Following in the footsteps of his predecessor (now-Governor Katie Hobbs), Secretary of State Adrian Fontes appears determined to implement an Election Procedures Manual (EPM) that is ripe with unlawful provisions. The EPM is used by election officials throughout the state as the rulebook to conduct and run elections, so it is critically important that every provision in the manual strictly adheres to state law.
Now, fresh off an important legal win over the illegal signature verification process in the EPM, the Arizona Free Enterprise Club, along with the Thomas More Society, is suing Fontes once again—this time over unstaffed ballot drop boxes.
An Illegal Method of Voting
Arizona law establishes four different methods for secure early voting. According to A.R.S. § 16-548(A), an early ballot shall either be:
Delivered to the officer in charge of elections, typically the county recorder.
Mailed to the officer in charge of elections, typically the county recorder.
Deposited by the voter at any polling place in the county.
Deposited by the voter’s agent (family member, household member, caregiver) at any polling place in the county.
Did you catch that? Nowhere in the law does it allow for the use of unstaffed drop boxes. In fact, if you read through Fontes’ EPM, you’ll notice something. Although the EPM includes over 1,000 citations, the section on its unstaffed drop box scheme includes zero citations of Arizona law! You can see for yourself right here. And yet, Fontes still moved forward with this invented option in the final draft of the EPM he submitted to Governor Hobbs and Attorney General Mayes. But the omission of such citations is only one problem with drop boxes.
Drop Boxes Lack the Protections of the USPS
Unlike U.S. Postal Service (USPS) mail collection boxes, unstaffed drop boxes don’t enjoy special protections under federal law that could lead to prison sentences for crimes like obstruction of mail passage, destruction of mail, and vandalism of a mailbox. On top of that, these unstaffed drop boxes aren’t required to have locks. Instead, they are “secured” with a “tamper-evident seal.” (Who could get past such a fortress of security?) And, while the USPS requires mail carriers to take an oath of fidelity to the Constitution, Fontes’ EPM creates the position of “ballot retriever.” Do you know what it takes to qualify as a “ballot retriever”? An individual simply needs to wear a badge when performing his or her duties! That’s it! It’s right there in the EPM.
Then, there’s the simple fact that USPS mailboxes offer an additional level of security because they can contain different varieties of mail at any given time. This makes it impossible for a bad actor to know whether a particular mailbox contains early voted ballots. By contrast, an unstaffed drop box contains only completed ballots, providing anyone who wants to interfere with an election the certainty to know that the contents of the drop box likely contain a significant number of completed ballots.
Other Issues with Drop Boxes
Along with lacking the protections of the USPS, unstaffed drop boxes also increase the possibility of voter intimidation. After all, when a person approaches a drop box, it’s clear that he or she has no reason to be there except to deliver a voted ballot. This makes that person an easy and vulnerable target, which is much less likely to occur at a mailbox or an election official’s office.
And finally, there’s the issue of unsecure locations. Fontes’ EPM doesn’t require unstaffed drop boxes to be located at or near a government building. Because of this drop boxes have been established at churches, elementary schools, restaurants, bookstores, humane societies, and more. In fact, some drop boxes in Yavapai County have been placed at U.S. Postal Offices—mere feet away from a mailbox where voters could legally return their ballots. (You can’t make this stuff up…)
For all these reasons and more, the Free Enterprise Club filed a lawsuit last week in the Yavapai County Superior Court. The use of drop boxes must be in accordance with state law, and we are hopeful that our lawsuit will result in election officials ending their use at illegal unstaffed locations for the 2024 election. This would give the people of Arizona exactly what they want: elections where it is easy to vote and hard to cheat.
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