Fontes didn't allow enough public comment time for Elections Procedures Manual, court rules

The Arizona Court of Appeals has ruled Secretary of State Adrian Fontes did not provide enough time for public comment on a set of rules he drafted for running elections.

In the Thursday ruling, judges noted Arizona law requires providing at least 30 days for comments on proposed regulations.

But they pointed out that Fontes, in enacting the Elections Procedures Manual ahead of the 2024 vote, provided half that amount of time. The manual provides instructions for counties on how to run elections based on state law.

The decision did not address any substantive claims of what’s in the manual, only the public comment period question, so it’s not clear how the ruling will affect future elections.

A spokesman for Fontes said he disagrees with the ruling and vowed to appeal to the Arizona Supreme Court.

At the heart of the dispute is the Elections Procedures Manual.

Arizona law, as approved by the Legislature, governs how elections are supposed to be conducted. The manual, which is not only authorized by law but legally required, serves as more of a "how to'' for local election officials, filling in the fine details on everything from how to handle voter registration through rules for people dropping off their ballots as well as procedures for counting and recounts.

It's provisions also have the force of law, with violations considered criminal offenses.

It has generally been noncontroversial.

But that changed as Republicans became unhappy with some of the rules from Democratic secretaries of state, first with Katie Hobbs and now with Adrian Fontes. And they and their political allies have filed a series of lawsuit alleging that what's in the manuals -- there are supposed to be new ones before every election -- is not within what the law allows.

In this case, the challenges ranged from when a county recorder has to demand "documentary proof of citizenship'' to register to vote to whether election officials should count ballots cast in the wrong precinct.

Maricopa County Superior Court Judge Frank Moskowitz tossed the case out last year, ruling that nothing in the manual conflicts with state law. That led to this appeal.

The appellate judges, however, never addressed those issues. Instead, they concluded that Fontes failed to follow the law in adopting the latest version of the manual.

Specifically, they noted that Fontes published a 259-age draft on July 31, 2023, allowing comment for 15 days.

On Aug. 15, the Republican National Committee submitted a formal complaint, not just about specific provisions but the "unnecessarily restrictive'' and short public comment period.

Fontes did submit a revised draft to the governor and attorney general on Sept. 30, saying it has been posted for public comment "in keeping with the good practice of the prior administration,'' that being Hobbs. And he said suggestions had been incorporated "where appropriate.''

A final, 268-page version was adopted Dec. 30, leading to this lawsuit.

Judge Lacey Gard, writing for the appellate court, said that broke the law.