PHOENIX — Attorney General Mark Brnovich is abusing his powers in threats to prosecute and possibly imprison Secretary of State Katie Hobbs, an attorney for her told a judge on Wednesday.
Roopali Desai said that the decision by Hobbs to take down part of the E-Qual system where candidates can get online signatures for their nomination petitions is necessary for both her office and counties to deal with the new changes in legislative and congressional districts. That, she told Maricopa County Superior Court Judge Joan Sinclair, ensures that only signatures from people eligible to sign each candidate’s petitions are counted.
“Otherwise she will be in violation of the statute,” Desai said.
But what’s happened, she told the judge, is that Brnovich is now threatening her with criminal prosecution over her decision to take down the system on March 11 for the necessary updates.
“If Attorney General Brnovich wishes to operate and administer elections, perhaps instead of running for the U.S. Senate he should run to be a county recorder,” Desai said, pointing out his bid to be the Republican nominee to take on incumbent Democrat Mark Kelly. “But he is not.”
Assistant Attorney General Michael Catlett argued that his boss is doing what he is supposed to do: ensuring that state officials like Hobbs follow state law. He said the legislature mandated that Hobbs make the E-Qual system available for the entire time signatures can be gathered, a period that runs through April 4.
And Catlett inserted his own political notes into the legal arguments.
“The secretary, an elected official, also running to be the next governor, not only would have this court greenlight a clear violation of Arizona law that would not only significantly hamper candidates from appearing on the ballot, but would have the court preemptively enjoin the attorney general and the state from even investigating and enforcing that violation,” he said.
Hobbs is seeking to be the Democratic nominee for the state’s top office.
Whether there is a “clear violation of Arizona law,” however, is one of the issues that Hobbs disputes.
More immediately, the judge has to decide whether to restrain Brnovich and his office from even investigating the decisions Hobbs has made.
Catlett told Sinclair that Arizona law allows her to issue such an injunction only if Hobbs could show she would suffer irreparable harm without it. He said there will be no harm to the secretary of state if she simply complies with the law and doesn’t take the system down for maintenance as scheduled on March 11.
More to the point, Catlett said, all of this legal wrangling is premature.
“All the AG has done is sent the secretary a letter reminding her of her statutory duty to maintain the system and advising her of what the potential consequences could be for failing to do so,” he said.
“She didn’t even respond to that letter,” Catlett said. “Instead, she hauled off to court.”
But it is what was in that letter that made Hobbs decide not to wait to see what Brnovich would do.
It warned that Hobbs could be charged with a minimum of a Class 3 misdemeanor, jailed for up to 30 days and fined $500 for knowingly refusing to perform a duty required under state election laws. In fact, it even said Hobbs could be prosecuted as a felon, with the potential of being sent to state prison.
The fight is over the E-Qual system.
First established in 2011, it provides an online alternative for candidates to gather the signatures they need to run for office.
In the case of legislative and congressional candidates, it is linked to other state records to ensure that people can sign petitions only for those in their own districts.
Only thing is, the Independent Redistricting Commission in January adopted new lines.
And while lawmakers said candidates can get signatures in the interim from both their old and new districts, Desai said the counties still have to update their own voter information databases ahead of the next election. And since the E-Qual system is not built to accommodate two different sets of maps, she said, the only alternative is taking the system down to make the changes.
Catlett does not dispute that. What he does dispute is that it has to happen now.
“It’s the last four weeks in the period when candidates are fervently trying to gather signatures so that they can appear on the ballot,” Catlett said.
And now, he said, Hobbs wants Sinclair to block Brnovich from even investigating all that.
Desai, however, said all that fails to understand the deadlines the counties themselves are under to update their voter databases. And that, she said, doesn’t even account for the fact that leaving E-Qual up, with the out-of-date district lines, would itself result in a separate violation of the law because people would be signing petitions they’re not legally entitled to sign.
Perhaps, Desai said, Brnovich is setting up a situation where if she leaves the E-Qual system in place then he would prosecute her for violating other election laws.
Catlett told Sinclair there’s no legal risk to Hobbs.
“She could avoid all of this by instructing the county recorders that she’s not updating the (E-Qual) system, that they need to wait,” he said. “So this is a manufactured issue by the secretary in order to request the court give her cover to enjoin the attorney general from enforcing a statute that no one disputes he has the power to enforce.”
Desai, however, said her boss is not violating the law.
“This entire case is about the AG’s myopic focus on undermining elections and undermining election administrators,” she said.
Instead, Desai told Sinclair, this is about Brnovich trying to dictate there is a “better time” for the counties to update their voter databases.
“He doesn’t get to decide,” she said.
“And he doesn’t get to question the counties’ actions,” Desai continued. “Nor does the secretary of state.”
Desai also pointed out that the E-Qual system was shut down after the last redistricting — that one by Republican Secretary of State Ken Bennett -- and there were no threats by anyone to prosecute him.
Sinclair promised a quick ruling on whether to enjoin Brnovich from further investigation. If she does not grant the injunction, the next issue would be to rule on Hobbs’ motion for a ruling that she is not breaking any laws with how she is handling the E-Qual system.
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