Supreme Court bars Fontes from sending mistake instructions to voters

Maricopa County Recorder Adrian Fontes can’t instruct voters to cross out mistakes on their ballots and fill in the bubble for a different candidate instead, the Arizona Supreme Court ruled on Thursday.

A panel of four justices granted a preliminary injunction to the Arizona Public Integrity Alliance, a conservative legal advocacy group that sued to block Fontes from sending out the instruction to 2.5 million Maricopa County voters who will receive early ballots for the Nov. 3 election. 

When voters select more than the permitted number of candidates for an office, which is known as an overvote, their votes for that race are discarded. However, when voters make extraneous markings on their ballots, which would include crossing out a candidate and voting for someone else instead, election officials review the ballots to see if they can determine the voters’ intent. 

Fontes noted that if election officials can discern a voter’s intent, which would include crossing out a mistaken vote and choosing a new candidate, the vote is counted. And a law passed by the legislature earlier this year requires counties to use electronic adjudication boards in such cases makes the process easier.

Nonetheless, Fontes and Maricopa County “exceeded their authority” by explicitly instructing voters to cross out their mistakes if they voted for the wrong candidate, the Supreme Court concluded. State law and the state’s election procedures manual, which carries the force of law, instruct county recorders to tell voters to request a new ballot if they make such mistakes.

“While election statutes have changed, the permissible voter instructions … have not,” Chief Justice Robert Brutinel wrote in the court’s order. 

Tyler Montague, president of AZPIA, praised the ruling.

“If (Fontes) would just rely on counsel and follow the law, then he wouldn’t waste taxpayer dollars and put the integrity of the elections in question. It’s that simple,” Montague told Arizona Mirror, referring to Fontes’s decision not to consult with legal counsel before using the new instructions.

Ryan Anderson, a spokesman for Attorney General Mark Brnovich, who sided with AZPIA in the case, called the ruling a “victory for election integrity.”

“The Attorney General’s Office was forced to act because for the second election in a row, Recorder Fontes was attempting to act illegally and create chaos in our elections,” Anderson said.

In March, Brnovich went to court to block Fontes from sending early ballots to all registered voters in Maricopa County who weren’t on the Permanent Early Voting List. Fontes wanted to conduct an all-mail election to help keep voters from casting ballots in person as the COVID-19 crisis hit Arizona, but was barred from doing so by the courts.

Maricopa County Superior Court Judge James Smith ruled Sept. 4 that Fontes’s instructions, which he already used for the presidential preference election in March and the primary election in August, were likely illegal. But based on the potential difficulties in printing new instructions on such short notice — the county must mail ballots, with the instructions, to overseas voters by Sept. 19 — Smith said he wouldn’t bar Fontes from using the erroneous instructions or order him to print new ones.

AZPIA appealed the ruling to the Arizona Court of Appeals. The case was later transferred to the state Supreme Court.

Diana Solorio, a spokeswoman for Fontes, said the recorder’s office is working with the Maricopa County Attorney’s Office and Runbeck Election Services, the county’s vendor that prints its ballots and other voting materials, “to see what can be accomplished” before the deadline for mailing ballots to overseas voters. State law mandates that voting instructions accompany the early ballots that election officials mail to voters.

An attorney for the county told Smith last week that Runbeck had already printed 2.5 million sets of instructions and didn’t have the ability to print new ones in time to include them with the ballots, even if it was able to find a sufficient supply of paper. It would cost the county $125,000 to print new instructions. 

And according to a declaration filed with the court on Sept. 1 by Rey Valenzuela, the director of elections at the recorder’s office, Runbeck began printing instructions for the general election on April 24, and had since completed the job.

In a brief filed with the Supreme Court on Thursday, Deputy County Attorney Thomas Liddy, who is representing the recorder’s office, wrote that Runbeck was printing both ballots and the accompanying instructions as of Sept. 8, but county attorney spokeswoman Jennifer Liewer said that was an error.

Solorio told the Mirror that Runbeck printed the county’s early ballot instructions on April 24, as Valenzuela and La Rue told the court. Deputy County Attorney Joseph La Rue, who represented Fontes in trial court, said Runbeck had already told the county that it wouldn’t have time to print new instructions.

In a letter dated Aug. 11, but which the recorder’s office said it didn’t receive until Aug. 17, the Arizona Attorney General’s Office informed Fontes that it believed his instruction on ballot mistakes violated the law. AZPIA’s attorney also sent Fontes a cease-and-desist letter on Aug. 17 asking him to not use the new instructions for the general election.

This story has been updated to include comments from the Maricopa County Recorder’s Office and Arizona Attorney General’s Office.