Arizona’s Election for Secretary of State Will Again Involve Who Makes Election Law and Who Administers It
By Linda Brickman
From Recorder Fontes to Secretary Fontes – Part 1
From One Unlawful Ballot Instruction to a Statewide Election Manual – and the Courts Asked to Draw the Line
SECTION 1 — DÉJÀ VU: HAVE THEY BEEN HERE BEFORE?
Long before Adrian Fontes and Alex Kolodin face each other on a statewide ballot for Arizona Secretary of State, they had already met in another arena: … the Courtroom.
It was 2020 – one of the most consequential years for elections! Fontes was Maricopa County Recorder, responsible for administering elections in Arizona’s largest county. Kolodin was one of the attorneys representing plaintiffs challenging an instruction Fontes had placed inside mail-in ballot envelopes.
The issue sounded simple: What should a voter do after making a mistake on a mail-in ballot? Arizona’s approved 2019 Elections Procedures Manual (EPM) already supplied the answer. If a voter overvoted — marking more candidates than permitted — the voter was instructed to contact the Recorder’s Office and request a replacement ballot.
Fontes, though, unilaterally decided that was a burden, and created another option. His new instruction told voters they could simply cross out the mistaken selection and fill in another oval instead.
That may have sounded easier – but there was a serious legal problem…Fontes did not have the authority to change the EPM rule. The “warning shot” came before the November election.
On August 11, 2020, then Attorney General Mark Brnovich notified Fontes that the new instruction was unlawful and demanded that the instructions accompanying early ballots comply with Arizona law.
Six days later, the plaintiffs sent Fontes a cease-and-desist letter. Fontes did not back down… on August 24, he advised the Attorney General and the challenging plaintiffs that he intended to continue using the instruction.
The fight went to court.
And on September 10, the Arizona Supreme Court stepped in, barring Fontes from including the instruction with ballots for the November General Election.
In its full opinion that followed on November 5th, the Court did not merely say Fontes had made an administrative mistake…It held that the Recorder had “acted unlawfully
Fontes, the Court ruled, had neither the constitutional nor statutory authority to create his own mail-in ballot instructions or establish his own method for correcting overvotes. His duty was not discretionary. He was required to follow the instructions contained in the Secretary of State’s approved Elections Procedures Manual.
Then the Court went further, issuing a warning that when public officials change election law during an election based upon what they believe the law should be, they risk undermining public confidence and the integrity of the electoral process.
That principle would outlive the 2020 dispute…Because Fontes lost his reelection bid for County Recorder later that year.
But Fontes was not finished administering Arizona elections. Two years later, Arizona voters elected Adrian Fontes Secretary of State. This time he would no longer be administering elections in one county.
He would become Arizona’s chief elections officer — and one of the officials responsible for developing the statewide Elections Procedures Manual that tells all 15 counties how Arizona elections are to be conducted.
And before long, Déjà Vu again, courts would once again be asked a familiar question: Where does Adrian Fontes’s authority to administer election law end – and the Legislature’s authority to make that law begin?
SECTION 2 — HOW DID HE GET HERE
Adrian Fontes did not begin his career in elections. Politics, however, was never very far away.
Fontes grew up in Nogales and has repeatedly credited his grandfather, Florentino “Tino” Diaz Fontes, a three-term mayor of Nogales, with shaping his view of public service.
Fontes served in the United States Marine Corps from 1992 to 1996, earned degrees from Arizona State University and the University of Denver College of Law, and worked as a prosecutor for offices including the Maricopa County Attorney and Arizona Attorney General.
Later, the prosecutor became a criminal defense attorney. His private practice included defendants in serious federal cases connected to weapons trafficking and Operation Fast and Furious. Those representations later became political ammunition, but the distinction matters: Fontes represented individual defendants. The public record we have reviewed does not establish that he represented a cartel organization or committed wrongdoing through those representations.
His path into election administration finally came in 2016 after a self-inflicted Recorder scandal. The Maricopa County Recorder dramatically reduced polling locations for the March 2016 Presidential Preference Election, with frustrated voters waiting in lines for hours.
Fontes ran against longtime Recorder Helen Purcell. And he won. He later described Purcell’s debacle as THE EVENT that pushed him into politics.
The Marine Had Become A Lawyer.
The Lawyer Had Become An Election Administrator.
Four years later, the Arizona Supreme Court would tell that administrator that there was something he could not do: … write his own election rules. Yet that ruling did not end Adrian Fontes’s election career. It preceded his rise to Arizona’s highest election office.
SECTION 3 — FROM COUNTY RECORDER TO SECRETARY OF STATE
Fontes’s first run as Maricopa County Recorder ended in 2020. Republican Stephen Richer defeated him by roughly 5,000 votes, ending Fontes’s four-year tenure overseeing “disputed ”elections in Arizona’s largest county. For a time, Fontes was out of elected office. Then came January 6, 2021.
Fontes later described the events at the U.S. Capitol as a “call to duty” and another reason to return to public service. He entered the 2022 race for Arizona Secretary of State, portraying the contest as one not simply over candidates, but over confidence in Arizona elections.
His Republican opponent was Mark Finchem, an outspoken critic of the 2020 election. Fontes won.
In January 2023, the former Maricopa County Recorder became Arizona’s Secretary of State and Chief Elections Officer.
The promotion changed the scope of his authority dramatically. As Recorder, Fontes had administered elections in one county… As Secretary of State, he became responsible for statewide election administration and for developing Arizona’s Elections Procedures Manual, subject to the statutory process requiring approval by the Governor and Attorney General.
That Manual Matters…
It does not merely offer suggestions to county election officials. Once properly adopted, its provisions carry legal authority governing how elections are administered throughout Arizona.
And there was an IRONY difficult to overlook. In 2020, the Arizona Supreme Court had told County Recorder Adrian Fontes that he lacked authority to create his own ballot instruction. Now, as Secretary of State, Adrian Fontes occupied the office expressly authorized to help write statewide election procedures.
But that authority still had limits…And before long, Arizona courts would again be asked to determine whether Fontes had crossed them.
SECTION 4 — THE MANUAL THAT CARRIES THE FORCE OF LAW
In 2023, Secretary of State Adrian Fontes produced a NEW Elections Procedures Manual, or EPM, governing the administration of elections throughout Arizona. The manual was approved by Gov. Katie Hobbs and Attorney General Kris Mayes, both Democrats. And unlike an office handbook, the EPM matters legally.
Arizona law authorizes the Secretary of State to develop election procedures through a statutory process. Once properly approved, those procedures guide county election officials across the state. But the Secretary’s authority is not unlimited…
The Legislature writes Arizona election law – The Secretary administers it.
And once again, the question became whether Fontes had crossed the line between the two. This time, Arizona Senate President Warren Petersen and House Speaker Ben Toma challenged several provisions of the 2023 EPM, arguing that Fontes had gone beyond the authority delegated to him by statute.
In December 2024, Maricopa County Superior Court Judge Scott Blaney agreed with them on three provisions. The court permanently enjoined rules involving:
- treatment of certain voter-registration information obtained through juror questionnaires;
- a circulator-registration provision;
- and portions of the county canvass procedure.
The court expressly found that the canvass provisions exceeded the Secretary’s statutory authorization and were therefore invalid and unenforceable. But Fontes did not lose everything …
Another challenged provision involving removal notices for voters on the Active Early Voting List was upheld. And on appeal, the result became even more mixed. The Arizona Court of Appeals left the rulings against the juror-questionnaire and circulator-registration provisions in place, while the canvass issue did not remain a clean loss for Fontes. The appellate court also affirmed the ruling in his favor concerning the Active Early Voting List provision. That distinction matters…
This was not a case in which a court declared Adrian Fontes’s entire election manual unlawful. It did not. But courts did determine that some provisions exceeded the authority given to him by the Legislature. And that brought Arizona back to a familiar question.
In 2020, the Arizona Supreme Court had ruled that County Recorder Fontes could not substitute his own ballot instruction for the rule authorized by state election law. Four years later – Déjà Vu again, with now Secretary of State Fontes defending election rules against allegations that he had gone beyond the authority granted to his office.
Different office
Different rules
Different lawsuit
Same fundamental question: Who gets to make Arizona election law?
The answer, constitutionally, begins with the Legislature. The Secretary of State has substantial authority to administer election law and develop procedures necessary to carry it out.
But administration and legislation are not the same thing. And Adrian Fontes’s record has repeatedly placed courts in the position of deciding where one ends and the other begins.
SECTION 5 — ADMINISTERING THE LAW – OR REWRITING IT?
Adrian Fontes has spent much of his public career defending what he believes election administrators need in order to run elections effectively.
Sometimes the courts have agreed with him. Sometimes they have not. That distinction matters…
The 2020 Arizona Supreme Court decision was not a political accusation or campaign attack. The Court expressly held that Fontes had acted unlawfully by issuing his own mail-in ballot instruction and lacked the authority to do so.
Years later, challenges to the statewide Election Procedures Manual produced a more complicated record. Fontes successfully defended some provisions. Others were found to exceed the authority delegated to the Secretary of State.
So, the record does not support saying that everything Fontes has done in election administration was unlawful. It supports something more interesting: The limits of Adrian Fontes’s election authority have repeatedly become matters for Arizona courts to decide. And that raises two legitimate questions.
- Does Fontes view the job of an election administrator as simply carrying out laws enacted by the Legislature?
- Or does he believe election officials have broader discretion to fill gaps, interpret statutes and establish procedures they believe elections need?
Those two views can produce very different election systems.
Fontes and his supporters can argue that complicated elections require experienced administrators capable of making practical decisions in real time.
His critics can answer that election rules are different from ordinary agency procedures because they determine who votes, how ballots are handled, how votes are counted and how election results become official.
And when those rules change, the authority to change them matters.
The Arizona Supreme Court said as much in 2020 when it warned against public officials changing election law during an election according to what they believe the law should be. So, Déjà Vu six years later, the parties meet again as adversaries, and that 2020 warning still remains relevant. Because the question is bigger than Adrian Fontes… It is bigger than Alex Kolodin… And it is bigger than any single election.
Who gets to write Arizona’s Election Rules?
- The Legislature?
- The Secretary of State?
- County election officials?
- The courts, when those officials disagree?
Arizona voters will decide who serves as their next Secretary of State: Kolodin or Fontes. But whoever occupies that office should understand one thing the courts have repeatedly made clear:
Administering Election Law Is Not the Same Thing as Making It.
The Issue Is Which One Will Agree and Adhere to this fact!
By Linda Brickman
©2026 Linda Brickman. All Rights Reserved.
COMING NEXT IN THE FONTES FILE…
Déjà Vu again – The protected data, the felony warning, the Legislature’s federal referral – and the questions the public record still does not answer…
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