During an emergency, can the Arizona Secretary of State require all candidate petitions to be filed by mail and refuse in-person filing?

Plain-English summary

In the early weeks of the COVID-19 emergency, Arizona Secretary of State Katie Hobbs announced that all candidate filings would be mail-only, then later added a drop box in the Executive Tower lobby. State Senate President Karen Fann asked Attorney General Mark Brnovich whether that complied with Arizona law. The AG said no. Three statutes drove the result:

1. A.R.S. § 38-401: state offices must be kept open for the transaction of business 8 a.m. to 5 p.m., Monday to Friday, with limited exceptions.
2. A.R.S. § 41-124: anyone who files documents with a state officer is statutorily entitled to a receipt showing the number of documents, to whom delivered, and the date of delivery. A drop box and a mailing both fail that.
3. A.R.S. § 16-311(E) and § 16-314: candidate filings have a hard 5 p.m. deadline on a specific date and depend on signature counts that the receipt confirms.

The AG noted that Governor Ducey's Executive Order 2020-12 (March 23, 2020) had explicitly ordered that essential state services keep operating. Candidate filing was not optional government work; it was statutorily required. Closing it to in-person filing was an unauthorized closure of a state office, no matter how well-intentioned.

The opinion did not bar mail or drop-box filing. It said those could be additions to in-person filing, not substitutes.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: what the opinion meant in 2020

For candidates filing during the emergency

The opinion gave any candidate excluded from in-person filing a clear legal hook to demand it. The candidate could cite § 38-401 and § 41-124 and insist on either an in-person filing window or, if the SOS continued to refuse, a mandamus or special action.

For Secretary of State staff

The opinion did not require the SOS to use the same in-person setup as before. It did require some in-person path that could produce a contemporaneous receipt. Appointment-based in-person filing with PPE, plexiglass, distancing, etc., would all be acceptable; complete closure of in-person filing was not.

For election law attorneys

The opinion implicitly distinguished the SOS's emergency authority. Under A.R.S. § 26-307(A), local political subdivisions can make rules "necessary for emergency functions" only when so ordered by the Governor. The SOS does not have unilateral emergency authority to suspend a statutory function. The Governor's executive order in fact pointed the other way: keep services operating.

For first amendment and ballot access advocates

The opinion is narrow but useful. It treats the right to file as a candidate as something that cannot be abridged by administrative convenience, even during an emergency. Any future emergency closure would have to either preserve the in-person option or wait for the legislature to amend § 38-401 and § 41-124.

Common questions

Q: Does this mean the Secretary of State has to accept in-person filings under any circumstances?
A: The opinion holds that during normal state-office hours (8 a.m. to 5 p.m., M-F), the SOS cannot refuse in-person filing of candidate papers. Limited exceptions in § 38-401 (state holidays, etc.) still apply.

Q: Can the SOS still offer mail and drop-box options?
A: Yes. The opinion does not bar additional filing methods. It bars the SOS from making mail or drop-box the only options.

Q: Why does the receipt requirement matter so much?
A: Because candidate filings are time-stamped to the minute and signature-counted to be valid. A candidate filing 30 minutes before the deadline with 410 signatures cannot wait days for the SOS to log a mailed envelope. § 41-124 gives the candidate the right to walk out of the SOS office with proof of timely delivery and document count. Mail and drop boxes do not provide that.

Q: Did the AG say the SOS broke the law?
A: The AG concluded that prohibiting in-person filing was "impermissible under Arizona law." Whether the SOS's specific actions amounted to a legal violation actionable in court would have been a separate question. The opinion frames the legal rule, not a charging decision.

Q: How does this interact with the Governor's emergency authority?
A: The Governor's Declaration of Emergency (March 11, 2020) and subsequent EOs do allow some emergency rulemaking, but only "when so ordered by the Governor" per § 26-307(A). The Governor in fact issued EO 2020-12 saying essential state services should continue. The SOS's mail-only policy was inconsistent with that order, not authorized by it.

Background and statutory framework

The Arizona Secretary of State is a constitutional officer (Ariz. Const. art. V, §§ 1, 9), with statutory powers enumerated in Title 41, Chapter 1. The SOS is the filing officer for candidates running for U.S. Congress, President, the State Legislature, and other statewide offices (A.R.S. § 16-311(E)).

Two backbone statutes set the rules for office hours and filings:

• A.R.S. § 38-401: "State offices shall be kept open for transaction of business from [8:00] a.m. until [5:00] p.m. each day from Monday through Friday" with limited exceptions.
• A.R.S. § 41-124: anyone delivering documents to a state office is entitled to a receipt with the number, addressee, and date.

Candidate-specific deadlines:

• A.R.S. § 16-311(E): nomination papers must be filed "no later than 5:00 p.m. on the last day of filing."
• A.R.S. § 16-314(A), (B): nomination petitions with required signatures must be filed not less than 120 days before the primary.
• A.R.S. § 16-322: minimum signature counts.

The statutes are strict. Bohart v. Hanna, 213 Ariz. 480, 482 (2006), confirms that "time elements in election statutes [must] be strictly construed." Late filings or insufficient signatures bar a candidate from the ballot under § 16-311(A) and § 16-314(A).

Set against that, the Governor declared a state of emergency on March 11, 2020. EO 2020-12 (March 23, 2020) directed that "Essential Government Functions", including all state services needed to ensure continuing operation of state agencies, keep operating. The SOS's mail-only policy collided with both that order and the underlying statutes.

Citations and references

Constitutional provisions:
- Ariz. Const. art. V, §§ 1, 9 (Secretary of State as constitutional officer)

Statutes:
- A.R.S. § 38-401 (state office hours)
- A.R.S. § 41-124 (right to receipt for documents filed with state)
- A.R.S. §§ 16-311, 16-314, 16-322, 16-351 (candidate filings, signatures, deadlines, challenges)
- A.R.S. § 26-307(A) (local rulemaking during state of emergency)

Cases:
- Bohart v. Hanna, 213 Ariz. 480 (2006), election-statute deadlines must be strictly construed

Other:
- Governor's Declaration of Emergency (March 11, 2020)
- Executive Order 2020-12 (March 23, 2020): Prohibiting the Closure of Essential Services

Source

• Landing page: https://www.azag.gov/opinions/i20-004-r20-004
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I20-004.pdf

Original opinion text

To:

The Honorable Karen Fann

President

Arizona State Senate

Question Presented

Can the Secretary of State require all candidate petitions be filed only by mail or must she provide the ability for a candidate to file their petitions in person by 5:00 p.m. on the deadline date?

Summary Answer

No, the Secretary of State cannot prohibit in-person filing and require that candidate petitions be mailed. Pursuant to A.R.S. § 38-401, state offices must be kept open for the transaction of public business. Accepting candidate filings and providing receipts for those filings are statutorily required business transactions performed by the Secretary of State's Office. A.R.S. §§ 16-311, 16-322, 41-124. Prohibiting in-person filing closes the office to statutorily required business transactions.

Background

The Arizona Secretary of State (the "SOS") is an elected constitutional State Officer with powers "prescribed by law" under Title 41, Chapter 1, Article 2 of the Arizona Revised Statutes. In addition, the state law provides that the SOS is the filing officer for candidates running for U.S. Congress, President, State Legislature, and other statewide or multi-county offices. A.R.S. § 16-311(E).

In response to concerns amid the COVID-19 pandemic, the SOS issued a press release on March 20, 2020, stating that "[a]spiring candidates who wish to appear on the Primary or General Election ballot in federal, statewide, and legislative races, must now mail their [candidate] filing to our office." According to the press release, all in-person appointments were deemed canceled and walk-in filings would not be accepted. On the SOS website, candidates were warned that the SOS's "office can take no responsibility over the timeliness or delivery of candidate filings by mail." On March 24, 2020, the SOS issued an updated press release allowing candidates to "drop [candidate filings] off in the designated drop box … located at the security station in the first floor lobby of the Executive Tower." According to the SOS website, the drop boxes will "remain available as long as the building remains open and … team members [are] available to check [the drop box] … [but] we cannot guarantee that this option will be available [if the health situation changes.]"

Also on March 23, 2020, Governor Doug Ducey issued Executive Order 2020-12, "Prohibiting the Closure of Essential Services," indicating that it was "necessary to ensure essential services continue to be provided" and defined essential services to include "Essential Government Functions" including "all services provided by the State … and needed to ensure the continuing operation of the government agencies."

This Opinion answers whether the SOS, under statutory authority, and in light of currently issued executive orders, may prohibit candidate petitions from being filed in person.

Analysis

According to Arizona law, candidate nomination papers "shall be filed with the secretary of state no later than 5:00 p.m. on the last day of filing." A.R.S. § 16-311(E). Further, candidates "shall file ... with [the filing officer] a nomination petition" with "the required number of signatures" not less than 120 days before the primary election. A.R.S. § 16-314(A), (B).

In order to qualify to have their name on the ballot, candidates must submit a statutorily prescribed number of qualified signatures. A.R.S. §§ 16-314(B), 16-322. Individuals who file candidate papers or petitions late or who submit petition sheets with an inadequate number of qualified signatures are barred from being placed on the ballot. See A.R.S. §§ 16-311(A), 16‑314(A); see also Bohart v. Hanna, 213 Ariz. 480, 482 (2006) ("time elements in election statutes [must] be strictly construed"). When candidates file their nominating paperwork, including their petition sheets, they are statutorily entitled to a receipt which includes "the number of documents delivered, to whom delivered and the date of delivery." A.R.S. § 41-124. The receipt provides a definitive timestamp for the filing, as well as confirmation of the number of petition papers submitted, providing the candidate confirmation that they have met their statutory obligations and, unless successfully challenged pursuant to A.R.S. § 16-351, entitled to be placed on the ballot.

Pursuant to A.R.S. § 38-401, "State offices shall be kept open for transaction of business from [8:00] a.m. until [5:00] p.m. each day from Monday through Friday" with limited exceptions. While the Governor recently issued a Declaration of Emergency, state agencies are only permitted to "make, amend and rescind orders, rules and regulations necessary for emergency functions" when so ordered by the Governor. A.R.S. § 26-307(A). Further, the Governor has recently defined services provided by the State as an "Essential Government Function" and such functions are "needed to ensure the continued operation of the government agencies" during the State of Emergency. Exec. Order 2020-12.

Although the SOS is statutorily permitted to expand the means in which candidate filings are accepted, Arizona law requires state offices to be kept open for the transaction of business during regular business hours. A.R.S. § 38-401. Neither providing a drop box in the lobby of the Executive Tower nor accepting filings by mail enables the candidate to obtain a contemporaneous receipt confirming the "number of documents delivered, to whom delivered and the date of delivery." A.R.S. § 41-124. While candidates may choose to utilize the mail and drop box options, they cannot be completely prohibited from transacting business with the Secretary of State. Given that the candidate's ability to be placed on the ballot is completely dependent on not only the time the candidate filings are received (no later than 5:00 p.m. on April 6 of this year), but also on how many signatures submitted (as generally reflected by the number of petition sheets), candidates cannot be prohibited from receiving a contemporaneous confirmation of their submission to the appropriate filing officer.

Conclusion

There is no doubt that the COVID-19 outbreak has created a significant disruption to how businesses operate and necessitates statutorily permitted flexibility in the performance of essential functions. It is useful and necessary in this time of uncertainty to provide contingency plans to enable critical functions, such as political candidate filings, to continue to operate in the midst of the State of Emergency while protecting essential employees from harm. However, prohibiting in-person candidate filings goes beyond contingency planning and results in an unauthorized closure of a state office "for the transaction of business." Accordingly, prohibiting in-person filing is impermissible under Arizona law.

Mark Brnovich

Attorney General