Lawsuit challenging Arizona election manual could affect 2024 presidential race

PHOENIX — A new lawsuit against the secretary of state could end up affecting whether Arizonans will get a voice in the November presidential election.

Senate President Warren Petersen and House Speaker Ben Toma contend in the lawsuit that county supervisors have some discretion in deciding whether to simply accept election results and have leeway to raise questions.

The suit also says there is some flexibility in the current deadline for counties to get their formal results to the secretary of state by the fourth Monday following the General Election, or Dec. 1 this year. If the supervisors want more time to consider the results, state law gives them 30 days after the general election, or until Dec. 5, it says.

Those extra four days can make a big difference.

That’s because the state cannot begin mandatory recounts in close races until after the formal canvass. And a change in state law makes it more likely a recount will be necessary.

Also, a new federal law requires states to send their results of the presidential election to Congress no later than Dec. 11 — or not have the wishes of Arizona voters considered, nor the state’s 11 electoral votes counted.

The arguments

At the heart of the complaint is the Elections Procedures Manual. Adopted by the secretary of state with approval of the governor and attorney general, it is considered a guide for local officials to use when conducting elections.

Republicans Petersen and Toma allege that some of what Democratic Secretary of State Adrian Fontes put into the new manual does not comply with state law. They say that in such cases, statutory provisions override the manual’s guidance.

Fontes, in the new manual he has adopted, says if a county doesn’t get its official tallies to him by his deadline to certify the statewide results, “the secretary of state must proceed with the state canvass without including he votes of the missing county.’’

That is illegal, says the attorney for Petersen and Toma, Kory Langhofer.

“Arizona law does not allow the secretary of state to disenfranchise the voters of an entire county,’’ he told Maricopa County Superior Court Judge Timothy Ryan in the new lawsuit.

He disputes any contention that the supervisors must simply rubber stamp the results as reported by the county recorder. Instead, Langhofer said, Arizona law requires a county Board of Supervisors, on its own, to “determine the vote,’’ which might take extra time.

In fact, Langhofer argued, state law spells out that if Fontes hasn’t received the official results from any county by the late November deadline, he must postpone the formal statewide canvass “until canvasses from all counties are received.’’ The law allows delays up to 30 days after Election Day, he said.

Fontes stands behind manual

Fontes defended the Election Procedures Manual.

“Elections must have finality,’’ he said. “And the EPM provides a roadmap for our counties to help us move on.’’

Fontes bristled at the allegation in the lawsuit. “Any accusation that this office disenfranchises Arizona voters is ridiculous,’’ he said.

Petersen said the legal action has merit.

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It all comes down to the time crunch.

That starts with the possibility of a mandatory recount in the presidential race, which can’t occur until after the statewide canvass.

Joe Biden defeated Donald Trump in Arizona by 10,457 votes in 2020, winning the state’s 11 electoral votes. That’s a 0.3% difference.

A 2022 Arizona law increased the margin to trigger an automatic recount to 0.5%. So a race this year as close to the one in 2020 would force a recount, exacerbating already existing deadline problems.

And if the loss of those extra days means the state doesn’t get its formal results to Congress by the Dec. 11 federal deadline, the votes of Arizonans may become irrelevant as to who takes the presidential oath of office in January 2025.

2022 case

This isn’t just an academic question.

The two Republicans on the three-member Cochise County Board of Supervisors initially refused in 2022 to certify the results of the election after they argued that the ballot tabulators were not properly certified.

That led to threats from then-Secretary of State Katie Hobbs that failure to certify would lead her to conduct the canvass without the results from 47,284 ballots cast by county residents. That would have changed the results of elections for state schools chief and Congressional District 6.

A majority of the board eventually relented, but only after being ordered to do so by a judge. The votes of county residents were included in the final statewide tally.

Now the two Republican supervisors, Peggy Judd and Tom Crosby, are facing felony charges that they illegally conspired to delay the formal canvass. They also face a separate charge of illegally interfering with an election official. That is based on the delay in preventing Hobbs from completing the statewide canvass.

This comes back to what Fontes included in the manual.

It says county supervisors have “a non-discretionary duty’’ to canvass the returns provided to them by the county recorder or other official running the election. The manual says the board “has no authority to change vote totals, reject the election results or delay certifying results without express statutory authority or court order.’’

Langhofer, who had nothing to do with what occurred in Cochise County, said that’s not exactly what the law says.

“While (Arizona laws) require the board to conduct a canvass by a certain deadline, it also empowers the board to determine the vote of the county,’’ he told Ryan. Langhofer said that means more than simply accepting as true the numbers board members get from the official who ran the election.

“The board’s statutory duty to canvass the vote does not necessarily require the board to accept the returns in the form provided by the election official or vote in a certain way regarding the accuracy of returns,’’ he said. Langhofer said that means Fontes’ manual conflicts with state election law.

That issue of the county deadline to canvass the votes and what happens if they do not is only part of the challenge to the manual by Petersen and Toma.

No date has been set for a hearing.