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After months of back-and-forth, intra-Republican Party sniping, the two entities in charge of running elections in Maricopa County are heading to court.
On Thursday, MAGA election skeptic and Maricopa County Recorder Justin Heap announced he was suing the county board of supervisors, which he accused of "gaslighting of the public" and denying him the ability to perform his statutory duties. The lawsuit, filed in Maricopa County Superior Court, claims the Republican-controlled board "is engaged in an unlawful attempt to seize near-total control over the administration of elections" by not providing "the necessary funds" Heap needs to perform his duties and by absorbing the recorder's information technology department into the county's IT department.
The lawsuit asks a judge to force the board to fund Heap's agency and to return IT personnel and systems so that they could be run independently again.
"From day one, I promised the voters of Maricopa County that I would deliver more secure, more honest, and more transparent elections for all voters, regardless of political party," Heap said in a media release. "Similarly, I have promised to utilize every tool under state and federal law, including Arizona’s judicial system, to accomplish these very popular objectives."
In a press release, Maricopa County board chairman Thomas Galvin and vice chairwoman Kate Brophy McGee called Heap's lawsuit "absurd," "frivolous" and another example of Heap's "irresponsible and juvenile ready-fire-aim approach to governance."
“From day one, Recorder Heap has been making promises that the law doesn’t allow him to keep," Galvin wrote. "Arizona election statutes delineate election administration between county boards of supervisors and recorders to ensure there are checks and balances, and Recorder Heap clearly doesn’t understand the responsibilities of his position.”
Despite the heated rhetoric, the lawsuit seems to be really about a stalled negotiation. A former state lawmaker, Heap ran for recorder making big claims about fixing the county's "laughingstock" elections, often promising changes that had nothing to do with his office. In Arizona, county recorders handle voter registration, early balloting and mail balloting, while the county elections department — which is overseen by a board of supervisors — counts ballots and handles Election Day voting. To run any election, both entities must work together.
Heap seems unwilling, or maybe unable, to share the sandbox with the board, which has a four-to-one Republican slant and includes several members who share Heap's pro-Trump leanings. When Heap took office in January, he was steamed that his predecessor and the board of supervisors — many of whom had lost their elections, as Heap's lawsuit notes — had entered into a new Shared Services Agreement that transferred some responsibilities from the recorder's office to the county elections department. Heap cast this as a lame-duck betrayal. Upon taking office, he promptly canceled the agreement.
For the past several months, Heap and the board have engaged in sometimes acrimonious negotiations. In February, Heap issued a fiery press release about the previous SSA, which was signed after then-Recorder Stephen Richer and three board members knew they'd be leaving office. Despite Heap's claims at the time, which he repeats in his lawsuit, the agreement was not cemented in secret. It was, in fact, the subject of numerous news stories. Heap also exaggerated the changes made in the agreement, which mostly amounted to centralizing the recorder's IT department and shifting the early ballot processing to the county elections department.
Heap canceled the agreement and kept making bellicose statements about the board's unwillingness to negotiate a new one, casting himself as a defender of democracy among a pit of anti-democratic vipers. Richer and several members of the board — including chairman Thomas Galvin and Debbie Lesko, the latter of whom is hardly anti-Trump — usually responded by pointing out the factual flaws in Heap's accounts.
The board did so again in its press release Thursday afternoon. The two supervisors wrote that the lawsuit's claims about withheld funding and the inability to access IT functions were false. Brophy McGee wrote that Heap "has been confrontational, inconsistent, and misleading in both public statements and private interactions" and "has shown that his allegiance to himself dwarfs any duty he feels toward Maricopa County voters and taxpayers."
Former Maricopa County Recorder Stephen Richer said Justin Heap's lawsuit contains "quite a few factual inaccuracies."
Katya Schwenk
Why can’t we be friends
The MAGA recorder has managed to make even more enemies in his own party since canceling the SSA. When his office claimed that the Maricopa County Attorney's Office had consulted on issues related to the SSA, Republican county attorney Rachel Mitchell publicly called that bullshit. And when Heap's chief of staff, Sam Stone, suggested last month that the county mail ballots for a special election to some voters who did not request them — which is illegal — Arizona Republican Party chairperson Gina Swoboda joined the pile-on. Speaking to Phoenix New Times at the time, Swoboda wondered how "someone who ran on election integrity can think that’s a good idea" and threatened to sue Heap if he pursued the idea.New Times reached out to Richer, who spent four years in office fending off election misinformation before losing to Heap in the Republican primary. After glancing through the 58-page lawsuit, Richer said it contained "quite a few factual inaccuracies." He also noted that it was filed by outside counsel — specifically, by America First Legal — which he understood to be prohibited.
"I was always told that I could not receive legal counsel outside of the Maricopa County Attorney's Office or MCAO-appointed counsel," Richer wrote in an email. "Recorder Heap seems to have violated that rule."
Galvin and Brophy McGee harped on that rule in their press release, which noted that America First Legal "may not have been authorized" to file a suit on behalf of Heap or his office by the county attorney, "which runs counter to state statute." Indeed, the Arizona Supreme Court ruled in the 1978 case Board of Supervisors of Maricopa County v. Woodall that county officers — in that particular case, the board of supervisors — could not hire "'in-house' counsel independent of the County Attorney for the purpose of advising it."
Heap securing outside representation may result in "serious legal consequences," Galvin and Brophy McGee's release noted, "because board members expect the County Attorney to assert her lawful authority and not permit the Recorder to usurp her statutory powers in this instance."
Indeed, in a Friday letter to James Rogers of America First Legal that was obtained by Votebeat, Mitchell forcefully asserted that Arizona law makes her the attorney for Heap's office and demanded that Rogers "cease and desist from any further representation of the Recorder." Mitchell also demanded that Rogers withdraw the lawsuit and threatened to report him to the State Bar of Arizona if he continued communicating with Heap's office on the matter.
"Neither I nor the Board of Supervisors authorized you or America First Legal Foundation to represent Recorder Heap," Mitchell wrote. "As a result, neither you nor AmericaFirst Legal Foundation represents him."
More broadly, though, Richer questioned the strategy of taking such an antagonistic stance with the board. "I also don't see the wisdom in filing a lawsuit against the body that ultimately sets the budget for your office," Richer wrote. "Have fun asking for future raises for your employees." Additionally, the split nature of election administration requires recorders and boards of supervisors to work together, a cause Heap's lawsuit won't help.
Richer has advocated for changing that sometimes adversarial arrangement, specifically by making county recorder an appointed position under the board's purview. But until that happens, everybody's got to play nice.
"Owing to the asinine statutory framework of Arizona's elections, the Board and the Recorder have to get along at least somewhat in order to effectively administer elections in Maricopa County," Richer wrote. "I managed that during my four years. My predecessor, Adrian Fontes, managed that during his four years. I've seen Chairman Galvin, Supervisor Lesko, and the others try to work with Recorder Heap to try to make that happen for these next four years."
Heap hasn't, running in the complete opposite direction of cooperation. Can he turn things around?
After filing this lawsuit, Richer said, "I don't see how that's possible."
