Today the Maricopa County Superior Court ruled that 4 separate budget bills were partially or wholly unconstitutional. Certain provisions in all 4 bills – HB2898, SB1824, SB1825, and SB1819 – were held invalid for failure to comply with the Arizona Constitution’s requirement in Art. IV, pt. 2, § 13 that the title of a bill properly encompass its subject matter. However, the court also ruled that SB1819 in its entirety was unconstitutional for failure to comply with the Constitution’s “single subject rule” in § 13. This latter ruling is particularly significant because SB1819 contained a host of election policy changes, among other unrelated subjects:
SBI8I9 consists of multiple, unrelated subjects: dog-racing permitting; voter registration; the Governor’s emergency powers; the definition of a “newspaper”; local authority to pass COVID-19 mitigation measures; the study committee on missing and indigenous peoples; the practices of social media platforms and internet search engines relating to political contributions; the creation of a “special committee” to review the Maricopa County election “audit”; requirements for the agreement of unit owners to terminate a condominium; the State Capitol
Museum, and public retirement systems. None of these subjects have any logical connection to each other nor “fall under some one general idea.”
Most headlines about today’s ruling concerned the bans on mask mandates and vaccine passports, but let’s not let the election consequences get lost in the shuffle. Here are all the election-related provisions rendered invalid by today’s decision:
- A requirement for the Arizona Department of Game and Fish to provide voter registration assistance to applicants seeking a hunting, fishing, or trapping license. For online applicants, the Department was required to include a link to MVD’s online voter registration website at www.servicearizona.com; otherwise, the Department would have provided paper registration forms (supplied by the Secretary of State) to in-person applicants. See § 4 (adding A.R.S. § 16-132). Republican lawmakers potentially saw hunters and outdoorsmen as an untapped source of potential Republican voters (but that is just speculation).
- A requirement for the Secretary of State and county recorders to post their voter registration events on their websites within 24 hours after the event. See § 4 (adding A.R.S. § 16-133). This provision was likely a reaction to conservative criticism that former Maricopa County Recorder Adrian Fontes allegedly used county “personnel to run voter registration drives at Democrat-rich events.”
- A requirement for the Secretary of State to provide access to the statewide voter registration database (presumably free access, notwithstanding the cost provisions in A.R.S. § 16-168(E)) to a designee of the Legislature and the Election Integrity Unit of the Attorney General’s office for the purpose of “determining whether the Secretary of State’s voter registration list maintenance procedures comply with federal law” with respect to federal only voters. See § 4 (adding A.R.S. § 16-138). (“Federal only” voters are persons who register to vote in Arizona using a federal registration form and affirm they are citizens entitled to register, but do not provide any documentary proof of citizenship as would be required if using a state registration form. Based on state policy, these registrants are only entitled to vote in federal elections and therefore receive a “federal only” ballot.) Presumably this provision is intended to determine whether the Secretary is complying with NVRA’s list maintenance requirements, but NVRA is primarily intended to ensure states keep their databases updated based on voter moves and voter deaths. Thus it is unclear how the Secretary is at risk of noncompliance with federal law with respect to citizenship status. There is also a provision that requires county recorders to submit annual reports on federal only voters to the Speaker and President, which implicitly will cause county officials to exercise greater scrutiny of federal only registrants and explicitly allow the Attorney General to prosecute any registrants determined to be non-citizens. The budget provision resulted from a floor amendment from Sen. Kelly Townsend, presumably to garner her vote on the budget. Townsend has been outspoken in recent years about the potential for registration fraud involving federal only voters.
- A requirement that any vendor that provides fraud countermeasures in paper ballots must meet certain International Organization for Standardization (ISO) standards relating to data security, testing reliability, and quality systems. The budget provision also outlines 10 potential types of ballot fraud countermeasures that may be utilized, any 3 of which would be deemed sufficiently effective. But nothing in this bill actually required any ballot paper vendor to actually use any fraud countermeasures in the first place. See § 5 (adding A.R.S. § 16-504). This provision stems from a Sen. Borrelli floor amendment.
- Establishment of an “election integrity fund” to reimburse county recorders for election security, cybersecurity, and postelection hand tabulations (including additional staffing). See §§ 6, 48 (adding A.R.S. § 16-604). This provision stems from Sen. Borrelli’s floor amendment as well. Presumably this provision would facilitate future “voluntary” county-level audits to assuage alleged election integrity concerns, despite the fact that election directors (not county recorders) are normally responsible for post election audits.
- Establishment of a joint task force, consisting of designees of the Attorney General and Secretary of State, to determine whether social media platforms and internet search engines are generating “unreported in-kind political contributions” to Arizona candidates. In other words, the task force is premised on the notion that de-platforming and/or biased search algorithms can negatively impact a particular candidate or political party and therefore result in an in-kind contribution to their opponents. See §§ 21, 49 (adding A.R.S. § 41-191.12). Putting aside the myriad constitutional concerns with this subjective exercise, this process would have created enforcement problems under campaign finance law. A.R.S. § 16-938 creates a bifurcated enforcement process whereby the Secretary of State determines whether reasonable cause exists to find a campaign finance violation by state or legislative candidates, followed by an independent determination by the Attorney General to confirm the violation and pursue financial penalties if appropriate. That statutory enforcement process seems irrevocably compromised if the Secretary and Attorney General had already determined the violation via the “task force.” Alternatively, if the offending social media or internet company was a corporation, the Attorney General could have pursued criminal charges against the candidate who benefited from the illegal corporate contribution. (The Attorney General already possesses this authority, but the joint task force would give him the imprimatur of additional legitimacy.) This provision came from the Borrelli floor amendment.
- A requirement for the Auditor General to review how the Secretary of State maintains the statewide voter registration database, how Maricopa and Pima counties maintain their registration databases, and how all counties maintain their (active) early voting lists. And, similar to § 4 above, the Secretary of State and county recorders must report their expenditures, activities, and attendance at voter registration programs and events to the Auditor General. See §§ 25, 50 (amending A.R.S. § 41-1279.03). This provision apparently reflects ongoing GOP concerns that certain election officials may be unduly prone to using public monies for partisan advantage. This is a Borrelli floor amendment.
- A session law that expresses the Legislature’s intent that in the event of “any disagreement between the attorney general and the secretary of state or any other state official concerning the defense of a state election law, the authority of the attorney general to defend the law is paramount.” The provision also creates a right, through January 2, 2023 (the conclusion of the current Attorney General’s term), for the Attorney General to intervene in any proceeding where a state election law has been challenged. See § 33. This provision apparently stemmed from an ongoing dispute between the current Attorney General and Secretary of State.
- A requirement for the Secretary of State to ask the federal Election Assistance Commission (EAC) to amend the state-specific instructions accompanying the federal registration form to include a requirement for registrants in Arizona to include documentary proof of citizenship, thereby rendering the federal form consistent with state law. See § 35. There is a lot of history here. The U.S. Supreme Court ruled in Arizona v. Inter Tribal Council of Arizona in 2013 that NVRA required each state to “accept and use” the federal registration form as-is, thus preempting conflicting state law (such as Arizona’s proof of citizenship requirement). In deciding the case against the State of Arizona, Justice Scalia suggested the state simply ask the EAC to amend the state-specific instructions instead, and if the EAC rejected that request, Arizona would be in a better position to litigate. Arizona waited on the sidelines for several years thereafter because Alabama and Georgia had successfully petitioned the EAC to change the instructions for those states in 2016, but that administrative decision was recently overturned. Thus, SB1819 would have compelled the Secretary of State to simply rejoin the fray. If successful, the EAC’s grant would have mooted the necessity to maintain a separate system for “federal only” voters, as all voters would have been subject to proof of citizenship requirements as a condition of registration.
- Finally, establishment of a “special committee on the election audit” to review the Senate’s recent 2020 election audit report and recommend “appropriate legislative action,” including a call for a special legislative session. See § 47. However, the Governor already threw cold water on the idea of a special session this year.
UPDATED October 4, 2021:
The Arizona Supreme Court declined to issue a stay, but granted the Attorney General’s petition to transfer the case from the Court of Appeals and set oral argument for November 2, 2021.