Complaint raises conflict of interest issues for Arizona officials who are also candidates

When he filed a campaign finance complaint with the Arizona secretary of state, a legislative candidate unwittingly provoked a question that pops up during election years: Can election officials carry out their duties while also exercising their free speech rights?

To Secretary Adrian Fontes, who has endorsed the candidate making the complaint, the answer is simple.

"I can chew gum and walk at the same time,'' said Fontes, a Democrat who is backing fellow veteran Dan Toporek in a contested legislative district in north Phoenix. "I'm a voter, too, and I have a First Amendment right to express myself.''

There is no clear answer on questions of conflict of interest.

Arizona law doesn't bar endorsements or, more widely, block an election official's management and oversight of elections when they themselves are on the ballot.

The National Association of Secretaries of State had a similar assessment when looking at conflict of interest policies nationwide.

However, a recent Utah state law requires election officials to take steps to avoid potential conflicts, said John Milhofer, research director for the association. And, he noted, Michigan Secretary of State Jocelyn Benson, who is now running for governor, has said she would formally recuse herself from actions that would affect the gubernatorial race.

While there are guidelines and codes of conduct, in Arizona and elsewhere, it often comes down to the official’s own discretion, said Tammy Patrick, chief executive officer for programs with the Election Center, which is run by the National Association of Election Officials.

"These types of questions arise and surface when we start to talk about our election infrastructure,'' Patrick said.

The questions are not new.

In 2000, the issue became a national hot point when then-Florida Secretary of State Katherine Harris oversaw the contentious recount of Florida's presidential election results, and certified George W. Bush as the winner of that state's votes. Harris also was co-chair of Bush's campaign in Florida.

Four years ago, then-Arizona Secretary of State Katie Hobbs was also questioned about her ability to oversee the 2022 election, given she was running for governor. Hobbs did not recuse herself and said she would follow ethical guidelines to keep her political ambitions separate from her formal duties.

She followed in the footsteps of her predecessors in the secretary’s office, who continued their work as secretary of state even while their name was on the ballot. They include Jan Brewer, who was reelected to the state’s top election office in 2006; Ken Bennett in 2010 and Michele Reagan in 2018, who lost in the primary election that year.

Fontes said he can tend to his secretary duties in the upcoming primary and general elections as he seeks a second term.

"No secretary has ever recused for that purpose and that won't start now,'' he said.

It's similar to what he did in 2020, when he served as Maricopa County recorder.

He was on the 2020 ballot as a candidate, seeking reelection. He lost that race and stepped down, a point Fontes' supporters say indicates he did not use his post for his own political benefit.

Gina Swoboda, who is running for the Republican nomination for secretary of state this year, said the public doesn’t grasp the fairly limited role the secretary of state plays in elections. The secretary does not run elections; that is done by each of the 15 county recorders. The secretary has an oversight role and is required to certify election results.

"I think there's a perception these leadership roles have more power than they do," she said.

That said, if elected, Swoboda said she would refrain from participating in the logic and accuracy tests that are done on ballot-counting machines, arguing it's not a good look. And she would seek legislative scrutiny of any "significant'' changes to the state’s Elections Procedures Manual that could affect the secretary of state race.

Her Republican challenger, state Rep. Alexander Kolodin, did not return requests for comment.

Fontes said his office is set up so that issues such as the campaign-finance complaint filed by the candidate he endorsed won’t even get to his desk. He had not even seen it, he said on May 15, as his staff is still reviewing it to determine if there is reasonable cause to forward it to the state attorney general for investigation.

"Were operating under this basic understanding that if there is a political matter, I'm not involved,'' Fontes said in an interview. Any decision, if needed, would fall to the assistant secretary of state, he said.