Arizona Attorney General Mark Brnovich has been asked to look into whether some of the state’s top election officials violated state law this week by issuing a statement opposing Proposition 309, which is on the Nov. 8 statewide ballot.
Prop 309 is before the voters to decide whether to amend several of Arizona’s current election laws. For an example, a “yes” vote would require voters to write their birthdate and government-issued identification number on the concealed early ballot affidavit, and for those who want to vote in-person they would be required to present an official photo identification at their polling place.
The Arizona Association of County Recorders (AACR) issued a statement Tuesday advocating a “no” vote which would leave in place the state’s existing laws about early ballot affidavits and voter identification. Among the duties of a county recorder is to conduct early voting, including mailing out early ballots and verifying signatures when early ballots are returned by voters.
Maricopa County Recorder Stephen Richer is the president of AACR and is the one who distributed the anti-Prop 309 statement on Tuesday. Yet according to election law expert Timothy La Sota, it appears Richer has violated two Arizona laws in connection with the statement, which was also posted to a website controlled by Maricopa County.
“Contrary to what Mr. Richer appears to believe, the County Recorder’s website is a publicly funded website, and using it as a vehicle to promote Mr. Richer’s political agenda is not only inappropriate, it is illegal,” attorney La Sota wrote, pointing Brnovich to Arizona Revised Statute 11-410(A) and 16-192(A). “This website is not at Mr. Richer’s disposal to use as a campaign website for his favored political causes.”
That first statute states a county “shall not spend or use its resources, including the use or expenditure of monies, accounts, credit, facilities, vehicles, postage, telecommunications, computer hardware and software, web pages, personnel, equipment, materials, buildings or any other thing of value” for the purpose of swaying an election outcome.
The second statute prohibits the state and “any public agency, department, board, commission, committee, council or authority” from spending or using public resources to influence an election, including the use of “computer hardware and software, web pages and personnel and any other thing of value of the public entity.”
La Sota pointed out that data associated with the document indicates the AACR statement -which includes the names of all 15 county recorders- was created by one of Richer’s employees during office hours, another “no no,” he told the attorney general.
“As a countywide elected official charged with various election related duties, Mr. Richer should know this,” La Sota added. “And his actions in placing his thumb on the scale illegally in this context do not auger well for maintaining a professional perception in other realms.”
During an interview Thursday morning, Amy Yentes of the Arizona Free Enterprise Club discussed why Arizona law expressly prohibits the government from electioneering activities in an effort to sway a particular race or contest.
“This is a protection for taxpayers,” Yentes told KFYI’s James T. Harris. She also supports La Sota’s request to Brnovich for an investigation into how the AACR’s anti-Prop 309 statement came to be created by a Maricopa County employee and posted to the county’s website.
“What is more disturbing is that Stephen Richer is an election administrator,” Yentes told Harris. “It is quite concerning that he can’t even follow basic election law and yet we’re trusting him to administer our elections.”
But that is not the only problem stemming from Richer’s distribution of the anti-Prop 309 statement, which he said on Tuesday afternoon was approved by AACR members by “unanimous voice vote (no nays, all ays).” Richer also tweeted that “14 of the 15 counties were present” for the vote, with only Apache County absent.
According to Cochise County Recorder David Stevens, the inference voters will make from the AACR statement and Richer’s social media comments is that all 15 county recorders are against Prop 309. In fact, Richer retweeted someone else’s comment that the vote was unanimous against the proposition.
That, Stevens says, is not true. In fact, he is an adamant supporter of Prop 309 and has demanded Richer correct the AACR statement and clear any misperception.
“Stephen, I was out of the office yesterday and did not see this email. I STRONGLY OBJECT to anyone assigning an opinion to me without my expressed consent. Silence is NOT acceptance. I do support prop 309 and kindly request you remove my name from this list and issue a retraction immediately,” Stevens wrote.
As of press time, Stevens had no contact from Richer about the Prop 309 issue. He was, however, included on a mass email the Maricopa County Recorder sent to his fellow recorders Wednesday evening.
“Good luck Recorders!” the subject line reads, before Richer wished everyone “the absolute best this early voting season.”
A bill to limit the state’s 15 county recorders to participating in voter registration events only on government-owned locations appears to have died following pushback from election officials, including Arizona Secretary of State Katie Hobbs.
SB1358 would amend state law to ban county recorders, who are elected to office, from engaging in voter registration events at any “location, facility or property” that is not government owned. However, the bill introduced by Sen. Michelle Ugenti-Rita (R-LD23) has been mired in the Senate since Feb. 24.
ARS 16-134 currently requires a county recorders to make voter registration forms available free of charge at locations “throughout the county such as government offices, fire stations, public libraries and other locations open to the general public.” It also requires recorders to provide a voter registration form to any qualified person who makes such a request.
For years county recorders have utilized large-attendance events to help reach as many new voters as possible to maximize the return of their time and expense.
But Ugenti-Rita’s would restrict the elected county recorders from conducting voter registration activities at places like churches and synagogues, nursing homes, private colleges, homeowner association centers, American Legion halls, even shopping malls. And if the local county fair is held at property owned by a nonprofit group instead of the county, then that would be a no-no as well.
“I have seen where we’ve had a recorder who likes to frequent certain kinds of events at the exclusion of others,” Ugenti-Rita said during a meeting of the Senate Committee on Government, which she chairs. “We want to make sure we’re hitting all voters and not just setting up voter registration at certain events that may more align with our political views than others.”
Even if SB1358 were to pass out of the Senate its prospects for passing the House are uncertain due to strong opposition from the majority of the elected county recorders as well as the Arizona Association of Counties.
In a move strongly supported by Arizona’s 15 elected county recorders, the House Government & Elections Committee approved a bill Thursday which greatly limits the powers of the Arizona Secretary of State (SOS) when it comes to responding to and settling some election lawsuits.
HB2302 stipulates that the SOS cannot settle “or otherwise compromise” an election-related civil action without first consulting the state’s 15 county recorders if the proposed settlement materially affects a county recorder. It also gives any county recorder standing to join an election-related lawsuit and object to a settlement by putting forth evidence that the settlement is impractical or difficult to comply with.
The bill, sponsored by Rep. Walt Blackman, is supported by the Arizona Association of Counties. It passed the committee on a 7 to 6 vote, and is expected to pass the House Rules Committee next week.
That, according to Cochise County Recorder David Stevens, is a good thing, as the county recorders are the people legally responsible for registering voters.
Stevens says HB2302 is “a direct result” of Secretary of State Katie Hobbs’ actions prior to the 2020 General Election when she was named in a federal lawsuit which sought to extend Arizona’s voter registration deadline past Oct. 5. Hobbs never informed the 15 recorders about the case, even as she negotiated a settlement that directly impacted the recorders and their staffs.
“The recorders who actually do voter registration were not notified of the federal court case and were not able to present a defense against the extension to Oct. 23,” Stevens told Arizona Daily Independent. “To make it worse, when the extension was later ruled ‘illegal and an abuse of discretion’ and it was thrown out, the SOS provided her opinion as to when the last day of voter registration should be.”
None of the recorders were involved in reaching that opinion, Stevens says.
Eventually the U.S. Ninth Circuit Court of Appeals voided an Oct. 23 extended deadline ordered by a district judge in Phoenix. The result was a revised deadline of Oct. 15, 10 days after recorders had expected to be done with voter registration.
Stevens pointed out that because early voting began Oct. 7, the extended deadline created several problems as recorders who were facilitating actual voting were suddenly forced to handle inquiries about the ever-changed deadline and register voters for an election that was already underway.
Blackman’s bill is opposed by Secretary of State Katie Hobbs. Which disappoints Stevens.
“To be clear, NOT ONE voter has ever been registered to vote by the Secretary of State,” he said. “It is solely the function of the recorders, and not to involve the ones who actually do the work is malfeasance.”
Hobbs’ handling of the registration deadline case also got her sideways with Arizona Attorney General Mark Brnovich, who contended the SOS has no authority to bind the state or the county recorders to a change in state election law. As a result of that split, Hobbs retained private legal counsel while Brnovich vigorously defended the Oct. 5 deadline, which is set by state law since 1990 at 29 days prior to the general election.