Governor Calls On Legislature To Address Election Procedures Manual After Hobbs And Brnovich Fail

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Governor Doug Ducey notified Secretary of State Katie Hobbs and Attorney General Mark Brnovich that he will not take any action on the 2021 Election Procedures Manual due to lack of agreement between Hobbs and Brnovich. In a letter to the officials, the Governor’s attorney suggests the Legislature should address areas identified by the Attorney General’s Office.

Governor Ducey’s General Counsel Anni L. Foster wrote:

The Governor’s office has reviewed the 2021 version of the Arizona Secretary of State Election Procedures Manual (2021 EPM) that you submitted for approval on October 1, 2021. Due to the lack of agreement on proposed revisions between you and the Attorney General, there is no action for the Governor to take at this time.

After completing the legal review of the EMP, the Attorney General submitted edits of the EMP to your office on December 9, 2021 and subsequently correspondence between the two of you have not resulted in agreement on whether certain revisions should be included or not.

The Governor believes election integrity is paramount. An accurate and updated EPM ensures both consistency throughout and 15 counties and predictability for our electorate. However, given that the EPM carries with it the force of law, the first objective must always be compliance with the law by ensuring that the executive branch is not draining into the responsibilities of the legislature.

In 2021, the historic landscape under which the EPM has been implemented was changed following the decision by the Supreme Court and Leach vs. Hobbs.  As the court clearly articulated in that case, “an EPM regulation that exceeds the scope of it statutory authorization or contravenes an election statue’s purpose does not have the force of law.” It is through this lens that any approval of the EPM must be viewed.

Our office recognizes that there were positive additions made to the 2019 EPM in the 2021 draft EPM, and we were encouraged to see new provisions related to security procedures and ballot chain-of-custody procedures. For that reason, the Governor encourages the legislature to address any policy matters that exist as a result of the inability to get approval of the 2021 EPM to ensure that the continued integrity of Arizona’s elections and assist our local officials in providing consistency throughout the state in the operation of the election elections.

The lack of an approved 2021 EPM is already creating questions for campaign operatives who are wondering if they need to be following the 2019 Manual and whether anything the Legislature does will be effective in time for the primary election scheduled for August 2nd.

“Democrats aren’t going to support election integrity efforts which means any fixes are going to take every elected Republican agreeing, and even then the laws won’t be effective until 90 days after the end of the session, so how will that work if ballots are going out July 4th?” asked one operative, who also wondered how the various county election officials would be able to handle late changes to procedures between the primary and general elections.

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