Ducey put Reagan’s elections manual on hold after county recorders complained

Gov. Doug Ducey withheld his approval from the elections procedures manual that Secretary of State Michele Reagan’s Office drafted for the 2018 election after county recorders identified a number of flaws and asked him not to allow it to go into effect.

Reagan in late March submitted the proposed 550-page manual to Ducey and Attorney General Mark Brnovich, who are required by law to sign off on the manual before it goes into effect. The manual provides guidance on how county elections officials are to conduct elections and execute election-related statutes. Once approved, the manual carries the force of law.

After Reagan asked Ducey to at least partially put his review of the manual on hold while she awaited the outcome of litigation against the Secretary of State’s Office, the governor decided to halt the process entirely, and refused to restart it or to approve the manual. Brnovich has not approved the manual either.

Elections officials are still using the 2014 manual created by then-Secretary of State Ken Bennett because Reagan decided to not issue a new manual for the 2016 election. Elections laws change from year to year, and county elections officials were highly critical of the decision at the time.

In 2015, the recorders submitted a number of suggestions to the Secretary of State’s Office for the new manual. But in a decision that elections officials described as unprecedented, Reagan opted not to draft a new manual, saying 2016 was not a good time to rewrite election policies because there were four elections scheduled for that year.

She said at the time that she intended to have a revised manual in place by the end of 2017.

County elections officials described the 2018 manual as rushed, despite the lengthy drafting process, and said they were surprised by the scope of the effort, calling it a total rewrite of a document that usually undergoes only relatively minor revisions.

Ducey spokesman Daniel Ruiz said the governor’s decision was the result of intense criticism from county recorders, who took issue with a number of the proposed manual’s provisions. He said Ducey was also concerned that there wasn’t enough time left before the election to implement the changes it contained.

“Their preference was to retain the manual in its current state,” Ruiz said.

State law mandates that the secretary of state consult with county elections officials to draft a manual that contains uniform rules on voting procedures, the handling of ballots and other issues. She must submit the manual to the governor and attorney general for review at least 90 days before the primary election, and the manual must be issued no later than 30 days before the election. The law says the manual “shall be approved” by the governor and attorney general.

Coconino County Recorder Patty Hansen said new procedures manuals are typically in place by the middle of non-elections years because training for elections workers begins in July of those years. Last year, she said, the recorders didn’t have their first meeting with the Secretary of State’s Office until May, with the last meeting coming in January 2018.

David Stevens, the Cochise County recorder, said there was a consensus among the recorders that the manual shouldn’t be approved. Pima County Recorder F. Ann Rodriguez said the county recorders began a “letter-writing campaign” to Ducey and Brnovich asking that they not approve the manual.

On May 15, Yavapai County Recorder Leslie Hoffman and Elections Director Lynn Constable sent an email to several of Ducey’s aides laying out their problems with the manual. They wrote that the 2018 manual was “incomplete, goes beyond the scope of the statute, unilaterally changes some policies, and in a few chapters, addresses the incorrect audience.” Furthermore, they said there wouldn’t be enough time to train their elections officials under the new manual.

“At this time, we do not feel this manual is ready for approval,” wrote Constable and Hoffman, who serves as president of the Arizona Association of County Recorders.

In a May 24 email to the Governor’s Office and Attorney General’s Office, Hansen explicitly urged the two offices not to approve the manual. Hansen said the manual is supposed to be written in a way that helps elections officials carry out their duties, but the 2018 manual doesn’t come close to achieving that goal.

“It appears to be written for attorneys that want to find ways to take election officials to court for making mistakes,” Hansen wrote.

Constable, Hansen and Hoffman provided a number of examples of new policies that they thought were arbitrary, unnecessary, outside the secretary of state’s authority or otherwise problematic.

Among them were a lack of guidance on the creation of ballots for precinct committeemen, who are elected, voting members of a legislative district’s political party organization; new oversight by the Secretary of State’s Office over ballot layout to address perceived deficiencies; records retention schedules for candidate filings that are contrary to state law; unnecessary procedures for military and overseas voting; and updating information in voter registration records.

Coconino and Yavapai officials both objected to the fact that new manual required readers in some places to refer back to the 2014 manual for instruction.

Hansen said a provision barring counties from “modeming” their election results would delay the reporting of results by hours. She noted that one of the many polling places in Coconino County that transmits its results electronically is the one at Supai Village, at the bottom of the Grand Canyon. She called the prohibition an arbitrary decision made by state Elections Director Eric Spencer, without any consultation with Coconino County.

“Policy decisions should be left to the Legislature and not be made by the Secretary of State. The Secretary’s role is to administer the laws passed by the Legislature and signed by the Governor. It is not to legislate on her own,” Hansen wrote.

Furthermore, Hansen suggested that secretary of state’s overhaul of the manual was too ambitious, especially considering the time constraints that Reagan’s office was under. She wrote that she knows Spencer spent many hours rewriting the manual, but that it likely turned out to be a much bigger project than he anticipated and she suspects he ran out of time.

“He was not able to conduct the rewrite in a manner that allows the people who are responsible for administering elections to be able to work with him in a way that will make all of us successful. The manual should be more than one person’s work,” Hansen wrote.

Reagan had hoped to get Ducey’s approval for the manual by May 29. But less than two weeks before that date, she wrote a letter to the governor expressing optimism that her office was nearing a resolution in a federal lawsuit brought by the League of United Latin American Citizens over Arizona’s dual voter registration system that allows people who can’t provide proof of citizenship to register to vote only in federal elections.

Rather than finalize the version of the manual that she sent to the governor, Reagan suggested that Ducey review only the portions unrelated to voter registration, or, if he deemed it necessary, to halt his entire review, while her attorneys finalized the settlement and drafted amendments to the manual.

By the time Ducey received that letter from Reagan, the governor had already heard complaints from several county recorders. Instead of temporarily halting his review, Ducey ended it entirely.

“It became clear that it was much too late in the election cycle to implement such a significant and substantive revision to the election procedures manual,” Ruiz said.

The Secretary of State’s Office provided the recorders with an addendum to the 2014 procedures manual with guidance on how to comply with the consent decree.

Matt Roberts, a spokesman for the Secretary of State’s Office, said Reagan has sought to modernize the office and “drag the AZSOS out of the 1960s.” As part of those efforts, she undertook the “ambitious goal of uniformity throughout Arizona’s system of elections,” he said.

“Be that through the use of new technologies or election processes, we set out seeking consensus on what happens in one county occurs in another, so that no voter is ever treated differently, whether they live in Winslow or Wikieup,” he said in an email to the Arizona Mirror.

Roberts attributed the counties’ opposition to resistance to change, rather than to problems with the manual.

“After 6 full day meetings with county election officials and countless email exchanges with the group, the draft Election Procedures Manual was completed and posted for public feedback. What we’re seeing now is a great example of what happens when different counties have different ways of doing things and are not comfortable with change,” he said.

Furthermore, Roberts said it’s not surprising that people want additional time to get the manual right, considering that it’s the first new manual since the U.S. Supreme Court struck down the preclearance requirement in the Voting Rights Act. Arizona was one of several states and other jurisdictions that required approval from the U.S. Department of Justice for all changes to laws and policies regarding elections and voting prior to the landmark 2013 ruling.

Pima County Election Director Brad Nelson pointed to the lack of preclearance as an additional reason to withdraw the manual from the review process. In an email to Ducey’s staff on May 21, Nelson noted that this year’s manual would be the first in more than 30 years that will not be subject to review by the U.S. Department of Justice. He suggested that civil rights groups and tribal governments representing the interests of Latino and Native American voters be given time to vet the manual before it goes into effect.

Spencer, the state election director, cited Nelson’s concerns about preclearance and vetting by civil rights groups when he formally withdrew the manual from review at the Attorney General’s Office. In a July 26 email, Spencer said that, though the Secretary of State’s Office was withdrawing the manual for the upcoming Aug. 28 primary election, the office believed that a review could be completed in time for the Nov. 6 general election.

The 2018 elections manual is the most recent, and perhaps final snafu of Reagan’s tenure as secretary of state, which has been plagued by errors. In addition to the controversy over her decision to not update the elections manual in 2016, Reagan failed to mail publicity pamphlets on time to about 200,000 voters ahead of the 2016 special election Proposition 123 and wasted nearly $500,000 on a new campaign finance website that was unusable.

The next elections procedures manual will become the responsibility of Reagan’s successor.

Businessman Steve Gaynor defeated her in the Republican primary, and faces Democratic nominee Katie Hobbs in the general election.