The Center for Election Confidence (CEC) today filed an amicus brief in RNC v. Fontes, which is currently pending before the Arizona Supreme Court. In Fontes, Arizona Secretary of State Adrian Fontes challenges the Arizona Court of Appeals determination that his office unlawfully promulgated the 2023 Arizona Election Procedures Manual (EPM), an administrative document that has the force of law and governs all election procedures in the state, in violation of the Arizona Administrative Procedures Act (APA). In the alternative, Secretary Fontes asks the Arizona Supreme Court to apply any remedy on a forward-looking basis only, which would allow his office to implement the unlawful 2023 EPM and the 2025 EPM, which was also promulgated without following the APA.

In its brief, CEC argues

First, the APA’s plain language states that when an agency fails to substantially comply with the APA in issuing a rule, the “rule is invalid.”
Second, affirming the Court of Appeals here and invalidating the 2023 EPM would not create practical problems for the Secretary because the APA permits emergency rulemaking when necessary to “avoid violation of federal law or regulation or other state law.”
Third, granting the Secretary’s requested “prospective-only” relief would not only contravene the state’s long-settled precedent that civil decisions presumptively apply retroactively but also would set a dangerous precedent that would allow other agencies to enact and enforce unlawful rules.

Arizona law sets out clear procedures for adoption of an EPM for each election cycle. The fact that the Secretary of State does not seem to like those provisions of law does not change the law’s meaning or application. The Secretary’s insistence on enforcement of an illegal EPM is particularly harmful, since public confidence in elections relies on consistent and transparent enforcement of law.

Now that the Arizona Court of Appeals has determined that ignoring the law is not acceptable when promulgating an EPM, Secretary Fontes is asking the state high court to adopt a novel theory—never before see in Arizona law—that would “bless” his previous unlawful actions, all to the detriment of Arizona’s voters.

In reality, the Secretary is not asking for the Court to apply its holding “prospectively only.” The Secretary is asking this Court to ignore the express language of the APA, to allow him to enforce an invalid rule (i.e., the 2023 EPM), and even go so far as to permit him to issue and enforce an additional invalid rule (i.e., the 2025 EPM). Allowing this is (1) contrary to the well-settled presumption that civil decisions apply retroactively; (2) would set a dangerous precedent and encourage other agencies to ignore the APA’s requirements; and (3) would create significant harm to the public interest.

Even worse, CEC argues, is that Secretary Fontes ignored the Court of Appeals’ decision and did it again! He chose to take the same unlawful actions yet again to adopt an EPM for 2025. He ignored the law and ignored the Court of Appeals but now expects the Arizona Supreme Court to reward his lawbreaking behavior.

Instead of following the Court of Appeals’ decision and complying with the APA, the Secretary chose to promulgate the 2025 EPM in virtually the same manner as he did previously. He now asks that his failure to comply with the APA over the last six months be rewarded, through what he characterizes as “prospective-only” application of the plain language of the APA. This Court must decline to do this.

Shockingly, Secretary Fontes now comes before the Arizona Supreme Court, asking the Court to allow him to enforce an unlawful Election Procedures Manual by applying any ruling against him on a forward-looking basis only—something unknown in Arizona law.

In its brief, CEC counsels against allowing illegal election procedures to be enforced in Arizona, arguing that permitting an invalid EPM to go into force would inflict serious damage on Arizona voters’ confidence in their election processes, procedures, and outcomes.

Indeed, if the Secretary is allowed to enforce an invalid EPM, it will erode election confidence . . . . This is because elections for at least the next two years will be administered pursuant to rules that this Court has declared were not adopted according to law, ignoring basic procedural standards.

Arizona voters deserve an Election Procedures Manual adopted according to law because Arizona voters deserve elections administered according to law. The Arizona Supreme Court should affirm the Court of Appeals’ decision invalidating the 2023 EPM and deny the Secretary’s shocking request to be allowed to enforce illegal procedures anyway. Election integrity requires it.

The Center for Election Confidence thanks Beau W. Roysden, III, and Katlyn J. Divis of Fusion Law, PLLC, for their representation in this matter.