Arizona Court Revives RNC Challenge to Election Procedures Manual
The Arizona Court of Appeals today reversed a lower court decision dismissing a Republican attempt to invalidate the 2023 Election Procedures Manual (EPM), which governs how elections are run in the state. The case now returns to the trial court as litigation continues.
In the summary opinion, Arizona Court of Appeals judge Lacey Gard wrote that the EPM does not comply with Arizona’s Administrative Procedures Act (APA) because Arizona Secretary of State Adrian Fontes (D) “did not substantially comply with its provisions because he provided a public-comment period encompassing only half the time the APA requires.”
The Republican National Committee, Republican Party of Arizona and Yavapai County Republican Party filed a lawsuit in February 2024 against Fontes. They alleged that Fontes failed to provide the public adequate notice and opportunity to comment on the EPM before it was published, in violation of Arizona’s APA. The plaintiffs asked the court to block the entire EPM. If the court did not accept the first claim, the plaintiffs asked it to block specific provisions regarding proof of certification requirements, mail-in voting procedures and signature verification as an alternative.
In May 2024, the trial court dismissed the case for failing to “state a claim upon which relief can be granted.” It ruled that the state’s administrative procedures rules do not apply to the EPM.
Republicans appealed the decision in August 2024, writing, “the court essentially held that any public participation in the creation of the EPM is gratuitous. This was error.”
Fontes pointed out, however, that the law creating the EPM allows it to be exempt from APA rulemaking procedures. Still, Fontes published a draft of the EPM for public comment two months before his deadline to submit the final version to the governor and attorney general.
Fontes also noted that this was the first time Republicans challenged the entirety of the EPM using the “novel” theory of APA violations despite being involved in Arizona elections throughout the EPM’s 50-year existence.
In their ruling, the Arizona Court of Appeals did not address the RNC’s request to block the provisions on proof of certification, mail-in voting and signature verification, writing that “they contradict or directly conflict with state and federal statutes.” But the court’s ruling means that the case is sent back to the lower court to enter a judgement consistent with the Court of Appeals ruling — though it did not clearly state if the 2019 or 2023 version of the EPM is in effect for future elections.
Speaking with VoteBeat, Arizona Republican Party Chair Gina Swoboda interpreted the court’s ruling to mean that the 2019 EPM is in effect. But Fontes’ office told Democracy Docket that it believes that it’s the 2023 EPM that will remain in effect.
“Exploiting the legal process for partisan advantage only creates confusion among voters,” Fontes’ office said. “Secretary Fontes reaffirms that the 2023 Elections Procedures Manual remains in full force because the Court of Appeals opinion has not yet taken effect. The Secretary can seek Supreme Court review, and the timeline depends on whether the Supreme Court accepts that petition.”
Note: The intervenor-defendants — Voto Latino and the Arizona Alliance For Retired Americans — in this case are represented by the Elias Law Group (ELG). ELG Firm Chair Marc Elias is the Founder of Democracy Docket.
Learn more about the case here.
CORRECTION: Due to a reporting error, this article originally reported that future elections would be governed by the 2019 version of Arizona’s EPM. In fact, the court ruling makes it unclear which version is in effect. This article has been updated to reflect the uncertainty, along with a statement from Arizona Secretary of State Adrian Fontes’ office.