The Huge Legal Assault on Arizona’s Voting Procedures

By Matt Cohen

A red map with the outline of Arizona centered in the middle. In the state is a wall of TVs showing Kari Lake and images of voting centers. A hand with a TV remote is pointing toward the TVs, as if flipping channels.

Kari Lake, the erstwhile Arizona TV news reporter-turned-election denying Republican candidate, unequivocally lost her gubernatorial bid in the Grand Canyon State in the 2022 midterm elections. But that hasn’t stopped her from saying — and failing to prove — otherwise. Nearly two years later and Lake has yet to concede the election. She filed a lawsuit in December of 2022 trying to overturn the election and make her governor. 

Her unsubstantiated claims of thousands of illegal ballots cast that caused her to lose the election was rejected by a trial judge. She appealed all the way to the Arizona Supreme Court, which sent one of her claims back to the trial court, which was once again rejected. She appealed the rejection, again, which is what heard oral argument in the case last week.

Initially all of her claims were rejected but the state supreme court sent one  claim back to trial court which worked its way all the way back up to the supreme court. That’s what they heard.

During the 45-minute argument, Kurt Olsen — one of Lake’s attorneys — argued that issues with the accuracy testing of Maricopa County’s voting machines is what allegedly led to illegal votes being cast. It was an argument that the appellate court judges had to remind Olsen wasn’t relevant to the case. “I’m sure you’re aware we’re not actually a fact finding court,” one of the appellate judges told Olsen during the hearing. “We’re a court that decides questions of law, primarily… so I wonder if you could direct your comments to why you think the trial court erred in dismissing your claims.” 

Like most of Lake’s myriad legal efforts, this ongoing lawsuit is an attempt to further promote election conspiracy theories and sow discord in Arizona’s election process — especially as she campaigns for a seat in the U.S. Senate. The likelihood that Lake’s appeal will result in any sort of reversal of the 2022 election, as her lawyers are asking, is pretty low. 

But her case is part of a very busy month for election-related litigation in Arizona, with several other lawsuits set to have pivotal hearings that could be more consequential than Lake’s — especially if they were to make it all the way to the Arizona Supreme Court, which recently upheld a 160-year-old near-total abortion ban in the state. 

A challenge to election procedures in three crucial counties.

In February of this year, America First Legal Foundation — the legal group headed by former President Donald Trump advisor Stephen Miller — filed a lawsuit on behalf of the right-wing group Strong Communities Foundation of Arizona, Inc. challenging the election administration procedures in Coconino, Maricopa and Yavapai counties. 

The lawsuit alleges that these three counties “do not, and do not plan to, follow the law in administering the 2024 election” because of rules surrounding signature verification, voter registration cancellations and drop boxes. Furthermore, the lawsuit also alleges there are illegal voting centers across Black and Hispanic neighborhoods in Maricopa County that have a discriminatory effect on white and Native American voters.

Shortly after the lawsuit was filed, two pro-voting groups — the Arizona Alliance for Retired Americans and Voto Latino — intervened in the case to defend the elections administration procedures in Coconino, Maricopa and Yavapai counties. The two groups filed a motion to dismiss the lawsuit in early April arguing that Strong Communities Foundation of Arizona didn’t allege any actual violations of state law in their complaint, but rather outlined that the three counties “do not conduct elections according to Plaintiffs’ strained interpretation of state law.”

At the end of their complaint, attorneys with America First Legal Foundation say they’re hoping the court will issue an injunction to require all three counties to revise their election administration procedures — essentially asking the election officials in each county to completely rewrite their procedures just months before the general election. Should the plaintiffs prove successful, the cumulative effect of such a request would fundamentally reshape election administration in these three counties, which could throw the election into chaos. 

Oral argument on the motion to dismiss the lawsuit was set to take place on May 3 in the Arizona Superior Court but on May 1, the Arizona Court of Appeals granted a request by the plaintiffs to pause the case. A new court date has yet to be determined.

Then the RNC got involved.

One of the most potentially consequential election lawsuits in Arizona heard oral argument in a state superior court on May 3. The lawsuit, filed by the Republican National Committee (RNC) in February, takes aim at the state’s Election Procedures Manual (EPM), which is essentially the bible used by county election administrators to properly hold an election and tabulate votes. The RNC contends that, because of the expedited passage of the EPM, it should be invalidated and asks the court to block Fontes from enforcing it until he complies with the state’s rulemaking process. 

But the lawsuit also seeks to block other parts of the EPM, specifically the provision in the manual related to documentary proof of citizenship — the process for new voters to provide proof of citizenship or residency documentation in order to register to vote. The complaint argues that the EPM violates state law because it doesn’t require county recorders to research alternative government databases for a voter’s proof of citizenship. 

The lawsuit also alleges that because the EPM allows for voters to receive early voting ballots if they live out of state for specific elections, restricts the ability to challenge an mail-in early ballot before it is returned and allows out-of-precinct voting, it also violates state law. 

As they did in Strong Communities of Arizona v. Yavapai County, the same pro-voting groups — the Arizona Alliance for Retired Americans and Voto Latino — intervened in the lawsuit on Feb. 20 and petitioned the court to dismiss the lawsuit. In their motion to dismiss, the groups wrote that the RNC is “unlikely to succeed on the merits of their claims” and that the lawsuit “undermine[s] the administration of Arizona’s elections and disenfranchise lawful voters.” The Democratic National Committee and the Arizona Democratic Party also petitioned the court to dismiss the lawsuit. 

A hearing to consider the motions to dismiss took place on May 3 and Democracy Docket is awaiting the trial court’s decision. 

And state Republicans filed their own lawsuit.

The RNC’s lawsuit is far from the only litigation aimed at Arizona’s pivotal EPM. It’s part of a broader trend from the GOP taking aim at the crucial element of Arizona’s election administration. 

One of the other crucial lawsuits targeting the Arizona EPM that will see movement in the courts this month is one that comes from Arizona’s top GOP officials. The lawsuit, filed on Jan. 31 by Arizona Senate President Warren Petersen (R) and state House Speaker Ben Toma (R), targets aspects of the EPM that outline early voting, voter registration cancellations, signature gathering, ballot initiatives and certifying elections. 

The lawsuit argues that the provisions in the EPM related to these topics violate state law because they aren’t election procedures but rather election policy, which the secretary of state doesn’t have the authority to set — only the state legislature does. 

Once again, the Arizona Alliance for Retired Americans and Voto Latino filed a motion to intervene in the lawsuit and a hearing was held on May 3 to hear arguments from both sides in the case. We’ll update when the trial court issues a decision.

A wrench in Arizona’s elections?

It’s no secret that, just as it was in the 2020 and 2022 elections, Arizona is one of the most pivotal swing states in the 2024 election. This is almost certainly why the GOP is mounting a multi-pronged legal assault on how elections are run in the state: if one just one lawsuit that challenges elections procedure is successful, it could force the state to switch up its rules for how elections are administered in such a way that could cause disarray come election day. 

These four election lawsuits are far from the only ones currently making their way through Arizona’s court system — but they are the ones that have seen, or will see, significant movement this month. 

According to Democracy Docket’s litigation tracker, there are at least six active anti-voting cases in the Grand Canyon State. This also includes a lawsuit filed by Mohave County Supervisor Ron Gould against Arizona Attorney General Kris Mayes (D) alleging that Mayes violated Arizona law by sending a letter to the Mohave County Board that voting to hand count ballots violates state law. The other lawsuit is one that also challenges aspects of Arizona’s EPM, filed by the mysterious right-wing group the Arizona Free Enterprise Club. Litigation is ongoing in both cases. 

Should the GOP plaintiffs in any of the six active lawsuits succeed, it will make it harder for Arizona residents to vote, or for their vote to be counted. In almost every case, the plaintiffs seek to have whatever aspect of the elections process they’re challenging invalidated by the court, setting up an opportunity for the state to rewrite election rules very close to an election.