Fontes asks court to order Pinal County to comply with election law

Secretary of State Adrian Fontes is asking the Arizona Supreme Court to force Pinal County to comply with state election laws — and do so this year.

In new filings, Fontes said Pinal County Superior Court Judge Delia Neal ruled the county was acting illegally in not allowing its residents to cast a ballot in any Pinal County polling place, even if it’s not the precinct they were assigned, and have their votes counted. That is a requirement of the Elections Procedures Manual, which has the force of law.

But Neal, in ruling earlier this month, agreed to allow the county to avoid that requirement this year based on its arguments that it was too close to the election to make such changes.

Fontes said that argument doesn’t wash, pointing out the provision in the manual was adopted last December.

“The county knew about the requirement, and chose to ignore it,’’ Fontes told the justices through Assistant Attorney General Kara Karlson, who is representing his office.

Worse, he said, is that allowing Pinal County to avoid the law this year means some of its voters will have their ballots ignored even as voters in similar situations in the state’s other 14 counties will have their votes counted.

“The county’s wrongful actions means that an Apache Junction voter who lives in Maricopa County can cast a ballot that will be counted, regardless of where it is cast, but the same voter who lives in the part of Apache Junction in Pinal County will not be provided with the correct ballot and will be entirely disenfranchised,’’ Fontes, a Democrat, told the justices. “This court should not let the county create an equal protection violation by willfully ignoring the law.’’

A quick ruling is anticipated since Election Day is less than two weeks away.

The 2023 changes to the Elections Procedures Manual require counties to provide voters who show up at the wrong precinct a chance to cast a ballot for the precinct for which they are assigned. That means a ballot that contains the candidates for that specific precinct, such as legislators, justices of the peace and school board members.

This is possible through technology and the requirement for counties to have an “accessible voting device’’ at all precincts.

These devices allow those with certain disabilities to cast their own ballots, with options including touch screen, large print and more. The device then prints out a voted ballot which can then be tabulated.

Fontes pointed out that, by definition, every precinct has to have such a device. He said the devices can be programmed with the choices from all precincts. Fontes said these out-of-precinct ballots then can be handled as “provisional ballots’’ — with people getting their votes counted once it is later verified they are in fact registered to vote in the county.

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The problem, he told the high court, is that while Neal ruled Pinal County’s plan is illegal, she declined to order the recorder and supervisors to comply now.

“Simply put, the defendants have no discretion to ignore the requirements in the Elections Procedures Manual,’’ Fontes said. In fact, he said, the trial judge ruled that the defendants were aware of the requirement but “knowingly and voluntarily elected not to implement it.’’

Where Neal went wrong, Fontes said, was not ordering immediate compliance.

He said it’s more than an academic question. He said the county has acknowledged there will be some voters who arrive at the wrong voting location to cast their ballot on Election Day.

“In Pinal County — and only Pinal County — this discrete group of in-person voters who arrive at the incorrect voting location on election day will be disenfranchised even though the county has the ability to provide that voter the correct ballot style,’’ he said. “Voters should not suffer because the county refuses to do its duty.’’

Fontes rejected the county’s arguments it can’t be done.

“Public officials should not have to be compelled to follow the law,’’ he said. “All people must follow the law, even if they disagree with it. And government bodies are limited to the authority granted to them by the law.’’

“To the extent there is any burden on the county that is in excess of the regular burdens of administering an election, they are burdens that the county caused by refusing to comply with the Elections Procedures Manual, and is compounding by refusing to comply with the law despite the superior court finding that the county is an inexcusable violation of the law,’’ he said.

Anyway, Fontes said, what the law requires will not require significantly more processing “as the county already trains provisional clerks, and stations a provisional clerk at each polling place.’’

He said allowing Pinal County to refuse to tally the out-of-precinct votes of its residents means they will be treated differently than every other voter in Arizona, violating the Arizona Constitution. Fontes said this unequal treatment could form the basis for litigation by those who lose the election.

“No individual county should be allowed to undermine confidence in the entire election process because that county believes its method — which does not comply with the law — is nonetheless a better policy choice,’’ he said. “The county should not be permitted to ignore the requirement, disenfranchise an identifiable class of in-person election day voters, and sow further confusion about Arizona’s election system.’’