Judge: Fontes' description of ballot measure on AZ election laws is legal

In a new ruling, Maricopa County Superior Court Judge Adele Ponce said Arizona law requires the secretary of state to prepare language that appears on each ballot explaining the effects a measure would have if approved. The judge acknowledged that Fontes, an elected Democrat, did not mention each and every provision in the explanation of Proposition 144.

But she said Fontes did not break the law.

There's a lot in Prop. 144.

Provisions range from enshrining in the Arizona Constitution that only citizens can vote, imposing  restrictions on spending by foreign nationals to influence elections, and setting up new procedures for tallying ballots at each polling place versus bringing them to a central location.

The proposition also would require all voters to show identification when casting a ballot — even those who vote by mail.

In filing suit, James Rogers, an attorney with America First Legal, complained that the explanation prepared by Fontes did not mention that one section would spell out that "only citizens may register and vote in Arizona elections.'' Another says elections in Arizona "shall be decided solely by the votes of eligible citizen voters.''

Fontes has taken the position that's already required in state law and nothing in Prop. 144 would change that. Ponce said it was his decision to make.

"Giving the secretary the deference due under the law, the court finds the description's inclusions or omissions are neither false nor clearly misleading,'' the judge wrote.

Ponce also found nothing wrong with Fontes saying that a provision in Prop. 144 to prohibit foreign nationals from spending money to influence elections is "similar to provisions that already exist in federal law.'' The judge said even if there are differences between what's in the proposition and federal law, the statement is not false and "can reasonably be regarded as an attempt to provide necessary and appropriate information.''

Perhaps the most crucial part of the new ruling is that Ponce rejected claims by Rogers that Fontes was trying to mislead voters by telling them if they approve one key provision spelling out the authority of lawmakers, it "may make it harder to challenge election laws.''

That's significant because one section of Prop. 144 would require every person to show valid identification before casting a ballot in each election, "whether voting in person or by any other method, as prescribed by law.''

Only thing is, nothing in the ballot measure explains how that would affect the more than 80% of Arizonans who vote by mail. Instead, it leaves it to future legislatures to work out the details.

But Prop. 144 would put language into the Arizona Constitution that all future election laws — including on early and mail voting — are presumed to be legal as long as they are connected to what the Legislature considers a "legitimate state interest.'' That covers everything from getting timely election results to "preserving public confidence in the integrity of elections.''

Based on that language, Fontes, in his description of Prop. 144, told voters that if it is approved, it "may make it harder to challenge election laws.''

Rogers claimed Fontes was making improper legal predictions, and in a way that could affect whether people decide to vote for the measure. But Ponce wasn't buying it.

"The fact that it is unknown precisely how the language will be applied or interpreted by the courts does not preclude the secretary from describing its potential impact, not does it render that description false or clearly misleading,'' the judge wrote. "Rather, the description can reasonably be regarded as an attempt to provide necessary and appropriate information to the voting public.''

Ponce also said even if she accepted all of the arguments by America First Legal, it wouldn't matter.

She said Arizona law requires that someone allege "a distinct and palpable injury'' to be able to sue to force the secretary of state to change a ballot description to something they claim is more accurate.

Three individuals whom America First Legal named as plaintiffs support Prop. 144 as it was approved by the Republican-controlled Legislature. But the judge said that's not enough evidence.

"This is not a distinct or palpable injury, but a generalized harm that is shared by all or a large class of citizens, insufficient to provide standing,'' Ponce wrote. She said the fact that the three individuals signed up to speak in favor of the measure as it was going through the legislative process does not give them any special right.

In filing the lawsuit, Rogers — himself a Republican candidate for the state House from Mesa — sought to interject politics into the litigation.

He told Ponce she needed to take extra care to examine his claims that Fontes has not complied with the law's requirements in preparing a ballot explanation. That, he said, is because Prop. 144 was written by state Rep. Alexander Kolodin.

Currently a Scottsdale Republican, Kolodin is the GOP nominee for secretary of state, meaning he will face off in the November election against Fontes.

Rogers said Fontes' political interests "explain how the ballot language came to resemble an argument against Proposition 144 and underscore the need for exacting judicial review.''

The judge essentially ignored that argument and never addressed it in her ruling.

There was no immediate word about whether there will be an appeal to the Arizona Supreme Court.

This is actually the second time Ponce has issued a ruling about Prop. 144.

In a separate challenge, Randy Keating, a member of the Tempe City Council, sought to block the measure from even getting to the ballot. He charged the proposal ties together too many unrelated provisions alongside its new voter ID requirement, violating a constitutional requirement that voters should be given the opportunity to decide disparate measures individually.

In that case, Ponce rejected the claim, concluding that everything in Proposition 144 is "topically related'' and "sufficiently interrelated.'' That ruling is being appealed to the Supreme Court.