Laws are meaningless if they aren’t enforced, are misapplied or misconstrued. The duly elected Arizona legislature crafts and passes election bills, and the Governor signs them into law. The Secretary of State, however, is tasked with prescribing “rules to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency” in implementing those laws.
This is done through the Elections Procedures Manual (EPM). But instead of crafting this with “impartiality” to attain the “maximum degree of correctness” Secretary of State Katie Hobbs seems intent on subverting state law in some instances, obfuscating in others, and as highlighted in a previous article, doing an end-run around a United States Supreme Court decision that upheld an Arizona election integrity practice.
The good news is that Hobbs doesn’t have unilateral authority to do this. She was required to submit this draft manual to Attorney General Brnovich and Governor Ducey by October 1st. Both have to sign off on the draft manual for it to go into effect. If they decline, we stick with the 2019 manual and Hobbs’s changes die.
Sending Illegally Registered Non-Citizens Instructions on How to Re-Register to Vote
Until the 2020 election, the state was operating under the manual from 2014 produced by then Secretary of State Ken Bennett. This is because Secretary Michelle Reagan did not submit a draft in 2016 and in 2018 Ducey declined to approve her changes.
Some areas of law have not changed since then, but the procedures manual has. One of these instances is around noncitizens who are registered to vote, individuals most often listed as “federal only” voters.
The 2014 manual requires the Secretary of State to send County Recorders juror questionnaires they receive on which an individual has indicated they are not a US citizen. The manual instructs Recorders to check if the individual is registered to vote and, if so, cancel the registration. Further, it encourages Recorders to then notify the County Attorney or Attorney General. Why? Because the individual has either perjured themselves on the juror form (a crime) or they are not a US citizen and fraudulently registered to vote (also a crime).
Compare this to Katie Hobbs’s manual. In it, Hobbs instructs Recorders to send these individuals a notice informing them of their indication of not being a citizen on a juror questionnaire and that they have 35 days to send in Documentary Proof of Citizenship (DPOC). If they send in DPOC, they become a “full ballot” voter. If they don’t, then the registration will be cancelled.
However, Hobbs’s manual goes a step further by instructing Recorder’s to send a notice of cancellation to the individual that actually gives instructions on how to re-register. And it has no mention of informing the County Attorney or Attorney General to investigate what has been committed, likely a felony act.
End Run Around Brnovich v. DNC
In Arizona, counties can conduct elections by precinct polling locations or vote centers. For precinct polling, voters can only vote in their assigned precinct. If they show up at a wrong location, election workers are instructed to direct the voter to the correct precinct. If the voter insists on voting, they can cast a provisional ballot instead of going to the correct location. However, they are informed that unless they prove they are eligible to vote in that precinct, the ballot won’t tallied.
Democrats sued over the law. The case was taken all the way to the US Supreme Court and this summer the Court decided. The opinion in Brnovich v. DNC completely upheld this out-of-precinct prohibition. In it, Justice Alito writes “precinct-based voting has a long pedigree in the United States, and the policy of not counting out-of-precinct ballots is widespread.”
But it seems Katie Hobbs doesn’t care about what the highest court in the nation says, because she inserted a few short lines in the manual this year directing election officials to duplicate these provisional ballots and tally the votes for elections for which they are eligible. This is a total end-run around state law and the US Supreme Court. It’s also a practice Justice Alito expressly mentioned in the majority opinion, writing that “partially counting out-of-precinct ballots would complicate the process of tabulation and could lead to disputes and delay.” This change must be rejected.
Delayed Cleanup of Mail-In Ballot Rolls (SB1485)
It doesn’t stop there. This past session, Republican legislators passed SB1485. The law requires counties to send a notice to voters on the Permanent Early Voter List (now Active Early Voter List) who have not voted in any election for the past two election cycles. If the voter fails to respond to the notice within 90 days, they are removed from AEVL and would have to vote in-person or re-enroll in the program to receive a mail-in ballot.
Though disagreement exists about whether this bill allows counties to look “retroactively” at the last two election cycles of non-voting to immediately start sending notices, or whether they must wait for a voter to not vote in 2022 and 2024 before sending a notice, many lawmakers who passed it and the organizations who advocated for its passage, SB1485 was always intended to take effect immediately. It is a reasonable interpretation of the bill and the intent of the bill’s sponsor.
A top election lawyer in the nation agrees. Hans von Spakovsky, whom President Trump appointed to his Presidential Advisory Council on Election Integrity in 2017, served on the Federal Election Commission, and was a litigator in the Justice Department, opined that “SB1485 will go into effect immediately after passage, not in 2026 as some have claimed.”
Attorney General Brnovich should issue his own opinion affirming this interpretation and require this change in the EPM, before signing his approval.
Procedures for Signature Verification
Lastly, with the findings in the Audit Report and a recent article about Cochise County Recorder David Stevens on ballot envelopes, it is apparent that there is a lack of uniformity in how signatures on early ballot envelopes are verified and that there are areas of concern.
For instance, the report from EchoMail and the most recent response from Maricopa County indicate that before election workers look at mail in ballots, a private company scans them all, downgrades the image quality, and then hands them over to election officials. The County then compares these downgraded scans of ballot envelopes to the signature on file to, somehow, come to the conclusion that the handwriting matches. In Cochise County, Stevens says they compare the actual ballot envelope to voter registration files, not low-quality scans.
Unfortunately, the process isn’t spelled out in statute, so the EPM is used to ensure procedures are in place to comply with the laws that do exist – and that there is uniformity. Nowhere in statute or in the EPM does it say counties could or should use a private company to scan these and that the scans, instead of the physical envelopes, can or should be used for signature verification.
This is certainly an area that Brnovich should push to ensure the procedures in the EPM first and foremost comply with statute and the spirit of the law, but secondly are uniformly enforced around the state.
What We Can Do
These are just four areas of concern, and there are many others.
The Free Enterprise Club will be sending a letter to the Attorney General and Governor Ducey with a detailed list of issues in the EPM, but they need to hear from constituents too. That’s why Arizonans should let them know that we want an election system where it easy to vote, and hard to cheat. That means that Governor Ducey and Attorney General Brnovich should REJECT every proposed change by Katie Hobbs that either violates state law or attempts to rewrite it. They can stop this from happening, and we need to encourage them to do so.
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