PHOENIX, AZ -Under the leadership of Senate president Karen Fann, a majority of the Arizona Senate’s Republican caucus warned Secretary of State Katie Hobbs not to overstep her authority when drafting the 2021 Elections Procedures Manual. The senators accuse Hobbs of including revisions are not allowed under state law.
The senators alleged that the revisions violate A.R.S. 16-452, which allows the secretary of state only to prescribe “rules to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency” for voting, counting ballots and other election procedures.
The senators believe that Hobbs is overstepping her authority by making policy instead. They wrote:
As you’re aware, the Secretary of State authority regarding the Election Procedures Manual (EPM) is illustrated in A.R.S. 16-452, which states that the Secretary of State shall simply “prescribe rules to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures for early voting and voting, and of producing, distributing, collecting, counting, tabulating, and storing ballots.” Nothing here indicates authority for policy making by expanding or modifying existing sttutory election laws through the EPM. Attempts by your office to do just that were thwarted by the Arizona Supreme Court in McKenna v. Soto, which invalidated portions of the EPM that contained guidance on matters that “fall outside the mandates of §16-452 and do not have any other basis in statute.” McKenna V. Soto, 481 P.3d 695 (Ariz. 2021).
Title 16, Arizona Revised Statutes, enumerates the election laws of this state and the scope of authority for revisions to election procedures A.R.S. § 16-191). As members of the legislative branch, the undersigned Senators express deep concern with apparent efforts by your office to enact substantive election law once again through draft revisions to the 2021 EPM.
As members of the Arizona State Senate, we caution of the Secretary of State office against failing to comply with the narrow scope of authority provided in A.R.S. § 16-452. Revisions to the 2021 EPM that go beyond the scope of statutory authority are firmly advised against, not lawfully justifiable and subject to challenge. As such, we encourage your office to take the opportunity to revisit the revisions that have no basis in statute prior to submission of the draft 2021 EPM to the Governor and the Attorney General.
Hobbs proposed that county elections officials be required to count some votes from out-of-precinct voters in conflict with the U.S. Supreme Court’s ruling in Brnovich v. Democratic National Committee.
— Karen Fann (@FannKfann) September 9, 2021
While we were unable to reach several Republican senators for additional comment, State Senator David Livingston did respond and confirmed that he was one of the State Senators who was taking Hobbs’ actions seriously. “Secretary Hobbs is again trying to exceed her legal authority and play games with how our elections are conducted. At a time when voters want honest and accurate elections, her playing partisan games undermines election integrity, and I’m certainly going to do whatever I can to stop her,” said Livingston.