In a letter to Reagan dated June 2, which was made available to the media, Brnovich informs the hapless secretary of state that he has appointed former federal prosecutor Michael Morrissey to shine some light on how nearly 40 percent of the required households didn't receive the informational pamphlets until after the statutory deadline, "and why appropriate election officials and the public were not immediately notified of the issue."
"It's never the violation of the law that get folks," Attorney General Mark Brnovich told radio host Barry Markson. "It's the coverup."
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The snafu was so serious that it nearly derailed the election on two referenda decided by voters on May 17: Prop 124, a pension fix for public-safety employees; and Prop 123, a controversial measure intended to pump more money into local schools. Prop 123 barely squeaked by, winning approval by 20,000 votes statewide, while Prop 124 passed in a landslide. The delayed pamphlets contained pro and con arguments about the referenda, and should have been received before those choosing to vote by mail received their early ballots.
Faced with evidence that state law had been broken, just days before the election, Brnovich told reporters during an impromptu press conference that though he agreed Reagan's office had violated Arizona statute, he would not go into court to cancel the election. To do so, he said, risked "disenfranchising even more voters."
Using colorful language, Brnovich expressed his anger over what he called the "goat rope" caused by Reagan's office and bemoaned a series of elections snafus by Reagan and other local elections officials as an embarrassment for the state.
On Friday, during a morning drive-time interview with local talk-radio host Barry Markson on KFYI (550 AM), Brnovich expressed fear that the ongoing elections problems — from Maricopa County's disastrous presidential preference election, with its long lines, to the county's misprinting of Spanish-language ballots, to the incorrect information Reagan's office recently provided to candidates trying to get on the primary ballot — could return federal oversight to Arizona's elections. (Note: Brnovich's segment starts at 1:27:43.)
For nearly 40 years, Arizona was a "covered jurisdiction" under the federal Voting Rights Act and had to submit its election plans to the U.S. Justice Department for preapproval. The U.S. Supreme Court invalidated the pre-clearance mandate of the VRA in 2013, but two lawsuits have been brought in federal court seeking a return of federal control to Arizona elections. And, Brnovich told Markson, "That's where this incompetence [on the part of Reagan and others] is leading."
Read Brnovich's letter to Reagan:
Brnovich wondered why previous Arizona secretaries of state such as Ken Bennett and former Governor Jan Brewer never had the problems that have plagued Reagan. He seemed specifically annoyed that Reagan's office didn't tell anyone about the pamphlet problem, which was brought to light in part by a complaint submitted to the AG's office by Chandler attorney Tom Ryan.
"Ultimately," Brnovich told Markson, "it's never the violation of the law that gets folks, it's the coverup. That's always a concern: What do people [at the Secretary of State's Office] know, and why aren't they telling the public?"
Brnovich's comments were intriguing, given that both he and Reagan are Republicans, and that Brnovich was making those comments on Phoenix's best-known conservative talk-radio station.
New Times contacted Brnovich to ask why he chose to farm out the investigation to an independent investigator rather than have his own office conduct it. Even if he was perceived to have a conflict — both Brnovich and Reagan have been spoken of as future gubernatorial candidates — the AG could have walled himself off from the probe.
Responded Brnovich: "Given the timeframe and the circumstances surrounding this issue, we made a determination that it would be more more efficient and less of a distraction if we went with outside counsel, especially given the availability of former federal prosecutor Mike Morrissey."
On several occasions, Brnovich has proven himself more than willing to upset the Republican apple cart, particularly when alleged corruption is involved. Against the wishes of some party stalwarts, the former Arizona gaming director successfully challenged a GOP incumbent, ethically challenged ex-Attorney General Tom Horne, in the 2014 primary. In November 2015, Brnovich sought to have Arizona Corporation Commission Chairwoman Susan Bitter Smith, also a Republican, removed from office for alleged conflicts of interest, ultimately leading to her to her resignation. And in May, his office issued an opinion stating that the Corporation Commission could seek to inspect the books of utility giant Arizona Public Service to see if the company was using dark money to support various GOP candidates (including, ironically, himself).
Read Brnovich's letter to Michael Morrissey:
Brnovich's move vis-à-vis Reagan was applauded by Ryan, who had also submitted the original complaint against Bitter Smith. In comments e-mailed to New Times, Ryan calls Brnovich a "stand-up guy" and praises the Morrissey appointment, saying he had an "outstanding career" as a federal prosecutor and a résumé well suited to the task.
"It's never pleasant to have to take on a high-ranking individual in your own political party," Ryan writes, "but AG Brnovich has now done that twice. Brnovich's appointment of Mike Morrissey shows a serious commitment to investigate fully what happened with Secretary Reagan's office regarding the recent Special Election."
Reached by New Times for a comment, Matt Roberts, a spokesman for Reagan, said the Secretary of State's Office welcomes any investigation by the AG or "whomever he deems appropriate." Brnovich's letter to Reagan had several recommendations on elections procedures for the secretary, which Roberts said were appreciated, adding that the office has taken them under advisement, though, he claimed some are already in effect.
Asked whether his boss' office would cooperate with the special prosecutor, Roberts quipped, "Of course. We’ll even try to get him a parking spot!"
