Court tosses Arizona Election Manual, says more public comment time needed

PHOENIX — The Court of Appeals has tossed out a set of rules adopted by Secretary of State Adrian Fontes, saying he didn’t follow proper procedures.

The judges said there are clear state laws that require the public be given at least 30 days to comment on proposed regulations. But they said Fontes, in enacting the Elections Procedures Manual ahead of the 2024 election, provided just a 15-day window.

A spokesman for Fontes said he disagrees with the ruling and vowed to appeal to the Arizona Supreme Court.

Less clear is the effect of Thursday’s ruling.

The lawsuit, filed early last year, asked that Fontes be barred from using the manual for the 2024 election. That, however, is no longer in play. And the appellate judges said their ruling will not affect any election before there is a final decision, presumably after the Supreme Court acts.

The court, in deciding the case strictly on the public’s window to comment, sidestepped the substantive objections by the Republican National Committee, the state GOP and the Yavapai County Republican Party to what Fontes, a Democrat, put in the manual. That includes the rules allowing those without documented proof of citizenship to vote in federal elections, which is legal under federal law despite a state law challenging it.

That leaves those objections legally unresolved — and, absent a court order, leaves Fontes free to include those disputed provisions in the manual he now is preparing for the 2026 election.

But the ruling, unless overturned, does ensure that anyone objecting to the new manual will have at least 30 days to comment.

Arizona law, as approved by the Legislature, governs how elections are supposed to be conducted. The Elections Procedures Manual. which is not only authorized by law but legally required, serves as more of a “how to’’ for local election officials, filling in the fine details on everything from how to handle voter registrations, to rules for people dropping off their ballots, to procedures for counting and recounts.

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Its provisions also have the force of law, with violations considered criminal offenses.

It has generally been noncontroversial.

But that changed as Republicans became unhappy with some of the rules promulgated by Democratic secretaries of state, first with Katie Hobbs and now with Adrian Fontes. They and their political allies have filed a series of lawsuits alleging that what’s in the manuals — there are supposed to be new ones before every election — is not within what state law allows.

In this case, the challenges ranged from when a county recorder has to demand “documentary proof of citizenship’’ for a person to register to vote, to whether election officials should count ballots cast in the wrong precinct.

Maricopa County Superior Court Judge Frank Moskowitz tossed the case out last year, ruling that nothing in the manual conflicts with state law. That led to this appeal.

The appellate judges never addressed those issues. Instead, they concluded Fontes failed to follow the law in adopting the latest version of the manual. Specifically, they noted that Fontes published a 259-age draft on July 31, 2023, allowing comment for 15 days.

On Aug. 15, the Republican National Committee submitted a formal complaint, not just about specific provisions but the “unnecessarily restrictive’’ and short public comment period.

Fontes did submit a revised draft to the governor and attorney general on Sept. 30, saying it was posted for public comment “in keeping with the good practice of the prior administration,’’ that being Hobbs. And he said suggestions had been incorporated “where appropriate.’’

A final, 268-page version was adopted Dec. 30, leading to this lawsuit and the ruling, written by Judge Lacey Gard for the appellate court.