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Tag: Arizona Supreme Court

Hand count immunity denied to Mohave County supervisor by Arizona Supreme Court

Key Points:
  • Arizona Supreme Court denies Ron Gould immunity for hand count
  • Court of Appeals decision not to disturb ruling on Gould’s case
  • Gould remains convinced hand counts are not prohibited by Arizona law

Mohave County Supervisor Ron Gould isn’t going to get immunity for the next time he wants to hand count ballots.

In a brief order, the Arizona Supreme Court refused to disturb a decision by the state Court of Appeals that Gould is entitled to such an order. That ends the case.

But Gould said it really doesn’t resolve the matter.

He pointed out that the ruling against him never addressed the question of whether he — or any supervisor from any county — is free to pursue a hand count without what he says are “threats and intimidation” by Attorney General Kris Mayes. Instead, the appellate judges said he had no standing to ask the court to prospectively grant him immunity because he has yet to get the supervisors to pursue a hand count, one that Mayes has said is illegal and told the board “may result” in criminal penalties.

“I believe it was because she didn’t arrest me,” Gould said of his inability to get courts to address the issue of whether he’s entitled to immunity.

“So, apparently, she’ll have to arrest me next time,” he told Capitol Media Services. “And she’ll be wrong. But then I’ll actually get a hearing.”

Still, Gould is unsure whether there really will be an opportunity in the future for him to put himself in Mayes’ legal crosshairs.

All this stems from the 2024 election when the Mohave supervisors were weighing whether to proceed with a hand count of the races. While initially scrapped, board Chair Travis Lingenfelter, who had been one of the foes, put the issue back on the agenda.

That, said Gould, suggested Lingenfelter had changed his mind. And that, along with his own vote and that of Sonny Borrelli, would have provided the majority.

But just putting the issue on the agenda resulted in a letter from Mayes, read to the board at that meeting, warning the supervisors that going down that path “could result in various felonies and misdemeanor penalties.

“We hope you will choose not to violate the law and thus that it will not be necessary to consider whether criminal prosecution is warranted for conducting an illegal hand count,” the attorney general wrote.

Gould contends that, had it not been for Mayes’ letter, Lingenfelter would have voted for the hand count, providing the necessary third vote. So he filed suit, asking a trial judge to rule that the use of tabulating machines is not mandatory but optional, that the supervisors can make that choice — and, more to the point, that he “should not be subjected to threats and intimidation by the attorney general for voting to have hand counting be the primary initial method of vote tabulation.”

The Court of Appeals, however, ruled Gould had no basis to sue.

“The AG’s letter, which provided that criminal penalties ‘may result’ from the board’s vote and that criminal prosecution would be ‘considered’ for ‘conduct an illegal hand count,’ does not constitute a specific threat of prosecution,” wrote Judge Michael Kelly for the unanimous panel.

In fact, Kelly noted, the board never actually voted for a hand count. And that, the judge said, negates any claim by Gould that the court should give him legislative immunity because what he seeks is “contingent of speculate future events.”

It was that ruling that the Supreme Court refused to disturb.

Gould, however, remains convinced that nothing in Arizona law actually mandates the use of machines to count ballots. And that, he said, leaves open the possibility he may lead another fight to force a hand count of some future election.

For the moment, Gould said, it’s too early to tell.

“I have a new board,” he said, leaving him unsure whether there’s a third vote to go down that path — and risk criminal charges. And if that happens, said Gould, the case would be legally ripe for him to seek a ruling on whether hand counts are prohibited — and whether he is entitled to have a court say he can’t be prosecuted for voting for it.

Pinal County residents could receive a $300 check if this measure passes

Key Points: 
  • Pinal County residents may get $300 check from state
  • Senate Finance Committee votes to divide up sales tax funds
  • Eligible residents may receive $300 checks starting October 15, 2027

Pinal County taxpayers could get a $300 check from the state.

The Senate Finance Committee voted 3-2 late Monday to divide up what’s left of an illegally imposed sales tax to residents of Pinal County. The measure, known formally as HB 2273, has already been approved by the House and now goes to the full Senate for a vote.

Rep. Teresa Martinez, the legislation’s creator, said the measure still falls a little short of satisfactory for her.

The Casa Grande Republican would instead prefer the $45 million to $50 million tax remainder to go for its intended purpose: road construction and improvement in the county.

Moreover, her HB 2106 would have done exactly that if it was not defeated last week in the House. That leaves Martinez, for the moment, with only HB 2273 remaining.

All this goes back to 2017 when Pinal County voters approved Propositions 416 and 417. The first was a regional transportation plan; the second was a sales tax to pay for it.

Voters approved both.

But there was a legal challenge to the half-cent sales tax based on the fact that it applied only to the first $10,000 of anything purchased, with no additional levy for anything above that. And the Arizona Supreme Court in 2022 voided the tax, calling the two-tiered system illegal.

Under normal circumstances, that requires a refund of the more than $80 million collected to those who paid the taxes.

What’s significant is that Arizona does not have a “sales tax” which is owed by the buyer.

Instead, it has a “transaction privilege tax,” owed by the merchant. And that required the state to offer refunds not to the purchasers — to whom the cost likely was passed on — but to the businesses that collected it between April 2018 and March 2022.

The deadline for businesses to seek refunds from the state Department of Revenue is this coming month.

But Martinez said that many businesses have not sought their share. She said some may have decided the hassle isn’t worth the money while other firms may just not be around anymore.

And that leaves somewhere between that $45 and $50 million unrefunded and sitting in the state treasury.

So the legislation now awaiting action by the full Senate says that anyone whose primary residence was in Pinal County in 2018 through 2024 and who files an income tax return in 2026 is entitled to get a $300 check. And if the taxpayer is dead, the money would go to a surviving spouse or the estate.

Not everyone is happy with the plan.

“It wasn’t going to someone taking a vacation to Hawaii,” said Sen. Vince Leach of the money that was collected. “It wasn’t going to send their kids to day camp for five weeks.”

And he said that’s why people voted for the levy

“Anybody that’s been in Pinal County lately, you will know, and you will admit, that we still have a road problem,” said Leach, a Republican who, while he has a Tucson mailing address, lives in southern Pinal County. 

That’s also the assessment of Florence Mayor Keith Eaton.

“We continue to have, as the senator alluded to, tremendous transportation needs.” And Eaton, who also serves on the Pinal Regional Transportation Authority, said given the county’s location in central Arizona, the condition of its roads affect the state as a whole.

So he wants the remaining funds used for transportation projects in the county.

For the moment, that’s not an option with the defeat of Martinez’ original bill to do just that.

Leach said despite that there are ongoing discussions to try to find a way to resurrect that plan.

But he said that, for the moment, this is the only one on the table. And that, said Leach, means he has to support it to keep the issue alive — and ensure that Pinal residents get something.

“One in the hand is worth two in the bush,” he said.

That’s also been the position of Martinez.

Still, even if the rebate is ultimately what becomes law, eligible residents shouldn’t stand by the mailbox waiting for a check.

The legislation says the earliest the funds can go out is Oct. 15, 2027, with all the dollars distributed within a month after that.

Arizona GOP push to standardize state election dates

Key Points: 

  • Republican lawmakers seek to override local election laws
  • Senate Committee approves measure for uniform election dates
  • Tucson Mayor Regina Romero opposes state control over local elections

Republican state lawmakers are making yet another try to tell Tucson — and all the state’s charter cities — when to hold their elections.

On a party-line vote on Feb. 20, the Senate Committee on Judiciary and Elections approved a measure to require all cities, towns and school districts to hold elections on the first Tuesday after the first Monday in November, and only in even-numbered years.

SCR 1027, which now awaits a vote of the full Senate, is not the first effort by GOP lawmakers to override local election timelines. In fact, several attempts have already been slapped down by the Arizona Supreme Court. 

In the most recent ruling in 2021, Justice Ann Scott Timmer, writing for the majority, said the Arizona Constitution clearly gives cities that have adopted their own charters “autonomy over matters of purely municipal concern,” ultimately concluding that cities have the legal authority to run local elections.

So, Sen. J.D. Mesnard, the architect of prior efforts, came up with a work-around.

The Chandler Republican wants to codify a single election day for all into the Arizona Constitution. And that, Mesnard said, would override the right of charter cities to go their own way.

But there’s a hurdle. Even assuming he can get it through the Republican-controlled House and Senate, it would still require approval of voters statewide in November. 

Mesnard said he’s convinced it would pass. And he even believes it would get support in Tucson, Tempe, Prescott, Douglas, Holbrook and Winslow, where election schedules would be overwritten.

“We do think the voters would prefer to have a single election date,” he said.

The fight actually goes back to 2012, when legislators said cities had to hold elections at the same time voters choose federal, state and county officials. But that was struck down by the Arizona Court of Appeals which said that lawmakers had no statewide interest in interceding in what charter cities consider a local matter.

The 2018 revision sought to get around the earlier ruling with a declaration calling it “a matter of statewide concern” to boost voter turnout. It directed that cities have to scrap their election dates if turnout at a local-only election was 25% less than the most recent statewide election.

The Tucson turnout in 2019 was 39.3%, compared with 67% of Tucsonans who voted in the regular 2018 election.

But the council ignored the law, with local voters rejecting a 2019 ballot measure to conform to a statewide schedule. And they specifically set the 2021 primary vote for Aug. 3, with the general election for Nov. 2, 2021.

So, at Mesnard’s request, Attorney General Mark Brnovich asked the state’s high court to rein in the city, declare the ordinance void, and put city elections on an even-year cycle.

Timmer, in rejecting the lawsuit, said the issue goes beyond the right of charter cities to make their own decisions. She also said that cities may have legitimate reasons for conducting off-cycle elections.

One issue, Timmer said, is the possibility of “voter fatigue,” where discussion of local issues gets buried during a statewide election.

“Weighing those considerations implicates a city’s choice for how best to elect its officers,” she said.

Now Mesnard is trying a different approach: Asking voters statewide to amend the Arizona Constitution to override the right of cities to decide when to hold their elections.

The entire legislative exercise annoys Tucson Mayor Regina Romero.

“State legislators have tried to manipulate elections for years,” she told Capitol Media Services. “Everyone from our own voters to the state Supreme Court has agreed that these are our decisions to make.”

One of the arguments Romero has advanced — and Tucson voters have so far approved — is there’s a good reason for the city to have its own election on its own date. What that does, the mayor said, is allow for “city-focused campaigns and robust public discourse on local issues that would otherwise be overshadowed by federal and state elections on even years.”

By contrast, moving the local elections to November would mean that city candidates — and any city issues — would appear at the bottom of the ballot, below the statewide and legislative candidates and any initiative and referendum measures.

And there’s something else: All the publicity and all the commercials for local candidates and issues would have to compete with what is being put out in far more expensive campaigns for statewide — and, in some years, national — offices.

“As a charter city with power over our own local affairs, and with many of our state and federal officials being unreliable partners, we plan to continue holding elections to maximize a focus on local issues now more than ever,” Romero said.

Mesnard has not been convinced.

 “I don’t have a lot of sympathy for the idea that folks can’t break through the noise, given that legislators face a similar phenomenon,” he said in advancing prior efforts, noting they, too, have to run during consolidated elections. And he said the alternative of multiple election dates is worse.

“You would have these happening throughout the year, constant commercials or ads or whatever, that I don’t think voters really want,” Mesnard said.

All that still leaves a practical issue for Romero and backers of letting cities set their own election dates.

Mesnard’s SCR 1027 would go on a statewide ballot in November. And that means the issue of when Tucson elects its officials would be decided not by a court but by a majority of those who turn out in a state where a majority do not live in cities with local election dates.

“The mechanics are different this year, but the story is the same,” Romero said. And she believes that voters statewide can be convinced this is a bad idea.

“This is another case of Phoenix politicians overreacting and interfering in local Tucson elections for their own political gain,” she said. “They have already wasted taxpayer money pursuing this and they’re trying to waste more.”

Supreme Court declines to consider Horne’s English language suit

Key Points:
  • Ruling that state schools chief Tom Horne can’t sue certain school districts stands 
  • Issue involves Prop. 203, a 2000 ballot measure on ‘structured English immersion’ 
  • AG ruled that a dual language model is acceptable 

State schools chief Tom Horne has struck out in his claim that he is entitled to sue school districts that don’t use “structured English immersion” to teach English to students who are not proficient.

In a brief order, the Arizona Supreme Court has refused to disturb lower court rulings that said he lacks legal standing to enforce Proposition 203, a 2000 voter-approved measure that spells out how English must be taught to students who are not proficient in the language. The justices did not explain their ruling.

But Horne insists the battle is not over.

He pointed out that his wife, Carmen Chenal Horne, who also is an attorney, has raised the same claim in a parallel lawsuit. And Horne contends that even if he can’t sue as superintendent of public instruction – as the lower court has decided and the Supreme Court has now affirmed – the law does allow a parent he represents to bring legal action.

Only thing is, that case has not fared any better.

The Court of Appeals acknowledged that Patricia Pellett, the plaintiff in that case, is a parent. 

But the judges pointed out she does not live in any of the 10 school districts that she and Horne contend have been violating the 2000 law. Nor is her child enrolled in any English instruction program.

And that, the appellate court said, gives her no more right than her husband to sue.

“I think that was a very foolish decision,” Horne told Capitol Media Services. But he noted that case remains on appeal to the Supreme Court, though no date has been set for the justices to review it.

At the heart of all this is the question of whether the state Board of Education has the authority to decide which teaching methods are acceptable.

The 2000 voter-approved measure says that “all children in Arizona public schools shall be taught English by being taught in English, and all children should be placed in English language classrooms.” That, Horne contends, means students who are not proficient in the language when they come to school – presumably from homes where another language is spoken – are placed in English immersion courses for four hours a day.

That concept, however, drew concern from some parents and schools who said that the special English classes led those students to fall behind in other academic subjects. There also were questions about whether these students were being segregated from others their own age.

In 2019, lawmakers voted to allow the state Board of Education to adopt and approve alternate “research-based” models that involve two hours a day of English instruction, giving schools more flexibility in scheduling that time. It also allows classes to include both students whose native language is not English and those from homes where that is not the case.

Based on that law, the board concluded – backed by Attorney General Kris Mayes – that one acceptable alternative is a 50-50 “dual language model,” where students can learn English while keeping up with their peers in other subjects.

Horne filed suit.

He says studies have shown that it is more effective for students to learn English quickly by being immersed in language lessons, even if they fall behind their peers in academic subjects.

But there’s also a legal issue.

The Arizona Constitution forbids lawmakers from altering what voters have approved unless it “furthers the purpose” of that original law.

In this case, Horne argued the 2019 law did not meet that test because the 2000 ballot measure spelled out that “children be taught in English for the entire school day, in order for them to quickly become proficient in English.”

But the Court of Appeals ignored all that, instead focusing on whether Horne should even be in court.

“The superintendent has no independent policy-making authority,” wrote appellate Judge Paul McMurdie for the court. “His authority is limited to executing, under the direction of the board, the policies that have been decided on by the board.”

McMurdie acknowledged that the superintendent is responsible for identifying “English learners” – those who are not proficient – and overseeing the Department of Education’s funding, administration, and monitoring role.

“But the superintendent has no role in determining the instructional models available to schools,” the judge said. “The Board (of Education) alone is allowed to adopt and approve lawful structured English immersion and non structured English immersion education models for the schools’ use.”

It was that decision that the Supreme Court just refused to disturb.

In rebuffing the state schools chief on the legal issue of standing, the justices also affirmed the appellate ruling that there was no basis for Horne to sue both Mayes and Gov. Katie Hobbs.

Horne named Mayes because of a legal opinion she issued that the state Board of Education – and not Horne – has sole authority over English immersion models. And he sued Hobbs claiming that the governor “has been touting dual language even though she knows, or should know, that is contrary to law.”

Legislature scrutinizes new elections manual, potential for litigation looms

Key Points: 
  • Elections Procedures Manual get executive approval
  • Changes reflect court rulings, public comments and executive edits
  • Legislature undertaking a close review to ensure compliance with state law

With the 2025 Elections Procedures Manual in effect, the Legislature is now taking a fine-toothed comb to each provision, potentially teeing up another round of litigation. 

Secretary of State Adrian Fontes, Attorney General Kris Mayes and Gov. Katie Hobbs all signed off on the 2025 Elections Procedures Manual on Dec. 23, bringing to a close the odd-year process of promulgating a playbook for election workers and officials.

But as the 2025 EPM takes effect, ongoing litigation over the prior draft puts some provisions in limbo, and a new set of eyes could spark another round of legal challenges. 

“While the Elections Procedures Manual has been approved, that does not mean it is beyond scrutiny,” Senate President Warren Petersen said. 

Per state law, the secretary of state, in consultation with county election officials, must draft a new manual every odd-numbered year and seal it with a final sign-off from the governor and attorney general. 

The Secretary of State’s Office, in consultation with election officials from all 15 counties, conducted a section-by-section review of the prior manual and publicly unveiled the first draft of the 2025 manual on August 1. 

What they found was a departure from the 2023 manual in a few respects. 

For example, the new manual no longer contains a provision delineating voter intimidation and harassment, following two parties successfully arguing that there was a potential for chilled speech in the state and federal courts. 

Fontes also struck a provision requiring the state to move forward without the votes of a county that fails to certify on time, similarly in response to successful litigation. 

And during the drafting process, the courts weighed a legal challenge from the Republican Party of Arizona and the Republican National Committee on whether the manual had to comply with the Administrative Procedures Act and thus, was required to be put out for public comment for a minimum of 30 days. 

The Arizona Court of Appeals found the EPM had to comply with the APA, though the decision was later overturned by the Arizona Supreme Court. 

But, in yielding to the momentarily successful court challenge, and in the name of best practice, Fontes solicited public comment for 30 days.

On Oct. 2, Fontes posted a second draft, with notes of the changes responsive to public input. 

The office took into account one legislative recommendation, clarifying a footnote on petition circulators, but did not include a number of other requested changes, particularly those pertaining to proof of citizenship. 

Petersen and House Speaker Steve Montenegro took issue with a provision they said purportedly allows county recorders to cure registrations when they have found evidence that an applicant is not a citizen. 

The legislative leaders instead recommend the EPM require county recorders to cancel registrations and refer applications to the attorney general and county attorney for further investigation. 

And in a similar vein, the two also flagged a provision empowering recorders to attempt to secure proof of citizenship on a registrant’s behalf and wanted to strike a provision that made a lack of proof of citizenship an “invalid ground” to challenge an early ballot. 

With select edits, Fontes then sent the manual to Hobbs and Mayes in early October for the final round of executive edits. 

According to a transmittal letter from the Secretary of State’s Office, Hobbs and Mayes requested a footnote detailing the pending litigation regarding the Arizona Independent Party’s name change. 

Per the letter, the secretary of state’s guidance to counties instructing them to honor the name change remains valid but is not included in the manual due to the ongoing lawsuit. 

Mayes and Hobbs also requested slight tweaks to the observer section to align with state law, which requires observers at voting and central count locations and allows county election officers the discretion to admit observation elsewhere. 

The prior draft listed places such as “early voting locations, emergency voting centers, and County Recorder processing procedures, where permitted by the County Recorder or other officer in charge of elections,” while the final EPM allows observation “at any other location where observation is permitted.”

Mayes and Hobbs also added a section instructing counties to develop a process to accept documentary proof of citizenship and residency at voting locations.

The manual now requires voters providing proof of citizenship or residency to provide photocopies and complete a form to be sent to recorders with the voter’s provisional ballots, either on the spot or by 7 p.m. on Election Day. 

Though final, the manual still has some provisions in limbo. 

Ongoing challenges by the Legislature, as well as the state and national Republican parties, are still pending a final say from the court, leaving issues of documentary proof of citizenship, non-resident juror questionnaire responses, county canvassing and active early voting list removal subject to change. 

Litigation against the 2025 EPM could materialize as well, as the new draft did not accommodate every requested edit submitted in public comment by past litigants, including the Legislature, the Republican Party of Arizona, and the Republican National Committee.

The Legislature is actively reviewing the manual, according to Petersen, the Senate president.

Arizona Supreme Court rejects claim that retention election scheme is unconstitutional

Key Highlights:

  • In a unanimous ruling justices reject arguments that selection system violates state’s guarantee of fair elections
  • Court found that geographic voting districts do not disenfranchise any voter
  • Legislature set up the system of appellate court divisions

PHOENIX — Arizonans have no constitutional right to vote on all the judges on the state Court of Appeals, even if they are deciding cases that directly affect them or the counties where they live, the Arizona Supreme Court has concluded.

In a unanimous ruling Thursday, the justices rejected arguments by the Goldwater Institute that the system, which dates back to the 1960s, violates state constitutional provisions guaranteeing free and equal elections.

Justice James Beene, writing for the court, acknowledged that the method of electing appellate judges allows only some people to vote for some judges, all based on where voters live. And he said it also is true that appellate court rulings could affect people who, because of where they live, have had no voice in deciding whether to elect the judges who rule on their cases.

But that, Beene said, doesn’t make it illegal. “Plaintiffs point to no constitutional provision that guarantees a right to vote for every Court of Appeals judge,” Beene said.

The justices separately rejected a challenge to the whole process of how the state is divided up —and, more to the point, who gets to vote for which appellate judges —violates the concept of one person, one vote. Beene said even the U.S. Supreme Court has said that principle does not apply to judicial elections.”Judges are not representatives,” he said.

Under a voter-approved system, appellate judges, like those on the Supreme Court, are chosen by the governor, who must choose from nominations of a special screening panel.

The names of those appointed then appear on the ballot every six years, with voters deciding whether to retain them in office or oust them. What’s at issue here is who gets to vote for which judges.

At the Supreme Court, all Arizona voters get to decide the fate of all justices. Not so at the appellate level. There are two divisions of the court: one covering eight counties and one covering seven. But the voting procedure is even more complex than that.

In Division 1, of the 19 judges, 10 are residents of Maricopa County, and only residents of that county decide their future. Five are from the remaining counties in the division: Yuma, La Paz, Mohave, Coconino and Yavapai. Navajo or Apache — and voted on only by residents of those counties; four are elected at large from all nine counties.

A similar situation exists in Division 2, with four judges elected from Pima County, two from Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties, and three at large.

That, in turn, affects who gets to vote on which judges.

For example, Beene said, Maricopa County residents might get to vote for up to 14 appellate judges while residents of the remaining Division 1 counties might get to vote for nine — or as few as five.

What that also means is that a three-judge appellate panel that happened to have no Yuma County judges might decide an issue affecting Yuma County residents. And that, according to Goldwater, is just part of the problem.

In challenging the system, the organization noted that the Supreme Court receives anywhere from 1,200 to 1,600 petitions to review appellate court decisions each year.

But the justices typically accept only between 50 and 75 for review. And that means the remaining appellate court decisions —the ones issued by judges who are not subject to review by all voters statewide and may never have been voted on by those affected — become the last word for litigants.

Scott Freeman, an attorney with Goldwater, said the problem goes beyond the individual litigants in any case. He said what also makes it unfair is that appellate judges can issue opinions that are “binding legal precedent” for the entire state. “The judges on this court are statewide officials,” he said.

“Arizonans cherish their right to vote on whether to retain judges,” Freeman continued. “Every voter should have a say as to whether these judges are retained, not just those in a particular region of the state.”

But arguments about cases being decided by judges for whom a resident could not vote did not impress the justices. Beene pointed out the Arizona Constitution itself allows retired judges — who are not elected by anyone — to hear cases. In fact, there have been several Supreme Court cases this year where retired judges have participated in arguments and been involved in reaching rulings. He also noted the constitution permits the chief justice to assign judges from one county to sit to hear cases in another county.

That, for example, is what happened in Cochise County after the 2022 election, when a lawsuit was filed over the supervisors’ failure to certify the election results. The case was assigned to Pima County Superior Court Judge Casey McGinley, who ordered the board to act despite the fact that no one in Cochise County had ever had a chance to vote for or against him.

“A retired or visiting judge serving as a Court of Appeals judge is not subject to retention and yet exercises statewide jurisdiction,” Beene wrote. “Thus, the Constitution does not require that every judge serving on the Court of Appeals must stand for retention before every voter.”

And Beene said it’s legally irrelevant that the Court of Appeals has statewide jurisdiction and its rulings can set new legal precedents. He said none of that supports the claim that all Arizonans have the right to vote in all appellate court elections. 

“And plaintiffs do not provide any case law that supports this claim,” he said.”In sum, the electorate for Court of Appeals retention elections need not be statewide because there is no underlying right to vote in every Court of Appeals judge’s retention election,” Beene wrote. “And thus the mere creation of geographic voting districts does not disenfranchise any voter.”

While the Supreme Court ruling is the last word legally, there is another option for Goldwater: Ask the Legislature — which set up the system of appellate court divisions — to alter the system. In fact, there has been at least one effort to do just that.

On a party-line vote in 2023, the Republican-controlled Legislature approved a proposal by House Speaker Ben Toma, backed by Goldwater, to require all Court of Appeals judges to stand for retention on a statewide basis. No one testified against it.

But Gov. Katie Hobbs vetoed the proposal by the Peoria Republican, saying the proposed cure of HB  2757 — and, by extension, what the Goldwater Institute was seeking to do through this lawsuit — would be worse than the current situation.

“Allowing voters statewide to vote on whether to retain all  Court of Appeals judges regardless of the judge’s division assignment, while retaining the division structure, would unfairly dilute the votes of those Arizonans most directly impacted by each division’s judges,” she wrote.

 

Justices side with Arizona police in ‘stay right’ case, allow search that led to drug conviction

Key Points:
  • Arizona Supreme Court rules driving in middle lane can be reason for traffic stop
  • Officer had “reasonable suspicion” to stop driver in middle lane, court says
  • The ruling sends the case back to a trial judge for further review

The Arizona Supreme Court is providing motorists with a new reason to keep right: Failure to do so can get you stopped and pave the way for a search of your vehicle.

In a unanimous ruling, the justices rejected claims by Asalia Alvarez-Soto that the fact she was driving in the middle lane of Interstate 10 through Pinal County was insufficient reason for Ashton Shewey, an officer with the Department of Public Safety, to pull her over. And once she was pulled over and consented to have a canine sniff around her vehicle, that means the 55 pounds of marijuana found in the trunk of her vehicle was legally seized and could be used as evidence against her.

Of note is that Friday’s ruling is contrary to the one reached a year ago by the state Court of Appeals.

There, a majority of the judges concluded that the stop in this case was an overly strict interpretation of the state’s “stay right” laws.

They said the evidence was that Alvarez-Soto was driving around the speed limit and had not interfered with the flow of traffic. They said the trooper was enforcing the law in a way that could “subject all travelers to virtually random seizures.”

And with the traffic stop not justified, they said the evidence seized could not be used in the criminal case against her.

Friday’s ruling overturns all that.

The case dates to December 2018 when Shewey stopped Alvarez-Soto for violating the statutes that makes it illegal to impede traffic flow by failing to drive in the right lane.

Court records show the stop wasn’t entirely random.

It says Shewey observed the 2007 Chevrolet Malibu, with the trooper later testifying that he knew that drug-trafficking organizations often use Chevy models from 2002 to 2008 as “company vehicles” used to move narcotics out of border cities.

A check of the license plate revealed it was newly registered out of Nogales and recently crossed the international border multiple times. All that, he said, led to his decision to follow the vehicle and, if he saw any traffic violation, pull it over.

While writing her a warning, the trooper asked her about her travel plans and requested her consent to search the vehicle, which she refused.

But she did agree to let Chili, the trooper’s dog, sniff around the vehicle. And when the dog alerted, that led to a search that uncovered the suitcase.

That led to her conviction on charges of possession and transportation of marijuana for sale and a sentence of five years in state prison.

Justice John Lopez, writing for the unanimous Supreme Court, said the key is that the Fourth Amendment to the U.S. Constitution requires only that police have “reasonable suspicion” to stop and briefly detain a vehicle.

That, he said, is determined on the “totality of the circumstances viewed in consideration of the officer’s training and experience.”

In this case, Lopez said, the officer observed the vehicle traveling in the middle lane three miles an hour over the posted 75 mph speed limit over several minutes and several miles. She slowed to 70 mph, at which point another vehicle passed her on the right.

Lopez pointed out that the law requires motorists drive in the right-hand lane if they are going less than the normal speed of traffic. And once Alvarez-Soto slowed to 70 and was passed on the right, he said, that met the “minimal reasonable suspicion threshold.”

He also rejected the argument advanced by the Court of Appeals that interpreting the law that way essentially would force Arizona motorists to violate speeding laws — Alvarez-Soto was driving 78 mph with the flow of traffic — to avoid being pulled over on the “stay right” provision. Lopez said she had multiple opportunities to comply by pulling into the right lane after she was passed on the right.

Lopez acknowledged that a traffic court might reach a different conclusion about whether Alvarez-Soto was violating the traffic law — the reason the trooper said he pulled her over in the first place — something that might require a judge in traffic court to determine whether she was driving at the “normal speed of traffic.” But he said that doesn’t affect the decision of a police officer to stop a motorist in the first place.

“The Fourth Amendment does not require an Arizona officer to interpret every traffic provision with some measure of flexibility before initiating an investigatory stop,” the justice wrote.

“It requires only that the officer have a particularized and objective basis to suspect that a violation may have occurred,” Lopez continued. “An officer’s reasonable mistake about the facts or relevant law does not preclude reasonable suspicion.”

The new ruling does not end the case. Instead, it sends the case back to a trial judge to determine whether the officer unlawfully prolonged the traffic stop.

A 2015 U.S. Supreme Court ruling says that police generally cannot extend a traffic stop beyond the time necessary to deal with the reason for the stop — in this case, a warning for violating the stay right law — unless they have reasonable suspicion that another crime has occurred.

Supreme Court delays resolution over death penalty deadlines

Key Points: 
  • Court delays changing execution warrant briefing process until 2026 
  • State seeks faster schedule, defense counsel warns of inadequate representation
  • Court declines to adopt its compromise proposal, reopens petition for comment

The Arizona Supreme Court put off making any changes to the execution warrant briefing process until next year, in hopes of balancing the state’s request for a faster, set schedule and capital defense counsel’s need for ample notice to provide thorough legal representation. 

The Attorney General’s Office filed a rule change petition in January to set a more defined timeline for briefing motions for warrants of execution, citing a 90-day expiration date on the drug used in lethal injection. 

Attorneys representing capital defendants claimed a quicker turnaround time curtailed the ability to provide fulsome constitutional counsel on clemency and related legal challenges to an upcoming execution. 

The Arizona Supreme Court tried to strike a middle ground, proposing that the state provide 65 days’ notice if it needed to set an execution date, but neither side fully supported the idea. When faced with the petition again in the November rules agenda, justices decided to keep the conversation open and continued the issue to the August 2026 meeting, with public comment open until next May.

“It’s encouraging that the court is taking the time to get it right and not rushing to find just any solution,” Sam Kooistra, attorney for the Arizona Capital Representation Project, said. 

The current briefing process for warrants of execution starts with a motion to set a briefing schedule, in which the state first floats its ideal timeline for briefing and completing an execution. 

Defense counsel then has the opportunity to respond, the state weighs in again, and the Arizona Supreme Court then orders a schedule and notes the date the court anticipates conferencing the issue and issuing a final warrant of execution. 

The Attorney General’s Office filed a petition to change the process. 

Jason Lewis, section chief of capital litigation at the Attorney General’s Office, asked the state high court to start with the state’s motion for a warrant of execution and then set a rapid briefing process, with ten days for defendants to respond, five days for the state to reply and a decision from the justices at their next earliest conference. 

The reason for the rush stems from the Department of Corrections, Rehabilitation and Reentry’s use of the lethal injection drug pentobarbital, which expires 90 days after it is compounded. 

And, in line with a settlement agreement, the department must test drugs to be used in executions within 10 days of filing a motion for a warrant for execution. 

A coalition of capital defense attorneys warned a shortened timeline threatens to curtail efforts by counsel to first respond to the warrant, while concurrently preparing for clemency proceedings and readying any additional challenges to the execution. 

They argued, too, that the court should not change the schedule solely for the sake of accommodating the department’s drug of choice, noting the potential to change the drug protocol, or not use it at all, as 30 inmates can still choose to be executed by lethal gas.

The Arizona Supreme Court tried to strike a compromise. In its proposal, the state, if it needed a specific execution date, could file a notice 65 days before filing a motion for a warrant of execution, with two alternative future dates. 

Defense counsel could respond to the notice within 21 days. And then, the justices would issue an order between 30 and 60 calendar days later setting deadlines for the state’s motion, the defendant’s response, the reply and the date the court plans to conference the issue. 

Lewis claimed the new proposal from the court essentially “mirrors the current procedure,” but then restricts the state’s discretion in setting a 65 day notice period, which in the state’s opinion, is a bit too long.

And the amended proposal fails to account for response and reply times in the ultimate motion for a warrant of execution, and thus fails to address the problem the state sought to solve.

“While this time period is small in comparison to the length of time these cases have been pending, the State must always ensure that the victims’ rights to finality and a swift disposition are protected,” Lewis wrote. “More importantly, the State has an interest in reducing delay during the execution process to minimize the emotional impact on victims as they are thrust back into death penalty proceedings.”

Lewis clarified that he would support an amendment to shorten the notice period to 35 days. 

Kooistra, writing on behalf of the Federal Public Defender in the District of Arizona and Arizona Attorneys for Criminal Justice, took issue with the fact that the state would not be required to issue the notice. 

Kooistra asked to see the proposal include a provision requiring the state to explain why it needs a specific execution date. 

“If the State believes there are circumstances that require extraordinary procedures, certainly it will know what those circumstances are at the time it files the notice, making it easy enough to provide an explanation,” Kooistra said. 

He again made the case for the court’s discretion and warned against putting the warrant seeking process on “autopilot” by using mandatory language in setting briefing deadlines. 

At bottom, Koositra said defense counsel would ultimately support the proposal with the requested changes, but absent the edits, would prefer to keep operating under the current system. 

The Arizona Supreme Court took the issue under consideration at its rules agenda meeting on Nov. 25, and ultimately decided to leave the issue to next year. 

In an order, Chief Justice Ann Timmer reopened the petition for public comment and put it up for consideration at the August 2026 Rules Agenda. 

A spokesperson for the Attorney General’s Office declined to comment.

Kooistra said the Arizona Capital Representation Project and affiliated defense groups plan to stay involved and noted the likelihood for further discussion in the Capital Case Oversight Committee.

“They are waiting for a solution that respects the rights of all parties,” Kooistra said. 

Court of Appeals to rule on challenges to elections manual

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. 

Arizona seeks to streamline execution process

Key Points: 
  • Attorney General seeks set execution briefing schedule to prevent drug expiration
  • Defense counsel warns shorter timelines could harm capital defendants’ rights
  • Arizona Supreme Court plans to review new proposal in November meeting

A 90-day expiration date on the state’s lethal injection drug of choice prompted the Attorney General’s Office to push for a shortened or streamlined briefing process ahead of executions. Expectedly, the push has prompted some concern from death row counsel on potential prejudice against capital defendants. 

Arizona Supreme Court rules governing warrants for execution are silent on how the state high court handles the briefing process, but since resuming executions in 2022, the attorney general has developed a typical practice.

In the last five executions, the attorney general has first filed a motion to set a briefing schedule, with the court then laying out a timeline for the actual motion for a warrant of execution, the response, reply, court conference date and possible final order. 

But, in a rule change petition filed at the beginning of this year, the Attorney General’s Office sought greater “predictability and judicial efficiency” in the process given the time constraints associated with preparing and testing pentobarbital, the drug used to execute inmates by lethal injection. 

A coalition of attorneys and organizations representing capital defendants claim acceleration stands to prejudice defendants and defense counsel by cutting short the time to respond to the motion and to prepare auxiliary legal challenges via the courts or clemency process. 

“It should not be easy to take a human life. It should not be frictionless. You should have off ramps,” Sam Kooistra, counsel at the Arizona Capital Representation Project, said. “The court should have the opportunity to look at that closely. The state should have the opportunity to really weigh and consider through the adversarial process if that is the decision to make.”

Prior to the pause on executions following the botched execution of Joseph Wood in 2014, the warrant of execution was issued at the conclusion of a capital defendant’s state post-conviction proceedings and stayed in effect until the federal appeals court made a final decision to uphold the death sentence. 

It followed that the order of executions stayed in line with the chronological exhaustion of death row inmates’ appeals. 

But after a near decade-long stop on the death penalty, cases piled up, now leaving just shy of two dozen death row inmates eligible for execution in the state. 

Under former Attorney General Mark Brnovich and under Attorney General Kris Mayes, the state first files a motion to set a briefing schedule, with the Arizona Supreme Court then deciding the dates and deadlines for the legal back-and-forth. 

Since 2022, the state has executed five inmates: Clarence Dixon, Frank Atwood, Murray Hooper, Aaron Gunches and most recently, Richard Djerf. 

The briefing timeline varied for each case. From the filing of the motion for a schedule to the actual motion, Dixon saw 50 days elapse, 92 days for Atwood, 17 days for Hooper, 35 days for Gunches and 43 days for Djerf. 

The state is now asking for a more consistent and specific timeline.

In an initial rule change petition submitted in January, Jason Lewis, section chief of capital litigation at the Attorney General’s Office, asked to prescribe a briefing schedule from the outset, with ten days for defendants to respond, five days for the state to reply, and a requirement that the Arizona Supreme Court take up the motion at its earliest convenience. 

Lewis claimed creating a quicker turnaround would help avoid the chance of lethal injection drugs expiring before the set execution date and help ensure the Arizona Department of Corrections, Rehabilitation and Reentry has enough time to analyze the drug in line with a settlement agreement. 

The department currently compounds its own pentobarbital, which sets a 90-day clock on the drug’s efficacy, and is then required to perform quantitative testing on the drug to be used in the execution within ten days of the state filing a motion for a warrant of execution. 

“What my proposal is seeking to do is to simplify the pre-warrant process,” Lewis told the Arizona Supreme Court’s Capital Case Oversight Committee on Nov. 5. “The process we currently use has sought to make sure the state can carry out constitutional executions, and the amendment seeks to do the same thing.” 

A group of public and nonprofit law firms representing capital defendants took issue with the shortened timeline, claiming it unduly caps the time counsel would have to both oppose the warrant and get started on all other legal filings — like a clemency application or other legal challenges to competency and execution methods. 

Lewis noted in committee yesterday that none of the tandem litigation can get off the ground until a warrant is issued, and the legal decision of issuing a warrant narrowed to whether or not an inmate has exhausted all appeals, as illustrated in Gunches’ case. 

“Time and again the court says there’s nothing to litigate outside of whether the inmate is eligible for execution,” Lewis said. 

But Kooistra, who authored the response to the initial petition, said the time is still vital to ensure a defendant receives the full scope of representation promised by law. 

Kooistra noted the need for judicial discretion, too, referencing Atwood’s execution. 

In Atwood’s case, more than 140 motions were filed across 14 warrant-related actions, regarding his initial sentence, the method of execution, his medical condition and religious accommodations. 

And on top of litigation, Atwood’s lead counsel unexpectedly passed away amid warrant litigation, leading to more delay. 

Kooistra referenced Atwood’s case in opposing a shorter briefing schedule calling it, “an object lesson in the wisdom of avoiding rules that inhibit this Court from dealing with the unexpected.” 

And, overall, defense counsel contend that contorting the schedule to accommodate the corrections department’s drug of choice is short-sighted, as the drug protocol could conceivably be changed by the agency, and as 30 of the 111 inmates on death row have the option to be executed by lethal gas. 

In August, the court attempted to create a middle ground by allowing the state to file a notice of a motion for a warrant of execution 65 days prior, but only if the state requires a specific date.

Both parties are not on board. Lewis said it essentially codified the same process in place now but still runs the risk of drug expiration with a 65-day notice, offering 35 days instead. 

Kooistra said the court’s proposal still had limited flexibility in scheduling and still poses the main problem. 

“It should not be a frictionless process with an eye towards convenience and efficiency,” Kooistra said. “The friction is a feature, not a bug, when you’re talking about using the power of the state to kill somebody in all of our names.”

The Arizona Supreme Court plans to take up its amended proposal and comments again in its November Rules Agenda meeting on Nov. 25. Justices can decide to adopt or modify the rules petition, deny it or delay consideration to a later date. The next rules agenda would be in August 2026. 

The meeting itself is closed to the public, but the court publishes its decisions after the fact. 

Court of Appeals to decide murder case with deadlocked jury

Key Points:
  • Court of Appeals hears appeal in Luis Medina case
  • Medina charged with child abuse and first-degree murder
  • If the panel sides with Medina, he will be a free man.

In pushing to dismiss his case, the legal defense of alleged murderer Luis Medina is arguing that a retrial would be a violation of his client’s constitutional rights. Medina’s fate now hangs on new deliberations by the Court of Appeals over whether his initial trial was justifiably dismissed after the jury reached a deadlock. 

The case against Medina started in Feb. 2020, when he was arrested and charged with child abuse and first-degree murder of 1-year-old Sophie Bojorquez. The Department of Child Safety never received any prior reports involving Sophie Bojorquez or Luis Medina.

Medina’s trial started in Jan. 2025, despite being in custody since Feb. 2020. It lasted 15 days. 

The jury for this case had a big problem; they were unset on a verdict. The jury was seven to five in favor of not guilty on both counts of child abuse and first-degree murder, according to court documents. 

The failure of the jury to come to a conclusion created a deadlock, which prompted the judge to declare a mistrial at the State’s request. His retrial was then set for Sept. 2025. 

Soon after, Medina’s legal team took action by claiming the retrial was without sufficient justification and violated Medina’s Fifth Amendment rights. The judge denied the motion on June 23, 2025. 

Now, Medina wants a higher-court to step in before the retrial. Medina claims there were no indications of “manifest necessity.” Manifest necessity is a doctrine that allows a Judge to declare a mistrial due to extraordinary circumstances. He also claims the jury was not-fully deadlocked and could have still reached a verdict if given more time. 

Medina’s legal team represented him on Oct. 8, 2025 at the Court of Appeals. 

Defense Attorney John Gattermeyer argued that a retrial would violate Medina’s constitutional rights, specifically double jeopardy.. The double jeopardy clause protects defendants from being tried twice for the same crime. 

Gattermeyer claimed the court failed to find manifest necessity and did not follow Arizona’s procedures for determining a true deadlock. 

“There was no manifest necessity here. The court made no inquiry, no effort to see if the jury could continue. That is not what the law requires,” Gattermeyer said. 

Gattermeyer compared Medina v. State trial closely to Gusler v. Wilkinson, a case that resembled closely with an improperly declared mistrial.

“This is the same mistake, the court did not question the jurors or give the impasse instruction. It simply stopped the trial at the State’s request,” Gattermeyer said. 

Jordan Smith, a prosecutor representing the Maricopa County Attorney’s Office, argued the trial judge acted properly in calling for a retrial, and the jury made it clear that they could not agree. 

“The note said they were at a standstill. After three days of deliberation following 15 days of trial, that is a clear deadlock,” Smith said. 

Smith argued that forcing the jurors into making a decision could pressure them into making a coerced decision, and not being completely fair to the ethics of the trial. 

“The judge was right to end it when she did, that was a reasonable call,” Smith said. 

The panel questioned both sides about how a judge should go about before declaring a mistrial. 

Judge Morse asked if the trial judge’s experience with observing the full trial should factor into the decision. “The trial judge sat through the entire proceeding, shouldn’t that context matter?” Morse said. 

The court took the case under advisement and did not release an immediate ruling. If the panel sides with Medina, he will be a free man. If the panel sides with the prosecution, he will be facing a retrial. 

Correction: This story has been updated to show that the case is under consideration of the Arizona Court of Appeals.

Justices uphold independent process for creating EPM

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.  

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