Ariz. Pub. Integrity All. v. Fontes (11/5/2020)

December 23, 2020

Arizona Supreme Court holds that a county recorder cannot change or supplant the rules regarding instructions for early voting promulgated by the Secretary of State.

“Overvoting” refers to voting for more candidates than allowed for a specific election race. The Secretary of State’s Election Procedures Manual outlines instructions for country recorders to provide to mail-in voters regarding overvotes. During the 2020 presidential preference and primary elections, the Maricopa County Recorder included different overvote instructions (the “New Instructions”) in mail-in ballots than those adopted by the Secretary.

A political nonprofit group filed a special action to enjoin the recorder from including the New Instructions in mail-in ballots for the 2020 general election. The Arizona Supreme Court accepted special action jurisdiction and granted relief.

First, the Court held that the recorder exceeded his statutory authority by promulgating the New Instructions because the Legislature delegated the power to adopt voting instructions to the Secretary of State under A.R.S. § 16-452(A). By contrast, A.R.S. § 16-547(C) limits the recorder to providing voters with instructions in accordance with the Secretary’s Elections Procedures Manual. In light of these statutory delegations, the Court determined that the recorder had neither an express nor implied power to promulgate voting instructions or to alter the instructions provided by the Secretary in the Elections Procedure Manual.

Second, the Court rejected the recorder’s argument that the law required him to provide voters with the New Instructions. It explained that the recorder’s position misunderstood the recent amendments to the Elections Procedures Manual. Contrary to the recorder’s reading, the amendments did not change the prescribed method for correcting an overvote (i.e., requesting a new ballot) and thus did not entitle voters to instructions regarding other ways to correct overvotes. The Court also noted that even if Arizona law required the New Instructions, it was not the recorder’s role to promulgate them.

Justice Gould authored the opinion; Chief Justice Brutinel and Justices Lopez and Beene joined.