An elections guidebook, historically held to a law of its own and prone to the discretion of each secretary of state, now faces existential questions after an appellate court required it to comply with state rulemaking statutes.

Beyond consultation with county elections officials and a sign-off from the governor and the attorney general, the Elections Procedures Manual (EPM) has no set scheme dictating how it comes together.

But that could change after a ruling from the Arizona Court of Appeals, likely to ascend to the state Supreme Court, which places the EPM under the constraints of the Arizona Administrative Procedures Act (APA), a body of laws dictating how agencies promulgate rules.

In legal filings, Secretary of State Adrian Fontes claimed that bringing the EPM into compliance with the APA, which includes public notice, at least a 30-day public comment period and an opportunity to request oral proceedings, would be “impossible,” given the time constraints already levied on the manual.

The Republican Party of Arizona and the Republican National Committee contend compliance with the APA to be a plain requirement in statute, vital to ensuring public participation in a document threaded with the force of law.

As a 2025 draft comes together in the background, ongoing litigation prompts a point of reflection on the history and true purpose of the manual as a governing document and tees up battles on whether to exempt the EPM from the APA via legislation — or rethink the process and timeline entirely.

The EPM started in 1966 as a directive to the secretary of state to issue guidance on electronic voting systems. In 1972, the Legislature expanded the bill to prompt the creation of a comprehensive official procedures manual on elections, created in concert by the secretary of state and the counties and approved by the governor and attorney general.

An amendment, passed a year later, gave the manual the force of law, fashioning any violation of the EPM a Class 2 misdemeanor. In 1993, the law was updated again to demote the counties to a consultatory role.

What remains unchanged though, was the mandate to create rules “to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures” for elections.

The law initially required a manual 30 days prior to each election. Later changes to statute then required it to be sent to the attorney general and governor 90 days before an election.

Then, after an administration’s first refusal then failure to see an EPM approved, state law now requires an EPM to be sent to the governor and attorney general no later than Oct. 1 and issued on Dec. 31 of every odd-numbered year preceding the general election.

Recent history shows, though, a new manual is never a guarantee, especially as election law and the EPM continues to grow in scope, authority, public consciousness and controversy.

The manual has historically been written for election officials and workers as a guidebook, but a renewed focus on the minutiae of elections, and an administration-by-administration buildout of the book increasingly puts it under a more public, litigious and microscopic lens.

In the past 25 years, spanning six secretaries of state and changes in political power, each administration has taken a different tact, with some seeing more success than others.

During Jan Brewer’s time in office as secretary of state, from 2003 to 2009, she issued three EPMs. She said she primarily consulted with and fielded feedback from county recorders and election officials, noting a lack of public input, and interest, at the time.

“Twenty years ago, the only people that really were concerned about the procedures manual were the counties, because that’s like the Bible for running elections. That’s what holds it all together,” Brewer said. “Every two years you would do that, because every two years, something would be changed … lots of effort went into it.”

Brewer, a Republican, saw her manual approved by both a Democrat governor and attorney general.

Former Attorney General Terry Goddard said he could only recall a single strong disagreement with Brewer over the years, though noted it was ultimately resolved amicably, sans litigation.

“It wasn’t very controversial,” Goddard said. “We had political divisions then, as we do now. We had individuals that had strong feelings about what was not appropriate election procedure, and we worked it out.”

Ken Bennett, successor to Brewer, opened up the EPM promulgation process further, inviting in political parties and advocacy groups, a departure from a former, fairly insulated meeting of county election officers.

“I said, I think we ought to really open up the process. Let’s invite all 15 county recorders and all 15 county election directors. And let’s invite the political parties, and let’s invite the advocacy groups,” Bennett said. “Oh my goodness, my staff looked at me like I was nuts. … We’re never going to get through these meetings if all those people are involved.”

Invitations went out, and people showed up, Bennett said.

“You could tell that there was kind of this pent up frustration from people that had not been included in previous versions. Oh man, they had lots to say,” Bennett said. “They thought they were going to have five minutes … we got people to realize that they were invited back to the second meeting, and that we were going to listen, and we were going to take things that we heard from everybody and anybody, if it was positive and made sense and everybody agreed.”

Bennett said he continued under the same system during his time in office, including a 30-day public comment period, culminating in a total of four manuals. His final manual, proffered in 2014, would outlast Bennett’s time in office, though, and govern elections until Katie Hobbs put together a manual in 2019.

Secretary of State Michele Reagan skipped the EPM entirely in 2016, claiming she read the statute to only require a new EPM if there were necessary changes, and faced backlash from county elections officials and a legal complaint because of it. The attorney general declined to investigate and found her interpretation of state statute “plausible.”

In 2018, Reagan did submit a manual, but then-Gov. Doug Ducey and Attorney General Mark Brnovich rejected it, given complaints from county recorders.

The four-year stint without an updated EPM led to legislation, sponsored by then-Rep. Kelly Townsend, requiring a draft manual by Oct. 1 and a final submission by Dec. 31.

Hobbs’ tenure brought forth two EPMs, though one was weighed down and ultimately nullified by legal challenge. Her 2019 manual was preceded by 30 days of public comment and two public meetings and was approved by both Ducey and Attorney General Mark Brnovich.

Brnovich refused to sign off and challenged her 2021 manual, leaving the 2019 manual in place for the 2022 election.

Jennifer Wright, Brnovich’s former Election Integrity Unit lead, said in her combing through the EPM, the condensed schedule often put a damper on addressing every single issue within the manual, and the final say of the secretary of state, attorney general and governor means last-minute edits can get through with little public oversight.

Wright gave credit to Hobbs for holding public town halls. But she noted the general flaws inherent in the EPM process, including the “series of dark backroom negotiations,” isolating county election officials or the secretary of state, governor and secretary of state.

“There’s too much power and too much at stake for it to be a blackbox process,” Wright said.

In 2023, Fontes successfully saw an EPM off, with a 15-day public comment period prior. A string of litigation in both state and federal court followed the approval of the 2023 EPM, including the lawsuit from the state Republican Party and the RNC chiefly over compliance with APA.

Though the 2023 EPM lasted through the 2024 election, sans some select provisions blocked by the courts, a decision by the Court of Appeals on March 7 placed the EPM under the APA and found Fontes failed to substantially comply by failing to offer 30 days of public comment, calling into question the validity of the 2023 manual.

The office plans to appeal and claims the 2023 manual is still in effect, given a mandate has yet to be issued by the appellate court.

But if the Arizona Supreme Court upholds the Court of Appeals decision, the requirement of the APA could put the EPM on a much longer runway and generally complicate an already condensed timeline, leading to the potential need for legislation to exempt the EPM or a greater reflection on how the EPM should come together and operate generally.

All the while, JP Martin, a spokesperson for Fontes said the office is in the midst of meeting with county election officials to create a 2025 draft by reviewing it chapter-by-chapter. Martin said the office has been running monthly chapter assignments since February, with plans to wrap up in July.

As Fontes works through litigation and a new EPM, Bennett emphasized a focus on expanding the scope of input and metering the reach of the manual.

“My advice is transparency, including all the players as early as possible, and respecting the fact the EPM is supposed to fill in the details to effectuate the state statutes, not create new laws itself,” Bennett said. “Stay in your lane, do what you’re supposed to do and try not to go beyond that.”