Brnovich Loses Battle To Clean Up Elections Procedure Manual

Arizona Attorney General Mark Brnovich on Twitter demonstrating his skill with nunchuks

On Friday, Yavapai County Superior Court Judge John Napper found in favor of Arizona Secretary of State Katie Hobbs in a legal battle with Arizona Attorney General Mark Brnovich.

The judge found that Hobbs “properly exercised her discretion when timely presenting a draft of the 2022 Elections Procedures Manual  (EPM) to the AG and the Governor.”

The lawsuit was brought by the Arizona Attorney General’s Office and the Yavapai County Republican Committee and involves the 2022 election cycle’s EPM.

As a result of this ruling, the 2022 elections will be guided by the 2019 EPM that the judge found was “properly submitted and approved by the Governor and the Attorney General. Election officials are following the 2019 EMP while adhering to any changes occurring since its submission. As the last approved EMP it currently remains the EMP for Arizona elections.”

In the lawsuit, filed on April 21, 2022, the parties allege that Hobbs has not fulfilled her duty to prepare a new manual for the 2022 election. The parties have asked the Court to order Hobbs to produce a new one by May 4.

The Attorney General sought special action relief ordering Hobbs to comply with the mandatory requirement of submitting a legally compliant EPM for approval by the AG and Governor Doug Ducey. The AG argued that the rules that would otherwise be contained in an EPM for the 2022 election cycle cannot be enforced in the absence of a valid EPM for that cycle.

The AG claimed that a “lack of statewide rules to guide county officials in election administration could lead to arbitrary treatment of ballots, resulting in violations of Arizona election laws and post-election challenges.”

Court ruling:

The Court finds the Secretary properly exercised her discretion when timely presenting a draft 2022 Elections Procedures Manual (EMP)  to the AG and the Governor. The draft certainly required editing and revision. However, the Court finds the draft was constructed in compliance with the Secretary’s duties contained in A. R. S. 16-452. Accordingly, the Court denies the relief sought in the complaint for Special Action.

Facts and Procedural History

It is worth repeating, the Secretary’s duty is to produce an EMP for the approval of the AG and the Governor. The Secretary’s initial EMP submission is not finalized until it receives this approval. Historically, these three actors have worked together to prepare and finalize and agreed upon EMP. The statue builds in ample time and opportunity to iron out any and all disputes (from October 1st to December 31st). This did not happen in 2021. The parties’ failure to properly work with one another to improve the Secretary’s initial draft of the EMP does not mean she failed to perform a ministerial or discretionary act requiring a mandate from the Court.

The AG is rightfully concerned about the failure of the parties to comply with the timing of A. R. S. 16–452. The EMP was supposed to be finalized and approved by December 31, 2021. At this point in the game, there is no mechanism for the Court to assist the parties and constructing an EMP which complies with A. R. S. 16-452 within the timelines of the statute. The complaint was filed far too late for this to occur without disrupting elections that have already begun. It is for another Court on another day to determine whether this is a proper role for the Courts.

The failure to produce a new EMP does not leave Arizonans without guidance. The 2019 manual was properly submitted and approved by the Governor and the AG. Election officials are following the 2019 EMP while adhering to any changes occurring since its submission. As the last approved EMP, it currently remains the EMP for Arizona elections.

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3 Comments

  1. Your second paragraph pretty much sums up my attitude too.
    However, Brnovitch as a viable choice for me is gone. Too little too late….’No Senate for you!’

  2. So now we get to have another election with state-wide fraud by using the same tainted EPM as for the 2020 election. I wonder if that judge is a Democrat?

  3. I can’t speak for anyone else, but Brnovitch gets my vote in the Senate primary ONLY if he shows serious progress in cleaning up vote fraud in the state. Perp walks of major figures in the Maricopa County coverup would help a lot. Losing to Katie Hobbs on reforming election procedures for this year? Not so much.

    There is of course the sneaking suspicion that my vote in the upcoming primary may simply not matter, and that that may be the whole point of the way cleanup of the ’20 scandal has been slow-rolled. At this point, I’d have to say that lack of faith in the process is a strong sign of having paid attention these last few years.

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