A Superior Court judge has stopped Maricopa County Recorder Adrian Fontes from sending ballots to all voters who aren’t on the early voters list for Tuesday’s Presidential Preference Election.
Attorney General Mark Brnovich filed suit Friday for the emergency order after the Maricopa County Board of Supervisors and Secretary of State Katie Hobbs said Fontes disobeyed their orders to not mail out the ballots.
“The Maricopa County Recorder cannot unilaterally rewrite state election laws,” Brnovich said in a press release. “Fontes is creating chaos in our elections during an already difficult time. In times of crisis, the public looks to our elected officials to follow the law – not make reactionary decisions for political gain.”
Hobbs wrote a letter to Fontes this afternoon calling his actions illegal.
“I want to reiterate what I communicated to you on the phone this morning,” Hobbs wrote. “My Office’s position is that you do not have legal authority at this stage to mail a ballot to all voters who have not requested one. The lack of an express statutory prohibition is irrelevant. If your view were correct, counties apparently have had authority to conduct countywide all-mail elections all this time.”
Hobbs also referenced in her letter a Fontes tweet Thursday in which he said “if it were up to [him]” he would have mailed all the ballots to voters already.
“Apparently, sometime between that tweet and this morning, you decided it is up to you, despite the fact that the Maricopa County Board of Supervisors determined otherwise,” Hobbs wrote
A Maricopa County spokesman told Arizona Capitol Times the Board of Supervisors did not support the County Recorder’s decision and would try to stop it if possible.
“It’s their understanding that this is outside of his and the Board’s legal authority to send ballots to people that are not on the (Permanent Early Voting List),” county spokesman Fields Moseley said. “The board is seeking legal advice, and will stop it if it’s at all possible.”
On top of those elected officials chiding Fontes for going rogue, two elections lawyers agreed his actions were either illegal or at least irresponsible.
Kory Langhofer, a Republican elections attorney, said what Fontes is doing is clearly illegal.
However, Fontes acted alone and planned ahead to mail out the ballots to voters with the intention that they would be in the mail before any legal action could be taken, but in a press conference, Fontes admitted no ballots were mailed.
Tom Collins, the executive director of the Clean Elections Commission, said that aside from whether this is even legal, it creates concern from a “public confidence perspective.”
Fontes’ statement is in direct conflict with the message Hobbs sent out hours earlier based on advice from state health officials, Collins said.
“At a time when clarity around public health communications is important and regularity in the competence of an election is of the utmost importance – and given that this particular election has been problematic within the recent memory – I would assume that the county, the governor, the secretary and the county recorder need to get on the same page,” he said.
Hobbs also warned Fontes not to continue this approach in August and November because it will cause confusion among voters. “I … urge you to abandon your current effort, which will only cause massive voter confusion and, more critically, jeopardize the legitimacy of this election,” she wrote.
Fontes, in his original announcement of this “unprecedented” plan, said there wasn’t a law preventing him from doing this.
“There is no explicit authority in law for this and there’s also no prohibition in law,” Fontes told Arizona Capitol Times today. “We’re doing this to support the Board of Supervisors to make sure that every eligible voter can safely fill out a ballot, put it in the envelope and maintain appropriate social distance by just popping in and dropping it off at any of the polling locations that will be open on Tuesday,” he said.
Since then, the county held a press conference addressing this issue and according to the Maricopa County Recorder’s website, some polling places have already shut down in the county. Moseley said there was a growing concern over not having enough poll workers given the state of emergency over COVID-19.
The county reduced its vote centers from 229 to 151, but all of them will be used as drop off zones, which was Fontes’ intention.
During a conference call with county recorders last week, Fontes urged Hobbs’ staff to lean on Gov. Doug Ducey to declare a limited emergency for the election, but Hobbs never took the idea to the Governor’s Office.
Fontes wanted Ducey to declare a limited emergency to allow the election to go entirely ballot-by-mail, and allow the county to print ballots and mail them to the roughly 200,000 voters who didn’t get an early ballot – which he ultimately decided to do unilaterally, without an emergency declaration.
Reporter Andrew Nicla contributed to this story.