Contempt Finding Sought From Supreme Court After Maricopa County Officials Ignore Elections Order

Maricopa County Recorder Adrian Fontes

A motion to hold several Maricopa County officials in contempt for disobeying an Arizona Supreme Court order was filed Thursday by a non-profit organization that promotes integrity in government and public institutions.

Attorney Alexander Kolodin filed the civil contempt motion on behalf of Arizona Public Integrity Alliance. It seeks a finding that Maricopa County officials -including Recorder Adrian Fontes and the five members of the Board of Supervisors- intentionally disregarded a lawful order issued on Sept. 10 by the Supreme Court.

That order prohibited Maricopa County officials and its election vendors from instructing voters to simply cross-out voting mistakes instead of obtaining a new ballot as required under state election law.

Under current law, if a voter makes too many marks on a ballot the tabulation machine will reject the entire ballot for further review.  If an election review board cannot easily ascertain the voter’s intent for a specific ballot item then no vote would be recorded for that item.

That is why voters should always request a new ballot rather than cast a ballot with an errant mark. But Fontes ignored current state election procedures when he prepared his own what-to-do rules, referred to in litigation as the “New Instructions.”

The new “cross-out and re-vote” instruction advised voters to draw a line through any mistake and then fill-in the intended vote. Fontes planned to include his new instructions with ballots mailed out to more than 2 million voters on the permanent early-voting list.

That’s when Arizona Public Integrity Alliance stepped in and sued Fontes and Maricopa County, including each board supervisor. The group’s concern, Kolodin argued at the time, was that county officials had “no discretion or authority to provide the New Instruction, or any substantially similar instruction.”

The Arizona Supreme Court agreed, and on Sept. 10 the justices ruled it was impermissible for Fontes to mail out his new instruction. The order applied to Fontes, Maricopa County, the county’s “elections officials” and its vendors.

Fontes, who is a lawyer, complied with the Supreme Court order, but he wasn’t happy with it.

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“This ruling is bull crap,” he posted on 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 front of them.”

He even used the issue as a campaign platform, asking people to “chip-in” to help him continue “to fight for ALL voters in EVERY party.”

The contempt motion argues Fontes’ “public, explicit, and derogatory comments regarding this Court’s Order and opposing counsel additionally constitute acts which serve to embarrass this court and represent attacks on its dignity” and that Fontes’ continuing efforts to promote the New Instruction “represent additional attacks on this Court’s authority.”

But Fontes isn’t the only county official whose involvement with the new instruction has run afoul with Arizona Public Integrity Alliance.

The office of Maricopa County School Superintendent Steve Watson is responsible with the county board to oversee the Nov. 3 bond and override votes for 18 school districts in the county.  Between Sept. 23 and Sept. 29, Watson’s office mailed out informational pamphlets for each of the district elections.

And those pamphlets contained the identical “cross-out and re-vote” instruction Fontes created that the Arizona Supreme Court ruled was impermissible under state election law.

A finding of civil contempt against officials involved in the distribution of the errant instruction is necessary, Kolodin argues, “to discourage similar conduct in the future.” That includes officials who were subject to the Sept. 10 Supreme Court order but failed to ensure all others were made aware.

According to the contempt motion, this isn’t the first time Fontes has had his professional behavior challenged in court. In 2013, a judge found his conduct in a case bordered “on the egregious and stems from an apparent laxity and indifference toward his professional responsibilities as a practitioner before the Court.”

Kolodin’s motion also notes Fontes’ failure to ensure compliance with the Supreme Court’s Sept. 10 order “represents, at best, a continued pattern of laxity in his duties to our judicial system.”