PETERSEN v. FONTES

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

WARREN PETERSEN, et al., Plaintiffs/Appellees/
Cross-Appellants,

v.

ADRIAN FONTES, Defendant/Appellant/
Cross-Appellee.

No. 1 CA-CV 25-0219 A
FILED 01-06-2026
AMENDED PER ORDER FILED 01-08-2026

Appeal from the Superior Court in Maricopa County
No. CV2024-001942
The Honorable Scott A. Blaney, Judge

AFFIRMED IN PART; REVERSED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Karen J. Hartman-Tallez, Kara Karlson, and Kyle Cummings
Counsel for Defendant/Appellant/Cross-Appellee

Statecraft PLLC, Phoenix
By Kory Langhofer and Thomas Basile
Co-Counsel for Plaintiffs/Appellees/Cross-Appellants

Snell & Wilmer LLP, Phoenix
By Joseph Kanefield and Tracy A. Olson
Co-Counsel for Plaintiffs/Appellees/ Cross-Appellants

PETERSEN, et al v. FONTES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the court, in which
Judge Michael J. Brown and Judge Andrew J. Becke joined.

G A S S, Judge:

¶1 This appeal involves a challenge to the 2023 Arizona Elections
Procedures Manual. The court accelerates its review under Rule 29, Arizona
Rules of Civil Appellate Procedure.

¶2 The President of the Arizona Senate and the Speaker of the
Arizona House of Representatives bring the challenge on behalf of their
chambers. The Legislators argue the Secretary exceeded his authority when
he adopted certain provisions of the 2023 Manual. They seek declaratory
and injunctive relief to enjoin those provisions. The superior court granted
their requested relief in part, ruling against the legislators on when the 2021
amendments to Arizona Election law regarding the active early voting list
took effect.

¶3 The court affirms in part and reverses in part. The court
reverses the superior court’s order enjoining one paragraph in the 2023
Manual’s county canvass provision.

FACTUAL AND PROCEDURAL HISTORY

¶4 Since the 1980s, the legislature has charged the Secretary with
adopting an election procedures manual every 2 years. A.R.S. § 16-452.B.
The manual contains rules and procedures for voting in Arizona. A.R.S.
§ 16-452.A. The Secretary issues an updated manual at the end of each
odd-numbered year. A.R.S. § 16-452.B. The Governor and the Attorney
General must approve the manual before it takes effect. Id. The Secretary
submitted the 2023 Manual to the Arizona Attorney General and Arizona
Governor. With their approval, the Secretary issued the 2023 Manual in
December of that year.

¶5 The Legislators brought this action to enjoin the Secretary
from implementing 5 provisions in the 2023 Manual. The 5 challenged
provisions relate to:

1. Statewide Canvasses;

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2. County Canvasses;
3. Juror questionnaires;
4. Circulator registrations; and
5. Active early voting lists.

¶6 The Secretary moved to dismiss, arguing the Legislators
lacked standing. The superior court found the Legislators have standing
because the legislature authorized them to bring this action and they
sufficiently alleged an actual controversy.

¶7 As to the first 4 challenged provisions, the superior court
ruled the Secretary exceeded his statutory authority in adopting those
provisions. The superior court thus declared those provisions
unenforceable and granted injunctive relief, permanently enjoining the
Secretary from promulgating those 4 provisions. The Secretary appeals the
superior court’s rulings on standing and the 4 enjoined provisions.

¶8 The superior court agreed with the Secretary on the fifth
challenged provision—the active early voting list provision—and ruled the
provision did not directly conflict with any constitutional or statutory
provision and was within the Secretary’s statutory authority. The
Legislators cross-appeal that ruling.

¶9 The court has jurisdiction over the Secretary’s timely appeal
and the Legislators’ timely cross-appeal under Article VI, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21.A.1, and 12-2101.A.1.

DISCUSSION

I. The Legislators have standing to challenge the 2023 Manual
provisions.

¶10 The Secretary argues the Legislators lack standing under
recent Arizona Supreme Court precedent. See Montenegro v. Fontes, ___
Ariz. ___, ___ ¶ 19, 576 P.3d 692, 697 (2025). The Legislators rely on the same
precedent to challenge the Secretary’s argument. The Legislators are
correct.

¶11 The court reviews de novo whether a party has standing. Id. at
696 ¶ 15. When deciding whether a party has standing, the court assumes
without deciding the party is “correct on the merits.” Id. at 697 ¶ 19. Arizona
courts have long recognized the legislature “has standing to challenge
actions that inflict institutional injury.” Id. at 699 ¶ 28. Though Arizona’s
Constitution does not have an express “case or controversy” requirement,

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when the court has resolved “disputes between branches of government,
[the court] also required some showing of a particularized injury to
establish standing.” Id. at 696–97 ¶¶ 17–19. But the “[L]egislators need not
exhaust all alternative political remedies before filing suit.” Id. at 699 ¶ 32.
(quoting Biggs v. Cooper ex rel. Cnty. of Maricopa, 236 Ariz. 415, 419 ¶ 17
(2014) (ruling legislators had standing even if they did not try to repeal a
law or refer it to the voters)); see also Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 487 ¶¶ 17–18 (2006) (ruling legislators had standing even if
they did not try to override the Governor’s veto).

¶12 The Legislators do not challenge the Secretary’s statutory
authority to promulgate the 2023 Manual. A.R.S. § 16-452.A provides the
Secretary “shall prescribe rules to achieve and maintain the maximum
degree of correctness, impartiality, uniformity and efficiency on the
procedures for early voting and voting . . . .” Acting under this
authorization, the Secretary promulgated the 4 challenged provisions.

¶13 Instead, the Legislators argue they have an alleged actual
injury because the Secretary went too far when including those 4 provisions
in 2023 Manual. They argue the Secretary adopted rules that conflict with
express statutory provisions, nullified those statutes, set policy beyond that
established by the legislature, and encroached on the legislative branch’s
power as a result. The Legislators thus argue the Secretary violated
Arizona’s express constitutional separation of powers clause. See Ariz.
Const. art. 3.

¶14 The Legislators argue they have shown an actual controversy,
relying on broad language in Montenegro: “[T]he parties here are
adversarial to each other over the issues in the lawsuit and have fully,
vigorously, and capably argued the law. So we clearly have a case or
controversy in the literal sense of the term.” Montenegro, ___ Ariz. at ___
¶ 18, 576 P.3d at 697. And as in Montenegro, the Legislators here
“proceed[ed] under the Uniform Declaratory Judgments Act, which among
other things gives the courts ‘power to declare rights, status, and other legal
relations.’” Id. (quoting A.R.S. § 12-1831). And the legislature has standing
to seek relief under that uniform act when its “rights, status or other legal
relations are affected by a statute, municipal ordinance, contract or
franchise . . . .” See A.R.S. § 12-1832. The 2023 Manual has the force of law.
See Ariz. Pub. Integrity All. v. Fontes, 250 Ariz. 58, 63 ¶ 16 (2020) (recognizing
the election procedures manual has the force of law).

¶15 The Secretary argues the court should find no standing
because this case, unlike Montenegro, does not involve a delegation in a

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voter initiative. Montenegro decried that distinction: “The constitutional
reservation to the people of the powers of initiative and referendum ‘does
not in any way affect the division of powers; they remain the same.’”
Montenegro, ___ Ariz. at ___ ¶ 24, 576 P.3d at 698 (quoting Tillotson v.
Frohmiller, 34 Ariz. 394, 401 (1928)).

¶16 The case is analogous to Napolitano, 213 Ariz. at 484 ¶¶ 4–6.
Montenegro discussed Napolitano and explained, the legislature “challenged
the Governor’s veto of a portion of a state employee compensation bill.”
Montenegro, ___ Ariz. at ___ ¶ 29, 576 P.3d at 699. And that challenge was
enough to show “the legislature ‘alleged a particularized injury to the
legislature as a whole.’” Id. (quoting Napolitano, 213 Ariz. at 486 ¶ 14). The
governor argued the legislature “lacked standing because it had not
attempted to override her veto.” Id. The Arizona Supreme Court concluded
“the existence of the injury does not depend upon and is not affected by
whether the Legislature attempted to override her veto.” Id. (quoting
Napolitano, 213 at 487 ¶ 17). The issue in Napolitano was whether the
governor used an executive act to encroach on the legislature’s power.

¶17 As a final point, this case requires a different outcome than
Bennett v. Napolitano, 206 Ariz. 520 (2003). In Bennett, the Arizona Supreme
Court “ruled that individual legislators did not have standing to challenge
certain line-item vetoes by the Governor. The legislators themselves did not
claim injury as their votes were not nullified.” Montenegro, ___ Ariz. at ___
¶ 28, 576 P.3d at 699 (discussing Bennett, 206 Ariz. at 526 ¶ 26). The
distinction is pertinent here. In Bennett, the Arizona Supreme Court said
when a “claim allegedly belongs to the legislature as a whole,” four
legislators could not allege institutional injury “without the benefit of
legislative authorization.” Id. (quoting Bennett, 206 Ariz. at 527 ¶ 29). The
Legislators have legislative authorization to bring this action.

¶18 Assuming, as the court must, the Legislators are correct on the
merits, they have stated a sufficient institutional injury to confer standing
to bring the challenge. See Montenegro, ___ Ariz. at ___ ¶ 34, 576 P.3d at 700.

II. The Legislators’ challenge to the 2023 Manual’s statewide canvass
provision is moot.

¶19 In the Secretary’s reply brief, the Secretary argues the
Legislators’ challenge to the statewide canvass provision is moot because
the last election under the 2023 Manual has occurred and the results have
been canvassed. See Ariz. Sec’y of State, State of Arizona Official Canvass
(2025). The court directed the Legislators to file a supplemental brief to

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address whether the court should consider the issue moot. The Legislators
argue the issue is not moot because the Secretary still has a chance to
reinsert the provision before the 2025 Manual is issued.

¶20 Generally, the court exercises judicial restraint and refrains
from deciding moot questions. See Kondaur Cap. Corp. v. Pinal Cnty., 235
Ariz. 189, 192–93 ¶ 8 (App. 2014). A question becomes moot when an
intervening event causes the outcome to have no practical effect on the
parties. Arpaio v. Maricopa Cnty. Bd. of Supervisors, 225 Ariz. 358, 361
¶ 7 (App. 2010) (quoting Sedona Priv. Prop. Owners Ass’n v. City of Sedona,
192 Ariz. 126, 127 ¶ 5 (App. 1998)).

¶21 The court’s application of the mootness doctrine is
discretionary, and the court may address moot issues under certain
circumstances. See id. at 362 ¶ 14. One such circumstance is if “a decision on
the substantive issues could affect similar future legislative [or executive]
acts.” Id. (exercising discretion to hear moot issue). Another is if the issue
presents a question of “great public importance” and is “capable of
repetition while yet evading review.” See Kondaur Cap. Corp., 235 Ariz. at
193 ¶ 8 (quoting Bank of N.Y. Mellon v. De Meo, 227 Ariz. 192, 194 ¶ 8 (App.
2011)); see also State ex rel. Corbin v. Ariz. Corp. Comm’n, 174 Ariz. 216, 218
(App. 1992).

¶22 The challenged statewide canvass provision in the 2023
Manual and the language in the proposed 2025 manual are very different.
The Legislators challenge the following statewide canvass provision of the
2023 manual. It reads:

If the official canvass of any county has not been received by
this deadline, the Secretary of State must proceed with the
state canvass without including the votes of the missing
county (i.e., the Secretary of State is not permitted to use an
unofficial vote count in lieu of the county’s official canvass).

Ariz. Sec’y of State, 2023 Elections Procedures Manual 252 (2023).

¶23 The Secretary completely revised that provision in the
proposed 2025 manual. The provision reads as follows:

If a Board of Supervisors fails to meet its own statutory duty
to canvass an election and transmit the official canvass by its
own statutory deadline, the Secretary of State will use all
available legal remedies to compel the Board to comply with

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Arizona law and protect voters’ right to have their votes
counted.

Ariz. Sec’y of State, 2025 Elections Procedures Manual 281 (2025).

¶24 The challenged language in the statewide canvass provision
will not appear in the 2025 Manual. And the Secretary’s counsel has avowed
“the Secretary has no reason to believe that this draft provision will change
substantively in the issued version.” The Legislators have not argued the
statewide canvass provision in the draft 2025 manual raises the same or
similar concerns. And if in the future the Secretary takes any action the
Legislators believe is not an “available legal remedy,” they can seek judicial
review based on the Secretary’s specific acts.

¶25 The court thus declines to address the statewide canvass
provision as moot.

III. The 2023 Manual’s county canvass provision tracks Arizona law
and does not encroach on the legislature’s lawmaking power.

¶26 Both sides agree Arizona law says “county boards of
supervisors have a duty to canvass and to do so by the statutory deadline.”
A.R.S. § 16-642.A.1 (setting the deadline when “[t]he governing board of a
county shall meet and canvass” for primary and general elections).

¶27 From that point of agreement, the legislators argue the 2023
Manual takes away the boards’ “discretion to ‘determine’ the vote” under
section 16-642.A. The legislators argue the boards have discretion because
A.R.S. § 16-643 requires them to canvass the election returns “in public by
opening the returns, other than the ballots, and determining the vote of the
county, by polling places . . . .” (emphasis added). The legislature’s use of
the word “determining” is the crux of the legislators’ argument. To that
end, the legislators argue simple mathematical equations involve
discretionary calls “[b]ecause boards of supervisors determine the vote of
their counties [and] they have discretion over whether to accept returns in
the form that they are received.” The legislators also argue boards “may
reject returns that cannot be clearly understood.” But the legislators cite no
election statute or authority for those two discretionary acts except to go
back to the word “determining.” The legislators focus on the word
“determining” to expand the boards’ limited statutory ability to refuse to
canvass the results for reasons other than missing returns from a polling
place. See A.R.S. § 16-642.C.

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¶28 The Secretary argues the statutes and Arizona precedent
show the boards’ statutory canvass duty is ministerial and involves no
discretion. Unlike the legislators, the Secretary cites longstanding and
recent Arizona precedent to support its position: State v. Osborne, 14 Ariz.
185, 194 (1912) (saying canvassing is a ministerial act); Crosby v. Fish, 259
Ariz. 127, 133 ¶ 18 (App. 2024) (Crosby II) (saying the mathematical
undertaking in canvassing “does not require the Board to make multiple
discretionary decisions or balance goals.”).

¶29 Section 16-642, subsection A establishes the parameters of the
county boards’ canvassing duty:

A. The governing body holding an election shall meet and
canvass the election as follows:

1. The governing board of a county shall meet and canvass as
follows:

(a) For the primary election, not later than the second Monday
after the election.

(b) For the general election, not later than the third Thursday
after the election.

Subsection C identifies the one exception allowing for a delay:

If, at the time of the meeting of the governing body, the
returns from any polling place in the election district where
the polls were opened and an election held are found to be
missing, the canvass shall be postponed from day to day until
all the returns are received or until six postponements have
been had. The subsection does not apply to the county board
of supervisors’ canvass of the primary and general election.

¶30 Section 16-643 requires the board to canvass the election
returns “in public by opening the returns, other than the ballots, and
determining the vote of the county, by polling places, for each person voted
for and the vote for and against each proposed constitutional amendment
and initiated or referred measure appearing upon the ballot at such
election.” A.R.S. § 16-643.

¶31 The 2023 Manual included the following explanation of the
boards’ canvassing duty:

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The Board of Supervisors may postpone the canvass on a day-
to-day basis if the results from any precinct are missing. If
precinct results are still missing after six postponements, the
Board of Supervisors must canvass the remaining election
results. A.R.S. § 16-642(C).

The Board of Supervisors has a non-discretionary duty to
canvass the returns as provided by the County Recorder or
other officer in charge of elections and has no authority to
change vote totals, reject the election results, or delay
certifying the results without express statutory authority or a
court order. 1

Ariz. Sec’y of State, 2023 Elections Procedures Manual 248 (2023).

¶32 The legislators do not challenge the first paragraph, just the
second. The second paragraph is consistent with Arizona law.

¶33 To begin, the legislature created one exception for boards
while performing their canvassing duty: to delay a canvass for missing
returns. See A.R.S. § 16-642.C. Contrary to what the legislators argue, the
legislature did not say boards could reject returns because the county
supervisors do not like how the returns were received or could not
understand them.

¶34 The legislature’s decision not to include those and other
exceptions means something. Under Arizona Supreme Court precedent,
“[t]he canon of construction expressio unius est exclusio alterius—that is, the
expression of one item implies the exclusion of others—counsels us to
construe the legislature’s exclusion . . . as intentional.” Welch v. Cochise Cnty.
Bd. of Supervisors, 251 Ariz. 519, 529 ¶ 36 (2021). Because the legislature
chose not to identify any other circumstances in subsection 16-642.C, the
court construes the omission as intentional. See id. If the legislature wanted
to give the boards broader discretion, it could have said so. And it still can

1 The 2023 Manual says the same about the Secretary’s canvassing duty:

“The Secretary of State has a non-discretionary duty to canvass the returns
as provided by the counties and has no authority to change vote totals,
reject the election results, or delay certifying the results without express
statutory authority or a court order.” Ariz. Sec’y of State, 2023 Elections
Procedures Manual 252 (2023).

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by amending the statute. But the plain language does not give that
discretion today.

¶35 Interpreting the statute to limit the boards’ discretion is
consistent with the statutory charge to determine the canvass based on
returns and nothing else. And nothing in the word “determine” expands
that narrow duty. Longstanding and even recent Arizona Supreme Court
precedent establishes the non-discretionary nature of the boards’
canvassing duty. In 1912, the year Arizona became a state, the Arizona
Supreme Court said, “Members of a canvassing board, while performing a
high public function, act strictly in a ministerial capacity.” Osborne, 14 Ariz.
at 194.

¶36 Consistent with that early understanding, the court recently
concluded the boards’ canvassing duty was not discretionary. Crosby II, 259
Ariz. at 132 ¶ 16. Crosby II reached that conclusion because Arizona’s
election laws “establish[] detailed procedures for conducting a canvass,
including for conducting a hand-count audit.” Id. at 138 ¶ 19 (citing Ariz.
All. for Retired Am., Inc. v. Crosby, 256 Ariz. 328, 332 ¶¶ 10–11 (App. 2023)
(Crosby I) (saying canvassing is not a discretionary act because Arizona’s
election statutes “establish[] detailed procedures for conducting hand
audits of electronically tabulated ballots”). In Crosby II, Crosby argued
legislative privilege attached to his actions regarding a county canvass
because it was a discretionary act. Id. at 147–48 ¶¶ 9, 17. The court rejected
that argument, saying the “duty to canvass the election under A.R.S. § 16-
642(A) was not discretionary.” Id. at ¶ 16 (discussing A.R.S. § 16-642.A). As
Crosby II explained,

Canvassing the election results involves adding write-in and
early votes to the results from the vote tabulating equipment.
See A.R.S. § 16-622(A). Such a mathematical undertaking does
not require the Board to make multiple discretionary
decisions or balance goals. Instead, the Board had to follow
the clear instructions outlined in the statute and the court’s
order, which compelled it to complete the canvass and gave
no alternate action. See A.R.S. § 16-642(A).

Id. at 132–33 ¶ 18.

¶37 The legislators ask the court to diverge from that
longstanding precedent and recent reaffirmation of it, arguing the court
should interpret the word “determine” to mean discretionary decision
making. To begin, the statutes at issue in both Crosby I and Crosby II

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considered the same language. Though the legislators argue the cases
involve different issues, they do not explain why the court should interpret
the same language differently. If the court were to adopt the legislators’
argument, the court would have to disagree with Crosby I and Crosby II,
which the court is not inclined to do.

¶38 Finally, the legislature did not expand the boards’ discretion
by using the word “determining.” To support their position, the legislators
rely on an online dictionary at https://www.merriam-
webster.com/dictionary/determine. The legislators argue that online
dictionary shows “determining” must mean “fix[ing] conclusively or
authoritatively,” “decid[ing] by choice of alternatives or possibilities,” or
“com[ing] to a decision about by investigation, reasoning, or calculation.”
The Arizona Supreme Court often looks to definitions in the 2001 Random
House Webster’s Unabridged Dictionary (Second Edition). See Ariz. Citizens
Clean Elections Comm’n v. Brain, 234 Ariz. 322, 325 ¶ 15 (2014). In that
dictionary, “the most frequently encountered meanings generally come
before less common ones.” See Random House Webster’s Unabridged
Dictionary xvi (2d ed. 2001) (addressing ordering in section on “HOW TO
USE THIS DICTIONARY; . . . III. DEFINITIONS; . . . Order”). That dictionary’s
first definition for “determine” is “to settle or decide (a dispute, question,
etc.) by an authoritative or conclusive decision.” Id. at 542. Consistent with
that definition, the first definition in the legislators’ selected online
dictionary says “determine” means, “to fix conclusively or authoritatively,”
though the online dictionary does not explain how it prioritizes its
definitions. See Determine, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/determine (last visited Dec. 22, 2025).

¶39 Here, consistent with the statute’s plain language, 100 years
of precedent, and the most common meaning of the word “determine,” the
boards are engaging in a ministerial act of fixing the election results
conclusively and authoritatively. Nothing more. And the 2023 Manual
provisions on county canvasses reflect that narrow act.

IV. The 2023 Manual’s juror questionnaire and circulator registration
provisions encroach on the legislature’s lawmaking power, but the
county canvass and active early voting list provisions do not.

¶40 The Legislators assert facial challenges to 3 other provisions
in the 2023 Manual. The superior court ruled in the Legislators’ favor on 2
(juror questionnaires and circulator registrations) and in the Secretary’s
favor on 1 (active early voting lists). To prevail in a facial challenge, the
Legislators must show the challenged provision “cannot be constitutionally

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enforced under any set of circumstances.” Montenegro, ___ Ariz. at ___ ¶ 16,
576 P.3d at 696.

¶41 The court reviews de novo questions of statutory
interpretation. Aroca v. Tang Inv. Co. LLC, 259 Ariz. 302, 306 ¶ 12 (2025)
(interpreting statutes). A statute’s language guides the court’s
interpretation. See Ariz. Advoc. Network Found. v. State, 250 Ariz. 109, 114
¶ 19 (App. 2020). If the language is unambiguous, the court “must give
effect to that language without employing other rules of statutory
construction.” Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 323 ¶ 11
(App. 2017). The court “give[s] terms their ordinary and commonly
accepted meaning, unless the legislature has provided a specific
definition.” JH2K I LLC v. Ariz. Dep’t of Health Servs., 246 Ariz. 307, 310 ¶ 9
(App. 2019). “When the plain text of a statute is clear and unambiguous, it
controls unless an absurdity or constitutional violation results.” McKenna v.
Soto, 250 Ariz. 469, 472 ¶ 12 (2021) (citation omitted).

V. Because the NVRA and Arizona’s juror questionnaire statute do
not conflict, the 2023 Manual’s juror questionnaire provision must
track Arizona law.

¶42 The Legislators ask the court to strike the 2023 Manual’s juror
questionnaire provision because it conflicts with A.R.S. § 16-165.A.9(b). The
Legislators argue the Secretary misinterpreted the federal statute and
federal cases interpreting it.

¶43 The Secretary argues A.R.S. § 16-165.A.9(b) conflicts with 52
U.S.C. § 20507(d)(1)(B)(i), a provision of the NVRA. The Secretary must
maintain Arizona’s voter registration list. A.R.S. § 16-168.J. Section 16-168.J
then requires the Secretary to implement “provisions regarding removal of
ineligible voters that are consistent with the [NVRA.]” For that reason, the
Secretary argues the 2023 Manual harmonized federal and Arizona law
governing voter registration list maintenance “to achieve and maintain the
maximum degree of correctness. . . .” A.R.S. § 16-452.A. The Secretary thus
argues he was “well within his statutory authority to recognize” the
preemptive effect of a federal statute on an Arizona statute and to ensure
the 2023 Manual did not conflict with federal law.

¶44 Arizona’s statute directs a county recorder to take certain
action when the county’s jury commissioner or jury manager sends a notice
to the county recorder “indicating that the person has stated that the person
is not a resident of the county.” A.R.S. § 16-165.A.9(b). The statute directs
the county recorder as follows:

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Before the county recorder cancels a registration pursuant to
this subdivision, the county recorder shall send the person
notice by forwardable mail and a postage prepaid
preaddressed return form requesting the person confirm by
signing under penalty of perjury that the person is a resident
of the county and is not knowingly registered to vote in
another county or another state. The notice shall inform the
person that failure to return the form within thirty-five days
will result in the person’s registration being canceled. If the
person fails to return the notice within thirty-five days the
county recorder shall cancel the person’s registration.

Id. Once the county recorder cancels the voter’s registration, the voter must
re-register before the person can vote again. See A.R.S. § 16-121.01.A
(defining requirements for registering to vote); see also A.R.S. § 16-152.A
(identifying information voter must provide in the form to register).

¶45 Though A.R.S. § 16-165.A.9(b) directs the county recorder to
cancel the voter’s registration, the 2023 Manual requires the county recorder
to put the voter on the inactive voter list. The 2023 Manual says jury
commissioners and managers must send a summary report to the county
recorder of those summoned jurors who tell the jury commissioner or
manager they are not residents of the county. The county recorder then
sends those jurors an “initial notice giving the person 35 days to explain the
information provided on the jury questionnaire.” If the person does not
respond within 35 days, the county recorder changes the person’s voter
registration to inactive rather than cancel it as A.R.S. § 16-165.A.9(b) directs.
The county recorder does not cancel a person’s registration unless the
person does not confirm a residence in the county or does not vote in 2
election cycles. At any time during the next 2 election cycles, the county
recorder will reinstate that person’s registration if the person contacts the
county recorder or appears at a polling place and asks to vote.

¶46 The Secretary argues the NVRA prohibits the State from
canceling the person’s registration under these circumstances. The NVRA
includes a procedure for removing the name of a registrant when the
registrant “confirms in writing” they have changed residences. See 52 U.S.C.
§ 20507(d)(1)(A).

(1) A State shall not remove the name of a registrant from the
official list of eligible voters in elections for Federal office on
the ground that the registrant has changed residence unless
the registrant--

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(A) confirms in writing that the registrant has changed
residence to a place outside the registrar’s jurisdiction in
which the registrant is registered; or

(B)(i) has failed to respond to a notice described in paragraph
(2); and

(ii) has not voted or appeared to vote (and, if necessary,
correct the registrar’s record of the registrant’s address) in an
election during the period beginning on the date of the notice
and ending on the day after the date of the second general
election for Federal office that occurs after the date of the
notice.

U.S.C. § 20507(d).

¶47 In deciding the federal and state statutes conflict, the
Secretary relied on federal courts’ interpretations of that federal statute. See
League of Women Voters of Ind., Inc. v. Sullivan, 5 F.4th 714 (7th Cir. 2021); see
also Common Cause Ind. v. Lawson, 937 F.3d 944 (7th Cir. 2019). Relying on
the Seventh Circuit precedent, the Secretary takes the position A.R.S. § 16-
195.A.9(b) violates the NVRA because “both as a matter of fact and as a
matter of law, the summary report from the jury commissioner does not
constitute written confirmation from the voter to the county recorder of
change of residence sufficient to comply with the NVRA.”

¶48 The Legislators argue the Seventh Circuit did not go that far.
True, the Seventh Circuit concluded the NVRA preempts a similar Indiana
statute. But ultimately, the Seventh Circuit ruled the NVRA does not
require direct communication from the voter before cancelling a voter’s
registration. On that point, the Seventh Circuit addressed a
misunderstanding created by its earlier Lawson opinion. Sullivan said:

We see nothing in the NVRA that would prohibit the second
method of passing along the voter’s choice to Indiana. An
authorization-of-cancellation form that a voter personally
signs and that is then forwarded to Indiana from another state
complies with section 20507(a)(3)(A) of the NVRA. When we
stated in [Lawson] that the NVRA requires “direct” contact
with a voter, we meant that a communication must be
generated by the voter to qualify as a “request of the
registrant”—not by a third party.

5 F.4th at 732 (emphasis in original).

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¶49 Sullivan is correct. At bottom, the NVRA says Arizona cannot
cancel a voter’s registration based on a change in residence unless the voter
“confirms in writing that the registrant has changed residence to a place
outside the registrar’s jurisdiction in which the registrant is registered . . . .”
See 52 U.S.C. § 20507(d)(1)(A). The NVRA does not require the voter to
provide the confirmation directly to the county recorder or any other
election official. See Sullivan, 5 F.4th at 732.

¶50 Because the Seventh Circuit precedent does not conflict with
A.R.S. § 16-165.A.9, the NVRA does not preempt that Arizona statute.
Though the county recorder does not receive the information directly from
the voter, the NVRA does not require it if the person “confirms in writing.”
Here, the county recorder sends the notice only when a person signs (under
penalty of perjury) a written juror questionnaire saying the person no
longer resides in the county. A.R.S. § 16-165.A.9(b). That notice satisfies the
NVRA.

VI. The superior court did not err when it ruled the removal notices
for the active early voting lists (A.R.S. § 16-544.H.4) applied
starting with the 2024 election cycle.

¶51 The 2023 Manual says the removal notice statute (A.R.S. § 16-
544.H.4) applies starting with the 2024 election cycle, which began on
January 1, 2023. The removal notice statute allows the State to remove a
voter when “[t]he voter fails to vote an early ballot in all elections for two
consecutive election cycles.” A.R.S. § 16-544.H.4.

¶52 An election cycle means:

[T]he two-year period beginning on January 1 in the year after
a statewide general election or, for cities and towns, the two-
year period beginning on the first day of the calendar quarter
after the calendar quarter in which the city’s or town’s second,
runoff or general election is scheduled and ending on the last
day of the calendar quarter in which the city’s or town’s
immediately following second, runoff or general election is
scheduled, however that election is designated by the city or
town.

A.R.S. § 16-544.S.

It is silent, however, on whether the removal notice process applies to the
already-in-progress 2022 election cycle or applies starting with the next
complete election cycle. And the legislation contains no retroactivity clause.

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¶53 The Legislators argue the removal notice statute applies to the
2022 election cycle, which started on January 1, 2021. For that reason, they
argue the 2023 Manual unlawfully delays the effective date.

¶54 The Secretary argues the removal notice statute does not
apply to the 2022 election cycle because that cycle began before the removal
notice statute’s September 21, 2021 effective date. For that reason, the
Secretary concluded the removal statute applies to the next complete
election cycles after the statute’s effective date. The 2023 Manual thus has
the removal notice statute process start with the 2024 election cycle. The
2024 election cycle started on January 1, 2023. The superior court agreed
with the Secretary. We thus affirm.

1. Unless the legislature expressly makes a law retroactive, the
court presumes it applies prospectively.

¶55 Arizona has long presumed “a statute applies only
prospectively from the effective date of the statute.” Krol v. Indus. Comm’n
of Ariz., 259 Ariz. 261, 267 ¶ 22 (2025). As the Arizona Supreme Court
recently explained in Krol, the presumption arises out of “[e]lementary
considerations of fairness dictate that individuals should have an
opportunity to know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly disrupted.” Id. at
267–68 ¶ 23 (citation omitted). Under that principle, “the legal effect of
conduct should ordinarily be assessed under the law that existed when the
conduct took place[.]” Krol, 259 Ariz. at 268 ¶ 23 (citation omitted). As Krol
explained, “[R]etroactive statutes raise particular concerns with respect to
the legislature’s ability to sweep away settled expectations suddenly and
without individualized consideration.” Id. at 268 ¶ 24 (internal quotations
deleted). To that point, “[t]he legislature has specifically directed that ‘no
statute is retroactive unless expressly declared therein.’” Id. at 268 ¶ 25
(quoting A.R.S. § 1-244). For that reason, the court applies the presumption
against retroactivity unless “the legislature expressly declares that a statute
is retroactive . . . .” Id. at 268 ¶ 25.

¶56 On retroactivity, the court more recently said:

A statute applies retroactively when it attaches new legal
consequences to events completed before the effective date of
the statute. But a statute is not necessarily retroactive because
it relates to antecedent facts. A substantive statute may not be
applied retroactively absent an express directive by the

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legislature. But a procedural statute has no such restriction if
it does not affect an earlier established substantive right.

State v. Danner, 2 CA-CR 2025-0126-PR, 2025 WL 2970551, at *2 ¶ 10 (App.
Oct. 22, 2025) (cleaned up).

¶57 As the Arizona Supreme Court noted in Krol, “The legislature
knows how to provide for the retroactivity of measures that it enacts. In
fact, the legislature included several express retroactivity provisions in acts
passed during the 2021 legislative session.” Krol, 259 Ariz. 261, 268 ¶ 26
(listing legislation from that session in which the legislature included a
retroactivity clause). The statute in Krol, like the statute here, was enacted
during the same 2021 legislative session. And like the statute here, the
statute in Krol did not contain a retroactivity clause. And the Arizona
Supreme Court in Krol concluded the statute did not apply retroactively. Id.
at 276 ¶ 61.

2. The legislature neither expressly made A.R.S. § 16-544.D
retroactive nor expressly said it would apply to the 2022
election cycle.

¶58 The active early voter list is “a list of voters to receive an early
ballot by mail for any election for which the county voter registration roll is
used to prepare the election register.” A.R.S. § 16-544.A. County recorders
maintain the active early voting lists. Id. Once on an active early voting list,
voters remain on it until at least 1 of 4 enumerated removal events occur.
A.R.S. § 16-544.H.1–H.4. The removal event here applies when “[t]he voter
fails to vote an early ballot in all elections for two consecutive election
cycles.” A.R.S. § 16-544.H.4. An election cycle is defined as “the two-year
period beginning on January 1 in the year after a statewide general election”
or as otherwise provided “for cities and towns.” A.R.S. § 16-544.S.

¶59 For voters who fail “to vote an early ballot in all elections for
two consecutive election cycles,” the county recorder must send them
notices asking them whether they would like to remain on the active early
voting list. A.R.S. § 16-544.L. The county recorder must send those removal
notices by January 15 of every odd-numbered year. Id. For all voters who
do not respond to the notices within 90 days, the county recorder must
remove them from the active early voting list. A.R.S. § 16-544.M. The
Legislators argue the voters may re-enroll in the active early voting list. See
A.R.S. § 16-544.A, C. But the voters would need to re-enroll early enough to
have it take effect for the next election, which means before early voting
begins. See A.R.S. § 16-544.F.

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¶60 Consistent with the Secretary’s position, the disputed 2023
Manual provision addresses the issue as follows:

Because the 2022 election cycle began before S.B. 1485 (2022)
took effect and S.B. 1485 does not apply retroactively, the first
two full election cycles after S.B. 1485’s effective date are the
2024 and 2026 election cycles. Therefore, the first [active early
voting list] removal notices must be sent out by January 15,
2027 to [active early voting list] voters who vote by early
ballot in zero eligible elections in the 2024 and 2026 election
cycles.

Ariz. Sec’y of State, 2023 Elections Procedures Manual 261 (2023).

¶61 The Legislators argue the only way to give the law’s plain
language full effect is for the removal notice apply to any failure to vote in
the 2022 and 2024 election cycles, even if those cycles began before the
statute’s effective date. The Secretary argues the plain language precludes
that application because the statute became effective after the 2022 election
cycle had begun and the legislation neither said it applied retroactively nor
said it would apply to then-ongoing 2022 election cycle.

¶62 The Legislators concede A.R.S. § 16-544.H.4 legislation
contained no retroactivity clause. And it did not say it would apply to the
2022 election cycle. Even so, they would have the statute apply to voters
who failed to vote in elections before the statute’s effective date. True, the
first federal election in the 2022 cycle occurred in August 2022, after the
statute’s effective date. But the statute defines election cycle to a “city or
town candidate primary or first election . . . .” A.R.S. § 16-544.K.2(a)–(b).
Some of those elections occurred in March, May, and August 2021—before
the statute’s effective date. Under the Legislators’ interpretation, the statute
would apply retroactively to any failure to vote in those “city or town
candidate primary or first election.” The Secretary’s interpretation does not
create the same retroactivity concern.

¶63 As with the statute at issue in Krol, the legislature applied no
retroactivity clause to A.R.S. § 16-544.H.4. If the court were to adopt the
Legislator’s proposed interpretation, it would have the statute apply
retroactively to voters’ actions before the effective date of the statute. Based
on Krol and other Arizona precedents, the court affirms the superior court’s
ruling because the statute does not apply to the 2022 election cycle.

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VII. The superior court did not err when it concluded the 2023
Manual’s circulator registration provision did not track Arizona
law.

¶64 The Legislators argue footnote 58 in the 2023 Manual, which
relates to circulator registrations, conflicts with A.R.S. § 19-118.A and -118.B
because circulators must strictly comply with those registration
requirements under A.R.S. § 19-102.01.A. The Secretary argues footnote 58
tracks Arizona law because it does not change the circulator’s obligations
or suggest the Secretary—not the courts—will determine strict compliance.

¶65 Under A.R.S. § 19-118.B, the circulators are subject to
registration and what they must include in the registration. Subsection B
says the registration must include:

1. The circulator’s full name, residence address, telephone
number and email address.

2. The initiative or referendum petition on which the
circulator will gather signatures.

3. A statement that the circulator consents to the jurisdiction
of the courts of this state in resolving any disputes concerning
the circulation of petitions by that circulator.

4. The address of the committee in this state for which the
circulator is gathering signatures and at which the circulator
will accept service of process related to disputes concerning
circulation of that circulator’s petitions. Service of process is
effected under this section by delivering a copy of the
subpoena to that person individually, by leaving a copy of the
subpoena with a person of suitable age or by mailing a copy
of the subpoena to the committee by certified mail to the
address provided.

5. An affidavit from the registered circulator that is signed by
the circulator before a notary public and that includes the
following declaration:

I, (print name) , under penalty of a class 1 misdemeanor,
acknowledge that I am eligible to register as a circulator in the
state of Arizona, that all of the information provided is correct
to the best of my knowledge and that I have read and

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understand Arizona election laws applicable to the collection
of signatures for a statewide initiative or referendum.

When registering, circulators “must strictly comply with those
constitutional and statutory requirements.” A.R.S. § 19-102.01.A.

¶66 As for the registration statute, at page 119, the 2023 Manual
says:

The Secretary of State’s Office has no obligation to review the
substance of circulator registrations to ensure that accurate or
proper information has been provided. The circulator
remains solely responsible for compliance with all legal
provisions.

¶67 The Legislators do not challenge that language. Instead, they
challenge the associated footnote 58:

The requirement to list certain information on the circulator
portal does not mean that a circulator’s signatures shall be
disqualified if the circulator makes a mistake or inconsistency
in listing that information (e.g., a phone number or email
address that is entered incorrectly; a residential address that
doesn’t match the residential address listed on that
circulator’s petition sheets; etc.).

¶68 The Secretary argues footnote 58 merely emphasizes the
Secretary is undertaking no new obligations and the circulators’ existing
obligations remain unchanged. The Legislators argue by adopting footnote
58, the Secretary is declaring certain mistakes or inconsistencies in
circulator registrations do not conflict with the strict compliance
requirement. The Legislators are correct.

¶69 Even in context, the footnote says failure to comply with the
“requirement to list certain information . . . does not mean that a circulator’s
signatures shall be disqualified . . . .” The footnote then identifies specific
items that will not result in disqualification, including “a mistake or
inconsistency in listing that information (e.g., a phone number or email
address that is entered incorrectly; a residential address that doesn’t match
the residential address listed on that circulator’s petition sheets; etc.).” The
Secretary’s list in that footnote has the force of law, meaning those
enumerated items would not result in disqualification. See Ariz. Pub.
Integrity All., 250 Ariz. at 63 ¶ 16. The superior court thus did not err.

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ATTORNEY FEES AND COSTS

¶70 The Legislators request attorney fees and costs under A.R.S.
§§ 12-341, -348, -348.01, -1840, and -2030. They also request attorney fees
and costs under the private attorney general doctrine. See Arnold v. Ariz.
Dep’t of Health Servs., 160 Ariz. 593, 609 (1989). The Secretary requests
attorney fees and costs under A.R.S. §§ 12-341 and -348.01. Because neither
the Legislators nor the Secretary prevailed, the court exercises its discretion
and denies those requests.

CONCLUSION

¶71 The court thus affirms the superior court’s finding the
Legislators suffered an institutional injury sufficient to confer standing. The
Legislators’ challenge to the 2023 Manual’s statewide canvass provision is
moot. The court reverses the superior court’s order enjoining the 2023
Manual’s county canvass provision. The court affirms the superior court’s
order enjoining the 2023 Manual’s juror questionnaire provision and the
circulator registration provision. The court also affirms the superior court’s
order denying the Legislators requested relief for the 2023 Manual’s
challenged active early voting list provision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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