By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A new lawsuit against Secretary of State Adrian Fontes could end up affecting whether Arizonans will get a voice in the November presidential election.

In legal papers filed in Maricopa County Superior Court, Senate President Warren Petersen and House Speaker Ben Toma contend  county supervisors have some discretion in deciding whether to simply accept the results or have some leeway to raise questions.

More to the point, attorney Kory Langhofer says there is some flexibility in the current deadline for counties to get their formal results to the secretary of state by the fourth Monday following the General Election, or Dec. 1 this year. He says if the supervisors want more time to consider the results, state law actually gives them 30 days after the general election, or until Dec. 5.

Those extra four days can make a big difference.

That’s because the state cannot begin mandatory recounts in close races until after the formal canvass. And a change in state law makes it more likely that a recount will be necessary.

And a new federal law requires states to send their results of the presidential race to congress no later than Dec. 11 — or not have the wishes of Arizona voters considered as well as counting the state’s its 11 electoral votes counted.

At the heart of the complaint is the Elections Procedures Manual. Adopted by the secretary of state with approval of the governor and attorney general, it is considered a guide for local officials to use when conducting elections.

Petersen and Toma allege some of what Fontes put into the new manual does not comply with state law. And they say that in such cases the statutory provisions override the manual’s guidance.

Fontes, in the new manual he has adopted, says if a county doesn’t get their official tallies to him by his deadline to certify the statewide results “the secretary of state must proceed with the state canvass without including the votes of the missing county.” That, says Langhofer, is illegal.

“Arizona law does not allow the secretary of state to disenfranchise the voters of an entire county,” he told Maricopa County Superior Court Judge Timothy Ryan.

More to the point, he disputes any contention the supervisors must simply rubber stamp the results as reported by the recorder. Instead, Langhofer said, Arizona law actually requires the board, on its own, to “determine the vote,” something that might take some extra time.

In fact, Langhofer argued, state law spells out if Fontes hasn’t received the official results from any county by that late November deadline, he actually has to postpone the formal statewide canvass “until canvasses from all counties are received.” And he said the law allows delays up to 30 days after Election Day.

Fontes, however, defended what is in the manual.

“Elections must have finality,” he said. “And the EPM provides a roadmap for our counties to help us move on.”

And Fontes bristled at the allegation in the lawsuit.

“Any accusation that this office disenfranchises Arizona voters is ridiculous,” he said.

Petersen, however, said the legal action has merit.

“Our lawsuit says you have to follow the law,” he said.

It all comes down to the time crunch.

That starts with the possibility of a mandatory recount in the presidential race. And that can’t occur until after the statewide canvass.

Joe Biden defeated Donald Trump in Arizona by 10,457 votes, winning the state’s 11 electoral votes. That’s a 0.3% difference.

Only thing is, a 2022 Arizona law increased the margin to trigger an automatic recount to 0.5%. So a race this year as close to the one in 2020 would force a recount, exacerbating already existing deadline problems.

And if the loss of those extra days means the state doesn’t get its formal results to Congress by that Dec. 11 federal deadline, the votes — and wishes — of Arizonans may become irrelevant as to who takes the presidential oath of office in January 2025.

This isn’t just an academic question.

The two Republicans on the three-member Cochise County Board of Supervisors initially refused in 2022 to certify the results of the election after they argued ballot tabulators were not properly certified.

That led to threats from then-Secretary of State Katie Hobbs that failure would lead her to conduct the canvass without the results from 47,284 ballots cast by county residents. And that would have changed the results of elections for state schools chief and Congressional District 6.

The board — at least two of its members — eventually relented, but only after being ordered to do so by a judge. And the votes of county residents were included in the final statewide tally.

Now the two Republicans, Peggy Judd and Tom Crosby, are facing felony charges that they illegally conspired to delay the formal canvass.

They also face a separate charge of illegally interfering with an election official. That is based on the delay in preventing Hobbs from completing the statewide canvass.

All this comes back to what Fontes included in the manual.

It says that county supervisors have “a non-discretionary duty” to canvass the returns provided to them by the county recorder or other official running the election. More to the point, the manual says the board “has no authority to change vote totals, reject the election results or delay certifying results without express statutory authority or court order.”

Langhofer, who had nothing to do with what occurred in Cochise County, said that’s not exactly what the law says.

“While (Arizona laws) require the board to conduct a canvass by a certain deadline, it also empowers the board to determine the vote of the county,” he told Ryan. And that, said Langhofer, means more than simply accepting as true the numbers board members get from whoever ran the election.

“The board’s statutory duty to canvass the vote does not necessarily require the board to accept the returns in the form provided by the election official or vote in a certain way regarding the accuracy of returns,” he said. Langhofer said that means what Fontes put in the manual conflicts with state election law.

That issue of the county deadline to canvass the votes and what happens if they do not is only part of the challenge to the manual by Petersen and Toma.

Some of the issues they raise are technical, like what happens when a county recorder gets notified that someone has moved. Petersen and Toma contend state law requires that person’s registration be canceled; the manual says it is placed on inactive status and may later be canceled.

But the two GOP leaders also are challenging Fontes’ interpretation of a law that requires county recorders to conduct monthly checks of those who are registered to vote if there is “reason to believe” someone is not a citizen.

Fontes, in the manual, says there are several ways for county recorders to perform that duty. But he also contends that “third-party allegations of non-citizenship are not enough to initiate this process.”

Not true, said Langhofer. He says the “plain language” of the law does require such checks if there is enough in an allegation, even one presented by an outsider, to suggest someone is not a citizen.

No date has been set for a hearing.