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.
The EPM Places Protected Political Speech at Risk of Criminal Prosecution
Several rules in Fontes’ EPM criminalize activity that is protected under the First Amendment—creating an unconstitutional chilling effect on protected political speech. One portion of the EPM states that the “County Recorder or officer in charge of elections may restrict activities that interfere with the ability of voters and/or staff to access the ballot drop-off locations free from obstruction or harassment.”
To the average person, that probably seems reasonable, until you realize that according to the EPM, voter intimidation or harassment includes:
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- Staying within 75 feet of a ballot drop box to simply monitor individuals who are delivering ballots.
- Following individuals delivering ballots to the drop box.
- Speaking to an individual who is returning ballots to a drop box and is within 75 feet of that drop box.
Monitoring drop boxes? Speaking to people? How can any of this be considered voter intimidation or harassment? But the EPM isn’t done yet. It also bans photographing or videotaping at election sites! But these activities—watching drop boxes, speaking to people at election sites, and photographing activity at election sites—all constitute forms of speech and are protected under the First Amendment.
The EPM Requires Arizona Political Parties to Open Their Primaries to Federal Only Voters
If deliberate violations of the First Amendment aren’t bad enough, Fontes’ EPM contradicts statutory requirements and exceeds statutory authority by opening the Presidential Preference Election to federal only voters. Arizona law is clear that any person who has registered to vote but has not provided acceptable evidence of citizenship is not eligible to vote in presidential elections. That certainly includes the Presidential Preference Election. But as you might expect, Fontes fails to cite anything that gives him the authority to establish such a provision. Instead, he is bypassing Arizona’s stricter voter registration requirements to essentially create a new law out of whole cloth.
If the illegal provisions in this manual are allowed to stand, the integrity and transparency of Arizona’s elections would continue to dissipate at the hands of leftwing ideologues. That’s exactly why the Free Enterprise Club, in collaboration with our friends at the America First Policy Institute and Grand Canyon Legal Center, filed this critical lawsuit. The people of Arizona deserve free, fair, transparent, and lawful elections. Now, it’s up to the courts to see through Fontes’ agenda and force him to adhere to state law.
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