Arizona Supreme Court Issues Rebuke Against Maricopa County Recorder Fontes

Maricopa County Recorder Adrian Fontes

In one of the most scathing rebukes of a public official in years, the Arizona Supreme Court released an opinion Wednesday that said Maricopa County Recorder Adrian Fontes “acted unlawfully” when he issued an instruction to voters that was at odds with the state’s official elections manual.

“Election laws play an important role in protecting the integrity of the electoral process,” Justice Andrew Gould wrote in the opinion. “But when public officials, in the middle of an election, change the law based on their own perceptions of what they think it should be, they undermine public confidence in our democratic system and destroy the integrity of the electoral process.”

In September, the Arizona Supreme Court ruled Fontes and other Maricopa County officials “exceeded their authority” with a new instruction involving overvoting on early voting ballots which conflicts with the Arizona Elections Procedures Manual.

The justices prohibited the county, as well as their ballot vendor, from including the instruction with ballots and promised a formal opinion explaining the ruling at a future date. That opinion was released Nov. 5 and Gould did not hold back in his comments.

“Our decision today underscores the role of public officials in preserving and protecting our democratic system,” he wrote. “The legislature has expressly delegated to the Secretary (of State) the authority to promulgate rules and instructions for early voting. Accordingly, we hold that the New Instruction does not comply with Arizona law.”

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The dispute involved what mail-in voters should do if they overvote a ballot, which occurs when a voter fills the oval for more candidates than permitted in a specific contest.  This most commonly happens when a voter accidentally fills in the oval for a candidate the voter didn’t intend to vote for.

The state’s official elections manual instructs voters who overvote on a ballot to request a new ballot from their county recorder. Otherwise, its possible none of the overvoted portion of the original ballot will be counted.

But for Maricopa County elections in March and August, Fontes’ office sent out its own instruction to early voters that conflicts with the state’s elections manual. Instead of simply requesting a new ballot, county voters were instructed to “cross out” an incorrect vote and then fill in the intended oval.

A challenge to that instruction was filed in August by the Arizona Public Integrity Alliance and its president Tyler Montague after Maricopa County officials announced plans to mail the same unapproved instruction with early voting ballots in October.

A main argument put forth by plaintiffs’ attorney Alexander Kolodin was that Fontes’ instruction would cause overvoted ballots to be rejected by tabulation machines. An election official would then have to review the ballot to “interpret” the voter’s intent, which Kolodin argued opened the door to election fraud and abuse.

Gould and three other justices, including Chief Justice Robert Brutinel, agreed.

“The Recorder does not have the constitutional or statutory authority to promulgate mail-in ballot instructions, nor does he have the authority to create voter guidelines for correcting overvotes to ensure that they will be counted,” Gould wrote. “Accordingly, we hold that the New Instruction does not comply with Arizona law.”

Maricopa County officials did not mail out the prohibited overvote instruction with the general election early ballots, but they published it after the Supreme Court’s ruling as part of election pamphlets mailed to voters within 18 school districts across the county.

In addition, Fontes did not hesitate to publicly express his displeasure with the Arizona Supreme Court.

“This ruling is bull crap,” he posted to Facebook on Sept. 19. “I’ve been forced to make an unnecessary and out-dated instruction to voters by ignorant lawyers and the AZ Supreme Court who didn’t have all the information in from of them.”

Fontes included the comment with a fundraising plea for his election campaign.

As a result, the Arizona Public Integrity Alliance filed a motion last week with the Arizona Supreme Court seeking a contempt order against Fontes and the other Maricopa County defendants. The county defendants have until Dec. 2 to respond to the motion for contempt.