Secretary of State Adrian Fontes is facing another lawsuit for his interpretation of state law in the Election Procedures Manual (EPM): this time, over ballot drop boxes.
State law doesn’t explicitly permit the use of ballot drop boxes not located near or on nongovernmental property, especially those without election staffers monitoring them. Arizona Free Enterprise Club (AFEC) and the Thomas More Society (TMS) contended in their lawsuit filed last week that this meant Fontes’ permissive policy on drop boxes in his draft EPM wasn’t lawful.
AFEC expressed hope that the lawsuit would result in a change preventing the use of unstaffed ballot drop boxes for the 2024 election.
“Our lawsuit contends that state statute limits the use of drop boxes to locations that are monitored by election workers, which can include existing polling locations and the county elections office,” said AFEC. “Despite this limitation, election officials and the existing election procedure manual are ignoring statute and have been setting up unmanned drop boxes all throughout the state.”
BREAKING: @azfec and @ThomasMoreSoc have filed a lawsuit in Yavapai Superior Court to challenge the legality of election drop boxes. https://t.co/RqkF2jwKYD
— Arizona Free Enterprise Club (@azfec) October 19, 2023
The lawsuit cites several specific provisions of statute to bolster the claim that drop boxes designated for early voted ballots (or, mail-in ballots) must be located at either the offices of the county recorder or designated election official, or a polling place:
A.R.S. § 16-547(D): “In order to be valid and counted, the ballot and affidavit must be delivered to the office of the county recorder or other officer in charge of elections or may be deposited at any polling place in the county no later than 7:00 p.m. on election day.”
A.R.S. § 16-548(A): “In order to be counted and valid, the ballot must be received by the county recorder or other officer in charge of elections or deposited at any polling place in the county no later than 7:00 p.m. on election day.”
A.R.S. § 16-579.02(G): “Any qualified elector who lawfully brings to a polling place or voting center another elector’s voted early ballot that is sealed in its affidavit envelope shall deposit the other elector’s voted early ballot in the appropriate ballot drop box before entering the on-site early ballot tabulation area for purposes of tabulating the elector’s own early ballot. The county recorder or other officer in charge of elections shall ensure that a voter is not in possession of another voter’s ballot within the on-site early ballot tabulation area.”
Cited statute also conflicts Fontes’ EPM according to the lawsuit, which contended that only federal postal workers or a voter’s designated agent — limited to a family member, household member, or caregiver — may deliver voted ballots:
A.R.S. § 16-547(E): “A person may only handle or return their own ballot or the ballot of family members, household members or persons for whom they are a caregiver. It is unlawful under section 16-1005 to handle or return the ballot of any other person.” (Note: this law doesn’t go into effect until Oct. 30)
By contrast, Fontes’ EPM allows counties to use what it calls a “ballot retriever” to retrieve the ballot drop box contents.
Unlike regular USPS mail collection boxes, ballot drop boxes are obviously designated for ballots only and aren’t required to be locked. Instead, the Fontes EPM allows counties to either use a tamper-evident seal or a lock for the drop boxes. The ballot drop box contents also aren’t counted or scanned immediately upon collection, unlike mail collected by postal workers.
Fontes’ draft EPM provision on drop boxes failed to include a reference to the relevant statutory authority, unlike the other provisions throughout the EPM: a detail that didn’t escape the notice of AFEC or TMS.
“The EPM’s omission of citations to Arizona’s statutes was surely not an oversight. When a statute supports an EPM regulation, the EPM cites it,” stated their lawsuit. “Apparently, though, the EPM’s authors could find no enabling statute supporting unstaffed drop boxes.”
Yet, Fontes contends that his interpretation of the law justifies his allowance of unstaffed drop boxes. His spokesperson contended in statements to media outlets that Fontes has statutory authority to prescribe rules on county ballot collections.
Fontes’ ability to properly interpret state law regarding elections was found to be faulty earlier this year.
AFEC successfully sued Fontes over his allowance of any signatures under a voter’s records to be used for signature verification under the current EPM, established by Gov. Katie Hobbs while she was secretary of state in 2019. (Hobbs’ 2021 EPM was rejected by former Attorney General Mark Brnovich, who claimed her provisions violated state law).