Photo by Jim Small | Arizona Mirror
The Arizona Free Enterprise Club tried to convince a panel of appellate judges on Tuesday that the way the state has been verifying voter signatures for the past four years violates state law.
In a legal challenge that has dragged on for years, the Free Enterprise Club, along with other plaintiffs including the Arizona Republican Party, have argued that state law allows only the signatures from voter registration forms to be used for comparison to verify voter signatures on vote-by-mail envelopes.
Attorney for the plaintiffs Kory Langhofer told the three judges on the Arizona Division Two Court of Appeals that the state had been improperly using signatures from other sources like ballot envelopes and poll books that voters had signed in previous elections. County elections workers were instructed to use those sources for comparison by the secretary of state, to increase the number of signatures available for reference.
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Yavapai County Superior Court Judge John Napper initially agreed that the 2019 Election Procedures Manual — the state’s elections rulebook — did not include instructions to use prior ballot affidavits or poll book signatures for comparison. The EPM is written by the secretary of state, based on state statutes, and is typically updated every two years.
Prior to a law change in 2019, state statute only allowed comparison of a signature from a voter’s “registration record.” But the judge later reversed his opinion after the 2023 EPM, which advised the use of ballot affidavit and poll book signatures, was adopted and the Arizona Legislature codified portions of it regarding signature verification into law in 2024.
“The amendments (to Arizona law) rely heavily on the text from the 2023 EPM,” Napper wrote in an April 2024 ruling. “In some places the statutes outright adopt language directly from the 2023 EPM. The new statutes also use the phrase ‘registration record’ multiple times. The Legislature had every opportunity to eliminate ‘prior early ballot affidavits’ as a comparison tool but chose not to do so. Nothing in these amendments suggests the Legislature found the EPM’s working definition of registration record was improper.”
The appellate judges pushed Langhofer on whether the plaintiffs even had standing to bring the lawsuit, asking him numerous times to explain specifically how the Republican Party of Arizona would be harmed by the existing signature verification processes.
“You will not find an institution that has a stronger or longstanding interest in election integrity,” Langhofer said.
Kara Karlson, arguing on behalf of Arizona Secretary of State Adrian Fontes, said that Langhofer had failed to prove that the Republican Party’s efforts to ensure Republican votes were counted would be harmed by the existing verification practices.
Langhofer also told the judges that the trial court judge had improperly intuited the legislators’ intent when they used the term “registration record” instead of registration form in updates to the law in 2019 and 2024.
The Free Enterprise Club has claimed since it first filed the lawsuit in 2023 that using signatures from a voter’s ballot affidavit or poll books in a previous election would open up the possibility of increased voter fraud.
Langhofer said that for example, a mother might fill out and sign her son’s mail-in ballot while he’s away at college and then her signature would be on file as an example of her son’s signature for comparison. But he didn’t provide any examples of something of that nature actually happening and Karlson pointed out that the mother’s signature would first have to be verified as matching a previous signature from the son for that to happen.
Multiple former Arizona election officials signed onto a brief in the case attesting that having more signatures for comparison was a best practice, and would actually result in better election integrity than using only one signature.
Austin Marshall, an attorney representing Mi Familia Vota, a voting rights organization that joined with Fontes in the suit, argued that because failing to vote by mail for two cycles in a row can kick a voter off the active early voting list, simply casting a ballot is an update to a voter’s registration. That means, Marshall said, that even under Langhofer’s narrow definition of voter registration records, a vote-by-mail ballot counts as one of those records.
Langhofer responded that he had “to agree that (Marshall’s argument was) technically correct” but that the average person would not consider casting a ballot to be updating their voter registration. Therefore, Langhofer said, because legal definitions are supposed to be based on the common understanding of a word, a ballot affidavit or poll book signature couldn’t be considered part of the voter registration record.
“In my entire life, I have never heard someone say, ‘I went to vote, and I extended my voter registration,’” Langhofer said. “I’ve never said it to anyone and I’ve never heard anyone else say it to me.”
Fontes on Aug. 1 released a new draft version of the EPM for review, which included some changes in response to Republicans’ successful legal challenges to the 2023 version.
In those cases, the courts found that Fontes’ description of voter intimidation went beyond what was outlined in the law and that he didn’t give the public enough time to weigh in on the 2023 version of the elections rulebook.
Arguments in this case came just as President Donald Trump promised to abolish vote-by-mail entirely, something that far-right Republicans have demanded for several years — both in Arizona and nationally — backed by unproven claims of widespread fraud.
Judge Pete Eckerstrom said that the court would take the matter under advisement but didn’t provide a timeline for when it will issue its opinion.
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