from that. That is I think a proposition that the Supreme Court has squarely rejected.”
He added, “I think the point is I don’t think we can use this as an avenue to foreclose line by line review of the 38,000 signatures.”
But Judge Moscowitz was quick to retort: “No, I understand that. But even if I said yes, clear and convincing all 38,000, it says proceed accordingly. And my proceed accordingly is my next step is going to be how do I know of whatever number is of duplicates hasn’t been already invalidated. How do I know this signature hasn’t already been invalidated? And I think that would be in the proceed accordingly part of the Supreme Court’s order.”
However, the order from Arizona Supreme Court Chief Justice Ann Scott Timmer made the court’s priority clear, “The trial court must continue with determining whether the initiative is supported by a sufficient number of qualified signatures. This determination should be made as expeditiously as possible to provide the parties and the public certainty.”
In a thread posted to X, the Arizona Free Enterprise Club (AZFEC) paraphrased a comment from the organization’s President Scot Mussi, “This isn’t a debate about dubious matches or concerns of same family members with the same name being confused as a duplicate. All the duplicates submitted to be removed were exact name and address matches that aligned with what was on the voter file. Under state law, you are only allowed to sign a petition once, so they should have been removed. Instead, thousands of people were allowed to sign the initiative petition sheets multiple times, and those signatures were counted.”
This isn’t a debate about dubious matches or concerns of same family members with the same name being confused as a duplicate. All the duplicates submitted to be removed were exact name and address matches that aligned with what was on the voter file.
In a press release the organization cited from the evidence presented that:
When the Prop 140 Committee submitted their signatures to the Secretary of State, around 250 people had signed five or more times.
One individual had signed 15 times.
All those signatures were included in the final tabulation by the Arizona Secretary of State.
In a status update hearing held late on Wednesday, it was determined that Retired Arizona Superior Court Judge Christopher Skelly will lead the signature verification effort as court-appointed Special Master. During the meeting, Judge Moscowitz again referred to a possible stopping point for the signature review, asking Arellano, “Not to be looking at this for one side or the other, but there is a number of 4,800. And the only reason I say that number is because it’s the lowest number we’re talking about. But if that 4,800 number of duplicates is reached um… Does he stop if he knocks out whatever that number is 4,800 of duplicates? So you don’t get to your 33,000 something, something number Mr. Arellano? Does he just stop?”
Arellano, representing the plaintiffs, responded that the Special Master should be checking in with attorneys from both sides “periodically,” however, he added, “We’ve not set that up as any particular kind of benchmark. Nor do I know that we’d be comfortable doing so, since it sort of sets that up as like a goal of sorts.”
The signature checking effort is expected to run through September 16th with a hearing to discuss legal briefs from both sides on Friday.
The Arizona Supreme Court may have rendered a significant blow to the future of a key ballot measure for the upcoming General Election.
On Friday, the Arizona Supreme Court issued an order in Smith v. Fontes, which was a challenge over the Make Elections Fair Arizona Act (Proposition 140). The court ruled that Prop 140 “will appear on the ballot, assuming ballots are indeed printed in the early morning hours of August 23.” However, the state’s high court projected that if a majority of its justices were to later “disqualif[y] the Initiative, the court should issue an injunction precluding any votes for the measure from being counted.”
The issue at hand involves a challenge to the signatures submitted to the Arizona Secretary of State by the committee supportive of the ballot measure. The parties contesting the submission have argued that there are 40,000 duplicative signatures in the batch, which, if discarded, would bring the initiative under the minimum number required for placement on the ballot.
Proposition 140 is an attempt from the Make Elections Fair PAC to remake the Arizona elections systems through this constitutional amendment on the ballot.
“I am grateful for this thoughtful decision from the Arizona Supreme Court,” said Scot Mussi, President of the Arizona Free Enterprise Club. “At no time did the trial court judge or the committee in favor of the initiative provide evidence as to why these signatures were not duplicates, but instead relied on a strategy of obstruction to run out the clock. The lateness of this challenge did not have to be the case if the lower court had only adhered to the Supreme Court’s earlier directive for all duplicates to be removed from the qualifying count. For any ballot measure – but especially one that would fundamentally transform our elections systems – Arizonans deserve complete confidence that our courts are applying all laws fairly and justly.”
Mussi added, “This isn’t a debate about dubious matches or concerns of same family members with the same name being confused as a duplicate. All the duplicates submitted to be removed were exact name and address matches that aligned with what was on the voter file. Under state law, you are only allowed to sign a petition once, so they should have been removed. Instead, thousands of people were allowed to sign the initiative petition sheets multiple times, and those signatures were counted.”
In its order, the Court wrote, “There is no statutory directive that a court resolve an election challenge like this one before the ballot printing deadline. Regardless, this Court, and indeed the trial court, has consistently endeavored to resolve initiative challenges before the ballot printing deadline… But the courts’ role is to dispense justice. Courts cannot be forced to rule rashly to meet a ballot printing deadline or provide the parties with certainty.”
According to the Arizona Free Enterprise Club, this measure “is seeking to enact a California-style election scheme built around ranked choice voting and jungle primaries.” On the other hand, an advocate for the Make Elections Fair Act recently maintained that Prop 140 “represents an opportunity to improve both our elections and our state government.”
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
Speaking with KTAR’s Jim Sharpe and Jayme West last week, Arizona Secretary of State Adrian Fontes openly attacked the Arizona Free Enterprise Club after the group successfully fought to strip away rules from the 2023 Elections Procedures Manual (EPM). The very next day, AFEC President Scott Mussi responded.
As previously reported by AZ Free News, 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.
ICYMI: A Maricopa County Superior Court Judge has ruled that certain portions of Secretary Fontes’ radical Elections Procedures Manual violated Arizonans’ First Amendment rights. https://t.co/HwhZi45sXk
Fontes began by immediately mischaracterizing the lawsuit from the Arizona Free Enterprise Club saying, “First and foremost, I’m going to break a rule and talk about pending litigation. Usually I don’t, but this is important and this manual, the Elections Procedures Manual is promulgated by the Secretary of State every two years. And the rules that are in question right now are guidelines basically for elections workers, for election administrators across the state. And they do in this section particularly help to protect them and voters from harassment and intimidation, specifically using language like blocking the entrance to a voting location. Also, following voters or poll workers coming or leaving voting locations, including to or from their vehicles.
This is some of the language that we put in there, which was also in the 2019 manual, by the way, that the Free Enterprise Club wanted to block and they have now blocked. It is as if the Free Enterprise Club wants voters to get followed to and from their vehicles to polling locations. It is as if the Free Enterprise Club is okay with this.
Check this, they had this blocked by the judge too, intentionally disseminating false or misleading information at voting locations. So is the Free Enterprise Club want people to be lied to?”
We applaud the court’s protection of Arizonans’ First Amendment rights during the exercise of their sacred privilege to vote in free and fair elections. Secretary Fontes and his team of leftwing ideologues must conform the entire manual to state law as is their statutory duty.
Jayme West asked, “But that’s free speech, right? Yeah.”
Fontes answered with a rebuke to the First Amendment, “Is it when you are inside of the 75-foot zone? Look, not all speech is protected. Every American knows this. You can’t yell fire…” he began to quote a classic legal fallacy.
As Reason’s Emma Camp cited, Foundation for Individual Rights and Expression President Greg Lukianoff, wrote, “Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law—or history. This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.”
Host Jim Sharpe put the conversation back on track though, “You’re not allowed the electioneer within those 75 feet.”
“That’s exactly right.” Fontes said. “But what the Free Enterprise Club is doing is chipping away at a long established statutes. They’re chipping away at our ability to help the folks out there in our 15 counties regulate the behavior during election seasons. They basically want someone to be able to come up and scream and yell at voters as they’re standing in line to vote.”
West pushed back on the Secretary though, “But not necessarily about the election or electioneering. I mean you could just be yelling at somebody, right? It doesn’t have to be about the specific election itself right?” Fontes began to argue with her, “Is that how we want our voters to be treated? “ “No, I’m just saying not…” she began when Fontes cut her off. “That’s why I have…” But West continued, “not considered electioneering.”
Fontes continued saying, “…why I’m going to fight like heck to make sure that we have peaceful processes so that our voters are treated with dignity during this incredibly important point in time. Because here’s the deal, you have to stand in line in some circumstances and because the regulation is that you have to be in line, the government is forcing you to be in that line. You should be protected while you’re in that line to vote.
He then directly attacked the Arizona Free Enterprise Club claiming, “So the Free Club is basically saying, we want chaos, we want lies. We want people to be able to block entrances to voting locations. That’s what the Free Enterprise Club is saying. By asking for this order, I’m going to fight tooth and nail against this nonsense. So the next steps, as you asked, we have the capacity to appeal. Our lawyers are working on it right now. I’m going to protect every voter. I don’t care if you’re in Sun City, east Mesa or in Holbrook. I’m going to do everything I can to make this process peaceful and reasonable.”
The very next morning, Sharpe and West invited Arizona Free Enterprise Club President Scott Mussi to answer Fontes’ bold-faced politically-driven attack.
“Jim, Jamie, thanks for having me on this morning. These claims being made by Secretary of State Fontes are just outrageous, and it’s ridiculous that he’s attacking and maligning our organization, our 15,000 supporters and activists throughout here in the state of Arizona. Our donors, who he made veiled attacks saying that people should stop supporting our organization because of this ruling. We filed this lawsuit because simply put, Adrian Fontes included language in his Election Procedures Manual that exceeded its statute and was unconstitutionally overbroad. It constrained speech rights.
He’s citing things that simply, there’s already statutes and we didn’t challenge any specific statute. We challenged the language in the procedures manual itself and the language in the manual cannot rewrite state law, cannot create new laws, and there’s laws against the things that he’s describing. The things that we sued over are things dealing with speech constraints where he included vague language that’s undefined that could be used against people that are trying to simply engage in their First Amendment rights at poll locations.”
Sharpe asked Mussi, “So would you be okay with some of the provisions in the Election Procedures Manual that you’ve asked to have removed if they were worded in a more precise manner?”
Mussi replied, “The section of the Election Procedures Manual that we sued over included, again, as I mentioned before, vague language if it’s drafted in a way that’s consistent with what state law is or what statute is. And again, for example, he’s talking about blocking people. That’s against state law. You can’t do that. And that goes beyond even what’s really to an election. For example, nobody could show up at your guys’ radio station and block your ability to go to your vehicle. There’s already statutes against harassing other people. You can’t do those things. But that’s not what is Election Procedures Manual in the section that we were challenging does. Again, it includes language that says that if you raise your voice or say things that are offensive and these things are undefined, and if these things are enforced, you can be not only kicked out of the polling location, but you can be prosecuted.
The irony of all of this is that in the public ranting that Adrian Fontes is engaging in, where he is raising his voice, something could say or engaging a language that many people could find offensive, especially when he’s maligning our organization. Ironically, it could be used against him to kick him out of a polling location. It is bizarre. I think that the judge was correct. I would encourage everybody to read the ruling that the judge issued yesterday or earlier this week outlining this because it’s very clear these terms that he included in the Election Procedures Manual are overly broad. They infringe on people’s constitutional rights to engage in the election process.”
West sought some clarification from Mussi asking, “I asked him, I said, is it just an issue of it being the language being too broad? But he said that specifically your organization, the Arizona Free Enterprise Club, wants to make it okay to harass voters waiting to cast ballots at polling places.”
He answered, “And again, those comments and claims are outrageous and only vindicates that we were correct in filing this lawsuit.”
“We’re not just talking about just some individual. He is the top election officer here in the state of Arizona who’s now again, maligning and attacking our organization, our 15,000 activists and supporters throughout the state of Arizona. And we’re supposed to believe that he’s not now going to use this vague language that he included in the Election Procedures Manual to impinge on people’s First Amendment rights to engage in the political process.
And again, just based on his own behavior, he violated his own guidelines within his Election Procedures Manual. Or it could be interpreted that way. And that’s the problem because somebody does have a First Amendment right. If Adrian Fontes wants to show up at a polling location and complain that he lost a lawsuit to the Free Enterprise Club and say the same mistruths and lies that he said on your radio program, he does have a First Amendment right to do that.”
When reminded of the 75-foot barrier for electioneering under the law by Sharpe, Mussi added, “That’s correct. That’s another thing too that he said was factually wrong. He was talking about people. It’s against state law to go within the 75-foot parameters and election area. The Election Procedures Manual can’t change any of those statutes. And we weren’t challenging statutes. We were challenging this vague and overbroad and unconstitutional language that he included in the Election Procedures Manual.”
According to KTAR, Fontes said that his office plans to appeal the ruling and is hoping to expedite the request citing the general election being just three months away. In her scathing ruling, Judge Touhill called the EPM provisions “overbroad” and “unenforceable.”
After failing to comply with an August 2023 legal demand that his office properly update the alleged dirty voter rolls of 14 Arizona counties, Secretary of State Adrian Fontes is now the target of a lawsuit from Arizona Free Enterprise Club President Scot Mussi, and former gubernatorial candidate Steve Gaynor, in their capacities as voters as well as Arizona GOP Chairwoman Gina Swoboda in her official capacity.
As previously reported by AZ Free News, Attorneys Jason B. Torchinsky, Dallin B. Holt, and Brennan A.R. Bowen representing Mussi sent a pre-litigation letter to Fontes on August 8, 2023. In the statutory notice they informed Fontes of their allegations that these counties are in violation of Section 8 of the National Voting Rights Act.
Arizona’s current and former Secretaries of State have failed to perform the necessary voter list maintenance. Now, 14 counties are in violation of the NVRA. Something must be done. https://t.co/EYgawkK2h0
The legal team cited Census Bureau Data showing that four counties in the state have reported having a larger total of registered voters than citizens over the age of 18. Those counties in particular were Apache County with a startling 117.4%, Santa Cruz County with 112.6%, La Paz County with 100.5%, and Navajo County with 100.1%. The outlying counties possessing much smaller populations when compared to Maricopa and Pima Counties, home to Phoenix and Tucson respectively, only serve to amplify the statistical abnormalities. In addition, the team identified nine other counties with voter registration rates in excess of 90% of voting aged adults with another in excess of 80%.
Registration rates for all 14 counties far eclipse the voter registration rate recorded nationwide in previous elections, noted in the complaint as being 69.1% determined by reviewing the Current Population Survey (“CPS”) data from the U.S. Census Bureau and comparing estimates of registered voters who are actually eligible to be registered. Arizona’s rate is noted as 69.9%
The attorneys explained, “This evidence shows that these counties are not conducting appropriate list maintenance to ensure that the voter registration roll is accurate and current, as required by federal law.”
In the text of the complaint the attorneys noted, “These rates are implausibly high,” adding “The data made public by the Secretary show that Arizona counties have actual registration rates that exceed the expected registration rates provided by the U.S. Census Bureau and evidence a high rate of likely ineligible voter names on the official lists of eligible voters.”
Applying more concrete numbers to the complaint, the plaintiffs allege that “Based on even the most conservative data sources, Arizona has at least 500,000 registered voters on the voter rolls who should have otherwise been removed.” They summarized in the complaint, “In other words, at least 500,000 registered voters currently listed on the Secretary’s voter rolls for Arizona are deceased or no longer reside in Arizona.”
In a statement to AZ Free News, The Arizona Free Enterprise Club’s Deputy Director of Policy Gregory Blackie said:
“Last year, the Free Enterprise Club sent a pre-litigation NVRA notice to Secretary of State Adrian Fontes highlighting artificially high voter registration rates compared to the most recent US census data. Since then, four Arizona counties continue to have more registered voters than residents of voting age population and the other eleven have rates far exceeding the national average. Ensuring only those eligible to vote are registered is the starting point for conducting elections with integrity. We hope the courts will make sure Fontes complies with the NVRA mandate that he maintain up-to-date and accurate voter registration lists by removing those who are not eligible.”
Mussi, Gaynor, and Swoboda are seeking a declaratory judgement that Fontes has violated Section 8 of the NVRA and that the court issue injunctions “requiring the Secretary to fully comply with any existing procedures that Arizona has in place to ensure ineligible voters are identified and removed from the rolls,” and “develop and implement additional reasonable and effective registration list-maintenance programs to cure their failure to comply with Section 8 of the NVRA and to ensure that ineligible registrants are not on the voter rolls.” The plaintiffs are also seeking that Fontes’ office assume the legal costs and attorneys fees as well.
AZ Free News reached out to Fontes’ office for comment and were informed by Deputy Communications Director JP Martin that “unfortunately the office doesn’t speculate on legal matters in this way.”
Arizona is the state with the third best economic climate, according to a new report from the American Legislative Exchange Council (ALEC).
“Arizona’s high ranking is a direct result of significant pro-growth income and property tax reform that has supercharged our economy,” President of the Arizona Free Enterprise Club Scot Mussi told AZ Free News. “In the last decade we have slashed our income tax rates in half, cut taxes on capital gains, and significantly reduced the property tax burden on small businesses.”
Utah and Idaho surpassed the Grand Canyon state for best economic climates. New York, Vermont, and Illinois placed in the bottom three.
Arizona has moved up from 13th place in 2021 to third in 2024. Arizona’s population increased by 115,900 from July 1, 2022, to July 1, 2023, estimates from the Arizona Office of Economic Opportunity show. This translated into 1.6% growth, much faster than the U.S. at 0.5%.
Arizona ranks third for tax expenditure limits, first for being a right-to-work state with the option to join or support a union, first for estate/inheritance tax levied, and first for remaining tax burden.
It also ranked second for public employees per 10,000 of population and eighth for average worker compensation cost.
Mussi said Arizona is on track to continue its route of economic growth.
“As long as we keep these reforms in place, Arizona will remain a destination for both families and entrepreneurs,” he said.
Elizabeth Troutman is a reporter for AZ Free News. You can send her news tips using this link.
