When several counties conduct elections this spring, they will follow an Arizona Elections Procedures Manual (EPM) that has not been updated since 2019, even though state law required a new EPM by the end of 2021 and another is due this year.
Among those set to hold a May 2023 election is Cochise County, where a controversial proposal for funding a new jail with a 25-year sales tax increase will be on the ballot. There may also be a highly charged recall measure involving a county supervisor.
As with all counties, the EPM is considered the rule book or “how to” for Cochise County Recorder David Stevens and Elections Director Lisa Marra to conduct elections under titles 15, 16, or 49 of Arizona Revised Statutes. The provisions of the EPM also carry the force of law when not in conflict with statute (which always takes precedence).
But unless new Arizona Secretary of State Adrian Fontes addresses the outdated EPM issue very soon, the several elections set to be held across the state in four months will provide more opportunity for local elections officials to decide some of their own “how to” in light of several new elections laws and election-related court rulings since 2020.
Fontes, who campaigned for Secretary of State on a pledge to “simplify and advance” the EPM, has not publicly announced a timeline for addressing the outdated 2019 EPM. And having outdated processes increases the chance of inconsistent policies among Arizona’s 15 counties and all the other public entities which conduct elections.
“Elections officials across the state must be on the same page with every aspect of election administration in order for Arizonans to have confidence in any election results,” says Sen. Ken Bennett, a former Arizona Secretary of State. “This involves consistency with interpreting the state’s elections laws and consistency in how those laws are implemented through the EPM.”
In August 2021, then-Secretary of State Katie Hobbs submitted her draft of a new EPM well in advance of the year-end deadline for then-Gov. Doug Ducey and then-Attorney General Mark Brnovich to review and approve it for use during the 2022 and 2023 election cycles.
At the time, Hobbs noted her draft incorporated legislative and legal updates, as well as input from elections officials in all 15 counties.
“The counties work directly with their communities, which is why their involvement was crucial from start to finish,” Hobbs noted.
But Brnovich, as Arizona’s chief legal officer, refused to give his blessing to Hobbs’ draft. Just three weeks before the deadline, he returned a “red-lined” version detailing changes his office argued were needed to “not unnecessarily expose election officials and workers to criminal penalties.”
The two exchanged partisan attacks about who was failing to take their statutory duty seriously, while elections officials across the state were left waiting for an updated 2021 EPM.
Brnovich went on to sue Hobbs in early 2022 in a Yavapai County court, hoping a judge would declare the attorney general’s redlined draft as the new EPM. Without a court’s involvement, Brnovich argued, there would be “no enforceable EPM governing 2022 primary and general elections.”
Judge John Napper of the Yavapai County Superior Court rejected the attorney general’s argument that Hobbs had not properly exercised her discretion. The ruling acknowledged the Secretary of State’s draft EPM “certainly required editing and revision” but there was no showing Hobbs failed to perform any of her ministerial or discretionary duties.
Instead, the judge chided all parties for not finding a way to work through their differences.
Napper did, however, rule the 2019 EMP would remain in effect for the 2022 election cycle, “adhering to any changes occurring since its submission.” The judge did not mention how 2023 elections were to be administered in Arizona.