Village of Oak Creek resident Dwight Kadar is suing Arizona Secretary of State Adrian Fontes over a provision in Fontes’ new edition of the state elections procedures manual that permits alternate methods of ballot verification.

Yavapai County Superior Court Judge John D. Napper rejected Fontes’ motion to dismiss the suit on Sept. 1, allowing it to proceed.

Kadar is a joint plaintiff in the suit, which was filed on March 6, with two 501(c)(4) groups, the Arizona Free Enterprise Club and Restoring Integrity and Trust in Elections; the latter is a Virginia-based organization. The Republican Party of Arizona joined the suit as a plaintiff on April 17. Kadar has donated more than $110,000 to the party and to Republican candidates over the last 10 years. He ran unsuccessfully for a Sedona Fire District Governing Board seat in 2018.

“Most early ballots in Arizona elections are cast by mail,” the complaint stated. “A completed early ballot must be submitted in a sealed envelope. The exterior of the envelope contains a pre-drafted affidavit form that declares that the individual casting the early ballot has registered to vote in the relevant county, has not voted and will not vote in any other jurisdiction, understands that multiple voting is a felony offense and personally voted the enclosed ballot and signed the affidavit …

“The affidavit signature presented on the exterior of the envelope accompanying the early ballot submitted by mail or in a designated drop box is the sole item of information available for the county recorder to use to perform her duty to corroborate that the person submitting the ballot is the same qualified elector appearing on the county’s voter rolls …

“Upon receiving an early ballot, the county recorder [or his or her staff] is required by law to ‘compare the signatures thereon with the signature of the elector on the elector’s registration record,’” citing Arizona Revised Statutes §16-550(A).

Noting that Arizona law does not explicitly define a voter registration record, the plaintiffs asserted that such a record “consists of the complete and facially valid federal and state forms submitted by that individual, and any amendments thereto.”

“Contrary to the unambiguous statutory directive of ARS §16-550(A), the Secretary of State has instructed county recorders to validate early ballot affidavits if the signature is deemed to match any signature in any election-related document available to the county recorder,” the complaint argued. “Certain of these materials, and particularly early ballot envelopes submitted in prior elections, however, are not ‘registration records,’ and hence are not a lawful comparative reference … It is wellestablished that ‘an EPM regulation that contradicts statutory requirements does not have the force of law.’”

The plaintiffs are seeking a determination that Fontes exceeded his lawful authority, an injunction invalidating the relevant parts of the EPM and costs.

The Arizona Alliance for Retired Americans applied to intervene in the case on March 13, arguing that since Arizona law does not define a voter registration record, it is reasonable for the Secretary of State to provide clarification, that the lawsuit would make vote counting “even more unreliable” and that elderly voters would be disproportionately at risk of disenfranchisement given the potential for their signatures to change over time.

Mi Familia Vota also filed a motion to intervene on March 21, in which it pointed out that the regulation involved was introduced in 2019 by then-Secretary of State Katie Hobbs and approved by Attorney General Mark Brnovich and Gov. Doug Ducey and had been in use for two election cycles prior to the complaint being filed.

In their April 3 response to the motions to intervene, the plaintiffs argued that the rule as introduced in the 2019 EPM was equally invalid and that the possibility of hypothetical future voter disenfranchisement raised by the prospective intervenors did not qualify as having a direct effect on their interests.

Fontes moved for dismissal of the case on April 20, arguing that when the legislature changed the text of ARS §16-550(A) in 2019 from “registration form” to “registration record,” it did so intentionally in order to increase the number of available options for ballot verification. His motion also argued that the court should defer to the Secretary of State’s authority to regulate elections.

“If one accepts that the term ‘record’ is ambiguous in the context of ARS §16- 550(A), then that ambiguity necessarily equips the Secretary — Arizona’s chief election officer — with the discretion to determine what constitutes a registration record,” Fontes stated.

On April 21, Napper granted the motions to intervene and scheduled a hearing on Fontes’ motion to dismiss for July 7. He subsequently rejected the motion to dismiss on Sept. 1.

“The Secretary is bound by the election statutes,” Napper wrote in his ruling. “The issue before the court is the definition of ‘registration record’ … The [language] of the statute is clear and unambiguous. The statute requires the recorder to review the voter’s registration record. The common meaning of ‘registration’ in the English language is to sign up to participate in an activity … Applying the plain and obvious meaning of ‘registration,’ the legislature intended for the recorder to attempt to match the signature on the outside of the envelope to the signature on the documents the putative voter used to register.”

“The Secretary urges the court to determine the legislature intended other documents to be included in the definition of ‘registration record’ based on a legislative change in the text of the statute,” Napper continued. “A prior version of the statute required the recorder to compare the signature on the envelope to the putative voter’s ‘registration form’ … This argument fails because the change by the legislature simply increased the volume of documents to be reviewed by the recorder but not their character.”

“The court finds the plaintiffs have correctly defined registration record,” Napper concluded. “Therefore, this portion of the EPM and the instruction from the Secretary do ‘not have the force of law.’”

“There’s nothing left to fight about,” attorney Kory Langhofer, who represents the plaintiffs, said following Napper’s ruling.