Drop box dispute and legal threats reignite Maricopa County election fight

Another typically routine administrative vote by the Maricopa County Board of Supervisors devolved into public fighting with Recorder Justin Heap after Heap’s attorney suggested election workers could be thrown in jail for setting up drop boxes approved by the supervisors without the recorder’s permission.

The board met on Wednesday to approve vote center and drop box locations for upcoming elections.

But, before the meeting, Heap’s lawyer sent a letter to the board, arguing the supervisors don’t have the authority to approve drop boxes without the recorder’s permission.

“Only the Recorder possesses the statutory authority to designate the locations for drop boxes and to establish them,” attorney James Rogers wrote.

And Rogers claimed anyone who helps create or administer those drop boxes is guilty of violating a state law that prohibits people from collecting ballots by “misrepresenting itself as an election official or as an official ballot repository.”

“Any person or entity involved in establishing or operating such unauthorized drop boxes is committing a class 5 felony,” Rogers wrote, referring to crimes that can carry a prison sentence of six months to over two years.

The supervisors, by and large, criticized Heap for lobbing the legal threat, saying it puts a target on the back of the hundreds of low-level workers and volunteers the county relies on to administer elections.

“This is shocking and appalling,” Supervisor Thomas Galvin said.

The ongoing fight

The drop box dispute is just the latest volley in the ongoing fight over control of Maricopa County’s elections that was seemingly resolved last month when a judge handed Heap a legal victory in a lawsuit he filed against the board last year.

That ruling included the judge’s interpretation of Arizona’s complicated web of election laws, which divides election-related duties between the recorder and the board.

But the judgement did not specifically address the drop box disagreement at the center of the latest dispute.

Instead, Judge Scott Blaney found that election duties included in any law that specifically mention the recorder belong to that office. Likewise, laws that specifically mention the board fall under the supervisors’ purview.

Rogers, Heap’s attorney, argues that means drop boxes belong to the recorder.

That’s because state law gives county recorders control of early voting.

“A ballot drop box is, under any reasonable interpretation of the plain meaning of the statutory text, an ‘early voting location,’ as it is a physical site where voters may deliver their voted early ballots during the early voting period,” Rogers wrote.

But the board of supervisors disagreed.

Maricopa County Elections Director Scott Jarrett, who works for the board, pointed to a separate election law that directs the Arizona secretary of state to create an Elections Procedures Manual, which functions as a rule book for election administrators in counties across the state.

And the Election Procedures Manual states that “all ballot drop-off locations and drop-boxes shall be approved by the Board of Supervisors (or designee).”

Rogers rejected that argument, pointing out that the Election Procedures Manual cannot be used to transfer powers from one elected official to another in violation of the law.

He said, she said

In a statement, the Recorder’s Office accused the board of springing the drop box proposal on him with little warning or consultation.

“This was not a good-faith attempt at cooperation. It was political theater,” according to the statement. “The Recorder was given no meaningful opportunity to review the proposed locations for legal compliance, operational feasibility, or voter access concerns, nor any opportunity to consult with counsel on matters directly tied to ongoing litigation between the parties.”

The supervisors said Heap isn’t telling the truth.

Jarrett, the board’s elections director, said he has worked with the Recorder’s Office since February to coordinate election issues, including proposed drop box locations.

“Everyone at the recorder's office knew what was coming,” Galvin said. “Everyone at the recorder's office knew what this was about, but they pull this political gamesmanship.”

The Board of Supervisors accused Heap of repeatedly changing their stories, making it difficult to solidify election plans with just months left until the July 21 primary.

For instance, Supervisor Debbie Lesko said Heap delegated authority over drop box locations to Sam Stone, his chief of staff, who approved the board’s locations in an email.

“But then we get a letter from Recorder Heap saying, 'Disregard what my chief of staff, Sam Stone, said. You can only, and only he said, only speak to my attorney, James Rogers,’” Lesko said.

Board Chair Kate Brophy McGee accused Heap of delegating his authority as an elected official to Rogers, a candidate for the Arizona Legislature who also works for Trump-aligned America First Legal.

“Who is running the recorder's office?” Brophy McGee said. “It's not the elected official. It's not Justin Heap. It's James Rogers, and everything that we do must be approved by James Rogers, and everything that Mr. Heap or his staff do that countermands the way Mr. Rogers thinks it needs to go, gets called back, and that puts us in a very, very perilous position.”

Heap rejected a last-minute invitation by Chairwoman Kate Brophy-McGee to testify at Wednesday’s board meeting and answer questions about Rogers’ letter.

He defended that decision, pointing to the board’s decision to appeal last month’s court decision in the lawsuit he filed against the supervisors.

“Given the Board’s continued litigation posture, it is entirely inappropriate to expect the Recorder to submit to an impromptu public examination on active legal disputes with virtually no notice,” Heap said in a statement.

That decision elicited pointed criticism from board members who accused Heap of attempting to undermine confidence in the county’s elections to prop up unfounded fraud claims and mismanagement affected the results in past elections.

“He's doing everything he can to make this election fail, just so he can stand in front of the very few people that support him to say, ‘look, I told you so,’” Supervisor Steve Gallardo, the lone Democrat on the board, said.

When seeking election, Heap echoed some of those claims and was endorsed by prominent election deniers, including President Donald Trump.

“But we are stuck in this hamster wheel of the 2020 election, that is the basis of it, over and over and over again,” Galvin said.

Heap’s threat didn’t convince the board to back down. It voted 4-1 to approve the drop box locations, with only Supervisor Mark Stewart voting against the plan.

Stewart asked his fellow board members to include a caveat allowing Heap to object to the board’s chosen drop box locations by June 1 but found no support.