Key Points: 

• Court of Appeals hears argument on disputed provisions of 2023 Elections Procedures Manual

• Legislative leaders, secretary of state spar over alleged violations of state law

• Decision, expected Nov. 24, stands to dictate final draft of 2025 manual 

As the adoption of the 2025 EPM fast approaches, the Arizona Court of Appeals plans to rule on the Legislature’s legal challenge to the 2023 Elections Procedures Manual. 

The appellate court’s ruling, pending a possible final say from the Arizona Supreme Court, stands to shape select elections guidelines in 2026. 

A three-judge panel heard arguments from attorneys for Senate President Warren Petersen, House Speaker Steve Montenegro and Secretary of State Adrian Fontes on Nov. 19. It plans to return a ruling by Nov. 24, bearing in mind the Dec. 31 deadline for final adoption of the 2025 EPM.

Petersen and Montenegro are seeking to strike down four provisions of the 2023 EPM, claiming violations of state law. 

One provision requires jury commissioners to inform county recorders if a voter claims they are not a resident on a juror questionnaire, and mandates county recorders to place those voters into inactive status if the voter fails to confirm their residency. 

But some legislative leaders argue that the originating state statute already requires those voters’ registrations to be cancelled, not temporarily suspended. 

But Karen Hartman Tellez, attorney for Fontes, told the court that the secretary of state must comply with both state and federal law, and Fontes said he believes that the law, as written, violates the National Voter Registration Act.

Hartman Tellez noted federal law requires that, when removing a voter due to a change in residence, the information must come directly from the voter, which she claimed to be out of line with the state’s instruction to go off a summary report from the jury commissioner. 

“There could be mistakes because the recorder doesn’t receive the jury questionnaires themselves,” Hartman Tellez said. “That’s the problem there.” 

Kory Langhofer, attorney for Petersen and Montenegro, argued that the state law aligns with federal guidance, as the voter informs the state in writing of their non-residency by way of the jury commissioner. 

“The state of Arizona, of course, includes the jury commissioner. And the jury commissioner is also authorized by statute to transmit this information to the county recorder,” Langhofer said. 

Judge David Gass pressed Langhofer on the “daisy chain” the state law creates, as opposed to hearing directly from the voter. 

“Can I report that I’ve changed addresses to literally any public employee in the state of Arizona, and that’s sufficient to remove me from the voter rolls? If I tell a city employee, if I tell a police officer that I’ve moved, is that sufficient under the NVRA, at least, to remove me from the voter rolls?” Gass asked. “They could’ve made it the dog catcher, from your position. The dog catcher could forward it on?” 

Langhofer said there were some good policy reasons not to delegate the task to the hypothetical dog catcher, but as a general matter, he agreed, noting federal law only requires the information from the voter to reach the state, whoever the state may be.

“Federal law requires a written confirmation to the state, so federal law is satisfied here,” Langhofer said. “State law, of course, says it’s got to be the jury commissioner.” 

Petersen and Montenegro challenged a footnote in the 2023 EPM that exempts small mistakes made by petition circulators during registration from determining the validity of collected and submitted signatures. 

The legislative leaders assert state law requires information submitted by petition circulators to be correct. 

Hartman Tellez noted state law does not require the secretary of state to determine the accuracy of registrations, and Petersen and Montenegro failed to challenge the statute that makes it so. 

The legislative leaders and secretary of state also sparred on the effective date of enforcement for the active early voting list, which requires county recorders to remove voters who fail to vote in two consecutive elections from the list of registrants who automatically receive an early ballot.

 The secretary of state claims the law creating the AEVL passed in the middle of the 2022 cycle, so enforcement should begin in 2027, while legislative leaders argue county recorders should’ve started enforcement in 2025. 

A lower court judge previously rejected the legislative leaders’ AEVL claim, and the judges prodded this week on the timeline. 

Gass noted the Legislature failed to specify the two election cycles, which Hartman Tellez pointed out, too. 

But Langhofer said the Legislature did not create ambiguity by failing to expand upon the law’s effective date. 

“The absence of redundancy is not ambiguity,” Langhofer said. “If the state Constitution says it will be effective in 90 days, they needn’t say it again. It’s not ambiguous if you don’t repeat yourself.” 

The judges then turned to a provision mandating county boards of supervisors to canvass their election results on time and requiring the secretary of state to proceed with the statewide canvass without the votes of a county that fails to do so. 

Gass asked the parties whether the court should still consider the canvass provision, or render it moot after Fontes axed it in the 2025 EPM. 

The legislative leaders noted the 2025 EPM is not yet final and said a ruling would be necessary, absent an avowal from the secretary that the same provision would not sneak into the manual at the last minute. 

Hartman Tellez, attorney for Fontes, said that the secretary would not seek to include the canvass provision in the 2025 manual, though noted it is not solely within his office, and that the attorney general and governor could ask for the change. 

But Hartman Tellez said, “I can’t see that happening.” 

The judges took the matter under advisement and plan to issue a ruling on Nov. 24.