County recorder calls process to vet petitions into question

For decades, Arizona courts have relied on county recorders to review signatures legislative candidates submit to qualify for the ballot. Maricopa County Recorder Adrian Fontes, who is heading the office in an election year for the first time, isn’t satisfied with that decades-old system, and he hasn’t been shy about saying so.

Fontes testified in a June trial that the recorder’s role in the process is a “courtesy” to the courts, one that’s “been in place too long and I’ll probably stop it.”

“This is a custom or a tradition, or I don’t know what it’s called because there’s no statute that defines it, that goes back over 30 years,” Fontes told the Arizona Capitol Times following the trial.  “There are folks who believe for some reason that, first of all, it is the right thing to do, and second of all, the legal thing to do. And just because we’ve been doing it for a long time doesn’t mean that it’s either.”

Fontes’ statement at trial caught the attention of elections attorneys and officials at the Secretary of State’s Office, like Elections Director Eric Spencer. He warned that the system by which candidates are vetted before their name can appear on the ballot would be thrown in disarray were it not for the help of the Maricopa County Recorder’s Office and recorders in counties throughout the state.

The Arizona Supreme Court also took notice, and now the justices have essentially asked the state Legislature to set the record straight on what responsibilities recorders have when a candidate’s qualification for the ballot is challenged.

Fontes says he’d rather do things his own way, outside the scope of the Legislature. He proposes working through the courts, with input from candidates, elections attorneys and other county recorders, to find ways to streamline the process for reviewing signatures in challenges like the one in which he was called to testify.

There’s a general sense among county recorders, Fontes claims, that starting a discussion about ways to improve the process is a good idea. A newly-elected Democrat as of 2016, Fontes said his first experience in the system has convinced him that there are flaws that need fixing.

“I don’t like that it’s completely unpredictable. I don’t like that we have to unexpectedly tap into resources that aren’t readily available to us. I don’t like the fact that some of the complaints (from defendants) are legitimate complaints,” Fontes said.

Process

To get their names on the ballot, would-be candidates for the Arizona House or Senate must collect a certain number of signatures from registered voters in the district they hope to represent. Those signatures are submitted to the Secretary of State’s Office, which does nothing to verify whether the signatures, known as nominating petitions, are valid. They accept the candidates at their word.

But just about anyone can accuse a candidate of failing to qualify for the ballot by scrutinizing those petitions and suing in court. There were 30 such challenges at the legislative, statewide and federal level in 2018, roughly double the average of past election cycles, according to Spencer.

A vast majority of those lawsuits wind up in Maricopa County Superior Court, where judges rely on a review of the scrutinized petitions by the County Recorder’s Office to decide whether a candidate’s name should be on the ballot.

That’s what happened in the case of independent candidate Mark Syms, the husband of Rep. Maria Syms, R-Paradise Valley. Mark Syms utilized paid signature gatherers to collect 2,156 signatures in just 10 days, an extraordinary feat that immediately drew scrutiny from another candidate in the race, Sen. Kate Brophy McGee. Brophy McGee’s husband filed a challenge alleging that hundreds of those signatures were invalid, a legal maneuver that triggers extra work for Fontes and his election team.

The Syms case was just one of many like it that had Fontes and his staff working overtime to review thousands of signatures, on top of the work they’re already putting in preparing for the primary election on August 28. There’s nothing in state law that explicitly required Fontes to do this, he has argued.

“Let’s be honest. If I had decided to, I could’ve said no to all of this. I could’ve said no to this in February,” Fontes said. “I could’ve said, we’re not participating, and you’re going to have to get a court order to make that happen.”

At least for this election, Fontes went along with the system as is, and of the 1,930 signatures Syms submitted that Fontes’ office reviewed, 1,675 signatures were found to be invalid for various reasons.

Jeremy Phillips, Syms’ attorney, painted the process by which the recorders verify signatures as vague and undefined – he made a point to note that only one review of Syms’ signatures was conducted, while in other instances two or three rounds of reviews take place – and questioned the reliability of Fontes’ work.

Fontes testified at trial there was nothing unusual about how his office reviewed Syms’ signatures, and that a second or third check wasn’t needed in this case because Syms’ was nowhere close to having the necessary signatures to qualify. But Fontes later said he understood the frustration with a process that has been shaped more by time, tradition, and common practice than by the law.

“There’s one thing with these guys, there’s a small theme sort of, one of the many themes in here that they hit on, that I share the concern,” he said. “And that is, it appears as though there’s no real roadmap.”

Predictability in the form of a clearly defined process would benefit defendants like Syms, and all others involved in the legal process, Fontes said.

“The question ends up becoming, do I want to maintain the status quo of essentially a glorified paralegal who’s working for a candidate verifying signatures, or do we want to somehow more formalize this role and make it something that’s planned and thought through and more well established?” he said.

Law

Election attorney Joe Kanefield said even though there isn’t an explicit mandate in state law requiring recorders to review the veracity of nominating petitions, it’s a process that the Legislature and the courts have alluded to and acknowledged for years.

“They’ve done everything but say, ‘The recorders have to do this,’” Kanefield said.

There are laws on the books that don’t make sense without the implicit understanding that the recorders help judges make decisions in election challenges, like a law that allows a county recorder to recover legal fees and costs if it turns out an election challenge was filed without substantial justification. And by law, the county recorder in the district in which a candidate is running must be named as a defendant in court filings. “If you don’t name the recorder, you’re going to get dismissed,” Kanefield said.

That makes sense given the wealth of information the recorders have at their disposal, he said. No one has more access to voter signatures, voter files and other records that can be used to verify a nominating petition than the recorders.

“I talked to (Fontes) personally about it. I get it,” Kanefield told the Capitol Times. “I understand that the burden that was placed upon him, and the frustration that he no doubt felt by having to undertake, to verify all these signatures in a short period of time when he had multiple other election related tasks that he was working on… But the reality is that it’s critical.”

Without the recorders, election challenges would be at the mercy of a plaintiff to bear the burden of reviewing each signature and proving that petitions are fraudulent.

It would also be a burden on the defendants to find proof that the signatures they gathered are valid.

“It would be almost impossible for a plaintiff to kick a candidate off the ballot because they would never be able to gather the evidence they would need to prove there weren’t enough valid signatures that were needed,” Spencer said.

While there could be room for change, Kanefield cautioned against Fontes’ assertion in court that he might simply stop verifying signatures when challenges are filed.

“Not doing this is not the right answer,” Kanefield said. “What you need is more resources that should be provided to you by the state or the county to do your job.”

Fontes said he recognized this, and that’s why he didn’t simply put a stop to the process this election year. “What kind of position would the entire set of folks who have these expectations in my office be in? That would’ve been unfair,” he said.

The state’s Supreme Court justices seem to feel the same way. In their opinion barring Syms from the ballot, Vice Chief Justice Robert Brutinel took time to point out the “significant role” county recorders play in petition challenges, and how concerned the justices were by Fontes’ assertion that he’d “probably stop” verifying signatures in the future.

The justices were “troubled by the opaqueness of the process evidenced by Maricopa County Recorder Adrian Fontes’ testimony in the case… The candidates, petition challengers, and the courts, as well as our democratic system as a whole, would benefit from a far clearer process with defined statutory roles for the county recorders.”

Fraud

Brophy McGee, a Phoenix Republican, said she’s willing to take up the justices’ call for legislation to clarify the recorder’s roll in candidate challenges.

“I think it’s important that we make sure that it is outlined in statute, that somebody needs to verify from an independent party, and historically that’s been the county recorders,” she said.

Brophy McGee also wants to make candidates more responsible for the signatures they submit, an idea that could lessen the burden on recorders like Fontes who verify signatures.

She’s convinced that Syms’ case was just one of several races involving pervasive signature forgery and fraud, which had it not been challenged, would have resulted in some candidates illegitimately appearing on the ballot. There may be something to that – Spencer has said the Secretary of State’s Office is preparing to ask the attorney general to investigate fraud allegations in four races, including Syms. (A trial court judge found Syms was not actively involved in any fraud scheme or that he was not aware of bad signatures before he turned them in).

If a candidate with fraudulent signatures “is not challenged, it opens the door to anybody else following that line,” Brophy McGee said. “And anything I can do going forward to keep that from happening, I will do.”

It’s also incumbent on candidates to vet their own signatures before submitting them, Brophy McGee said.  That was the case with Rep. Mark Cardenas, who briefly ran for state treasurer but didn’t file nominating petitions because the people he hired to collect signatures provided fraudulent signatures the day before the filing deadline.

Both Brophy McGee and Spencer pointed to Cardenas, a Phoenix Democrat, as an example of a candidate taking responsibility for their signatures and not unnecessarily burdening the elections system.

“It is not enough to call yourself a victim of fraud,” Spencer said. “Candidates aren’t victims here.”

Brophy McGee said signatures for candidates should be held to the same standards as signatures for initiatives and referenda. Unlike with candidates, the Secretary of State’s Office takes an active role in reviewing the validity of signatures submitted when people propose or challenge laws via the ballot, as do county recorders.

That’s all spelled out in the law, whereas the law is vague for candidates.

“The idea being that we need to hold ourselves at least as accountable for the product we submit in support of our candidacies as any initiative,” Brophy McGee said. “We tend to rule ourselves out as politicians from the rules we hold others to, and that’s something that’s bothered me very much.”