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. (Maybe Adrian Fontes just really likes the possibility of being sued.)
Fontes’ EPM Is in Direct Conflict with HB 2492
Only U.S. citizens should be voting in our elections. That’s why the Arizona legislature passed, and then-Governor Ducey signed into law, HB 2492 in 2022. This law cracks down on state voter registration applications that do not include proof of citizenship. It requires counties to check multiple databases for evidence of citizenship when an individual submits a federal application without proof. And it requires counties to reject those federal applications if they find evidence that the individual is, in fact, not a U.S. citizen. Additionally, it makes proof of citizenship a requirement to vote early by mail in any election and to vote in Presidential elections.
All of this is intended to safeguard our state’s voter rolls, and as Secretary of State, Adrian Fontes should be producing an EPM that is consistent with this law. But Chapter 1 of his EPM draft is riddled with provisions that are in direct conflict with the requirements enshrined by this duly enacted bill. And that’s not the only problem.
The EPM Draft Conflicts with New Voter Maintenance Laws
In 2022, the Arizona legislature also enacted several new requirements—like HB 2243—to ensure regular voter list maintenance is completed by counties in a uniform, nondiscriminatory manner so that only qualified voters are actively registered to vote. But once again, Fontes’ EPM contains provisions that conflict with the requirements under these new laws.
For example, in one footnote in the drafted EPM, Fontes aims to prohibit counties from using the SAVE database for any list maintenance purpose. But this conflicts with A.R.S § 16-165(I) which requires the county recorder to compare those who are registered to vote who have not provided satisfactory evidence of citizenship with the SAVE database.
Then, there’s the issue of the Active Early Voter List. In 2021, lawmakers passed, and then-Governor Ducey signed into law, SB 1485. This law requires 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 to participate. So, how does the EPM handle this? It simply ignores it, which as Senate President Warren Petersen pointed out perpetuates the issue of ballots being sent to homes of voters who may have moved or don’t want to participate in the process any more—therefore allowing an increased opportunity for ballots to get into the hands of unintended individuals.
Other Issues in the EPM
If those issues aren’t enough, Fontes isn’t done yet. His draft EPM doesn’t mention any provisions or procedures related to SB 1362, which was passed and signed into law in 2022 and establishes a framework for tabulating early ballots that are dropped off on election day. It directly conflicts with A.R.S § 16-127 which established that individuals who have not provided satisfactory evidence of citizenship are not eligible to vote in Presidential elections. And it conflicts with the plain language of A.R.S § 16-550 which requires the signature on the affidavit envelope for active early voters to be compared to the signature of the voter in the voter’s registration record.
The list of issues is plentiful, and we could go on and on. But it’s important to note that Fontes attempted to rush this version of the EPM through by deliberately shortening the typical public comment period from one month to two weeks in hopes that most of this wouldn’t get caught by the public. But the Arizona Free Enterprise Club was on top of it and submitted public comments on these issues and more before the shortened deadline.
Now, Adrian Fontes needs to take the necessary actions to fix the EPM and produce a neutral one that is consistent with state law. And if he doesn’t, the Arizona State Senate should follow through on its threat to take legal action against him.
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