Coronavirus and Recorder Adrian Fontes Highlight Need for Voting Reform in Arizona

Maricopa County Recorder Adrian Fontes just got legally slapped down for trying to do the right thing. He wanted to send out mail-in ballots to all voters in Maricopa County qualified to vote in Arizona’s Presidential Preference Primary election, even if they were not already on the Permanent Early Voter List (PEVL) — which is contrary to Arizona law on the matter.

I presume he was worried that many voters would be disenfranchised because so many people are rightly concerned about possibly catching the Coronavirus. His office has had to shut down many polling places on primary day due to volunteers backing out, a lack of cleaning supplies to meet the County’s newly mandated sanitation standards, and the widespread social distancing and isolation practices being adopted by citizens and local authorities to help curb the spread of the virus.

I cannot detect any partisan or preferential intent in Fontes’ actions. I believe he was genuinely trying to help keep the public safe and help voters safely exercise their franchise.

In a press release Fontes office said:

“The Board of Supervisors is doing all they can to keep polling places open, staffed and clean and I applaud their efforts. But I felt this additional option was necessary to serve our voters,” Fontes said.

Fontes acknowledged that the law does not contemplate this type of situation but felt that, as the elected official responsible by law for early voting in Maricopa County, the health crisis creates an emergency situation that demands decisive action to protect the public health.

“There will be some who will say there is no authority to mail ballots to all voters under the law, but there is no prohibition either. Considering this unprecedented emergency situation, we need to act to both enfranchise the voters and protect public health. This plan accomplishes both of those goals,” Fontes said.

Fontes knew he was acting without statutory authorization or precedent, but he was absolutely trying to do the right thing by voters. Of course, the Republican Arizona Attorney General, Mark Brnovich, shut that shit right down and slapped Fontes with a restraining order and lawsuit, which he easily and rightly won: Bronvich certainly had the law, if not equity and public safety, on his side.

Brnovich said in his press release:

“The Maricopa County Recorder cannot unilaterally rewrite state election laws. Fontes is creating chaos in our elections during an already difficult time. In times of crisis, the public looks to our elected officials to follow the law — not make reactionary decisions for political gain.”

How Fontes was going to “create chaos” or realize any “political gain” from a Democratic Party primary election, is left unexplained. It’s just mindlessly partisan rhetoric by Brnovich, really. Perhaps it would be more useful if Arizona’s top attorney would opine that if a law tends to conflict with public safety and voter convenience, that perhaps the that law should be changed? He could still enforce current law, which is his job, after all, without being a partisan dick about it, which shouldn’t really be in his bailiwick, at all.

Yes, Fontes made a hail-mary pass that he knew would likely not work: people could not have even used the mail-in ballots as mail-in ballots due to the deadlines involved. Voters would have had to drop these mail-in ballots at a polling place to be counted, but at least they would not have to interact much, if at all, with election staff, and would be exposed to other voters as minimally as possible for not having to wait in any lines to cast their votes.

This desperate, and somewhat futile, move by Fontes does effectively draw attention to a major flaw in Arizona’s, and I would presume most states’, election laws — we do not have any real plan for an emergency such as that which we are facing with the Coronavirus outbreak during an election. We should be grateful to Fontes for highlighting for us this very real problem.

What Arizona, and all states, need is a radical rethinking of how we do elections in a way that anticipates such exigencies. We need automatic registration for all eligible citizens, and automatic placement on the PEVL (with affirmative opt-out available) for everyone in every election. We need to have a much more equitable and “bomb-proof’ system of elections to strengthen our democracy.

It’s simply silly, not to mention having pernicious effect of suppressing turnout, that the burden of becoming registered to vote and placed on the PEVL list falls on the individual citizen. That burden belongs on the state, which has every resource and all the information it needs to carry out the task most efficiently. One can only conclude that the friction created by making the citizen responsible for initiating these tasks is intended to keep some people from voting, especially those with least resources to devote to those tasks.

Critics will say that taking the trouble to register to vote and opt in to the PEVL are the minimal and just price of participating in self-government. I say to them that ANY trouble imposed by the law to exercise a right and a civic duty is too much of a burden, especially when it is easily anticipated and empirically demonstrated that such efforts disproportionately effect the most vulnerable and resource-poor of our citizens.

Fontes should certainly not be vilified for highlighting this problem in our elections system: rather, he should be thanked (DM him with an “atta-boy” @RecorderFontes). Maybe this crisis will have the silver lining of making the need for voting registration reforms more immediate to Arizona’s legislature. But I’m not holding my breath (at least not for that reason).