Authority to Prevent and Respond to Certification Abuses
State Officials Can Remind Certifying Officials of Their Mandatory Duty to Canvass and Certify Elections
The law in Arizona is clear: state and local canvassers have a mandatory duty to canvass and certify elections based on election returns. Ariz. Rev. Stat. §§ 16–642(A), 16–645(A), 16–646(A), 16–648. Knowing refusal by a public officer to perform a statutory duty related to elections is a class 3 misdemeanor. Ariz. Rev. Stat. § 16–1009.
The secretary of state and the attorney general have already highlighted this mandatory duty in the 2023 Election Procedures Manual (EPM). Ongoing outreach to county boards of supervisors and county attorneys related to the relevant EPM provisions can continue to deter county officials from violating state law.
State Officials and Other Affected Parties Can Obtain a Writ of Mandamus
The most powerful legal remedy for certification refusals or delays is likely to be a writ of mandamus — a court order requiring government officials to perform their public duties mandated by law. In Arizona, mandamus is a “special action” governed by separate rules of procedure, under which an Arizona court can compel a government officer to perform a nondiscretionary duty required of them by law. See Ariz. Rev. Stat. § 12–2021; and Ariz. R. P. Spec. Act. 1, 3(a), 4(a).
State officials took this approach during the most recent federal election cycle. After the Cochise County Board of Supervisors refused to meet to canvass and certify the results of the 2022 general election, the secretary of state filed a petition for special action relief in the Cochise County Superior Court. The court granted the secretary’s petition and ordered the county to complete the canvass.
In Arizona, any “party beneficially interested” in an action may seek a writ of mandamus to “compel a public official to perform an act imposed by law.” Ariz. Pub. Integrity All. v. Fontes, 250 Ariz. 58, 62 (2020) (citing Ariz. Rev. Stat. § 12–2021). Petitioners in a mandamus proceeding may therefore include:
- The secretary of state: As the state’s chief election officer, the secretary has a direct interest in ensuring that all counties perform their nondiscretionary election-related duties in a timely and lawful manner, so that they can meet their own legal obligation to conduct the statewide canvass by the statutory deadline. Ariz. Rev. Stat. § 16–662; H.B. 2785, 56th Leg., 2d Sess. (Ariz. 2024). The secretary is also charged with ensuring “the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures for . . . counting, tabulating and storing ballots.” Ariz. Rev. Stat. § 16–452(A).
- The attorney general: The attorney general is the state’s chief legal officer and is authorized to represent the state in any court proceeding in which the state or an officer of the state is a party or has an interest. Ariz. Rev. Stat. §§ 41–192, 41–193(A)(1)-(3). The attorney general is specifically authorized to enforce Arizona election law “through civil and criminal actions.” Ariz. Rev. Stat. § 16–1021. The attorney general is also authorized to seek mandamus under the Arizona Rules of Procedure for Special Actions. See Ariz. R. P. Spec. Act. 2(a)(1); and State v. Bd. of Supervisors of Yavapai County, 127 P. 727, 728 (Ariz. 1912).
- Nongovernment parties: The Arizona Supreme Court has held that “Arizona citizens and voters” have standing to seek to compel election officials to perform nondiscretionary duties under state law. Pub. Integrity All. v. Fontes, 250 Ariz. 58, 62 (2020). This category includes candidates whose races have been impacted by a certification issue.
Notably, the secretary of state and Arizona voters successfully petitioned for a writ of mandamus against the Cochise County board in 2022, when it failed to canvass the 2022 midterm election results. Verified Complaint for Special Action Relief, Hobbs v. Crosby, No. CV202200553, 2022 WL 17406170 (Ariz. Super. Ct. Dec. 1, 2022); Verified Special Action Complaint, Ariz. All. For Retired Ams. v. Crosby, No. CV202200552 (Ariz. Super. Ct.). The board ultimately complied with the order, issued by the Cochise County Superior Court. Minute Entry: Order Re: Special Action, Arizona Alliance for Retired Americans v. Crosby, No. CV202200552 (Ariz. Super. Ct. Dec. 1, 2022).
Courts Have Tools to Enforce Court Orders If an Official Still Refuses to Certify
Under Arizona Rule of Civil Procedure 70(a), when a party defies a court order to perform a specific act, an Arizona court may appoint someone else to perform that action at the disobedient party’s expense. And if a county board or other official knowingly fails or refuses to obey a mandamus order from a court, the court “may make any orders necessary and proper for complete enforcement” of the order. Ariz. Rev. Stat. § 12–2029.
The attorney general and county attorneys also may seek enforcement orders from the court that issued the mandamus order, including by seeking civil or criminal contempt against the party refusing to comply. See Stoddard v. Donahoe, 228 P.3d 144, 149 (Ariz. Ct. App. 2010) (“Any sanction that is imposed for civil contempt must be designed to coerce the person to do or to refrain from doing some act.”) (citing Korman v. Strick, 652 P.2d 544, 547 (Ariz. 1982)); and Ariz. Rev. Stat. § 12–861.
State Officials Can Impose Penalties Against Rogue Certifying Officials
Refusing to canvass or certify election results could violate several state criminal laws and result in charges. In fact, the Arizona attorney general’s office has already prosecuted two county officials who voted against certifying the 2022 election results for two offenses: interference with an election officer and conspiracy.
Additionally, a county supervisor who “neglects or refuses to perform any duty imposed on him without just cause,” or who “wilfully [sic], fraudulently or corruptly attempts to perform an act as supervisor unauthorized by law,” is subject to a civil penalty of $500 for every such act, in addition to other civil and criminal penalties imposed by law. Ariz. Rev. Stat. § 11–223. And, as noted above, the knowing refusal by a public officer to carry out a nondiscretionary duty related to elections is a class 3 misdemeanor; the attorney general and county attorneys can bring appropriate charges against such officials who knowingly refuse to carry out their legal obligations.
County attorneys generally have authority to prosecute public offenses, including violations of the election code, as well as other criminal conduct that takes place within their jurisdictions. See Ariz. Rev. Stat. §§ 11–532(A), 16–1021.
In addition to their general law enforcement authority, the attorney general is also authorized to supervise and support county attorneys in the exercise of their duties. Ariz. Rev. Stat. § 41–193(A). The attorney general is specifically authorized to enforce Arizona election law through both civil and criminal actions. Ariz. Rev. Stat. § 16–1021.