High court won't immediately change Pinal County's voting procedures

PHOENIX — Pinal County does not have to allow its residents to vote this year at any place they show up.

In an order late Friday, the Arizona Supreme Court said there was no reasonable way for County Recorder Dana Lewis to change procedures with the general election less than two weeks away. The justices said Pinal County Superior Court Judge Delia Neal did not err in declining to immediately order the change.

But the high court left unresolved, for now, the question of whether Secretary of State Adrian Fontes, who had sued Pinal County, is legally correct in his conclusion the county must set up voting centers' where all registered voters can cast a ballot, regardless of where in the county they live.

Neal had, in fact, decided Fontes was correct, but that his lawsuit filed in September came too late.

In a ruling earlier this month Neal cited a provision in the state Elections Procedures Manual that mandates each voting location have an "accessible voting device'' that contains all ballot styles of every precinct. The devices produce a ballot specific to an individual voter's address, and the ballot is counted even when cast outside of the voter's home precinct. 

In general, the manual, written by Fontes with approval from his fellow Democrats Gov. Katie Hobbs and Attorney General Kris Mayes, has the force of law.

Neal rejected Fontes' request to order Pinal County to implement the change now, finding "that there is unacceptable risk to undertake change at this very late date'' before the Nov. 5 election. 

Chief Justice Ann Scott Timmer, writing for the high court, said she and her colleagues have no choice but to back Neal's decision.

"Unless the trial judge either made a mistake of law or clearly erred in finding the facts or applying them to the legal criteria for granting an injunction, we must affirm,'' she wrote.

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Some counties have used voting centers for years, allowing any voter to cast a ballot at any location. On-site computers link to a central location to determine where the person lives and print out a ballot specific to that voter, with only the geographically appropriate races such as legislative, supervisor, justice of the peace and school boards.

Fontes issued an updated Elections Procedures Manual in December 2023 with the mandate.

Despite that, Pinal supervisors decided in the spring to keep the current system. Attorney Brett Johnson, who represents the supervisors, said they have that legal right, saying there are advantages to using a precinct-based polling place model.

He cited a 2021 ruling of the U.S. Supreme court on an Arizona case that such a system "helps to distribute voters more evenly among polling places and thus reduces wait times."

Johnson also said the county makes active efforts to ensure residents know their assigned polling places.

The other side of it, however, is that if someone shows up at the wrong precinct and insists on voting, they are given a provisional ballot — which is not tallied. Fontes argued that improperly disenfranchises some people.

But Johnson cited state law that he said trumps the election manual, and claimed Fontes exceeded his authority in trying to impose on every county "through obscure regulations buried in the Elections Procedures Manual.''

In issuing the Supreme Court order late Friday, Timmer said she and her colleagues were not ruing whether what Fontes put in the manual conflicts with state law. That will have to be settled at some future date.