Judge rejects America First Legal's claim Fontes tried to mislead voters about Arizona Prop. 144

A judge has rejected claims by a conservative legal group that accused Secretary of State Adrian Fontes of trying to mislead voters and get them to reject a Republican-crafted ballot measure that seeks to make several major changes in state election laws.

In a new ruling, Maricopa County Superior Court Judge Adele Ponce said Arizona law requires the secretary to prepare language that appears on each ballot explaining the effects it would have if approved. And the judge acknowledged that Fontes did not mention each and every provision in the explanation of Proposition 144.

But she said the secretary did not break the law.

There's a lot in Prop. 144. Provisions range from enshrining in the Arizona Constitution that only citizens can vote, imposes restrictions on spending by foreign nationals to influence elections, and sets up new procedures for tallying ballots at each polling place versus bringing them to a central location. It also would require all voters to show identification when casting a ballot -- even those who vote by mail.

In filing suit, James Rogers, an attorney with America First Legal, complained that the explanation prepared by Fontes did not mention that one section would spell out that "only citizens may register and vote in Arizona elections.'' Another says that elections in Arizona "shall be decided solely by the votes of eligible citizen voters.''

Fontes, however, has taken the position that all that already is state law, and nothing in Prop. 144 would change all that. And Ponce said it was his decision to make.

"Giving the secretary the deference due under the law, the court finds the description's inclusions or omissions are neither false nor clearly misleading,'' the judge wrote.

Ponce also found nothing wrong with Fontes saying that a provision in Prop. 144 which would prohibit foreign nationals from spending money to influence elections is "similar to provisions that already exist in federal law.'' The judge said even if there are differences between what's in the proposition and federal law, the statement is not false and "can reasonably be regarded as an attempt to provide necessary and appropriate information.''

But perhaps the most crucial part of the new ruling is that Ponce rejected claims by Rogers that Fontes was trying to mislead voters by telling them that if they approve one key provision spelling out the authority of lawmakers that it "may make it harder to challenge election laws.''

What makes all that significant is that one section of Prop. 144 would require every person to show valid identification before casting a ballot in each election, "whether voting in person or by any other method, as prescribed by law.''

Only thing is, nothing in the ballot measure explains how that would affect the more than 80% of Arizonans who vote by mail. Instead, it leaves it to future legislatures to work out the details.

But Prop. 144 would put language into the Arizona Constitution that all future election laws -- including on early and mail voting -- are presumed to be legal as long as they are connected to what the legislature considers a "legitimate state interest.'' And that covers everything from getting timely election results to "preserving public confidence in the integrity of elections.''

It was based on that language that Fontes, in his description of Prop. 144, told voters that if it is approved it "may make it harder to challenge election laws.''

Rogers claimed that the secretary was making improper legal predictions, and doing so in a way that could affect whether people decide to vote for the measure. But Ponce wasn't buying it.

"The fact that it is unknown precisely how the language will be applied or interpreted by the courts does not preclude the secretary from describing its potential impact, not does it render that description false or clearly misleading,'' the judge wrote. "Rather the description can reasonably be regarded as an attempt to provide necessary and appropriate information to the voting public.''

Ponce said even if she accepted all of the arguments by America First Legal, it wouldn't matter.

She said Arizona law requires that someone allege "a distinct and palpable injury'' to be able to sue to force Fontes to change the ballot description to something they claim is more accurate.

It is true, Ponce said, that three individuals who America First Legal named as plaintiffs support Prop. 144 as it was approved by the Republican-controlled legislature. But the judge said that's not enough.

"This is not a distinct or palpable injury, but a generalized harm that is shared by all or a large class of citizens, insufficient to provide standing,'' she wrote. And Ponce said the fact that the three individuals signed up to speak in favor of the measure as it was going through the legislative process does not give them any special right.

In filing the lawsuit, Rogers -- himself a Republican candidate for the state House from Mesa -- sought to interject politics into the litigation.

He told Ponce that she needed to take extra care to examine his claims that Fontes has not complied with what the law requires in preparing a ballot explanation. That, he said, is because Prop. 144 was crafted by state Rep. Alexander Kolodin.

Currently a Scottsdale Republican, he is the GOP nominee for secretary of state. And that means he will face off in November against Fontes, a Democrat.

Rogers said that Fontes' political interests "explain how the ballot language came to resemble an argument against Proposition 144 and underscore the need for exacting judicial review.''

"Arizona law requires official ballot language to be impartial, accurate, and free from advocacy,'' he continued. "Secretary Fontes' description of Proposition 144 fails all of these requirements.''

The judge essentially ignored that argument and never addressed it in her ruling.

There was no immediate word about whether there would be an appeal to the Arizona Supreme Court.

This is actually the second time Ponce has issued a ruling about Prop. 144. In a separate challenge, Randy Keating, a member of the Tempe City Council, sought to block the measure from even the ballot. He charged the proposal ties together too many unrelated provisions alongside the new voter ID requirement, violating a constitutional requirement that voters should be given the opportunity to decide disparate measures individually.

In that case, however, Ponce rejected the claim, concluding that everything in Proposition 144 is "topically related'' and "sufficiently interrelated.'' That ruling is being appealed to the Supreme Court.