A new lawsuit against Secretary of State Adrian Fontes could end up affecting whether Arizonans will actually get a voice in the November presidential election.

At the heart of the complaint is the Elections Procedures Manual. Adopted by the secretary of state with approval of the governor and attorney general, it is considered a guide for local officials to use when conducting elections.

In legal papers filed in Maricopa County Superior Court, Senate President Warren Petersen (R-Gilbert) and House Speaker Ben Toma (R-Peoria) contend that county supervisors have some discretion in deciding whether to simply accept the results or have some leeway to raise questions.

More to the point, attorney Kory Langhofer says there is some flexibility in the current deadline for counties to get their formal results to the secretary of state by Dec. 1 this year. He says if the supervisors want more time to consider the results, state law actually gives them until Dec. 5.

Those extra four days can make a big difference.

That's because the state cannot begin mandatory recounts — which are more likely to occur due to a relatively new state law — until after the formal canvass. 

And the state must have all of those processes wrapped up before submitting results of the presidential election to Congress by a federal Dec. 11 deadline in order to have the state’s 11 electoral votes counted.

Petersen and Toma allege that some of what Fontes put into the new manual does not comply with state law. And they say that in such cases the statutory provisions override the manual's guidance.

Fontes, in the new manual he has adopted, says if a county doesn't get their official tallies to him by his deadline to certify the statewide results "the secretary of state must proceed with the state canvass without including the votes of the missing county." That, says Langhofer, is illegal.

"Arizona law does not allow the secretary of state to disenfranchise the voters of an entire county," he told Maricopa County Superior Court Judge Timothy Ryan.

He also disputes any contention that the supervisors must simply rubber stamp the results as reported by the recorder. Instead, Langhofer said, Arizona law actually requires the board, on its own, to "determine the vote," something that might take some extra time.

In fact, Langhofer argued, state law spells out that if Fontes hasn't received the official results from any county by that late November deadline, he actually has to postpone the formal statewide canvass “until canvasses from all counties are received.” 

Fontes, however, defended what is in the manual.

"Elections must have finality," he said. "And the EPM provides a roadmap for our counties to help us move on."

And Fontes bristled at the allegation in the lawsuit.

"Any accusation that this office disenfranchises Arizona voters is ridiculous," he said.

Petersen, however, said the legal action has merit.

"Our lawsuit says you have to follow the law," he said.

It all comes down to the time crunch.

That starts with the possibility of a mandatory recount in the presidential race. And that can't occur until after the statewide canvass.

A 2022 Arizona law increased the margin to trigger an automatic recount to 0.5%, which could exacerbate existing deadline problems.

And if the loss of those extra days means the state doesn't get its formal results to Congress by that Dec. 11 federal deadline, the votes — and wishes — of Arizonans may become irrelevant as to who takes the presidential oath of office in January 2025.

All this comes back to what Fontes included in the manual.

Fontes’ manual says county supervisors have “a non-discretionary duty” to canvass the returns provided to them by the county recorder or other official running the election. More to the point, the manual says the board "has no authority to change vote totals, reject the election results or delay certifying results without express statutory authority or court order.”

Langhofer said that's not exactly what the law says.

"While (Arizona laws) require the board to conduct a canvass by a certain deadline, it also empowers the board to determine the vote of the county," he told Ryan. And that means more than simply accepting as true the numbers board members get from whoever ran the election.

"The board's statutory duty to canvass the vote does not necessarily require the board to accept the returns in the form provided by the election official or vote in a certain way regarding the accuracy of returns," he said. 

That issue of the county deadline to canvass the votes and what happens if they do not is only part of the challenge to the manual by Petersen and Toma.

Some of the issues they raise are technical, like what happens when a county recorder gets notified that someone has moved. Petersen and Toma contend state law requires that person's registration be canceled; the manual says it is placed on inactive status and may later be canceled.

But the two GOP leaders also are challenging Fontes' interpretation of a law that requires county recorders to conduct monthly checks of those who are registered to vote if there is "reason to believe" someone is not a citizen.

Fontes, in the manual, says there are several ways for county recorders to perform that duty. But he also contends that "third-party allegations of non-citizenship are not enough to initiate this process."

Not true, said Langhofer. He says the "plain language" of the law does require such checks if there is enough in an allegation, even one presented by an outsider, to suggest someone is not a citizen.

No date has been set for a hearing.