IN THE

SUPREME COURT OF THE STATE OF ARIZONA

IN DIVISION

ARIZONA PUBLIC INTEGRITY ALLIANCE, AN ARIZONA NONPROFIT 

CORPORATION; TYLER MONTAGUE, AN INDIVIDUAL,

Plaintiffs/Appellants,

v.

ADRIAN FONTES, IN HIS OFFICIAL CAPACITY AS MARICOPA COUNTY 

RECORDER; FRAN MCCARROLL, IN HER OFFICIAL CAPACITY AS CLERK OF THE 

MARICOPA COUNTY BOARD OF SUPERVISORS, CLINT HICKMAN, JACK 

SELLERS, STEVE CHUCRI, BILL GATES, AND STEVE GALLARDO, IN THEIR 

OFFICIAL CAPACITIES AS MEMBERS OF THE MARICOPA COUNTY BOARD OF 

SUPERVISORS; MARICOPA COUNTY, A POLITICAL SUBDIVISION OF THE STATE 

OF ARIZONA,

Defendants/Appellees.

No. CV-20-0253-AP/EL

Filed November 5, 2020

Appeal from the Superior Court in Maricopa County

The Honorable James D. Smith, Judge

No. LC2020-000252-001

REVERSED

Appeal to the Court of Appeals, Division One

No. 1 CA-CV 20-0458

TRANSFERRED

COUNSEL:

Alexander Kolodin, Chris Ford, Christopher Viskovic, Kolodin Law Group 

PLLC, Phoenix, Attorneys for Plaintiffs/Appellants

Mary R. O’Grady, Joshua D. Bendor, Osborn Maledon, P.A., Phoenix, and 

Patrick Irvine, Charles E. Markle, Fennemore Craig, P.C., Phoenix, 

Attorneys for Defendants/Appellees
ARIZONA PUBLIC INTEGRITY, ET AL. V. FONTES, ET AL.

Opinion of the Court

2

Mark Brnovich, Attorney General, Brunn (Beau) W. Roysden, III, Solicitor 

General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Linley 

Wilson, Jennifer Wright, Assistant Attorneys General, Phoenix, Attorneys 

for Amicus Mark Brnovich

JUSTICE GOULD authored the Opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, and JUSTICES LOPEZ and BEENE joined.

JUSTICE GOULD, Opinion of the Court:

¶1 Today we address the proper overvote instruction that must 

be included with mail-in ballots. An overvote occurs when a person votes 

for more candidates than permitted for a specific election. Before the 2020 

election cycle, the Maricopa County Recorder, in compliance with the 

Secretary of State’s Elections Procedures Manual, included an instruction 

(the “Overvote Instruction”) advising mail-in voters that overvotes would 

not be counted, and in the event of an overvote, to contact the Recorder’s 

Office and request a new ballot. However, during the March 17, 2020 

Presidential Preference and August 4, 2020 Primary Elections, the Recorder

included a different instruction (the “New Instruction”) with mail-in

ballots. The New Instruction provides that if a mail-in voter makes a 

“mistake” on his mail-in ballot, rather than obtaining a new ballot, the voter 

may “[c]ross out” the mistake by drawing a line through the candidate’s 

name and the oval they marked next to his name, and “[f]ill in the oval next 

to [his] corrected selection.”

¶2 Plaintiffs Arizona Public Integrity Alliance and its President, 

Tyler Montague, who is on Maricopa County’s permanent early voter list,

filed a special action with this Court seeking to enjoin the Recorder from 

including the New Instruction with mail-in ballots for the November 3, 2020 

General Election.1 On September 10, 2020, we issued a Decision Order

accepting jurisdiction and granting relief, enjoining the Recorder from 

 1 Plaintiffs have also named as defendants, in their official capacities, each 

member of the Maricopa County Board of Supervisors, the Clerk of the 

Maricopa County Board of Supervisors, and Maricopa County. We 

collectively refer to these defendants and the Recorder as the “County.” 
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Opinion of the Court

3

including the New Instruction with mail-in ballots. This Opinion explains 

that Order.

¶3 We hold that the Recorder acted unlawfully by including the 

New Instruction with mail-in ballots. The Recorder does not have the 

constitutional or statutory authority to promulgate mail-in ballot 

instructions, nor does he have the authority to create voter guidelines for 

correcting overvotes to ensure that they will be counted. Rather, with 

respect to overvotes, the Recorder has a non-discretionary duty to provide 

the Overvote Instruction authorized by the Arizona Secretary of State, 2019 

Elections Procedures Manual (“2019 EPM”). 

¶4 Our decision today underscores the role of public officials in 

preserving and protecting our democratic system. Election laws play an

important role in protecting the integrity of the electoral process. See

Burdick v. Takushi, 504 U.S. 428, 441 (1992) (“[T]he right to vote is the right 

to participate in an electoral process that is necessarily structured to 

maintain the integrity of the democratic system.”). Thus, public officials 

should, by their words and actions, seek to preserve and protect those laws. 

See Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 471 P.3d 607, 

613 ¶ 9 (Ariz. 2020) (stating that, with respect to the judiciary, “[t]he people 

of this State look to us to uphold the law, and we must act consistently with 

that imperative”). But when public officials, in the middle of an election, 

change the law based on their own perceptions of what they think it should

be, they undermine public confidence in our democratic system and 

destroy the integrity of the electoral process. 

 

I.

¶5 Following the August 4, 2020 Primary, the Attorney General 

received complaints from mail-in voters who had received the New 

Instruction with their ballots. As a result, on August 11, the Attorney 

General notified the Recorder that the New Instruction was unlawful and

demanded that “the instructions accompanying the early ballots” comply 

with the law. Then, on August 17, Plaintiffs sent a cease and desist letter to 

the Recorder also demanding that he refrain from including the New 

Instruction with mail-in ballots. However, on August 24, the Recorder 

advised the Attorney General and Plaintiffs that he would continue to 

include the New Instruction.

¶6 Plaintiffs filed a special action in superior court on August 

25, seeking to enjoin the Recorder from including the New Instruction with 
ARIZONA PUBLIC INTEGRITY ALLIANCE, ET AL. V. FONTES, ET AL.

Opinion of the Court

4

the November 3, 2020 General Election mail-in ballots. On September 4, the 

court denied Plaintiffs’ request. The court concluded that because the New 

Instruction did not comply with the 2019 EPM, Plaintiffs were likely to 

succeed on the merits. However, the court determined that Plaintiffs did 

not meet the other criteria warranting a preliminary injunction, including 

failing to show that providing the New Instruction caused them to suffer a 

distinct and particularized injury.

¶7 Plaintiffs appealed to the court of appeals, and then 

subsequently filed a petition to transfer their appeal to this Court. Because 

this case involves election and statutory issues of statewide importance, we 

granted the motion to transfer and accepted special action jurisdiction 

pursuant to article 6, section 5(3) of the Arizona Constitution.

¶8 We review issues construing statutes and rules de novo. 

Fitzgerald v. Myers, 243 Ariz. 84, 88 ¶ 8 (2017). A trial court’s order denying 

a preliminary injunction is reviewed for an abuse of discretion. Shoen v. 

Shoen, 167 Ariz. 58, 62 (App. 1990); see also Clay v. Ariz. Interscholastic Ass’n,

Inc., 161 Ariz. 474, 476 (1989). “Unless the trial judge either made a mistake 

of law . . . or clearly erred in finding the facts or applying them to the [law] 

for granting an injunction, we must affirm.” Shoen, 167 Ariz. at 62–63.

II.

¶9 The Recorder first argues that Plaintiffs lack standing. 

Specifically, he claims that Plaintiffs’ harm “is a generalized concern about 

the election process, not a particularized injury sufficient to confer 

standing.” We disagree.

¶10 “Arizona’s Constitution does not contain a specific case or 

controversy requirement. . . ., [but] this Court has traditionally required a 

party to establish standing.” Hobbs, 471 P.3d at 616 ¶ 22. Thus, as a general 

matter, we have stated that “[t]o gain standing . . . a plaintiff must allege a 

distinct and palpable injury.” Sears v. Hull, 192 Ariz. 65, 69 ¶ 16 (1998).

¶11 However, we apply a more relaxed standard for standing in 

mandamus actions. Specifically, under A.R.S. § 12-2021, a writ of 

mandamus allows a “party beneficially interested” in an action to compel a 

public official to perform an act imposed by law. See also Stagecoach Trails 

MHC, L.L.C. v. City of Benson, 231 Ariz. 366, 370 ¶ 19 (2013) (“An action is in 

the nature of mandamus if it seeks to compel a public official to perform a 

non-discretionary duty imposed by law.”). The phrase “party beneficially 
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Opinion of the Court

5

interested” is “applied liberally to promote the ends of justice.” Barry v. 

Phx. Union High School, 67 Ariz. 384, 387 (1948); accord Ponderosa Fire District

v. Coconino Cnty., 235 Ariz. 597, 601 ¶ 18 (App. 2014). Thus, the “mandamus 

statute [§ 12-2021] reflects the Legislature’s desire to broadly afford 

standing to members of the public to bring lawsuits to compel officials to 

perform their public duties.” Ariz. Dep’t of Water Resources v. McClennan, 

238 Ariz. 371, 377 ¶ 32 (2015) (citation omitted) (internal quotation marks 

omitted).

¶12 Here, Plaintiffs, as Arizona citizens and voters, seek to compel 

the Recorder to perform his non-discretionary duty to provide ballot 

instructions that comply with Arizona law. Thus, we conclude that they 

have shown a sufficient beneficial interest to establish standing. See Armer 

v. Superior Court, 112 Ariz. 478, 480 (1975) (stating that “[i]f the petitioners, 

as members of the board” of county water conservation district “are in fact 

required by law to make a financial disclosure and have refused to do so, 

respondents, as members of the public for whose benefit the financial 

disclosure law was enacted, have standing to bring an action in the nature 

of mandamus to require disclosure”). 

III.

¶13 In resolving this case, we must address two questions: (1) 

whether the Recorder has the authority to promulgate mail-in ballot 

instructions; and (2) whether the New Instruction complies with the law.

A.

¶14 The Recorder’s authority is limited to those powers expressly 

or impliedly delegated to him by the state constitution or statutes. 

Associated Dairy Prods. Co. v. Page, 68 Ariz. 393, 395 (1949); see also Boruch v. 

State ex rel. Halikowski, 242 Ariz. 611, 618 ¶ 22 (App. 2017); see also Ariz. 

Const. art. 12, § 4 (stating that “[t]he duties, powers, and qualifications” of 

county officers “shall be as prescribed by law”). Thus, like all public 

officials, the Recorder may be “enjoined from acts” that are beyond his 

power. Berry v. Foster, 180 Ariz. 233, 235–36 (App. 1994) (quoting Crane Co. 

v. Ariz. State Tax Comm’n, 63 Ariz. 426, 445 (1945)).

¶15 The legislature has expressly delegated to the Secretary the 

authority to promulgate rules and instructions for early voting. A.R.S. 

§ 16-452(A). This authority includes adopting rules and guidelines for 

determining voter intent when tabulating mail-in ballots. 2019 EPM at 233 
ARIZONA PUBLIC INTEGRITY ALLIANCE, ET AL. V. FONTES, ET AL.

Opinion of the Court

6

(providing standards for election officials in determining voters’ intent); 

Ariz. Sec’y of State, Electronic Adjudication Addendum to the 2019 

Elections Procedures Manual 1 (Feb. 28, 2020) (“Addendum”) (applying 

2019 EPM guidelines for determining voter intent to electronic adjudication 

system).

¶16 The Secretary must follow a specific procedure in 

promulgating election rules. As an initial matter, the Secretary is required 

to consult with “each county board of supervisors or other officer in charge 

of elections.” A.R.S. § 16-452(A). Next, the Secretary is directed to compile 

the rules “in an official instructions and procedures manual.” Id. at (B). 

This manual, the EPM, must be issued no “later than December 31 of each 

odd-numbered year immediately preceding the general election.” Id. And 

finally, the rules prescribed in the EPM must “be approved by the governor 

and the attorney general. . . . not later than October 1 of the year before each 

general election.” Id. at (C). Once adopted, the EPM has the force of law; 

any violation of an EPM rule is punishable as a class two misdemeanor. Id.

¶17 The Recorder, however, is not empowered to promulgate 

rules regarding instructions for early voting, nor does he have the authority 

to change or supplant the EPM’s prescribed instructions. Rather, the 

Recorder’s authority is limited to “supply[ing]” the EPM’s instructions to 

early voters. A.R.S. § 16-547(C); see 2019 EPM at 56 (listing instructions the 

Recorder must supply to early voters); see also id. at 54 (stating that the 

Recorder may include only “official election materials” that “are permitted 

to be included in the ballot-by-mail mailing”).

¶18 Accordingly, we conclude that the Recorder did not have the 

authority to promulgate the New Instruction. And even if the Recorder had 

such authority, he did not follow the legislature’s prescribed procedure for 

adopting election rules and instructions.

B.

¶19 Despite his lack of authority to prescribe voting instructions, 

the Recorder asserts that the law requires him to include the New 

Instruction with mail-in ballots. We disagree.

1.

¶20 Under Arizona law, an overvote is invalid and is not counted. 

A.R.S. § 16-610, -611; 2019 EPM at 56. To prevent overvotes, § 16-502(F) 
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Opinion of the Court

7

requires that on each ballot, “[i]mmediately below the designation of the 

office to be voted,” the ballot “shall” contain the instruction: “‘Vote for not 

more than _________’ (insert the number to be elected).” Additionally, 

Arizona’s “electronic voting system” rejects and does not count overvotes. 

A.R.S. § 16-446(B)(2); 2019 EPM at 201. Consistent with this statutory 

directive, the 2019 EPM provides that for mail-in ballots, the Recorder “must 

supply printed instructions that . . . [i]nform voters that no votes will be 

counted for a particular office if they overvote,” and that voters “should 

contact the County Recorder to request a new ballot in the event of an 

overvote.” 2019 EPM at 54, 56 (emphasis added); see also Ariz. Sec’y of State, 

2014 Elections Procedures Manual 59, 177 (2014) (stating that overvotes 

may not be counted).

¶21 However, recent amendments to the EPM and Arizona’s 

statutes allow potential overvotes to be counted if election officials can 

determine it was the voter’s intent not to overvote. For example, the 2019 

EPM allows the Ballot Duplication Board to review overvotes, and if it can 

determine the voter’s intent, the ballot must be duplicated and counted. 

2019 EPM at 201–02; Addendum at 1, 4. Additionally, § 16-621(B), as 

amended in 2020, now provides that when an electronic tabulation machine 

reads and rejects a ballot containing a potential overvote, the ballot is sent 

to the Electronic Adjudication Board to determine the voter’s intent. Id.; 

Addendum at 1 (stating that Electronic Adjudication Boards established 

under § 16-621(B) “may evaluate over-vote conditions to determine the 

voter’s intent and make corresponding adjustments . . . if the voter’s intent 

is clear”). If the Electronic Adjudication Board can determine the voter’s 

intent, a duplicate ballot is prepared, run through the tabulation machine, 

and counted. Addendum at 1.

2.

¶22 The Recorder argues that based on these recent amendments, 

the New Instruction is required by law. Specifically, he claims that because 

the law now requires overvotes to be counted, mail-in voters have a “right” 

to correct their overvotes without requesting a new ballot, and an attendant 

right to have their “corrected” ballots counted. The Recorder contends that 

the New Instruction promotes and protects these new “rights” by 

instructing mail-in voters on “how best to correct” overvotes to ensure they 

are counted.

¶23 The Recorder is mistaken. Even if, as he contends, the New 

Instruction is required by Arizona law, he has no authority to prescribe 
ARIZONA PUBLIC INTEGRITY ALLIANCE, ET AL. V. FONTES, ET AL.

Opinion of the Court

8

mail-in ballot instructions, much less rules or guidelines for determining 

“how best” to correct a mistakenly marked ballot. The Recorder also 

misconstrues the amendments to the 2019 EPM and § 16-621(B). These 

amendments do not address the proper method for correcting an overvote. 

Indeed, the 2019 EPM still provides that if a voter mistakenly overvotes and 

seeks to correct his vote, he must obtain a new ballot. 2019 EPM at 54, 56. 

Rather, the recent amendments simply provide that even if a voter fails to 

obtain a new ballot, election officials must examine a potential overvote to

determine, if possible, the voter’s intent. Thus, for example, if a mail-in 

voter unintentionally creates a potential overvote (e.g., due to ink blots, pen 

rests, smudges, or bleed-through marks) election officials are now required 

to examine the ballot and determine the voter’s intent. 

¶24 The New Instruction also contradicts the purpose of the EPM, 

which is to “prescribe rules to achieve and maintain the maximum degree 

of correctness, impartiality, uniformity and efficiency.” § 16-452(A). The 

Overvote Instruction serves this purpose by requiring voters to correct their 

improperly marked ballots in the clearest manner possible, e.g., by creating 

clean ballots containing the proper number of votes for each election 

contest. And by requiring voters to submit a clean ballot that can be read 

and tabulated by an electronic voting machine, it ensures that their votes 

will be counted. In contrast, the New Instruction directs voters to create an 

invalid overvote ballot that cannot be tabulated by the electronic voting

machine, and, depending on the judgment of election officials, may or may 

not be counted. Supra ¶ 21.

¶25 Accordingly, we hold that the New Instruction does not 

comply with Arizona law. Rather, only the Overvote Instruction 

authorized by the 2019 EPM may be included with mail-in ballots. 

 

IV.

¶26 Because Plaintiffs have shown that the Recorder has acted 

unlawfully and exceeded his constitutional and statutory authority, they 

need not satisfy the standard for injunctive relief. See Burton v. Celentano, 

134 Ariz. 594, 596 (App. 1982) (“[W]hen the acts sought to be enjoined have 

been declared unlawful or clearly are against the public interest, plaintiff 

need show neither irreparable injury nor a balance of hardship in his favor.”

(quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 2948 (3d ed. 1998))); see Current-Jacks Fork Canoe Rental Ass’n v. 

Clark, 603 F. Supp. 421, 427 (E.D. Mo. 1985) (stating that “[i]n actions to 

enjoin continued violations of federal statutes, once a movant establishes 
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Opinion of the Court

9

the likelihood of prevailing on the merits, irreparable harm to the public is 

presumed”).

¶27 Nevertheless, we conclude that Plaintiffs have satisfied the 

standard for injunctive relief. See Shoen, 167 Ariz. at 63. Because the 

Recorder had no authority to include the New Instruction with mail-in 

ballots, Plaintiffs are likely to succeed on the merits. Likewise, because the 

Recorder’s action does not comply with Arizona law, public policy and the 

public interest are served by enjoining his unlawful action. And, in the 

context of their mandamus action, Plaintiffs have established the requisite 

“injury” by showing they are “beneficially interested” in compelling the 

Recorder to perform his legal duty. § 12-2021; supra ¶ 12.

¶28 We also conclude that the balance of hardships favors

Plaintiffs. The County claims that because Plaintiffs unreasonably delayed 

in filing their action, it is too late for the County to order new instructions 

and meet their statutory mailing deadlines for mail-in ballots. Specifically, 

overseas ballots (including instructions) had to be sent out by September 

19, 2020, and mail-in ballots by October 7. See 52 U.S.C. § 20301 (requiring 

the County to send early ballots to military and other overseas voters no 

later than 45 days before the election); A.R.S. § 16-542(C) (stating that 

official early ballots shall be distributed no more than twenty-seven days 

before the election); see also Election Calendar 2020, Maricopa County 

Elections Department, https://recorder.maricopa.gov/elections/

electioncalendar.aspx# (last visited Oct. 27, 2020) (stating that during the 

2020 election cycle, September 19 is the deadline for military and overseas 

ballots and October 7 is the date for early mail-in ballots); Voting by Mail: 

How to Get a Ballot-by-Mail, Secretary of State,

https://azsos.gov/votebymail (last visited Oct. 27, 2020) (listing October 7 

as the first day counties can mail ballots to voters).2

¶29 This argument fails, however, because the County was able to 

remove the New Instruction and mail the early ballots by the October 7 

deadline. See November General Election Early Voting Begins October 7, 

Maricopa County (Oct. 7, 2020),

https://www.maricopa.gov/CivicAlerts.aspx?AID=1773. Additionally, 

the overseas ballots were mailed on September 18, one day before the 

 2 We may take judicial notice of the Secretary and Recorder’s 

websites. Pederson v. Bennett, 230 Ariz. 556, 559 ¶ 15 (2012) (citing Ariz. R. 

Evid. 201(b), (b)(2) (permitting court to take judicial notice from sources 

whose accuracy cannot reasonably be questioned)).
ARIZONA PUBLIC INTEGRITY ALLIANCE, ET AL. V. FONTES, ET AL.

Opinion of the Court

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statutory deadline. See @MaricopaVote, Twitter (Sept. 18, 2020, 5:04 PM), 

https://twitter.com/MaricopaVote/status/1307108206401945601.

¶30 The Recorder also contends that due to Plaintiffs’ delay, their 

claim is barred by laches. See League of Ariz. Cities & Towns v. Martin, 219 

Ariz. 556, 558 ¶ 6 (2009) (“Laches will generally bar a claim when the delay 

[in filing suit] is unreasonable and results in prejudice to the opposing 

party.” (quoting Sotomayor v. Burns, 199 Ariz. 81, 83 ¶ 6 (2000))). We 

disagree. Because the County was able to meet the deadlines for early 

ballots, it suffered no prejudice. And more importantly, Plaintiffs’ delay 

does not excuse the County from its duty to comply with the law. 

V. 

¶31 We reverse the trial court and grant relief. The County is

enjoined from including the New Instruction with mail-in ballots for the 

November 3, 2020 General Election.