Attorney General Says Secretary of State Broke Law, but Won't Sue to Halt Special Election

An angry Arizona Attorney General Mark Brnovich told reporters on Thursday that Secretary of State Michele Reagan "did indeed violate Arizona law" in not sending out hundreds of thousands of publicity pamphlets regarding Tuesday's special election. But the AG said he won't go into court to stop the election from taking place.

During a press conference outside his office, Brnovich claimed there's nothing in Arizona's statutes to provide a remedy for the massive error this close to the actual election date, and that to seek to halt or push back the election could result "in disenfranchising even more voters."

He announced that his office was launching an inquiry into what happened at the Secretary of State's Office to cause the screwup. And he lamented that that Arizona kept facing "fiascoes" such as this one, instead of doing elections by the book.

"It pisses me off as an Arizonan and as the AG," Brnovich said at one point. "In the military, we call this a 'goat rope,' because that's what it was."

Many in the state had been on tenterhooks for the previous 24 hours awaiting Brnovich's decision, which his office initially said was coming Wednesday. At stake were the May 17 referenda on two propositions: Prop 123, a measure seeking to increase school funding; and Prop 124, a pension fix for public-safety employees.

Hundreds of thousands of early ballots have already been cast statewide on the two measures, but state law requires that the secretary of state mail voter guides, known as "publicity pamphlets," to early ballot voters in referenda, and that these pamphlets arrive before the ballots do. The guides contain statements for and against the propositions in question. 

Reagan's office recently admitted, after numerous complaints from voters across the state, that it failed to send out 200,000 pamphlets to Arizona households that had requested early ballots. Matt Roberts, a spokesman for the office, says it has "ended its relationship" with the vendor responsible, IBM, and that the pamphlets since have been mailed.On Monday, Chandler elections-law attorney Tom Ryan filed a complaint in the form of a letter to Brnovich's office, asking the AG to bring a special action in state court to vacate the May 17 election date and combine the referenda with either Arizona's August primary or the general election in November.

In his letter, Ryan writes that he understands the "political difficulty" the complaint will cause Brnovich, but he cites a measure signed into law last year by Governor Doug Ducey, which requires "strict compliance" of requirements to the referendum process. Ironically, Reagan herself advocated for the law. 

In a letter of response to Ryan issued on Thursday, Brnovich states that the situation created by the secretary of state constitutes "a prima facie and arguably actionable election law violation."

But the AG writes that the law offers "no statutory remedy" to the violation, and that the solutions proffered by Ryan, such as invalidating the election or moving its date, "would only make matters worse," by disenfranchising those who've already voted and creating more confusion. Brnovich did leave the door open for a challenge from someone else, writing that Ryan or any other voter could "independently seek judicial relief."

Doing so before the election, when by law such challenges must occur, could be a massive undertaking, and might mean suing Reagan and every county in the state. When New Times spoke with Ryan the day before Brnovich's decision, he seemed wary of bringing any action himself.

"I'd have to do over 100 different lawsuits, get them all printed and published, filed, and then out for service," he explained, adding that as a sole practitioner, "I'm just not in a position to do that."

But on Thursday afternoon, Ryan said he was discussing the idea with his family and would announce a decision soon.

"I appreciate the tough position I put Brnovich in," Ryan said. "I'm not upset with him. My sense of ire, exasperation, and frustration is directed solely and completely at Michele Reagan." He accused Reagan of covering up her blunder in not sending out the ballots, adding that if she had revealed the error earlier, a solution could have been crafted. Ryan said Reagan's "failure to be upfront and honest and to disclose this massive fubar" deprived the AG of the time to act.

Now the electorate could have "no confidence" in the outcome of the May 17 election, he said, calling on Reagan to, "at the very least," demand the resignation of her elections director, Eric Spencer. Ryan also praised Brnovich for investigating Reagan's office over the matter.
At Reagan's office, Matt Roberts issued a response to Brnovich's comments via e-mail, saying the secretary of state "will welcome" Brnovich's inquiry. "We've already begun talks with his office about the complaint and were somewhat surprised the Attorney General held his press conference before we could provide any details," the spokesman writes.

This error by the state's top elections official comes on the heels of similar snafus by Maricopa County Recorder Helen Purcell, whose office had to apologize for the March 22 presidential-preference election, in which a paucity of polling locations and other issues created long lines, with residents waiting up to five hours to cast their votes.
Purcell's office also recently had to admit that it had misprinted Spanish-language ballots in the county, a $400,000 error.

Reagan largely escaped blame for the PPE debacle, but this near disaster on her part lends itself to a perception of general incompetence when it comes to this state's elections officials.

"I cannot tell you how frustrated I am that we can't seem to get elections right here [in Arizona]," Brnovich said at his press conference. "Elections are the foundation of our republican form of government, and people have to have confidence, when they go to vote, that everything is done legally and properly."

Ryan, who has acted as a self-appointed watchdog over government officials and has scored some amazing takedowns of prominent politicos over the years, observed that Reagan could end up being governor one day, given that in Arizona, the secretary of state is de facto the state's lieutenant governor.

"She's second in line if Governor Ducey does not complete his term," Ryan noted. "Arizona has a longstanding history of governors being appointed to positions outside of the state and the secretary of state's filling out the balance of those terms. If [Reagan] were to run our state government the way she has run the Secretary of State's Office, she'll run us into the ground.".