PHOENIX β The state's top two Republican lawmakers are asking the Arizona Supreme Court to rule that county supervisors don't have to accept the vote total figures they get from election officials.
In a new filing, attorneys for Senate President Warren Petersen and House Speaker Steve Montenegro argue that supervisors have "discretion'' to determine whether to certify the vote tallies as official. To rule otherwise, they said, would "transform the boards into rubber stamps.''
The pair is specifically suing Democratic Secretary of State Adrian Fontes.
He produced an Elections Procedure Manual which said that the duty of the supervisors, in essence, is strictly ministerial: Take the report given to them by the county employees who have run the election and declare them valid. What makes that important is the manual has the force of law, complete with criminal penalties for violations.
But Petersen and Montenegro are not just battling Fontes. They are also asking the state's high court to overturnΒ a ruling earlier this month by the Court of Appeals,Β saying that Fontes is correct β and they are wrong.
The challengers are seeking a quick ruling, what with elections later this year.
What the Supreme Court rules could have major implications.
Supervisors in at least two counties have previously argued they have the right to question the results that were given to them. In both cases, they raised doubts about whether the equipment used to tabulate results β the only legal method of counting ballots β provided accurate totals.
Fontes said a ruling that gives the supervisors the right to declare official results could allow them to declare winners and losers regardless of what the tallies have shown.
"The appeal to the Supreme Court means that the speaker and the president prefer some folks to have the power to play politics instead of trusting the decisions of voters,'' he told Capitol Media Services. "And that's problematic.''
Fontes also said he believes the Supreme Court eventually will uphold the Court of Appeals decision β but not after the taxpayers have to fund the new legal arguments.
At the heart of the legal debate is that state law requires supervisors to canvass the election by "determining the vote of the county.''
Attorneys Tom Basile and Joseph Kanefield, representing the GOP legislative leaders, read that to mean that there is some wiggle room for supervisors. They contend the definition of "determining'' includes "deciding by choice of alternatives or possibilities'' or "coming to a decision about by investigation, reasoning, or calculation."
"By using 'determine,' the Legislature empowered the board to decide whether the returns presented to it are accurate and complete,'' they are telling the justices.
But appellate Judge David Gass, writing for the unanimous ruling of the three-judge panel after hearing the same claims, said that's legally incorrect.
"Contrary to what the legislators argue, the legislature did not say that boards could reject returns because the county supervisors do not like how the returns were received or could not understand them,'' he said.
Gass pointed out that lawmakers did provide supervisors with the limited discretion β but only to delay a canvass while awaiting final returns.
"If the legislature wanted to give the board broader discretion, it could have said so,'' he wrote. In fact, Gass said, lawmakers remain free to change the law.
"But the plain language does not give that discretion today,'' he said.
The appellate court said there is a century of history to back up that conclusion. They cited a 1912 Supreme Court ruling which said that members of a canvassing board "act strictly in a ministerial capacity.''
Basile and Kanefield, for their part, say the law and election procedures were different at that time, and the ruling has no bearing here.
But Gass said the precedents don't stop there.
He cited a more recent ruling involving Cochise County Supervisor Tom Crosby, who is facing criminal charges after he refused to certify the 2022 election returns. He and fellow Republican Peggy Judd said they first wanted to hear arguments about whether the voting machines were properly certified.
Both were indicted, though Judd pleaded guilty to a single misdemeanor charge of election interference.
Crosby's case, however, is continuing.
The appellate court pointed out that Crosby argued that he could not be prosecuted because his actions related to the election canvass were a discretionary act. But Gass pointed out that the Court of Appeals rejected that contention, ruling that the "duty to canvass the election ... was not discretionary.'' And that decision was left intact by the Supreme Court.
Crosby's trial is set to begin next month.
Basile and Kanefield, however, are telling the Supreme Court that the appellate court ruling about Crosby sets no precedent in this legal dispute. They argue the decision goes only to the question of whether Crosby has immunity for refusing to perform a duty that they concede is mandatory and administrative.
"Just because canvassing is a mandatory administrative duty does not mean that the board lacks any discretion in how it executes that duty,'' the attorneys said.
No date has been set for the Supreme Court to consider the filing.
