Secretary of State Adrian Fontes on Jan. 6, 2023, at an Arizona Chamber of Commerce and Industry event. Photo by Gage Skidmore (modified) | Flickr/CC BY-SA 2.0
A federal judge has blocked an Arizona rule aimed at enforcing timely finalizing of election results, ruling that the state can’t simply exclude a county’s results if local officials there refuse to certify them, and noting the various legal alternatives that should make the rule unnecessary.
Secretary of State Adrian Fontes had added the rule to the state’s most recent Election Procedures Manual, giving the secretary the power to move forward with the statewide certification without a county’s results.
But following a challenge to the rule led by conservative groups, U.S. District Court Judge Michael Liburdi ruled Friday that Fontes’ office did not address why the additional rule was needed when there are “various alternatives available to the State to ensure finality and prevent disenfranchisement of all voters.”
Liburdi’s order included a detailed explanation of those options to ensure all votes are counted on time.
For example, Fontes, a Democrat, can sue county supervisors and ask a judge to immediately force them to certify, and the state can bring criminal charges against the supervisors personally — both of which happened in connection with the 2022 election.
A spokesperson for Fontes’ office said the office was reviewing the order and deciding whether to appeal.
The question of what happens when an Arizona county refuses to certify its results is not at all hypothetical.
During the 2022 midterm, two Republican supervisors on the three-member Cochise County Board of Supervisors refused to certify the county’s results before the county’s deadline. A court ordered them to do so before the secretary’s deadline to finalize statewide results, prompting a hurried vote. The two supervisors were indicted last year on felony charges of conspiracy and interference with an election officer. A trial is set for January.
In right-leaning counties such as Mohave, supervisors have openly considered voting against certification in recent years, under pressure from GOP leaders and constituents who did not believe the elections were fair.
The rule Fontes added created a pathway for the state to certify statewide election results without including vote totals from a county where the board of supervisors refused to do their duty to certify.
In a court filing in August, Fontes’ office wrote that the new rule was intended to be a last resort in the “extremely remote possibility” that other backstops failed and the secretary would need to act in time for statewide certification deadlines.
Before relying on it, his office wrote, he would first use ” all of the tools at his disposal to include every legally-cast vote in the state’s vote totals.”
Arizona’s Election Procedures Manual is meant to act as a rulebook for county officials on how they must follow state election law. When Fontes rewrote it last year, he took into consideration how the midterm election played out, and added new rules on controversial topics such as hand-counting ballots and certifying results. Gov. Katie Hobbs and Attorney General Kris Mayes, both also Democrats, signed off on the manual in December.
Several other conservative groups sued in state court earlier this year, including Republican legislative leaders who focused their complaint in part on the rule about excluding a county’s results. That case is still pending.
Then in July, other conservative groups, including the Trump-aligned America First Policy Institute, brought the federal lawsuit that prompted Liburdi’s ruling last week. The lawsuit also challenged other rules in Fontes’ manual that restricted activities that the office felt would intimidate voters. A state court had already temporarily blocked those rules, and Liburdi ruled Friday that he would do the same until a hearing on the matter.
Fontes’ office had asked the judge to dismiss the lawsuit, writing that its characterization of the rule on excluding a county’s results set forth “a parade of horribles that could only occur if a lengthy chain of contingencies” occur.
Liburdi on Friday rejected that argument and approved the conservative groups’ request for an injunction, comparing the new rule to a “nuclear weapon” that had the potential to disenfranchise voters at the secretary’s whim.
“Defendants’ position is that it is better for election results to be final, as opposed to accurate, and, in true utilitarian fashion, it is better to disenfranchise ‘a few’ (potentially millions), as opposed to all,” he wrote. “But what value does finality accomplish when it is attained at the expense of democracy?”
Liburdi acknowledged three alternatives proposed by America First to certify a county’s results if supervisors are refusing to do so by its deadline, including allowing the secretary to certify the canvass in lieu of a board, seeking a declaratory judgment from a court as to the correct vote counts, and providing for the appointment of an auditor or special master to certify the results.
“Under any of these alternatives, the State would achieve finality in election results by the statutory deadline, and in a manner that ensures all voters are enfranchised,” Liburdi wrote.