By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — An attorney for Pinal County says Secretary of State Adrian Fontes is breaking the law by trying to force it to set up voting centers.

Brett Johnson says nothing in state law requires counties to allow people to vote at any location they want on Election Day. In fact, he said, it is statutorily up to each county’s board of supervisors to make that choice.

But Johnson, in filings with the Arizona Supreme Court, said the secretary did an end-run around the law by “surreptitiously” inserting language into the state Elections Procedures Manual to try to force every county to effectively do just that. And that, he said, is beyond Fontes’ authority.

“The secretary believes, as a policy matter, that voting centers are preferable to polling places,” Johnson told the justices. But he said that does not give him the right to impose that on every county “through obscure regulations buried in the Elections Procedures Manual.”

For the moment, nothing is going to change.

Pinal County Superior Curt Judge Delia Neal did rule the county was not complying with what is in the manual. And that manual, crafted by Fontes but with the approval of Gov. Katie Hobbs and Attorney General Kris Mayes, is presumed to have the force of law.

But Neal said Fontes, who Johnson said had known about the county’s plan for months, did not file suit until Sept. 27 in a bid to force compliance. And that, she said, came too late to force county recorder Dana Lewis to make an immediate change in procedures.

Fontes now wants the Supreme Court to overrule that decision ahead of the Nov. 5 election. But Johnson told the justices they should send him packing.

Some counties have used voting centers for years, allowing any voter to cast a ballot at any location. That can happen because on-site computers can link to a central location to determine where that person lives and print out a ballot specific to that voter, with only the appropriate choices for things like legislative, supervisor, justice of the peace and school board candidates.

Johnson told the justices Pinal supervisors chose not to go that route, saying there are advantages to using a precinct-based polling place model.

He cited a 2021 ruling of the U.S. Supreme court — one actually out of Arizona — that concluded such a system “helps to distribute voters more evenly among polling places and thus reduces wait times” and they are placed “closed to voter residences” than voting center locations.

Johnson also said the county makes active efforts to ensure residents know where are their assigned polling places.

The other side of it is that if someone shows up at the wrong precinct and insists on voting, he or she is given a provision ballot — one which is not tallied.

All that was not an issue, Johnson told the court, until just days before Christmas in 2023 when Fontes published a final version of the manual with the new requirement.

It mandates that each voting location have an “accessible voting device” that contains all ballot styles of every precinct. And that device produces a ballot specific to that voter’s address, which is counted.

All that, said Johnson, conflicts with state election law that limits Fontes’ authority over things like regulating ballot styles.

“The secretary cannot accomplish indirectly what he is not permitted to do directly,” the attorney told the high court.

“There, the board of supervisors — not the secretary — has the authority to convert the county to a ‘voting center’ model,” Johnson continued. “The secretary cannot subvert this authority through obscure regulations buried in the Elections Procedures Manual.”

He said there are other legal problems with what Fontes has put in the manual, citing another section of state election law.

“No person shall be permitted vote unless such person’s name appears as a qualified elector in both the general county register and in the precinct register,” the statute reads.

And Johnson said the U.S. Supreme Court, in that 2021 ruling, said there’s nothing illegal about saying that if a person casts a provisional ballot in the wrong precinct, that vote is not counted.

At the very least, Johnson told the justices the merits of Fontes’ claim should be not be handled in this rushed fashion he said will create a burden on county election officials.

The justices have not set a deadline for deciding the issue. But they have to act — or decide not to act and leave the lower court order allowing the current precinct-based voting to occur this year — within days, given that the election is less than two weeks away.