A well-intentioned bill has been introduced in the Arizona Senate to ensure the Secretary of State’s Election Procedures Manual does not stray from statute. But injecting the Governor’s Regulatory Review Council into the Manual’s review and approval process might be a cure worse than the disease.
According to a recent story by Capitol Media Services, Senate Bill 1014 was crafted to rein in the Secretary of State from including provisions in the draft Election Procedures Manual that may violate Arizona statute. The specific provision that touched off the controversy would require county election officials to count an unsigned early ballot if the voter cured the deficiency within 3-5 days after election day.
Under current law, the Manual is drafted by the Secretary of State (in consultation with county election officials) and must reviewed and approved by the Attorney General and Governor. SB1014 would remove these officials from the process in favor of the Governor’s Regulatory Review Council or GRRC, which normally reviews other agencies’ proposed rules. According to the story, GRRC is the proper counterweight because “the council would be able to quash any changes that members believe go outside the legal authority of the secretary of state.”
But SB1014 is not a panacea. First, the Attorney General already has expressed his intent to nix the unsigned early ballot provision, proving the current system works:
Second, SB1014 is likely impossible to comply with from a timing perspective. A.R.S. § 16-452(B), the statute governing the Manual, requires the Manual be submitted by October 1 and “be issued not later than December 31 of each odd-numbered year”—or roughly 90 days after submission. However, A.R.S. § 41-1052(C) specifies that GRRC must review proposed rules “within one hundred twenty days after receipt of the rule.” GRRC would have to routinely accelerate its review in order to meet the deadline for issuing the Manual. Moreover, GRRC’s de facto veto method is to “return” a regulation back to the issuing agency, requiring the agency to fix it (no matter how long it takes) in order for the regulation to eventually go into effect. What happens if GRRC “returns” the Manual to the Secretary of State such that it cannot be issued by the December 31 deadline? Does that void any effort to update the Manual in an odd-numbered year, leaving the previous version intact for the next 2 years?
Finally, GRRC is not well-suited to reviewing a document like the Manual. GRRC is required to consider things like the “economic, small business and consumer impact” of regulations and undertake a cost/benefit analysis. These considerations have little applicability to a nearly 300-page document governing election procedures. Moreover, GRRC likely does not have the same legal bandwidth to substantively review the Manual as compared to the Attorney General. The recent comments provided by the Attorney General on the draft 2019 Manual probably go well beyond what GRRC would be inclined to produce when “returning” proposed rules.
The recent controversy over unsigned early ballots is the consequence of an increasingly common litigation tactic: sue the Secretary of State and offer to settle if the Secretary agrees to insert a provision in the next draft Manual. The Attorney General and Governor act as a backstop to review such provisions and will insist they be stricken from the final Manual if legally necessary. That process is happening now to the draft 2019 Manual. Until that review system proves broken, the well-intentioned effort in SB1014 appears to be a solution in search of a problem.