Interviewer: Now, we've got the Arizona Secretary of State, Adrian Fontes. Thank you so much for taking the time.
Adrian Fontes: Thanks for having me.
Interviewer: So, the question of whether Donald Trump will be disqualified from state ballots in 2024 is a main focus across the country right now. Can you walk us through the process of what you're considering here?
Adrian Fontes: Well, what we're considering is a number of factors, some of which came to us last year. For example, in Arizona, we have a Supreme Court decision that indicates the Section 3 of the 14th Amendment cannot be enforced because there's no federal enforcement mechanism. Now, I'm on record saying that that's pretty absurd because that means you can't enforce the natural-born citizen clause, and you also can't enforce the 35-year-old clause. New Mexico, on the other hand, has indicated otherwise, and I think they actually removed someone from office who participated in the insurrection. So, we have a conflict of laws right there among those two states. There are conservative law professors, even one, a founder of the Federalist Society, who's indicated that not only is Section 3 in effect right now but is sort of mandatorily executable. And a guy like me who doesn't disqualify Mr. Trump is subject to a lawsuit. And there are some other folks who agree that it may actually be in effect, but you just can't enforce it. Then there's a varying other set of circumstances, like what's the standard of proof that we would use? So there's a lot of considerations that we have to take into account. Right now, I guess the best way to say it is, we are deciding how to decide.
Interviewer: Now, there is a lot of talk about secretaries of state and the courts. Will the onus be on you to decide whether or not to include him on the ballot, and then it'll be litigated afterwards? Or will this be litigated by the court first, and then you'll take your cues from them?
Adrian Fontes: Well, it's as much a question of duty as it is of timing. I have a duty by the time we hit the 14th of December to notify my local election administrators as to whose names are going to be on the ballot. That's my certification as the Arizona Secretary of State. Different states have different rules, so we'll just talk about Arizona for now. That's the December 14th deadline. But at the same time, we may end up in court, and that means that I will have to follow whatever the courts are saying. So there's a timeline involved, different courts and authorities involved, and so we're just gonna have to see how this thing plays out.
Interviewer: I know that you're going to be doing a lot of listening here, but based on your knowledge of Section 3 of the 14th Amendment and what it says about the eligibility of someone who engages in or aids someone who engages in an insurrection, do you think that Donald Trump is qualified to appear on the ballot in 2024?
Adrian Fontes: Well, I can give you a quick answer, but that wouldn't do it justice. Let's run through a quick analysis here. What we have is a federal grand jury in one of the January 6th cases and a state grand jury in Georgia. Both of them have determined by a legal standard called probable cause that there's enough evidence to go ahead and try Mr. Trump and others for criminal liability for having participated in the insurrection on January 6th. So there is some competent authority under judicial supervision that has already made the determination that is probable cause. That's a legal standard that's more likely than not. Now, that's higher than a preponderance of the evidence but also lower than two other standards: clear and convincing evidence and then the highest one, beyond a reasonable doubt. So you've got four pretty well-known standards. We really don't know which legal standard is supposed to apply to this particular test, and that's really the question where we're at right now. If it is merely by a preponderance of the evidence, which is a lower burden than has already been met by a state and federal grand jury, then the answer becomes much more straightforward. If it's clear and convincing evidence, then it's a higher burden than either of those grand juries met. So, we're in a space right now where we've got to figure out what test to apply to the facts that we know. That's the question that we're at right now. So the answer to your question, whether or not he's eligible, really lies in which test we use to determine that.
Interviewer: And how will we know which test is ultimately the one that we have to go with? How do we know what that threshold is going to be? Who's the authority that determines that?
Adrian Fontes: Well, finally, this is a question of constitutional law, and at the end of the day, the U.S. Supreme Court is going to make the final decision. But somebody along the way, whether it's us by the time we hit December 14th, or some other secretary of state, some other state authority, someone's going to make that decision along the way. And then it's going to move its way through the courts. I hope very quickly, so that we can answer the question. Because here's my number one goal: my number one goal isn't whether or not Mr. Trump is on the ballot. That's not my goal. My goal is to make sure that we can run our elections with certainty. We need to know who's eligible because we've got to print ballots, we've got to get voters moving, we've got to have this information so that our local election authorities can actually do their jobs. And that's one of the things I think that gets forgotten about here. There's work to do. This isn't just about who wins and who loses; there's a lot of work behind the scenes that has to happen.
Let me give you a for example. Our presidential preference election, which is our primary, is on March 19th. We have to transmit ballots to military and overseas voters 45 days before that date according to federal law. So, we've got a clock that's ticking here and we just need to know how to answer the question about what the tests are, how do we make this decision so that we can then make it.
Interviewer: Now, you'd mentioned this issue being litigated in other states. Do you want this to be uniform across states here? Like, will the decision on whether or not to include Trump on the ballot take into account what other states do?
Adrian Fontes: You know, I think it has to be uniform. This is a question of the presidency. This is the Article 2 power under the Constitution and who is eligible to run for that office. It is critical that we have a uniform standard across the United States of America. Now, is it different for governors of the 50 states? Yeah, again, it's a federal republic. We have state governments that are to a degree somewhat sovereign from the federal government. So, can we have two different sets of rules there? I don't think there's an issue with that.
But that having been said, we need to know what the rule is for federal officers. Now, here's the other really interesting thing: Section 3 is sweeping. It is radical. It is an enormously powerful piece of the Constitution that was meant to encompass every elected office in our government — state, local, federal, and so forth. We need to know what the rule is. That's the critical component here. Once we know what the rule is, we can apply it, and we will apply it faithfully.
But you know, right now, we've been known to say, and I've said, I don't have a choice because the Arizona Supreme Court has leaned one way. But that goes without saying that the federal courts are going to intervene at some point and they may rule in a different direction. So, we'll just see how it plays out.
Interviewer: I know that this will ultimately be litigated by the courts, but in the meantime, you are speaking to constitutional scholars, and experts, and attorneys. I presume that what may happen is that those on the left will say that Donald Trump isn't eligible to run for the presidency based on Section 3 of the 14th Amendment. Those who have a right-leaning bent will say that he is eligible to run for the presidency. So how do you reconcile that? How do you make a decision that transcends the political affiliations of the people that you're speaking with?
Adrian Fontes: Well, I don't have to do that; it's already been done. The two authors of the main law review article that has really illuminated this issue and brought us to the conversation are both very conservative law professors. Not one of them was a co-founder of the Federalist Society. You don't get much more conservative than these guys. And a lot of the judge, Luttig — I may have mispronounced his name, apologies — is a very well-known conservative scholar and author. These folks are not left-wingers, and they're not Democrats. And they're flat out saying in their arguments that Mr. Trump is not eligible to run for president of the United States of America.
So, I don't see this as a political question. Is it a question about politics? Yes. But it is not, in and of itself, a political question. This is a question about the rules and how the rules apply.
Let me give you a quick for example. One of the arguments that these folks are making is that the First Amendment does not apply here as a defense. Why? Because the 14th Amendment came later, and that means that it supersedes any possible protections that the First Amendment might bring, just like the amendments themselves supersede anything that's in the body of the Constitution itself, later in time. So, the bottom line is, this is a question of the rules themselves, not about the outcomes or the politics. And as long as we keep it in that framework, we can keep the politics off to the side. And that's where it ought to be in these questions.
Interviewer: How much attention is your office getting on this issue in particular right now?
Adrian Fontes: Well, we're getting a lot of attention because, you know, we're talking about it. We're showing folks that the rules matter, how the rules work. We're having conversations about this. And I think that's good. I think it's good for transparency. For all of the weirdness and uncertainty and unusual things that have happened since Mr. Trump got into politics, the one thing good we can say is that we took some of the most basic functions of government for granted for a very long time. Nobody knew how our elections worked, nobody knew who ran our elections, very few people understood that there was even a section three in the 14th Amendment. So what we've got here is a live action civics lesson happening and unfolding. And for us to just be quiet about it and not talk about it in public would be to shortchange the conversation, a civil conversation about the rules, because the rules are what separate us from so many other places. The rule of law is real in the United States of America. It is a core value of ours, and it's one of the reasons why Mr. Trump has received so much resistance from the political right because a lot of them believe that he has operated above and beyond or even outside of the rules. And they don't like that because it's not an American value. So this is really an opportunity for us to have these conversations, and I relish that.
Interviewer: I know that there is a lot of political violence right now, and with secretaries of state across the country kind of at the heart of this issue, have you been okay? Have you had to deal with any political violence, any of that?
Adrian Fontes: Well, I certainly do appreciate the question. And my office and our staff have been taking necessary precautions as we get around the country and do the things we need to do. Not just for myself and my family but our staff. We've taken the appropriate trainings, and we're dealing with the appropriate law enforcement and security officials here in Arizona, in communication with our federal, state, and local partners. So we're doing everything that we need to do to stay safe. It is a horrible statement, however, that something so civil in orientation, something so bureaucratic and administrative in orientation, has become the subject of threats of violence or actual violence. That's the disgrace that we face now. If we could just have these conversations in a civil manner without threats of violence, boy, that would be much more American, wouldn't it? And we wouldn't have to have all of these extra expenditures and costs and monitoring just because some people can't get over the fact that their emotional attachment to one candidate might be overwhelming their reason. That's a real problem. And that having been said, we're not going to shy away from the conversation. This is still America. We are still strong. We are still willing to have these conversations in a civil way, and that's what's going to win the day by the time we get to the end of all this.
Interviewer: Speaking of people who can't get over their emotional attachment to a certain candidate, Kari Lake is reportedly mounting a senate bid in Arizona. She's already top polling atop the Republican field.
Adrian Fontes: I'm sorry, I'm sorry, who?
Interviewer: I'm sure you'll hear plenty more about her. What is your reaction to one of the country's biggest election deniers again becoming the face of the Arizona Republican Party?
Adrian Fontes: I have no reaction to that. This is an irrelevancy. This is an attention-grabbing grifter, as I understand it, and I pay as little attention and as little breath as possible to this sort of shenanigans.
Interviewer: I think that actually is the perfect answer right there. Well, finally, you know, a lot of Republicans like Kari Lake, but obviously not limited to her, are still claiming that the elections in both Arizona and across the country were rigged. So what is your definitive response to accusations that the elections in your state, for example, weren't free and fair?
Adrian Fontes: They're wrong. It's just that simple. They're wrong. They've never brought any real evidence. They've never made any actual claims. The three major state candidates who continuously push this nonsense have all been sanctioned by the courts for bringing frivolous lawsuits. That's how wrong they are. Their accusations are costing them money. So, it's just grift. The sad thing is this: there are two real victims to these lies. Number one, the people that keep sending these guys money. I mean, the grift is real. These folks keep saying, 'oh, we've got new evidence and all this other stuff.' The knucklehead that I ran against said he had a binder of evidence that he was bringing to his representatives on January 6th. Guess how many people have ever seen that binder of evidence? None. Because it didn't exist. Because he was lying. He was flat out lying. And if he wasn't lying and he sees it is, he needs to bring that evidence forward. Let's see it. Let's see it. And I'm just calling him 'pants on fire'. That's just what it is. And the second victim, not just the folks that keep pouring money into these people, the second victim is our democracy itself, the faith we have in one another as Americans. That's civil, that civic faith, right? We believe that the folks who take these oaths of office to be poll workers or vote center workers or truck drivers with voting equipment, or just these banal jobs, these are the folks who are suffering the most. They're the ones who are getting threats. They're the ones who are being called fraudsters. They're the ones who are being called liars. A guy like me never touches a ballot. I'm an administrator at the leadership level. I'm never going to touch a ballot or program a computer, and so all of those folks who are just doing their jobs, they're the ones who are getting beat up on this. And the faith that we have in one another as Americans is suffering. So, these folks just make themselves national victims for the purpose of grifting, and the side effect is they're hurting America, and they need to stop.
Interviewer: Yeah, I think that was perfectly put. Well, thank you so much for the work that you've been doing and for comporting yourself with such integrity, especially in the face of all of these, you know, all this lunacy and these attacks. So with that said, Secretary of State Adrian Fontes, thanks so much for taking the time.
Adrian Fontes: Thanks for having me. I appreciate it.
