Key Points: 

• Arizona Supreme Court rules EPM exempt from APA 

• Ruling leaves the current EPM process in place

• Republicans plan to litigate eight remaining claims on remand

In a swift decision, the Arizona Supreme Court unanimously found that the creation of the Elections Procedures Manual does not have to comply with the state’s statutory rule-making scheme and instead adheres to its own process. 

The Republican National Committee, the Republican Party of Arizona and Yavapai County Republican Party sued to bring the elections rulebook into compliance with the Administrative Procedure Act, with a particular focus on a required 30-day public comment period. 

Secretary of State Adrian Fontes maintained that requiring all the steps of the APA would not bode well for a timely or complete promulgation of the EPM. 

The state high court heard arguments from the parties on Tuesday and returned a decision Thursday, siding with the state. 

In the order, Chief Justice Ann Timmer wrote, “considering the need for clarity in upcoming elections, unanimously hold that the rule-making provisions of the Arizona Administrative Procedure Act… are inapplicable to the promulgation of the Elections Procedure Manual.” 

Secretary of State Adrian Fontes said he was “relieved and gratified” by the decision. 

“The rule of law has prevailed. The Court’s unanimous order confirms what every Secretary of State, Republican and Democrat alike, has always understood: the Legislature created a distinct process for adopting the Elections Procedures Manual, and that process stands apart from the Administrative Procedures Act,” Fontes said in a statement. 

Gina Swoboda, chair of the AZGOP, said, “We respect the state Supreme Court’s decision that the APA does not apply to the EPM.” 

The ruling leaves the current EPM process in place.

Under the law, secretaries of state are required to consult with each county board of supervisors and elections officers to prescribe rules and “achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency” in all steps of elections. 

The timeline, as set in law, requires the secretary of state to transmit a draft to the attorney general and the governor by October 1, with all three required to sign off by Dec. 31 of each odd-numbered year. 

Public comment is not mentioned anywhere in the law, and it has historically been up to the secretary’s discretion, which former Secretary of State Ken Bennett noted in an amicus brief to the court and a prior interview with the Arizona Capitol Times.  

This year, Fontes offered a 30-day comment period, though he clarified he did so not out of legal obligation but rather a decision to keep with best practice. 

Swoboda said she wants to see the practice continue.

“I’m hopeful that all future Secretaries of State will provide the public with ample time to comment on draft manuals in the future,” Swoboda said. “It was problematic in the last cycle when the Secretary gave everybody two weeks to read, analyze and respond to a 400-page document.” 

National, state and county Republicans first sued about a month after the 2023 EPM took effect, claiming Fontes’ decision to limit public comment to 15 days violated the APA and effectively voided the draft.  

Alternatively, the parties asked the court to review the legality of eight distinct provisions of the EPM. 

A Maricopa County Superior Court judge initially rejected the APA claim, given the EPM statute’s own guidance and timeline on how the manual is to come together each odd year. 

But, on appeal, a panel of judges found the APA did in fact apply to the EPM, and Fontes misstepped in failing to require the full public-comment period provided by law. 

Fontes appealed the decision, claiming that creating the manual under the constraints of the APA would be nearly impossible. 

To comply with the APA, the Secretary of State would be required to publish a notice of proposed rulemaking, accept public comment for at least thirty days, and hold oral proceedings on provisions upon request, with an additional 30-day notice. The process would start again if any substantial changes came about. 

In arguments on October 14, Chris Murray, an attorney for the RNC, AZGOP and Yavapai County Republican Party, said the APA did not conflict with the EPM but did create inconvenience. That inconvenience, Murray argued, did not take priority over promulgating the election manual through the standard rulemaking process. 

Solicitor General Joshua Bendor claimed the steps of the APA would “pose significant risks of harm and confusion to the administration of elections in Arizona.” 

The Arizona Supreme Court has yet to issue an opinion as to why the EPM falls out of the scope of the APA, but plans to do so in due course. 

Beyond the APA decision, the order from the state high court also remanded challenges to eight provisions of the 2023 EPM back to the Court of Appeals for further review.  

• A provision allowing recorders to maintain a voter’s registration status for those who mark themselves as non-citizens on a juror questionnaire if the recorder can locate proof of citizenship or the voter previously provided proof of citizenship. The plaintiffs claim the provision violates a law requiring the recorder to send out a notice and cancel a registration if a voter does not return proof of citizenship. 
• A provision allowing federal-only voters, or a voter who does not provide proof of citizenship, to vote in presidential elections. The plaintiffs claim a violation of a state law prohibiting those who fail to provide citizenship to cast a vote in a presidential election, though the state law was blocked by the Ninth Circuit Court of Appeals and is currently under challenge in Mi Familia Vota v Fontes. 
• A provision allowing federal-only voters to vote by mail. The plaintiffs claim state law blocks any federal-only voter  who has failed to provide proof of citizenship from receiving an early ballot by mail. The  circuit court also blocked the law   in Mi Familia Vota v. Fontes. 
• A provision finding county recorders have “no obligation” to check alternative databases, like the Social Security Administration database, the U.S. Citizenship and Immigration Services SAVE database, and the National Association for Public Health Statistics and Information Systems. A state law, active though also under legal challenge in Mi Famila Vota v. Fontes, requires recorders to compare voter registration to those databases monthly. 
• A provision of the 2023 EPM requires a registrant’s signature to be accessed only for the purposes of verifying signatures on various petitions, and a county recorder can establish conditions on viewing or accessing the signatures. The plaintiffs claim a conflict with a law requiring access to signatures for broad “election purposes” and contend the singular “signature” limits signature verification to signatures within the “voter registration record.” The scope of which documents are included in the “voter registration record” is also currently under legal challenge in Arizona Free Enterprise Club v Fontes.
• A provision allows for a voter on the active early voting list to make a one-time request to have their ballot mailed out of state. The plaintiffs contend the law requires a voter shall not list an out-of-state mailing address for early voting.
• A provision allowing for challenges to early ballots specifies that any challenge received before the early ballot is returned should be denied as untimely. Plaintiffs contend state law greenlights any challenge before the early ballot is placed in the ballot box, creating a conflict. 

Maricopa County Superior Court Judge Frank Moskowitz previously rejected all eight claims and the Arizona Court of Appeals declined to wade into the arguments, given their initial finding on the APA claim.  The eight claims will now head to the appellate court. 

“We are very gratified that the eight specific issues within the current procedures manual will have their chance to be heard in court,” Swoboda said.