PHOENIX — A judge will decide this coming week whether there will be any rules in place to run this year's elections or whether there will be, as an attorney for the governor fears, “chaos” at the polls.
Anni Foster, attorney for Gov. Doug Ducey, told a judge Friday that Attorney General Mark Brnovich never approved a new Election Procedures Manual as the law required by Dec. 31. Instead, the attorney general waited four months before filing suit, accusing Hobbs of failing to produce a “legally compliant” manual.
And by “legally compliant,” Brnovich made it clear he believes that means what he decides is legal.
In the meantime, Foster told Yavapai County Superior Court Judge John Napper, the state — and the election officials in the 15 counties — are in legal limbo. She wants him to declare that the manual adopted in 2019 remain in effect and election officials can rely on them unless and until a new one is approved.
Time is running out.
The primary is on Aug. 2. Early ballots go out in less than a month.
And it’s even more immediate, with several counties already having administered local elections this year.
“These elections are ongoing right now,” Foster said. And she told the judge, it is “inviting chaos in the 2022 election” if he doesn’t rule that counties should continue to follow the 2019 manual, which has the force of law.
“If there is no procedure manual in effect, then nobody knows what the rules are,” Foster told Napper.
That, however, is getting a fight from Assistant Attorney General Michael Catlett. He said there have been multiple changes in state law and various court rulings since then, all of which he said make the manual “outdated.”
Napper, however, told Foster he’s not sure he even has the power to issue such an order. He pointed out the only legal issue before him is Brnovich's lawsuit which does not seek to confirm the 2019 manual but to force changes he wants in the new one.
And the judge also lashed out at Brnovich for putting him in the difficult position of trying to figure out now, just ahead of this year's elections, how counties should be running the election.
He got Catlett to acknowledge that Brnovich got the draft manual from Hobbs on Oct. 1, which was the deadline. And the deadline for adoption was Dec. 31.
“That probably would have been a good trigger point to file something,” Napper told Catlett. Yet Brnovich did not file suit until April.
The judge said there may be the basis for some of the claims by Brnovich that the items Hobbs included do not comply with the law and recent court rulings. But he was clearly not happy about being pressured to act now.
“I probably would have been more sympathetic for that argument if it was filed in November,” he told Catlett.
Catlett, however, said this isn’t all the fault of his boss. He said if Hobbs believed that Brnovich was abusing his discretion in refusing to approve her changes, she could have gone to court herself long before now.
At the heart of the fight is the Election Procedures Manual, essentially guidance and an explanation of state election laws that county recorders are supposed to follow.
Arizona law requires the secretary of state to prepare a new one prepared every two years ahead of elections. It then is given to the governor and attorney general for their approval.
Hobbs did just that, only to have Brnovich refuse to give it his legally required blessing until she made the changes he wants. And when she balked, he filed suit.
At Friday's hearing, Napper made it clear that he's not buying many of the arguments by the attorney general that all the procedures and policy Hobbs has put in the manual for future elections do not comply with the law. He said Brnovich is off base with claims ranging from how counties verify signatures on early ballots to political party registration and campaign finance requirements.
Napper also at times expressed frustration with the arguments being advanced by Catlett, saying he doesn’t seem to understand the issues.
Consider the issue of the wording that has to be on the envelopes that go out with the early ballots.
Catlett objects to the fact that Hobbs is telling counties they should not use the words “return to sender” as instructions for what to do if the voter does not live there anymore. He told the judge that is contrary to what lawmakers directed.
Napper said that’s not exactly true.
He said the law says it has to be that language “or something substantially similar.”
In this case, the judge said Hobbs had information from the U.S. Postal Service that putting such language on the envelope could result in automated sorting machines might send the ballots back to the counties rather than on to voters. That, said Napper, would appear to provide sufficient reason for Hobbs to direct counties to use that “substantially similar” language, like “return to post office,” to ensure that voters would get their ballots.
But Catlett continued to argue that the law was clear — and that Hobbs could not dictate to counties what language they should use. He asked Napper to instead say the best Hobbs could do is provide a “helpful example” of what language would be similar.
Other pending issues range from whether some votes cast in the wrong precinct can be counted to whether counties have to actually have an election worker “staff” ballot drop boxes or they can simply be electronically monitored.
That, however, still leaves the question of what Napper actually can do about all this.
“I need someone to explain to me how this thing lands,” the judge said.
“I don't know how this ends,” he continued. “You've got a clock that’s ticking.”
And Napper pointed out that Brnovich has not agreed to abide by any decisions he makes about what needs to be in the new Election Procedures Manual. Nor, the judge said, has Ducey whose signature also is necessary to put a new manual into effect, creating the possibility of ongoing litigation.
The lawsuit is the latest in a series of disputes between Brnovich, a Republican contender for U.S. Senate, and Hobbs, a Democrat running for governor.
That includes his efforts to have her declared criminally liable for taking down an online web site for candidates, a complaint that was handed to the Cochise County Attorney to investigate, and her complaints to the State Bar of Arizona that his office had been representing her and then took a contrary position in court, a case that resulted in a “diversion agreement” requiring Brnovich to set some clear lines between his role as prosecutor and his role as a defender of state agencies.
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