Arizona Supreme Court Effectively Strikes Down Much of the Election Procedures Manual

This week the Arizona Supreme Court issued its ruling in McKenna v Soto, a candidate nomination challenge from spring 2020. The Supreme Court upheld the trial court’s decision keeping LD3 House candidate Javier Soto on the primary election ballot despite turning in signatures with incomplete dates and addresses.

The fact that the Supreme Court held that dates with a missing year (or addresses with a missing city/town/zip code) substantially comply with Arizona law is relatively unremarkable.  The remarkable aspect of the ruling is how the Court reached its conclusion:

McKenna’s reliance on the 2019 [Election Procedures Manual] as authority to reject the non-compliant signatures fails. The purpose of the 2019 EPM is to ensure election practices are consistent and efficient throughout Arizona. The EPM is promulgated pursuant to A.R.S. § 16-452, which requires that the Secretary of State “prescribe rules to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures for early voting and voting, and of producing, distributing, collecting, counting, tabulating and storing ballots.” The EPM also contains guidance on matters outside these specific topics, including candidate nomination petition procedures . . . and the regulation of petition circulators[.] These other topics, however, fall outside the mandates of § 16-452 and do not have any other basis in statute. Because the statute that authorizes the EPM does not authorize rulemaking pertaining to candidate nomination petitions, those portions of the EPM relied upon by McKenna to invalidate the signatures without a complete date were not adopted “pursuant to” § 16-452.

By virtue of this single paragraph, the Supreme Court has rendered a large swath of the Election Procedures Manual mere “guidance” instead of “law.” For example, the first 46 pages of the Manual governing voter registration arguably have no connection to A.R.S. § 16-452 and therefore now constitute mere suggestions. Translation: County Recorders are free to develop their own voter registration procedures (albeit consistent with state statute) without necessarily maintaining uniformity with practices in other counties. This would constitute a giant leap backward for Arizona elections.

This decision should serve as a wakeup call. The Legislature should broaden the scope of A.R.S. § 16-452, this session, to ensure the Election Procedures Manual has teeth going forward. Uniformity in county practice is critical, especially during this period when so many Arizonans have questioned election practices.

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