In battleground Arizona, GOP and Democrats battle in court over election rules

With a presidential election looming, the once-obscure guidebook for election management in the swing state of Arizona is taking legal fire from the right.

Three lawsuits, all from Republican or conservative-leaning groups, challenge the Elections Procedures Manual produced by the office of Arizona Secretary of State Adrian Fontes, a Democrat. In response, Democrats and their allies have rushed to defend him and the manual he produced last year.

It's a clear sign that, like many election-related matters in Arizona, the manual is a crucial political battleground.

"Adrian Fontes’ Elections Procedures Manual (EPM) is designed to undermine election integrity in Arizona, and Republicans are suing him to protect Arizona elections,” then-Republican National Committee Chairwoman Ronna McDaniel stated when the RNC filed suit in early February.

Democrats criticized the lawsuits as the latest assault from Republicans aligned with former President Donald Trump.

"Making it more difficult for Arizonans to vote by stripping away protections that keep elections safe and fair is part of their strategy — and their latest attempt to undermine American democracy," the Biden-Harris 2024 campaign said in a statement.

A judge allowed the campaign, along with the Democratic National Committee and the Arizona Democratic Party, to intervene in the legal challenges on behalf of the secretary of state.

Which Arizona elections provisions are Republicans challenging?

The lawsuits allege a number of problems with the 267 pages of instructions. Those range from loose voter registration standards to provisions that contradict Arizona's laws and constitution to procedural shortcuts that minimize public involvement.

The complaint from the Republican leaders of the Arizona Legislature argues Fontes overstepped his authority and used the manual to create policy, rather than interpret it. They allege five specific errors.

A key objection: A provision that says the statewide canvass that verifies every ballot and properly records it must proceed as scheduled and cannot count the votes of any county that did not return its canvass within the required time period. The GOP lawmakers argue only the courts can decide whether to disregard a county's votes — a requirement that would limit Fontes' power.

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In the aftermath of the 2022 election, in which Republicans narrowly lost several statewide races, Cochise County Supervisors Tom Crosby and Peggy Judd, both Republicans refused to certify the results. They argued the county's vote tabulation machines were not properly certified, despite evidence to the contrary.

A court ordered Crosby and Judd to certify the general election tallies, although Crosby skipped the meeting. The two now face felony charges of election interference.

The Free Enterprise Club argues certain provisions of the manual violate First Amendment free speech rights. For example, the club takes issue with an instruction that county election officials can restrict activities that interfere with the ability of a voter or election staffer to access a ballot drop box. The club is a dark-money organization that supports conservative policies.

In 2022, ballot drop boxes in Maricopa and Yavapai counties were monitored by various groups and individuals, some of them carrying weapons and wearing masks. The groups called off their surveillance after a lawsuit was filed. A federal judge barred anyone from filming or following a voter within 75 feet of a drop box or a building housing a drop box.

Since then, the Free Enterprise Club has sued in Yavapai County, arguing drop boxes should be banned altogether because state law does not provide for them. The matter is pending.

The complaint from the RNC argues the entire manual is illegal since Fontes allowed only a 15-day public comment period. State administrative procedures outline a 30-day period. The lawsuit also alleges provisions in the manual make it harder to challenge early ballots, and make it easier for non-citizens to vote.

The Republican Party of Arizona and the Yavapai County Republicans also joined in that complaint.

A federal judge in early March struck down parts of two laws that would have tightened requirements for citizens who register to vote in federal elections. The manual had left out some of those provisions, noting that at the time the manual was prepared, the issue was still in court.

Fontes' office has not responded to queries on how, if at all, his office will amend the manual in light of the court ruling.

It is also unclear if parts of the 109-page ruling will be appealed; if so, a court case could last well beyond the July 30 primary election.

The trio of complaints are pending before three separate Maricopa County Superior Court judges. Fontes has yet to make a formal reply, although he has filed a motion to dismiss the legislative leaders' complaint.

Why does Arizona have an election manual?

Arizona is one of a handful of states that collaborates with local election officials to produce a guidebook for election administration, said Tammy Patrick chief executive officer of Election Center, part of the National Association of Election Officials.

Fontes produced the manual by working with Arizona's 15 county recorders and election directors, then putting their work out for public comment.

Other states provide guidance through administrative actions that can involve more red tape and follow a more bureaucratic arc, Patrick said. In some states, all the details are included in the law, so the law itself becomes the manual.

The benefit of the collaborative approach is it gets everyone on the same page, Patrick said. That's preferable to "having 15 different ideas over a certain election function, that can wreak havoc in a close race.”

And it's the close races, and close political divides, that can invite scrutiny of a manual's every word.

Has Arizona's manual faced legal challenges before?

This is not the first time Arizona's manual has had an unwelcome public spotlight.

In 2015, then-Secretary of State Michele Reagan didn't produce a manual, although state law requires a new issue every odd-numbered year. Reagan, a Republican, said there wasn't time to compile the manual ahead of the 2016 elections. That meant those elections followed the rule book written in 2013.

In 2021, the manual created by then-Secretary of State Katie Hobbs, a Democrat, was challenged by Republican Attorney General Mark Brnovich. He refused to sign off on the manual, as required by law, unless Hobbs would agree to his list of changes. While she acceded to some, she refused to incorporate all of them. That left the state with the 2019 manual she wrote, and which Brnovich approved, to guide the 2022 elections.

Their dispute also triggered a legal battle, as Brnovich sought to have a judge force Hobbs to incorporate all his changes. He lost that argument.

What happens next

None of the cases are yet scheduled for trial, although there is a March 25 deadline in the state legislators' case for filing any amicus briefs.

It is unclear when or whether the cases will proceed to trial and if they will produce rulings in time to affect the upcoming elections.

Reach the reporter at maryjo.pitzl@arizonarepublic.com or at 602-228-7566 and follow her on Threads as well as on X, the platform formerly known as Twitter @maryjpitzl.

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This article originally appeared on Arizona Republic: GOP, Democrats fight in court over Arizona's Elections Procedures Manual