An Arizona Court of Appeals panel ruled unanimously 3-0 last week that revisions to the state’s Election Procedures Manual (EPM) were illegally made by Secretary of State Adrian Fontes due to violating rulemaking procedures. The Republican Party — the Arizona Republican Party (AZGOP), the Republican National Committee, and the Yavapai County Republican Party — had sued Fontes over the illegal changes. Despite the fact progressive election attorney Marc Elias and top Democratic law firm Perkins Coie represented the defendants, the court found that the 2023 version of the EPM was invalid since Fontes only provided half the time for public comment that Arizona’s Administrative Procedures Act (APA) requires.
“This opinion from the court shows just how much Secretary Fontes and his allies in the Governor’s and Attorney General’s offices overreached in their partisan efforts to hijack our elections through this blatantly political manual,” said AZGOP Chair Gina Swoboda in a statement posted on X. “As we have highlighted to the court, the most-recent elections manual contained many provisions that ran utterly contrary to Arizona law, giving the Democrat machine a clear advantage at the ballot box for years to come. Under my leadership, the AZGOP has co-led successful efforts to restore this manual to alignment with our state’s election statutes. We will continue to be vigilant against any and all attempts from the radical left to illegally assume control of our elections.”
The trial court first dismissed the lawsuit last May, claiming the APA did not apply, and allowed the EPM to be in effect for elections. The secretary of state is required by law, A.R.S. 16-452, to update the EPM every other year. The APA requires officials to provide 30 days comment on proposed rule changes, but Fontes only allowed 15 days during the summer of 2023.
Judge Lacey Gard authored the opinion, joined by judges Christopher P. Staring and Christopher O’Neil. The opinion stated that the trial court erred by finding that A.R.S. 16-452 provides an independent procedure that preempts the APM.
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