Fontes Stripped of Power to Certify Election Results Amid County Defiance

PHOENIX — A federal judge has intervened in Arizona’s voting process, declaring late Friday that Secretary of State Adrian Fontes cannot exclude uncoded votes from unverified counties in state tallies. U.S. District Court Judge Michael Liburdi referred to Fontes’ proposed rule as “utterly without precedent” and comparable to a nuclear weapon against voting rights.

Judge Liburdi’s strongly worded ruling addressed concerns about past attempts by county supervisors to delay vote certification, which threatened to disrupt statewide canvassing processes. He underscored that Fontes’ provision in the Elections Procedures Manual that would skip uncertified votes unfairly disenfranchises voters who cast their ballots.

Liburdi cited the right of qualified voters to have their votes counted. He emphasized, “The canvass provision imposes the most severe burden: state-sanctioned disenfranchisement.” The judge articulated the potential chaos if Maricopa County supervisors were to resist certification.

Under the contested provision, Fontes could finalize state results without including 2.4 million votes from Maricopa County, thereby skewing results based solely on votes from the other 14 counties. “None of this would be the fault of the disenfranchised voters,” Liburdi noted.

Furthermore, Liburdi rejected assurances from Fontes regarding the provision being a deterrent for county compliance, likening it to a “nuclear weapon” that remains dangerous regardless of the Secretary’s declarations. “It is a weapon in the secretary’s arsenal that he has discretion to use should the circumstances present themselves,” Liburdi stated.

The ruling does not completely eliminate Fontes’ controversial provision; a full trial is required for that. However, the current order prevents Fontes from enforcing this provision in the current election cycle. Additionally, Judge Liburdi granted a request to bar Fontes from enforcing another provision regarding voter intimidation and harassment at polling places.

Liburdi expressed concerns about the vagueness of the language prohibiting actions that could “threaten, harass, intimidate, or coerce” voters and noted the potential for arbitrary enforcement by poll workers. “Without any limitation, election officials have nearly unfettered discretion in categorizing and regulating a voter’s speech,” he said.

This decision comes after Maricopa County Superior Court Judge Jennifer Ryan-Touhill previously restricted Fontes’ enforcement of free speech limitations related to polling locations, asserting that those provisions were too vague and overly broad.

The implications of this ruling are significant. In 2022, a delay by Cochise County supervisors nearly derailed election certification, forcing the intervention of the courts to ensure proper canvassing. The outcomes of the previous gubernatorial race and other significant elections underscore the stakes involved. Though neither gubernatorial candidate was affected, critical down-ballot races could have seen different outcomes had the counties failed to certify.

Judge Liburdi mentioned alternative measures that could ensure that final election results meet statutory deadlines while enfranchising all voters, including seeking judicial declarations or appointing auditors to verify counts.

Aaron Thacker, a spokesperson for Fontes, stated that the office will thoroughly review the ruling to determine any necessary next steps. The lawsuit was initiated by organizations associated with Republican interests, including American Encore, which has engaged in Arizona political campaigns, and America First Policy Institute, linked to supporters of former President Donald Trump.