secretary of state | Arizona Capitol Times

9th Circuit Court rules Fontes cannot enforce ban on offensive speech at polling places

Key Highlights:

Court said the EPM provisions were too broad, could criminalize unintended conduct
Threat of prosecution could chill otherwise legal activity
Judges refused to curb the authority of the Secretary of State to certify incomplete returns

Secretary of State Adrian Fontes cannot enforce his ban on offensive or insulting speech at or around polling places, the 9th Circuit Court of Appeals ruled Tuesday.

The court concluded that the provisions Fontes included in the Elections Procedures manual are so broad that they could criminalize unintentional conduct.

Judge Kim Wardlaw, writing for the unanimous three-judge panel, also said the language would outlaw any activity that has the effect of harassing, intimidating or coercing voters, regardless of whether that was the intent. And the threat of prosecution, she said, could “chill” individuals from engaging in otherwise legal political activity.

“Indeed, it is inherent in the very nature of political and electoral expressive conduct that plaintiffs may not know which political issues may become relevant or offensive at the polls,” the judge wrote. “And it is inevitable that some political and election speech — matters of public concern — will have the effect of being offensive to someone.”

But the judges punted on a separate question of whether Fontes can give himself the power to finalize election returns and declare winners even if the results from one or more counties are missing because their supervisors refused to certify the results.

Wardlaw acknowledged that such an action, if it were to occur, could disenfranchise some Arizonan voters by leaving their votes out of the final tally. And that could change the results of some elections.

She said, though, the challengers never made a clear showing that a county actually would balk at finalizing results. And that, Wardlaw wrote, meant they have no standing to contest the provision.

Central to the lawsuit is the Elections Procedures Manual.

In essence, it operates as a supplement to state election laws, spelling out procedures and policies in more detail than the statutes enacted by the Legislature. It also has the force of law, with violators subject to criminal penalties.

What Fontes put in the manual would prohibit “any activity by a person with the intent or effect of threatening, harassing, intimidating, or coercing voters” both inside the 75-foot limit at voting locations, where certain activity like campaigning already is prohibited, as well as outside that perimeter.

He even included examples of what would be banned, such as raising one’s voice or taunting a voter or poll worker, using threatening, insulting, or offensive language to voters or poll workers, and intentionally disseminating false or misleading information at voting locations, like flyers that misstate the date of the election, hours of operation or location of polling places.

That drew a challenge from American Encore, an Arizona-based group run by Sean Noble, that bills itself as promoting free enterprise policies. It has also channeled funds into Arizona’s political campaigns, notably supporting Republican Doug Ducey’s victory in his first gubernatorial race in 2014.

Also filing suit was America First Policy Institute. It was formed in 2021 by allies of Donald Trump in the wake of his 2020 loss in the presidential race to support free market and Trump policies.

The challengers said they fear the provisions enacted by Fontes could be used to restrain what they say is their normal, lawful election-related activity. That includes electioneering activities, training volunteers and poll watchers and advocating for certain government policies.

They also said that what Fontes seeks to declare illegal could extend to things like wearing an “All Lives Matter” hat, a shirt that says “Vote to Protect Unborn Children,” and a hoodie that reads “Israel has a right to exist” or “Never forget October 7th.”

Wardlaw said an injunction against enforcement is appropriate given the vagueness of what the manual would and would not make someone subject to criminal penalties.

But that’s not all. The judge stated that the provisions Fontes seeks to enforce exceed those outlined in state law.

That statute makes it illegal to “knowingly” threaten or intimidate people to compel them to vote or refrain from voting for a particular candidate or ballot measure. By contrast, she said, what Fontes proposed in his rules would criminalize any conduct that has the “effect of threatening, harassing, intimidating or coercing voters.”

What’s missing from that, the judge said, is a requirement that the person intends to do any of those things. Instead, someone could be charged with breaking the law simply because the listener felt threatened or intimidated, even if there was no intent to do any of that.

Wardlaw also took exception to Fontes’ use of the word “harassing,” a term not defined in the manual. She said that may encompass “a broad range of activities that are viewed as insulting or offensive,” activities that the First Amendment protects.

All that, the judge said, entitles challengers to an injunction because the threat of criminal prosecution for violating the provision could have a “chilling” effect on what people say, do, or wear, even outside of the 75-foot boundary.

And it’s not just the threat of criminal prosecution.

She said the language that Fontes inserted into the manual and the examples he gave were intended to be used by election officials to identify and “promptly remedy” any conduct that could be viewed as voter intimidation.

“Plaintiffs may be dissuaded from engaging in their intended speech even if there is no threat of criminal prosecution because election officials may nonetheless report them to police or remove them from the polling location based on guidance provided by the Elections Procedure Manual,” the judge wrote. And that threat, she said, is sufficient to create a risk of the provision being enforced against them, especially considering “the increasingly contentious elections our country has experienced over time.”

Tuesday’s ruling is not the last word. All it does is uphold an injunction issued by a trial court judge barring Fontes from enforcing the law. But it still gives him a chance to argue at a full-blown trial that the restrictions are both legal and necessary.

Fontes said the case is about the public’s right to “participate freely in the democratic process.”

“On one side is the voters’ freedom to assemble, to engage, and to be heard without intimidation or interference,” he said.

“On the other side is a claim to behavior that could trample those rights,” Fontes continued. “As secretary of state, I will always stand on the side of protecting voters — their voices, their rights, and the integrity of our elections.”

But attorney Andrew Gould, who represented the challengers, called it “a great victory for free speech.”

The problem with the language adopted by Fontes, he said, is it gave “too much discretion to government officials to criminalize and punish speech that they viewed as offensive or harassing.”

On the issue of canvassing election results, Gould said he was surprised that the appellate judges refused to curb the authority of the secretary of state to certify incomplete returns. He said this isn’t an academic question, saying the court was aware of what happened three years ago in Cochise County.

There, supervisors balked at doing the local canvass, with the two Republicans on the three-member board saying they had unanswered questions. It took a court order to complete the canvass, freeing up Democrat Katie Hobbs, then the secretary of state, to certify the election results, which declared her governor. Fontes, also a Democrat, was named secretary of state.

The results of neither of those races would have changed with or without the 47,284 Cochise votes.

But if the final canvass had been conducted without those votes, Republican Tom Horne would have lost the race for state schools chief to Democratic incumbent Kathy Hoffman, and Democrat Kirsten Engel would have more votes than Republican Juan Ciscomani for the Congressional District 6 seat.

Gould also said there have since been other situations where county supervisors have indicated they might try the same thing.

But Wardlaw said none of this rises to the level where she and her colleagues need to get involved.

She pointed out there are other actions — short of not counting a county’s votes — that the secretary of state can take.

That Wardlay noted, includes what happened in 2022 when a judge ordered the reluctant Cochise supervisors to comply. And she said there are real penalties for officials who refuse, pointing out that Supervisors Peggy Judd and Tom Crosby both were indicted on felony charges.

Judd entered into a plea deal; Crosby’s case is still pending.

Legal challenges to elections manual go on and on and on

Key Points:

Litigation over 2023 EPM prompts changes in 2025 draft
A litany of legal questions still remain in flux and on appeal
Public comment opens manual up to another round of edits

A draft of the 2025 Elections Procedures Manual spun out of a web of litigation over the prior elections guidebook, with some provisions yielding to successful legal challenges from Republicans and others still waiting on pending lawsuits.

Since its adoption, the 2023 EPM has faced a surge of litigation, leading to manual changes in 2025, many of which conform to court rulings.

Still, the fight is far from over.

Though Secretary of State Adrian Fontes ceded some ground, some key legal questions are still on appeal. And the Legislature, both the state and national Republican parties, and some conservative groups plan to take a fine-tooth comb to the 2025 manual for compliance.

“We’re not entirely satisfied that the new EPM remedies the problems of the old EPM,” said Andrew Gould, attorney for EPM litigants the Arizona Free Enterprise Club and America First Policy Institute.

On Aug. 1, after months of consultation with county recorders, the Secretary of State’s Office put out the 2025 EPM for public comment.

The new manual featured key changes, such as an edited section on voter intimidation and harassment, the removal of a provision allowing the secretary of state to go forward with the statewide canvass without the votes of a county that fails to certify on time, and a requirement for county recorders to cancel a voter’s registration, as opposed to putting a voter in inactive status, if they claim to be a nonresident.

On the voter intimidation front, the 2023 EPM prohibited “any activity by a person with the intent or effect of threatening, harassing, intimidating, or coercing voters (or conspiring with others to do so),” with a list of examples of what could constitute voter intimidation.

But two lawsuits, one filed by the Arizona Free Enterprise Club and the America First Policy Institute in state court, and another filed by America First Policy Institute and American Encore in federal court, claimed the provision had the propensity to chill speech and expanded beyond the reach of state law.

Maricopa County Superior Court Judge Jennifer Ryan-Touhill found the section went beyond the statutory scheme governing intimidation and roped in examples of free speech protected by both the state and U.S. Constitution.

District Court Judge Michael Liburdi found the language to be “unconstitutionally vague” and noted a potential to grant election officials and poll workers “nearly unfettered discretion in categorizing and regulating a voter’s speech.”

In the 2025 EPM, Fontes noted litigation is still pending on appeal in both cases but preemptively reworked the prohibition line to cite direct to state statute and specified examples of what could, depending on context, may be considered intimidating conduct.”

Fontes also ceded ground on a provision allowing for the secretary of state to canvass the state election without the results of counties that fail to canvass and certify on time.

The language change came about after the Cochise County Board of Supervisors pushed certification past the deadline after the 2022 election, prompting a court order and a later indictment of the two Republican supervisors responsible for the delay.

Liburdi, in the same lawsuit, deemed the language illegal given its potential propensity to disenfranchise large swaths of voters. And, in a separate challenge by Senate President Warren Petersen and House Speaker Steve Montenegro, Maricopa County Superior Court judge Scott Blaney rendered the canvass provision “invalid and unenforceable” on similar grounds.

Fontes cut the language, though again noted a pending appeal. The manual instead includes the board of supervisor’s “non-discretionary” duty to canvass and certify and “has no authority to change vote totals, reject the election results, or delay certifying the results without express statutory authority or court order.”

And, again in response to a legal challenge, the 2025 EPM changes a provision instructing recorders to put a registrant who claimed to be a non-resident on inactive status to a requirement that the registration be cancelled. But the question is still pending in both a state court case and in the legislative leaders’ appeal.

The draft also provides further clarity on the state of litigation in the federal challenge to two voting laws in Mi Familia Vota v. Fontes – including notes on county recorders’ responsibility to hunt down documentary proof of citizenship for voters who fail to provide any, as well as instruction to continue registering voters as “federal only” if there is no definitive proof a voter is not a citizen.

In footnotes, there is further clarification that court orders block any attempt to forbid federal only voters from submitting a ballot in presidential elections or by mail.

Beyond the changes and pending appeals, remnants of the 2023 EPM still under court challenge persist in the 2025 manual.

For one, the 2025 EPM keeps a footnote granting some leniency to petition circulators and makes it so mistakes or inconsistencies in personal information would not warrant the invalidation of collected signatures — despite a Superior Court order enjoining the same provision in the 2023 EPM.

And overarching the entire manual, there is still the question of whether the creation of the EPM must be done in accordance with the Administrative Procedures Act.

The Court of Appeals found Fontes’ failure to provide a 30-day public comment period for the last draft of the EPM could prove fatal to the manual as a whole and ruled the EPM to be subject to the state law, in response to a lawsuit from the Republican National Committee, the Republican Party of Arizona and the Yavapai County Republican Party.

In line with the office’s current legal position, the secretary of state maintains the EPM to be outside the bounds of the APA but agreed to provide the 30-day public comment period.

The case is pending at the Arizona Supreme Court.

Kurt Altman, attorney for the Republican National Committee, noted Fontes’ efforts to at least attempt to comply with the public comment period in the APA, even if it is a contingency.

“The current state of the law is the Court of Appeals opinion, right? That doesn’t mean the Supreme Court couldn’t disagree, but it sounds to me, with the new version, they are making attempts, at least to comply with the APA,” Altman said. “I think that’s good. That’s what we were looking for in the litigation.”

Chair of the Republican Party of Arizona Gina Swoboda weighed in, too.

“It is unfortunate but not surprising that the people of Arizona must go through the time and expense of litigation in order to have Secretary Fontes comply with the law,” Swoboda said in a statement. “The Secretary should accept the appellate court ruling that the APA applies to the EPM and allow the process to move forward without interruption.”

With provisions up in the air, interested parties have vowed to keep a close eye on the manual and provide feedback through the rest of the drafting process.

Gould said his firm, Holtzman Vogel, would be “looking very carefully at what’s in the 2025 EPM given the problems that we have with the 2023 EPM.”

Petersen said in a text, “We are reviewing to ensure full compliance.”

Public comment is open until Aug. 31, after which the draft undergoes another round of changes and is then sent to the governor and attorney general for their final sign-off, mandated to be completed by Dec. 31.

“This manual has always been the backbone of how Arizona runs elections,” Fontes said in a statement. “But in today’s environment, it carries more weight than ever. What was once a technical guide for election officials is now a document scrutinized by the public, the press, and the courts. That’s why we’re inviting every Arizonan to take a look, ask questions, and offer ideas.”

Candidates for key 2026 races have begun fundraising

Key Points:

Candidates for the 2026 elections have begun reporting their campaign finances
Gov. Katie Hobbs leads the fundraising pack for governor
Candidates for attorney general and secretary of state have also seen significant donations

The election may be more than a year off, but the politicians who hope to win statewide races or stay in office are already building war chests.

Leading the pack in campaign fundraising is Gov. Katie Hobbs who is hoping to win a second term.

New reports filed with the state show the Democratic incumbent picked up another $1.17 million in donations in the first quarter of the year. And while she spent close to $421,000 during the same period, she is now sitting on more than $4.16 million since winning the 2022 race.

Congressman Andy Biggs, who entered the 2026 race in January, listed his tally so far at $181,000 against close to $43,000 in expenses.

But Biggs has something else: His report indicates a $50,000 surplus from an unspecified previous campaign committee.

Biggs cannot transfer any of the cash he raised for his multiple successful races for the U.S. House to a statewide campaign. Instead, it appears the money is left over from his 2014 campaign and has been sitting in an account ever since.

Republican challenger Karrin Taylor Robson, who announced her candidacy in February, reported collecting about $860,000. With expenses of about $106,000, that leaves her with less than $755,000 in the bank to take on Biggs and Hobbs.

Notably, Robson, who made an unsuccessful bid to be the Republican nominee for governor in 2022, is now writing off the $16.9 million she loaned to herself during that campaign.

She also is benefiting from a $50,000 expense on her behalf from Building a Better Arizona, a political action committee chaired by former Senate President Karen Fann. Fann said the PAC was designed to help get Robson elected.

Robson, whose background is in real estate and land development, has never served in elected office.

Another noteworthy race for campaign finance is the bid for attorney general.

Incumbent Democrat Kris Mayes picked up more than $358,000 in donations since the beginning of the year. But with the money she already had in the bank, that gives her more than $690,000 in her account.

Her total expenditures are less than $100,000.

Rodney Glassman, one of the two Republicans seeking to oust her, reported earning more than $600,000 in the first quarter of the year, compared to less than $64,000 in expenses.

But Glassman, who has run for multiple offices in the last two decades — his last successful campaign being his 2007 bid for the Tucson City Council — has also given his campaign a jump start with a personal loan of $1 million. With all that, he reported $1.88 million in the bank.

Senate President Warren Petersen is also running to replace Mayes. He reported earning $116,000 in the first three months of the year, compared to only $7,200 in expenses.

Petersen, however, has money left over from prior legislative campaigns and lists his cash on hand at $307,000.

Another key race generating significant fundraising is for secretary of state.

Incumbent Democrat Adrian Fontes, who had almost $60,000 in the bank at the end of last year, has received more than $77,000 in donations. With about $53,000 in expenses, he said that leaves him with close to $85,000.

The sole Republican challenging him is state Rep. Alexander Kolodin, R-Scottsdale. He has officially been in the race since the end of March, just before the end of the quarter. He collected just $1,772 and spent $1,365.

Kolodin, however, has some money left over from prior legislative campaigns, with a current balance in his account at $34,700.

Incumbent state schools chief Tom Horne said he added nearly $32,800 to the more than $145,000 he already had in his reelection account, with just over $12,000 in expenses, leaving him with approximately $165,000.

The only other candidate for that office who filed a campaign finance report is Democrat Teresa Ruiz who listed $8,000 in donations plus a $10,000 loan to her campaign.

At this point, the only announced candidate for state treasurer is Republican Elijah Norton who announced earlier this month and has not yet filed a campaign finance report. Incumbent Republican Kimberly Yee is in her second term and cannot seek reelection.

Appeals Court weighs in on politically charged elections manual

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.”

Court orders release of 218,000 names of voters possibly lacking citizenship proof

A group that wants checks of whether some voters are citizens got access Monday to the names of about 218,000 Arizonans who may not have provided such proof.

The move came after the state Court of Appeals in a brief order Monday rejected a bid by Secretary of State Adrian Fontes to keep the list from being given to Strong Communities Foundation. Appellate Judge Michael Catlett, writing for the three-judge panel, said Fontes had provided no proof that Maricopa County Superior Court Judge Scott Blaney had committed any legal or factual error in ordering the secretary to surrender the information.

Fontes made it clear he still believes there could be harms from releasing the names, making the voters on the list subject to harassment and threats from “election deniers.”

“I think they’re planning on going after voters who they might politically disagree with,” he said at an afternoon press conference. “I think they’re planning on knocking on their doors and trying to intimidate them out of voting.”

Merissa Hamilton, who heads the organization which operates as EZAZ.org, said it’s not the intent to pester voters. In fact, she pointed out, the court order precludes members of her organization from directly contacting anyone on that list before Wednesday.

Instead, Hamilton said, those names are most immediately going to be turned over to the 15 county recorders.

That, she said, will allow them to do what they can to verify whether those on the list are in fact eligible to cast full ballots ahead of the next election.

But nothing in the court order precludes anyone else who gets the information from using it in an effort to prove the outcome was affected by illegal voters. And all restrictions on its use disappear Wednesday.

“These folks are shameless in their legal efforts,” said Fontes of Stronger Communities, a group that has been liked to politically conservative causes like stopping what it calls the “deep state,” removing “explicit books” from county libraries and fighting “radical goals” at the Arizona Corporation Commission. “They believe that their right to investigate and harass voters is more important than the voter’s right to cast a ballot.”

Blaney’s order also does permit Hamilton to immediately give a copy to the president of the Senate, the speaker of the House and the members of the Elections committees of both chambers. And some of the members of those panels have made it clear they still question the results of the 2020 and 2022 elections.

And the whole dispute over whether any of the 218,000 on the list might not be citizens – all of whom the Arizona Supreme Court ruled could vote in this election – could provide fresh fodder for those who lose their elections to mount legal challenges. That is especially true as the number of voters on that list could far exceed the margins of victory in some close races.

That was the case four years ago when Donald Trump lost to Joe Biden by 10,457 votes.

In 2022 Republican Kari Lake – now running for Senate – lost the gubernatorial race to Katie Hobbs by 17,117 votes. And Democrat Kris Mayes won the race for attorney general over Abe Hamadeh by just 280 votes.

But Hamilton also told Capitol Media Services there’s another side to that release of the list to the recorders. She said it actually could help prevent some legal voters from being disenfranchised.

In at least two counties, some people were told they could not cast a ballot because they lacked proof of citizenship.

Taylor Kinnerup of the Maricopa Couty Recorder’s Office said that happened when those on a version of the list tried to change their registration. She said their early ballots they cast then were put into “suspense.”

Kinnerup said, though, all that has now been cleared up, especially since the Supreme Court made it clear that everyone on that list is entitled to cast a full ballot, at least this year, while the voter registration database problems are worked out.

There were similar problems in Pinal County.

But Hamilton also said she believes there are, in fact, at least some names on that list of people who actually are not citizens. And Hamilton now wants recorders to compare those names with federal databases to cleanse the rolls before the next election.

Still, she conceded that, when all is said and done, she’s not anticipating a lot of folks will be knocked off the voter rolls.

“I expect that a supermajority of the voters on that list are citizens,” Hamilton told Capitol Media Services. “I expect it to be only a tiny amount that aren’t.”

She said, though, the new glitch that took some folks off the rolls, at least temporarily, does not provide her with confidence.

“I just don’t think that we can have faith right now in how the MVD system is being managed,” Hamilton said. And she wants an independent audit, separate from one ordered by Gov. Katie Hobbs.

The issue stems from a 2004 voter-approved law which requires proof of citizenship to register and vote.

But that statute also says that proof could be verified by the registrant providing the number on an Arizona driver’s licensed issued after Oct. 1, 1996. That is the effective date of a separate law requiring proof of legal presence to get a license.

Only thing is, what MVD reported to county election officials wasn’t always the date of that original license but instead the date someone got a duplicate license or made a change of address. And if that date was after Oct. 1, 1996, recorders presumed that there was proof of citizenship on file – and the person was entitled to register to vote – even though that did not exist.

The glitch was discovered when Maricopa County Recorder Stephen Richer discovered one person who had been registered who was not, in fact, a citizen despite the MVD certification.

That list initially was estimated at 98,000 but grew to about 218,000 when other problems were discovered in the link between MVD’s database and what was being provided to counties.

Fontes then filed a “friendly” lawsuit against Fontes, asking the Supreme Court whether those affected should be allowed to vote a full ballot this year. The alternative was permitting them to vote only in the presidential and congressional races as federal law does not require citizenship proof.

That led to the court order allowing everyone on the list to vote a full ballot.

The justices acknowledged that there may not be the legally required “documented proof of citizenship’ on file because of that glitch. But they said that given the timing – and that given everyone on the list appears to have been in Arizona since before October 1996 – they did not want to risk disenfranchising legitimate voters.

In the meantime, Stronger Communities demanded its own copy of the list.

Fontes acknowledged that is a public record. In fact, the entire voter registration file is public.

But he argued that releasing it could lead to threats and intimidation of voters – and even possible violence – something he said fits within the exception of the law that allows public records to be withheld in the “best interests of the state.”

Blaney, however, noted that Hamilton testified her organization wasn’t going to use it to contact voters but instead turn it over only to county recorders and certain state legislators.

Fontes’ then argued to the Court of Appeals that was a mistake.

“Plaintiff wants that information despite the fact it is entirely unreliable, likely to be weaponized, and may place those Arizonans in harms’ way,” wrote Craig Morgan for the secretary. He said that Blaney ignored “essentially uncontradicted evidence” from a University of Chicago professor who is an expert on political violence that release “will lead to an exponential increase in the likelihood of harm or harassment to those individuals.”

The appellate court, however, found no problem with Blaney’s conclusion.

Judge orders release of 98,000 names of voters possibly lacking citizenship proof

Secretary of State Adrian Fontes was ordered Thursday to turn over the names he has on a list of registered voters of those who may not have provided proof of citizenship — at least the first 98,000.

In an often strongly worded order, Maricopa County Superior Court Judge Scott Blaney, originally appointed by then-Governor Doug Ducey, said it is clear that the information sought by Stronger Communities Foundation is a public record and subject to disclosure.

Fontes did not dispute that contention. But he argued that he was entitled to withhold the information because there is an exception to the Public Records Law in cases where release would not be in the “best interests of the state.” In fact, the secretary said he would withhold information of that “could save just one life.”

The judge was not convinced, saying there was a “lack of any evidence that any individual life was in danger.”

Blaney also said that neither Fontes nor his office provided any evidence that Stronger Communities, which operates as EZAZ.org, has ever used information it has to harass or intimidate voters, conduct mass voter challengers, or single out voting locations to protect or harass voters.

And the judge said that Fontes provided “inconsistent testimony” on exactly how many people are affected by what has been called a “glitch” in a system used by the Motor Vehicle Division that resulted in questioning whether some people on the current voter rolls have not provided legally required proof of citizenship.

Still, Blaney acknowledged Fontes’ concern that there may not yet be a complete list, with estimates of those affected at one point during the trial earlier this week going as high as 345,000.

So he ordered Fontes to release by noon on Monday that initial list of 98,000, which the secretary finally conceded under questioning in court he does have.

And, acknowledging possible threats, Blaney forbade Stronger Communities from using the list to contact any of the affected voters until after Tuesday’s election. And he also said that until next Wednesday the organization can release copies of that list only to county recorders, the Senate president, the speaker of the House, and members of the Elections committees of the House and Senate.

An aide to Fontes said he was studying the order “and weighting our options as to how to move forward.”

Thursday’s ruling is a victory for Stronger Communities, which says it uses information from voter records to do outreach.

Merissa Hamilton, who chairs the organization, acknowledged that not getting the list until Monday means little could be done ahead of the election the following day to determine if there are people on the list who are actually not citizens. There’s also the fact that more than two million Arizonans already have cast early ballots.

And Hamilton told Capitol Media Services this has never been about trying to block the 98,000 — or however many end up on the final list — from casting ballots this year.

“The super majority of the list are probably citizens,” she said. “But those that aren’t — if that exists in this situation — now have fair warning they will get caught if they try to break our laws.”

What caused this lawsuit is that a 2004 voter-approved law requires proof of citizenship to register.

A separate 1996 law requires proof of legal presence to get an Arizona driver’s license. And based on that, the 2004 law said that anyone who had a license issued since October 1996 was presumed to already have provided that proof.

Those with pre-1996 licenses, however, were required to furnish such proof if they were registering to vote for the first time or if they had moved to another county.

The problem was that MVD was telling counties that some of these people had post-1996 licenses. That’s because its reports listed the last date of any activity, like a change of address or a duplicate license, rather than the original issue date.

Bottom line was that counties, using this mistaken information, registered people who lacked the legally required proof.

By law, anyone without such proof can vote only on races for president and Congress, as federal law does not require citizenship proof.

But the Arizona Supreme Court ruled anyone on the list can vote on any race on the ballot this year, concluding there was no hard evidence anyone on the list actually was not a citizen. More to the point, the justices said they would rather not err on the side of disenfranchising voters, most of whom they believe actually are citizens, so close to the election over a record-keeping problem.

Fontes initially told the Supreme Court there were 98,000 on the list. His most recent press statement put the figure at about 218,000.

All that resulted in Stronger Communities seeking the list.

The group did not cite a reason. And one is not required under the Public Records Law.

And when Fontes refused, it sued.

“The defendants are stonewalling and have unlawfully refused to fulfill it,” the attorney wrote. “Apparently, insulating themselves from embarrassment is more important to the defendants than following the law.”

In attempting to keep the list secret, at least for the time being, Fontes got a professor from the University of Chicago to testify on political violence.

Blaney, however, pointed out that none of his information was specific to Arizona. And the judge said the professor was guilty of “gratuitous political bias in his report and in his testimony.”

That left Fontes and his own testimony which included disclosing he wears a bullet-proof vest and has personal security. And the secretary said while he had no evidence that Stronger Arizona would use the list to harm voters, he feared what would happen when others get the information — at least while the election is pending and there are threats from some quarters to hang people for tyranny.

“I don’t want blood on my hands,” he said.

None of that convinced Blaney to allow Fontes or his office to keep the list secret.

“Although the defendants provided testimony as to generalized political threats in the current environment, they did not provide any evidence that (EZAZ.org) has or will engage in activities that would jeopardize the safety, security, or voting rights of Arizonans,” the judge said. In fact, he said, the evidence is to the contrary.

He pointed out the group has obtained, under public records law, a separate list of about 42,000 “federal only” voters. These are people who clearly have not provided the state-required documentary proof of citizenship, meaning they can vote only in the presidential and congressional races.

Blaney said EZAZ.org “has not been implicated in any violations in the privacy of confidentiality rights of those voters.”

“EZAZ.org provided unrebutted specific, credible evidence that it carefully vets and trains members, encourages a friendly environment, and has been a good steward of private information, including the federal only voter list at its disposal,” the judge wrote.

Allowing EZAZ to provide the list to lawmakers also came over Fontes’ objections.

“I know that various members of the Legislature have lied, have continued to lie,” he told Blaney at the hearing earlier this week, though he did not name names.

“And I don’t see any of them stopping a lot of these lies and assisting a lot of the folks who are fomenting the divisiveness that we have in our society for their own personal or political gain,” Fontes said. “So, yeah, I’m going to fight like hell to keep a lot of those folks from having these lists.”

Blaney said that amounted to Fontes saying that lawmakers would provide the list to outsiders “with the specific intent to encourage third party groups to engage in violent or harassing behavior, resulting in possible injury or death.”

“The secretary’s claims were not credible and not supported by the evidence,” the judge said.

Perhaps the most significant part of Blaney’s ruling, separate and apart from this specific fight, is his conclusion that the exceptions in the Public Records Law are narrow.

He rejected Fontes’ contention the information should not be made public because the list is still not complete.

“An agency cannot withhold records because it believes that these records contain imperfect or unreliable information,” Blaney wrote. “Indeed, when public agencies make mistakes, the public has an even greater interest in the disclosure of such information.”

And he took a particular swat at Fontes for his claim that he can withhold the information if it would save just one life.

“If the court were to adopt this standard — that a public official may withhold public records whenever he subjectively believes such withholding could somehow ‘save even one life’ — the court would be adopting an impermissibly broad, arbitrary standard where the ‘best interest of the state’ exception swallows the entirely of the Arizona Public Records law,” Blaney wrote.

1.2 Million Arizona voter registrations challenged by Florida group in new lawsuit

A Florida-based organization contends there are 1.2 million ineligible people on Arizona voter registration rolls.

In a new lawsuit, attorneys for Citizen AG say their calculations show that more than 1.6 million registered voters did not vote in the last two elections and also did not respond to notices that election officials are legally required to send to them to find out if they are still eligible. That, the lawsuit claims, means that they are dead or have moved.

Attorneys for the organization do acknowledge that 432,498 voters were removed following the 2022 midterm election.

That, however, still leaves them with the question of those remaining 1.2 million.

Strictly speaking, Citizen AG is asking U.S. District Court Judge Steven Logan, originally appointed by then-President Barack Obama, to force Secretary of State Adrian Fontes to respond to its demand for public records about what has been done to maintain the voter registration rolls.

That information, the organization’s lawyers say, is required to be made available under the National Voter Registration Act. But they told Logan that the only response they got from Fontes’ office is it has no records that were responsive to the group’s request.

But Citizen AG wants the judge to do more than order Fontes to provide the documents.

It wants Logan to order Fontes to immediate remove – or direct county election officials to remove – from the voter rolls anyone who did not respond to a confirmation notice and did not vote in either of the last two elections.

And if that’s not possible, they want those on the list to be allowed to vote only a “provisional ballot,” one that is set aside and subject to further legal challenge.

Logan has scheduled a hearing on the issue for Friday morning.

There was no immediate response from Fontes.

But it is likely that his attorneys would ask the judge to reject any request for immediate relief, if for no other reason than it comes at the last minute – and that Citizen AG could have raised these issues months ago.

And there’s another complicating factor.

The most recent figures show that more than two million Arizonans already have cast early ballots. And if they have been accepted – meaning that election officials have determined the signatures on the envelopes are valid – then the ballots themselves have been separated and there is no way to determine who cast any individual one of them.

At the heart of the lawsuit is the National Voter Registration Act.

“Arizona is required to maintain accurate and current voter registration lists by removing ineligible voters based on change-of-residence grounds,” the lawsuit states.

One way it does that is by sending notices, by forward-able mail, to those for whom there is some record of a change of address. If there is no response, a voter is placed on the “inactive” list.

These people can cast a ballot if they show up with proof of their residence and that the notice was a mistake.

But the law says if there is no response and that person does not cast a ballot in the next two election cycles, the names have to be removed entirely from the voter rolls.

Citizen AG made a request on Oct. 4 seeking voter history and information about the number of inactive voters to reactivate the registration by casting a vote in either the 2020 or 2022 elections after providing residency proof.

“As of the date of this filing, defendant has not produced any records responsive to Citizen AG’s request,” the lawsuit states. Instead, it got a response that the office “does not have any records responsive to your request.”

“The NVRA requires defendant to retain and make available for public inspections, for at least two years all records concerning voter list maintenance activities, such as removals, confirmations of voter eligibility, and updates to voter registration lists, as well as any records regarding the implementation of programs and activities conducted to ensure the accuracy and currency of official lists of eligible voters,” the lawsuit states.

The attorneys concede it is possible that Fontes’ office is doing what federal law requires and is maintaining accurate voter registration lists. But they said the failure of Fontes to respond to the records request makes it impossible to know.

Little is known about Citizen AG.

No one from the organization returned messages seeking comment. And state Rep. Alexander Kolodin, who is serving as a local attorney for the Florida-based organization, said he could not comment on the litigation.

Its website says it launched “a citizen-led initiative where registered voters submit challenges to their respective county voter rolls.”

Citizen AG also has been involved in litigation in Georgia to remove voters from the rolls before this year’s election.

The website also says that Mike Yoder, its executive director, created the nonprofit “aimed at empowering citizens and safeguarding their freedoms against unlawful government overreach.” It also says that Yoder has a history of filing federal lawsuits to protect Americans “from losing their jobs due to vaccine mandates that conflicted with their religious beliefs.”

Fontes fights release of voter citizenship list due to security concerns

Secretary of State Adrian Fontes testified Monday that immediate release of the names of about 218,000 or more voters who may not have provided proof of citizenship would lead to threats and intimidation of those on the list.

And that’s assuming there is such a list, which he insisted there is not – at least not a full list.

Fontes told Maricopa County Superior Court Judge Scott Blaney of the threats he personally has faced from those who have accused him of not running the state election system in a fair manner. That has included people putting his home address on the internet and even “swatting,” where someone falsely tells police there is a dangerous incident at that address and they show up with multiple officers, some armed with rifles.

He also said he normally wears a bullet-proof vest, though he did not have on Monday because of security screening in the courthouse.

His attorneys presented evidence from a University of Chicago professor, an expert in election threats, who said that the people on the list could be at risk if others decide they may be the difference between Donald Trump and Kamala Harris winning the presidential race – particularly since Trump lost Arizona four years ago by just 10,475 votes.

Fontes said he fears for those voters.

“They can’t all walk around with a bodyguard and have 24/7 security officers outside of their house to protect them from harassment,” he said. And Fontes said security experts “have given me sufficient information that I should be very concerned with the release of any more information on any of these folks who activists and agitators have labeled as non-citizen voters or illegal alien voters.”

Fontes admitted he has no evidence that Strong Communities Foundation, which does voter outreach and filed a public records lawsuit to get the information, has been involved in any voter harassment efforts.

“But I don’t know that it matters,” he said.

And the secretary acknowledged that the full voter registration database is a public record and can be used to contact registered voters and do voter outreach.

Merissa Hamilton, who chairs Strong Communities Foundation – also known as EZAZ – said there’s no intent to spread the information she seeks widely. Instead, she testified she wants to give it to county recorders so they can run their own checks to see if any of these people, who have been given permission by the Arizona Supreme Court to vote a full ballot this year, are really not citizens.

But Hamilton also said she wants to share the list with at least four Republicans: Senate President Warren Petersen, House Speaker Ben Toma, Sen. Wendy Rogers who chairs the Senate Elections Committee, and Rep. Jackie Parker who is her House counterpart. That did not satisfy Fontes.

“I know that various members of the Legislature have lied, have continued to lie,” he said, though he did not name names.

But Petersen was involved in the now-debunked “audit” of the 2020 presidential election.

Rogers has repeatedly claimed fraud in both the 2020 and 2022 elections lost by Republicans. And she and Parker have used their committees to host presentations from election conspiracy theorists.

Blaney said if he orders the names released, he can probably limit to whom Hamilton can give them. But the judge said he’s not sure if he can restrict who those who get them – notably lawmakers – can do with the list.

“I certainly am not going to put a prior restraint on the Legislature,” he said.

Fontes, however, told the judge he cannot stress how important it is to keep these names secret, at least while the election is pending and there are threats from some quarters to hang people for tyranny.

“I don’t want blood on my hands,” he said.

Fears of harm aside, there’s something else. Fontes said that, with the exception of an initial list of 98,000, there is nothing more to surrender.

Fontes did issue a statement last month that there are about 218,000 people for whom there is not the legally required proof of citizenship on file.

These are individuals who got a driver’s license prior to October 1996, before there was a mandate to prove legal presence to get a license.

All that became an issue when voters approved a measure in 2004 requiring “documented proof of citizenship” to register. But that law, from a practical standpoint, said it did not apply to anyone who had one of those pre-1996 licenses.

What went wrong is that the Motor Vehicle Division said some people had post-1996 licenses when they really did not.

That occurred when MVD issued a duplicate license or change of address. And it was that later date that was reported to election officials as showing there is proof of citizenship on file when there is not.

With the election approaching, Fontes got the Arizona Supreme Court to rule that anyone on that list – meaning anyone who had an Arizona license since at least 1996 but may not have submitted proof of citizenship – can vote on all races in this election.

The alternative was to allow them to vote only for presidential and congressional candidates, as federal law does not require proof of citizenship. But the justices said that, given the short time remaining before the election, they wanted to err on the side of not disenfranchising people who, in many or most cases, probably are citizens.

Fixing the problem, the court said, can wait.

It is that list of those who were given the go-ahead to vote on all races that Stronger Communities wants to allow someone to check whether they are, in fact, legally entitled to vote. And it is that fear of having people going door-to-door and checking that Fontes said could result in intimidation – or worse if those doing the checking are operating on the premise that those on the list are not citizens.

And there’s something else.

Fontes insisted Monday there is no “list,” but simply an estimate. In fact, Fontes testified that there’s actually another “list” which suggests that about 349,000 – close to 8% of all registered voters – may have the same citizenship proof problem, albeit for different reasons.

“We cannot depend on any of this information because of those shifting sands,” he said.

More to the point, Fontes said even if he wanted to comply with public records request – and he has made it clear he does not – he doesn’t actually have the names.

Instead, he told Blaney, who lacks that required proof actually is with MVD. And Fontes said that agency said it would take eight staffers working full time for 50 days to actually produce a clean list.

Anyway, Fontes said he is not the keeper of the records.

“They’re suing the wrong people,” he said.

But Fontes later admitted he did get an initial list of about 98,000 from MVD. He said, though, he cannot surrender that information to Stronger Communities because of a federal law making driver license information confidential.

The bottom line for the judge may come down to the fact that, after all is said and done, this is a simple case of access to public records.

Arizona law has a presumption that records in the hands of public officials are available for inspection and to be copied. There are exceptions for privacy interests, not at issue here because the entire voter file is public.

But there is an exception for what has been defined as “the best interest of the state.” And it is that provision that Fontes seeks to use to deny access, at least for the time being, based on what he said is the fear that those on the list could be targeted.

The secretary said he believes government “should be as transparent as possible.”

“But weighing the competing interests between having some radical hunting my voters versus running up against the general mood toward disclosure, I would prefer the public safety given all of the circumstances that we’ve talked about here, given everything we’ve discussed,” he said.

And then there’s the fact that Arizona is the only state in the nation that requires proof of citizenship to vote. Fontes said that sets the stage for those who would go out to challenge them would presume “these folks are illegal aliens who deserve to be strung up along with the elections officials who let them vote.”

Blaney said he will try to expedite a ruling but gave no date.

Fontes challenges Pinal County’s election violations in state Supreme Court

Secretary of State Adrian Fontes is asking the Arizona Supreme Court to force Pinal County to comply with state election laws – and do so this year.

In new filings, Fontes said that even Pinal County Superior Court Judge Delia Neal, appointed by then-Governor Doug Ducey, ruled that the county was acting illegally in not allowing residents to cast a ballot in any polling place where they show up and have their votes counted. That is a requirement of the Elections Procedures Manual which has the force of law.

But Neal, in a ruling earlier this month, agreed to allow the county to avoid that requirement this year based on its arguments that it was too close to the election to make such changes.

Fontes, however, said that argument doesn’t wash, pointing out the provision was adopted last December.

“The county knew about the requirement, and chose to ignore it,” Fontes told the justices through Assistant Attorney General Kara Karlson who is representing his office.

And what’s worse, he said, is that allowing Pinal County to avoid the law this year means that some of its voters will have their ballots ignored even as voters in similar situations in the state’s other 14 counties will have their votes counted.

“The county’s wrongful actions means that an Apache Junction voter who lives in Maricopa County can cast a ballot that will be counted, regardless of where it is cast, but the same voter who lives in the part of Apache Junction in Pinal County will not be provided with the correct ballot and will be entirely disenfranchised,” Fontes told the justices. “This court should not let the county create an equal protection violation by willfully ignoring the law.”

A quick ruling is anticipated given the election is now less than two weeks away.

At the center of the fight are 2023 changes to the Elections Procedures Manual. They require counties to provide voters who show up at the wrong precinct a chance to cast a ballot for the precinct for which they have been assigned. That means a ballot that has the issues for that specific precinct, like legislators, justices of the peace and school board members.

What makes this possible is technology and the requirement for counties to have an “accessible voting device” at all precincts.

These devices allow those with certain disabilities to cast their own ballots, with options including touch screen, large print and more. Then the device prints out a voted ballot which can then be tabulated.

Fontes points out that, by definition, every precinct has to have such a device which has at least the races for that precinct.

But he said those devices can be programmed with the choices from all precincts. Fontes said these out-of-precinct ballots then can be handled as “provisional ballots” – with people getting their votes counted once it is later verified they are in fact registered to vote in the county.

The problem, he told the high court, is that while Neal agreed what the county was doing was illegal, she refused to order the recorder and the supervisors to comply now.

“Simply put, the defendants have no discretion to ignore the requirements in the Elections Procedures Manual,” Fontes said. In fact, he said, the trial judge actually ruled that the defendants were aware of the requirements but “knowingly and voluntarily elected not to implement it.”

Where Neal went wrong, the secretary said, was not ordering immediate compliance.

The issue, Fontes said, is more than an academic question. He said the county has admitted that there will be some voters who arrive at the wrong voting location to cast their ballot on election day.

“In Pinal County – and only Pinal County – this discrete group of in-person voters who arrive at the incorrect voting location on election day will be disenfranchised even though the county has the ability to provide that voter the correct ballot style,” he said. “Voters should not suffer because the county refuses to do its duty.”

Fontes also sniffed at the arguments by the county that it just can’t be done.

“Public officials should not have to be compelled to follow the law,” he said.

“All people must follow the law, even if they disagree with it,” Fontes continued. “And government bodies are limited to the authority granted to them by the law.”

And what of the extra work?

“To the extend there is any burden on the county that is in excess of the regular burdens of administering an election, they are burdens that the county caused by refusing to comply with the Elections Procedures Manual, and is compounding by refusing to comply with the law despite the superior court finding that the county is an inexcusable violation of the law,” he said.

Anyway, Fontes said, what the law requires – and what he wants the Supreme Court to order to be done – will not require significantly more processing “as the county already trains provisional clerks, and stations a provisional clerk at each polling place.”

And there’s something else.

He said allowing Pinal County to refuse to tally the out-of-precinct votes of its residents means they will be treated different from every other voter in Arizona, violating the Arizona Constitution. Fontes said this unequal treatment actually could form the basis for litigation by those who have lost the election.

“No individual county should be allowed to undermine confidence in the entire election process because that county believes its method – which does not comply with the law – is nonetheless a better policy choice,” he said. “The county should not be permitted to ignore the requirement, disenfranchise an identifiable class of in-person election day voters, and sow further confusion about Arizona’s election system.”

Ballots from some dead voters are still legal

The ballot tallies that start emerging on election night will include the votes of at least a few dead people.

No, this isn’t Chicago. And it’s not a conspiracy.

It’s the law.

Put simply, if someone casts an early ballot and then dies before Election Day, his or her vote is counted.

It starts, according to the Secretary of State’s Office, with the simple matter of practicality.

“How would the (county) recorder know someone died after they mailed their ballot?” said Aaron Thacker, spokesman for the agency.

What’s happening here is different than the normal procedures laid out in the state’s Elections Procedures Manual for how county officials are supposed to deal with “deceased registrants.”

The Arizona Department of Health Services provides a monthly list to the Secretary of State’s Office of those who have died. That list is compared to the statewide voter registration database.

In the case of a “hard match,” the registration is canceled. But that can occur only if it matches up with the first three letters of the individual’s first and last name, the date of birth and the last four digits of the person’s Social Security number.

A “soft match” occurs when there’s only the names and date of birth that line up. That then requires the county recorder to do further investigation and, if there is a belief there is a true match, to cancel the registration, but with a letter to the person’s mailing address of record to contact the county if they are, in fact, still alive.

The law also allows counties to look to other resources.

“We will look through the obituaries,” said Pima County Recorder Gabriella Cazares-Kelly. And she said other sections of her office that record documents like property transfers to see if there is a mention of someone dying.

“We checked the deceased person to see if they were a registered voter and we’ll begin the voter cancellation process,” Cazares-Kelly said.

And she said there’s even situations of self-reporting of a sort, with a family member calling in or even sending a copy of an obit.

But this process of counties regularly updating the registration rolls still leaves the door open for counting an early ballot from someone who already has died.

Put simply, it comes down to when that person “cast” a ballot.

“A vote is considered legally cast once an eligible voter places it in the mail or drop box,” said Taylor Kinnerup of the Maricopa County Recorder’s Office. “It is not based on if the person is alive once it’s counted.”

That’s not just what her agency says. It’s also in the Elections Procedures Manual. And that’s important because it has the force of law.

“A registrant who passes away after casting a valid ballot is entitled to have their ballot tabulated and votes counted,” the manual reads.

All that, however, is conditional on that ballot having been “cast.”

That is defined as going to one of the early voting locations that most counties have. It also applies to putting an early ballot in the mail or depositing it into a drop box.

What it does not include, however, is simply filling out the ballot, leaving it on the kitchen table and having a spouse send it off after the voter died.

Figuring all that timing out, however, presents a different issue for county election officials.

“Let’s say that they passed away on October 17, and October 18 we received their ballot,” Cazares-Kelly said.

“That’s still within the timeframe that it would be plausible that somebody voted and then died,” she said. “But, typically, we’re not looking for dead people.”

And there’s something else.

Even assuming that a recorder actually might find out somehow before Election Day that a ballot was dropped in the mail after someone died, canceling that vote is pretty near impossible. And that has to do with how early ballots are processed.

It starts with county officials comparing the signature on the received ballot envelope with other signatures they have on file from that person.

“If we have verified the voter and it matches the signature that we have on file, and we have accepted that ballot affidavit, then it will go to the Elections Department,” Cazares-Kelly said. “And they will separate it from the affidavit and it will become anonymous at that point.”

All that is designed so that, once in the system, a specific ballot cannot be linked to a specific voter.

But that also means that even if county officials find out before Election Day that a mail-in ballot came from someone who actually had already died before dropping it in the post office box there is simply no way to fish out that specific ballot.

Still, Cazares-Kelly said, that should not be considered an invitation for family members to send back the mail-in ballots of their already dead relatives.

“If we find out at a later time that we accepted a signature that, given the timeframe and the date on the envelope and the date we received it, there’s no way this person could have voted, then it’s cause for some questions and that’s going to be communicated over to our attorney,” she said.

Cazares-Kelly said how election officials handle the ballots of the recently deceased is not unique.

Consider, she said, someone who cast an early ballot on Oct. 17. Then, a day later, that person is found guilty of a felony, meaning the loss of voting privileges.

“If they were fine on the 17th, then that ballot’s going to count,” Cazares-Kelly said..

So, how many ballots cast might fit into the category of those who died before Election Day?

Records from the state health department from October 2022, the last time there was a statewide race, show that more than 11,000 people died in Arizona. That is the closest comparison to the 27-day window for early voting.

And the vast majority of these were people of voting age.

But Cazares-Kelly said she doesn’t believe that the number of ballots received in her county from people who already have died is anywhere near that large, putting the figure “probably in the teens.”

Maricopa County estimates the number to be a couple of dozen.

Some ballots from deceased voters are still legal