IN THE
SUPREME COURT OF THE STATE OF ARIZONA
IN DIVISION
ARIZONA PUBLIC INTEGRITY ALLIANCE, AN ARIZONA NONPROFIT
CORPORATION; TYLER MONTAGUE, AN INDIVIDUAL,
Plaintiffs/Appellants,
v.
ADRIAN FONTES, IN HIS OFFICIAL CAPACITY AS MARICOPA COUNTY
RECORDER; FRAN MCCARROLL, IN HER OFFICIAL CAPACITY AS CLERK OF THE
MARICOPA COUNTY BOARD OF SUPERVISORS, CLINT HICKMAN, JACK
SELLERS, STEVE CHUCRI, BILL GATES, AND STEVE GALLARDO, IN THEIR
OFFICIAL CAPACITIES AS MEMBERS OF THE MARICOPA COUNTY BOARD OF
SUPERVISORS; MARICOPA COUNTY, A POLITICAL SUBDIVISION OF THE STATE
OF ARIZONA,
Defendants/Appellees.
No. CV-20-0253-AP/EL
Filed November 5, 2020
Appeal from the Superior Court in Maricopa County
The Honorable James D. Smith, Judge
No. LC2020-000252-001
REVERSED
Appeal to the Court of Appeals, Division One
No. 1 CA-CV 20-0458
TRANSFERRED
COUNSEL:
Alexander Kolodin, Chris Ford, Christopher Viskovic, Kolodin Law Group
PLLC, Phoenix, Attorneys for Plaintiffs/Appellants
Mary R. O’Grady, Joshua D. Bendor, Osborn Maledon, P.A., Phoenix, and
Patrick Irvine, Charles E. Markle, Fennemore Craig, P.C., Phoenix,
Attorneys for Defendants/Appellees
ARIZONA PUBLIC INTEGRITY, ET AL. V. FONTES, ET AL.
Opinion of the Court
Mark Brnovich, Attorney General, Brunn (Beau) W. Roysden, III, Solicitor
General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Linley
Wilson, Jennifer Wright, Assistant Attorneys General, Phoenix, Attorneys
for Amicus Mark Brnovich
JUSTICE GOULD authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, and JUSTICES LOPEZ and BEENE joined.
JUSTICE GOULD, Opinion of the Court:
¶1 Today we address the proper overvote instruction that must
be included with mail-in ballots. An overvote occurs when a person votes
for more candidates than permitted for a specific election. Before the 2020
election cycle, the Maricopa County Recorder, in compliance with the
Secretary of State’s Elections Procedures Manual, included an instruction
(the “Overvote Instruction”) advising mail-in voters that overvotes would
not be counted, and in the event of an overvote, to contact the Recorder’s
Office and request a new ballot. However, during the March 17, 2020
Presidential Preference and August 4, 2020 Primary Elections, the Recorder
included a different instruction (the “New Instruction”) with mail-in
ballots. The New Instruction provides that if a mail-in voter makes a
“mistake” on his mail-in ballot, rather than obtaining a new ballot, the voter
may “[c]ross out” the mistake by drawing a line through the candidate’s
name and the oval they marked next to his name, and “[f]ill in the oval next
to [his] corrected selection.”
¶2 Plaintiffs Arizona Public Integrity Alliance and its President,
Tyler Montague, who is on Maricopa County’s permanent early voter list,
filed a special action with this Court seeking to enjoin the Recorder from
including the New Instruction with mail-in ballots for the November 3, 2020
General Election. 1 On September 10, 2020, we issued a Decision Order
accepting jurisdiction and granting relief, enjoining the Recorder from
1Plaintiffs have also named as defendants, in their official capacities, each
member of the Maricopa County Board of Supervisors, the Clerk of the
Maricopa County Board of Supervisors, and Maricopa County. We
collectively refer to these defendants and the Recorder as the “County.”
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Opinion of the Court
including the New Instruction with mail-in ballots. This Opinion explains
that Order.
¶3 We hold that the Recorder acted unlawfully by including the
New Instruction with mail-in ballots. The Recorder does not have the
constitutional or statutory authority to promulgate mail-in ballot
instructions, nor does he have the authority to create voter guidelines for
correcting overvotes to ensure that they will be counted. Rather, with
respect to overvotes, the Recorder has a non-discretionary duty to provide
the Overvote Instruction authorized by the Arizona Secretary of State, 2019
Elections Procedures Manual (“2019 EPM”).
¶4 Our decision today underscores the role of public officials in
preserving and protecting our democratic system. Election laws play an
important role in protecting the integrity of the electoral process. See
Burdick v. Takushi, 504 U.S. 428, 441 (1992) (“[T]he right to vote is the right
to participate in an electoral process that is necessarily structured to
maintain the integrity of the democratic system.”). Thus, public officials
should, by their words and actions, seek to preserve and protect those laws.
See Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 471 P.3d 607,
613 ¶ 9 (Ariz. 2020) (stating that, with respect to the judiciary, “[t]he people
of this State look to us to uphold the law, and we must act consistently with
that imperative”). But when public officials, in the middle of an election,
change the law based on their own perceptions of what they think it should
be, they undermine public confidence in our democratic system and
destroy the integrity of the electoral process.
I.
¶5 Following the August 4, 2020 Primary, the Attorney General
received complaints from mail-in voters who had received the New
Instruction with their ballots. As a result, on August 11, the Attorney
General notified the Recorder that the New Instruction was unlawful and
demanded that “the instructions accompanying the early ballots” comply
with the law. Then, on August 17, Plaintiffs sent a cease and desist letter to
the Recorder also demanding that he refrain from including the New
Instruction with mail-in ballots. However, on August 24, the Recorder
advised the Attorney General and Plaintiffs that he would continue to
include the New Instruction.
¶6 Plaintiffs filed a special action in superior court on August
25, seeking to enjoin the Recorder from including the New Instruction with
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Opinion of the Court
the November 3, 2020 General Election mail-in ballots. On September 4, the
court denied Plaintiffs’ request. The court concluded that because the New
Instruction did not comply with the 2019 EPM, Plaintiffs were likely to
succeed on the merits. However, the court determined that Plaintiffs did
not meet the other criteria warranting a preliminary injunction, including
failing to show that providing the New Instruction caused them to suffer a
distinct and particularized injury.
¶7 Plaintiffs appealed to the court of appeals, and then
subsequently filed a petition to transfer their appeal to this Court. Because
this case involves election and statutory issues of statewide importance, we
granted the motion to transfer and accepted special action jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution.
¶8 We review issues construing statutes and rules de novo.
Fitzgerald v. Myers, 243 Ariz. 84, 88 ¶ 8 (2017). A trial court’s order denying
a preliminary injunction is reviewed for an abuse of discretion. Shoen v.
Shoen, 167 Ariz. 58, 62 (App. 1990); see also Clay v. Ariz. Interscholastic Ass’n,
Inc., 161 Ariz. 474, 476 (1989). “Unless the trial judge either made a mistake
of law . . . or clearly erred in finding the facts or applying them to the [law]
for granting an injunction, we must affirm.” Shoen, 167 Ariz. at 62–63.
II.
¶9 The Recorder first argues that Plaintiffs lack standing.
Specifically, he claims that Plaintiffs’ harm “is a generalized concern about
the election process, not a particularized injury sufficient to confer
standing.” We disagree.
¶10 “Arizona’s Constitution does not contain a specific case or
controversy requirement. . . ., [but] this Court has traditionally required a
party to establish standing.” Hobbs, 471 P.3d at 616 ¶ 22. Thus, as a general
matter, we have stated that “[t]o gain standing . . . a plaintiff must allege a
distinct and palpable injury.” Sears v. Hull, 192 Ariz. 65, 69 ¶ 16 (1998).
¶11 However, we apply a more relaxed standard for standing in
mandamus actions. Specifically, under A.R.S. § 12-2021, a writ of
mandamus allows a “party beneficially interested” in an action to compel a
public official to perform an act imposed by law. See also Stagecoach Trails
MHC, L.L.C. v. City of Benson, 231 Ariz. 366, 370 ¶ 19 (2013) (“An action is in
the nature of mandamus if it seeks to compel a public official to perform a
non-discretionary duty imposed by law.”). The phrase “party beneficially
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Opinion of the Court
interested” is “applied liberally to promote the ends of justice.” Barry v.
Phx. Union High School, 67 Ariz. 384, 387 (1948); accord Ponderosa Fire District
v. Coconino Cnty., 235 Ariz. 597, 601 ¶ 18 (App. 2014). Thus, the “mandamus
statute [§ 12-2021] reflects the Legislature’s desire to broadly afford
standing to members of the public to bring lawsuits to compel officials to
perform their public duties.” Ariz. Dep’t of Water Resources v. McClennan,
238 Ariz. 371, 377 ¶ 32 (2015) (citation omitted) (internal quotation marks
omitted).
¶12 Here, Plaintiffs, as Arizona citizens and voters, seek to compel
the Recorder to perform his non-discretionary duty to provide ballot
instructions that comply with Arizona law. Thus, we conclude that they
have shown a sufficient beneficial interest to establish standing. See Armer
v. Superior Court, 112 Ariz. 478, 480 (1975) (stating that “[i]f the petitioners,
as members of the board” of county water conservation district “are in fact
required by law to make a financial disclosure and have refused to do so,
respondents, as members of the public for whose benefit the financial
disclosure law was enacted, have standing to bring an action in the nature
of mandamus to require disclosure”).
III.
¶13 In resolving this case, we must address two questions: (1)
whether the Recorder has the authority to promulgate mail-in ballot
instructions; and (2) whether the New Instruction complies with the law.
A.
¶14 The Recorder’s authority is limited to those powers expressly
or impliedly delegated to him by the state constitution or statutes.
Associated Dairy Prods. Co. v. Page, 68 Ariz. 393, 395 (1949); see also Boruch v.
State ex rel. Halikowski, 242 Ariz. 611, 618 ¶ 22 (App. 2017); see also Ariz.
Const. art. 12, § 4 (stating that “[t]he duties, powers, and qualifications” of
county officers “shall be as prescribed by law”). Thus, like all public
officials, the Recorder may be “enjoined from acts” that are beyond his
power. Berry v. Foster, 180 Ariz. 233, 235–36 (App. 1994) (quoting Crane Co.
v. Ariz. State Tax Comm’n, 63 Ariz. 426, 445 (1945)).
¶15 The legislature has expressly delegated to the Secretary the
authority to promulgate rules and instructions for early voting. A.R.S.
§ 16-452(A). This authority includes adopting rules and guidelines for
determining voter intent when tabulating mail-in ballots. 2019 EPM at 233
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Opinion of the Court
(providing standards for election officials in determining voters’ intent);
Ariz. Sec’y of State, Electronic Adjudication Addendum to the 2019
Elections Procedures Manual 1 (Feb. 28, 2020) (“Addendum”) (applying
2019 EPM guidelines for determining voter intent to electronic adjudication
system).
¶16 The Secretary must follow a specific procedure in
promulgating election rules. As an initial matter, the Secretary is required
to consult with “each county board of supervisors or other officer in charge
of elections.” A.R.S. § 16-452(A). Next, the Secretary is directed to compile
the rules “in an official instructions and procedures manual.” Id. at (B).
This manual, the EPM, must be issued no “later than December 31 of each
odd-numbered year immediately preceding the general election.” Id. And
finally, the rules prescribed in the EPM must “be approved by the governor
and the attorney general. . . . not later than October 1 of the year before each
general election.” Id. at (C). Once adopted, the EPM has the force of law;
any violation of an EPM rule is punishable as a class two misdemeanor. Id.
¶17 The Recorder, however, is not empowered to promulgate
rules regarding instructions for early voting, nor does he have the authority
to change or supplant the EPM’s prescribed instructions. Rather, the
Recorder’s authority is limited to “supply[ing]” the EPM’s instructions to
early voters. A.R.S. § 16-547(C); see 2019 EPM at 56 (listing instructions the
Recorder must supply to early voters); see also id. at 54 (stating that the
Recorder may include only “official election materials” that “are permitted
to be included in the ballot-by-mail mailing”).
¶18 Accordingly, we conclude that the Recorder did not have the
authority to promulgate the New Instruction. And even if the Recorder had
such authority, he did not follow the legislature’s prescribed procedure for
adopting election rules and instructions.
B.
¶19 Despite his lack of authority to prescribe voting instructions,
the Recorder asserts that the law requires him to include the New
Instruction with mail-in ballots. We disagree.
1.
¶20 Under Arizona law, an overvote is invalid and is not counted.
A.R.S. § 16-610, -611; 2019 EPM at 56. To prevent overvotes, § 16-502(F)
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Opinion of the Court
requires that on each ballot, “[i]mmediately below the designation of the
office to be voted,” the ballot “shall” contain the instruction: “‘Vote for not
more than _________’ (insert the number to be elected).” Additionally,
Arizona’s “electronic voting system” rejects and does not count overvotes.
A.R.S. § 16-446(B)(2); 2019 EPM at 201. Consistent with this statutory
directive, the 2019 EPM provides that for mail-in ballots, the Recorder “must
supply printed instructions that . . . [i]nform voters that no votes will be
counted for a particular office if they overvote,” and that voters “should
contact the County Recorder to request a new ballot in the event of an
overvote.” 2019 EPM at 54, 56 (emphasis added); see also Ariz. Sec’y of State,
2014 Elections Procedures Manual 59, 177 (2014) (stating that overvotes
may not be counted).
¶21 However, recent amendments to the EPM and Arizona’s
statutes allow potential overvotes to be counted if election officials can
determine it was the voter’s intent not to overvote. For example, the 2019
EPM allows the Ballot Duplication Board to review overvotes, and if it can
determine the voter’s intent, the ballot must be duplicated and counted.
2019 EPM at 201–02; Addendum at 1, 4. Additionally, § 16-621(B), as
amended in 2020, now provides that when an electronic tabulation machine
reads and rejects a ballot containing a potential overvote, the ballot is sent
to the Electronic Adjudication Board to determine the voter’s intent. Id.;
Addendum at 1 (stating that Electronic Adjudication Boards established
under § 16-621(B) “may evaluate over-vote conditions to determine the
voter’s intent and make corresponding adjustments . . . if the voter’s intent
is clear”). If the Electronic Adjudication Board can determine the voter’s
intent, a duplicate ballot is prepared, run through the tabulation machine,
and counted. Addendum at 1.
2.
¶22 The Recorder argues that based on these recent amendments,
the New Instruction is required by law. Specifically, he claims that because
the law now requires overvotes to be counted, mail-in voters have a “right”
to correct their overvotes without requesting a new ballot, and an attendant
right to have their “corrected” ballots counted. The Recorder contends that
the New Instruction promotes and protects these new “rights” by
instructing mail-in voters on “how best to correct” overvotes to ensure they
are counted.
¶23 The Recorder is mistaken. Even if, as he contends, the New
Instruction is required by Arizona law, he has no authority to prescribe
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mail-in ballot instructions, much less rules or guidelines for determining
“how best” to correct a mistakenly marked ballot. The Recorder also
misconstrues the amendments to the 2019 EPM and § 16-621(B). These
amendments do not address the proper method for correcting an overvote.
Indeed, the 2019 EPM still provides that if a voter mistakenly overvotes and
seeks to correct his vote, he must obtain a new ballot. 2019 EPM at 54, 56.
Rather, the recent amendments simply provide that even if a voter fails to
obtain a new ballot, election officials must examine a potential overvote to
determine, if possible, the voter’s intent. Thus, for example, if a mail-in
voter unintentionally creates a potential overvote (e.g., due to ink blots, pen
rests, smudges, or bleed-through marks) election officials are now required
to examine the ballot and determine the voter’s intent.
¶24 The New Instruction also contradicts the purpose of the EPM,
which is to “prescribe rules to achieve and maintain the maximum degree
of correctness, impartiality, uniformity and efficiency.” § 16-452(A). The
Overvote Instruction serves this purpose by requiring voters to correct their
improperly marked ballots in the clearest manner possible, e.g., by creating
clean ballots containing the proper number of votes for each election
contest. And by requiring voters to submit a clean ballot that can be read
and tabulated by an electronic voting machine, it ensures that their votes
will be counted. In contrast, the New Instruction directs voters to create an
invalid overvote ballot that cannot be tabulated by the electronic voting
machine, and, depending on the judgment of election officials, may or may
not be counted. Supra ¶ 21.
¶25 Accordingly, we hold that the New Instruction does not
comply with Arizona law. Rather, only the Overvote Instruction
authorized by the 2019 EPM may be included with mail-in ballots.
IV.
¶26 Because Plaintiffs have shown that the Recorder has acted
unlawfully and exceeded his constitutional and statutory authority, they
need not satisfy the standard for injunctive relief. See Burton v. Celentano,
134 Ariz. 594, 596 (App. 1982) (“[W]hen the acts sought to be enjoined have
been declared unlawful or clearly are against the public interest, plaintiff
need show neither irreparable injury nor a balance of hardship in his favor.”
(quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2948 (3d ed. 1998))); see Current-Jacks Fork Canoe Rental Ass’n v.
Clark, 603 F. Supp. 421, 427 (E.D. Mo. 1985) (stating that “[i]n actions to
enjoin continued violations of federal statutes, once a movant establishes
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Opinion of the Court
the likelihood of prevailing on the merits, irreparable harm to the public is
presumed”).
¶27 Nevertheless, we conclude that Plaintiffs have satisfied the
standard for injunctive relief. See Shoen, 167 Ariz. at 63. Because the
Recorder had no authority to include the New Instruction with mail-in
ballots, Plaintiffs are likely to succeed on the merits. Likewise, because the
Recorder’s action does not comply with Arizona law, public policy and the
public interest are served by enjoining his unlawful action. And, in the
context of their mandamus action, Plaintiffs have established the requisite
“injury” by showing they are “beneficially interested” in compelling the
Recorder to perform his legal duty. § 12-2021; supra ¶ 12.
¶28 We also conclude that the balance of hardships favors
Plaintiffs. The County claims that because Plaintiffs unreasonably delayed
in filing their action, it is too late for the County to order new instructions
and meet their statutory mailing deadlines for mail-in ballots. Specifically,
overseas ballots (including instructions) had to be sent out by September
19, 2020, and mail-in ballots by October 7. See 52 U.S.C. § 20301 (requiring
the County to send early ballots to military and other overseas voters no
later than 45 days before the election); A.R.S. § 16-542(C) (stating that
official early ballots shall be distributed no more than twenty-seven days
before the election); see also Election Calendar 2020, Maricopa County
Elections Department, https://recorder.maricopa.gov/elections/
electioncalendar.aspx# (last visited Oct. 27, 2020) (stating that during the
2020 election cycle, September 19 is the deadline for military and overseas
ballots and October 7 is the date for early mail-in ballots); Voting by Mail:
How to Get a Ballot-by-Mail, Secretary of State,
https://azsos.gov/votebymail (last visited Oct. 27, 2020) (listing October 7
as the first day counties can mail ballots to voters). 2
¶29 This argument fails, however, because the County was able to
remove the New Instruction and mail the early ballots by the October 7
deadline. See November General Election Early Voting Begins October 7,
Maricopa County (Oct. 7, 2020),
https://www.maricopa.gov/CivicAlerts.aspx?AID=1773. Additionally,
the overseas ballots were mailed on September 18, one day before the
2 We may take judicial notice of the Secretary and Recorder’s
websites. Pederson v. Bennett, 230 Ariz. 556, 559 ¶ 15 (2012) (citing Ariz. R.
Evid. 201(b), (b)(2) (permitting court to take judicial notice from sources
whose accuracy cannot reasonably be questioned)).
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statutory deadline. See @MaricopaVote, Twitter (Sept. 18, 2020, 5:04 PM),
https://twitter.com/MaricopaVote/status/1307108206401945601.
¶30 The Recorder also contends that due to Plaintiffs’ delay, their
claim is barred by laches. See League of Ariz. Cities & Towns v. Martin, 219
Ariz. 556, 558 ¶ 6 (2009) (“Laches will generally bar a claim when the delay
[in filing suit] is unreasonable and results in prejudice to the opposing
party.” (quoting Sotomayor v. Burns, 199 Ariz. 81, 83 ¶ 6 (2000))). We
disagree. Because the County was able to meet the deadlines for early
ballots, it suffered no prejudice. And more importantly, Plaintiffs’ delay
does not excuse the County from its duty to comply with the law.
V.
¶31 We reverse the trial court and grant relief. The County is
enjoined from including the New Instruction with mail-in ballots for the
November 3, 2020 General Election.
10