Maricopa County Recorder Justin Heap has filed a lawsuit against the county’s board of supervisors, escalating a monthslong fight over control of Maricopa County’s elections.
Since taking office in January, Heap and the board have battled over who should administer various election-related activities. That came after the previous board and former Recorder Stephen Richer signed a shared services agreement last year that shifted some responsibilities away from the Recorder’s Office.
Arizona law gives the Board of Supervisors the power to administer voting on Election Day, while the recorder’s responsibilities include early voting and voter registration. Shared services agreements have been used in the past in Maricopa County in order to assign other duties that can be overseen by the board or recorder under state law.
But Heap pulled out of that agreement after taking office in January, arguing the board and Richer, who lost to Heap in the Republican primary election months before signing the new SSA, unlawfully usurped his office’s power.
Since that time, the Recorder’s Office and Board of Supervisors have engaged in contentious negotiations that appeared to be making progress as recently as April.
“Based on my conversations with Recorder Heap and the board, we are 95% of the way to a final SSA agreement. I am optimistic that a new SSA will be signed soon,” Supervisor Mark Stewart said after the board voted to send a new SSA draft offer to Heap in April.
According to a lawsuit filed by Heap on June 12, he sent a counteroffer to the board on May 15. The Supervisors rejected that offer on May 23, Heap claimed.
“From day one, I promised the voters of Maricopa County that I would deliver more secure, more honest, and more transparent elections for all voters, regardless of political party,” Heap said in a statement. “Similarly, I have promised to utilize every tool under state and federal law, including Arizona’s judicial system, to accomplish these very popular objectives.”
The lawsuit claims the board took away Heap’s IT staff and is restricting his access to certain county facilities and equipment he needs to access to perform the Recorder’s duties, including administering early voting.
Under the negated agreement signed by Richer, the Recorder’s IT staff was consolidated under IT staff supervised by the board — a move Richer and the old board claimed was done to improve efficiencies.
Even with that agreement canceled, Heap accused the board of continuing to deny him the budget to hire his own IT team, something he claims has resulted in delayed information technology services.
Heap’s lawsuit also takes issue with a change in the canceled SSA that transferred supervision of early ballot processing — which had been overseen by the recorder — to the Board of Supervisors. That includes overseeing and verifying those ballots before they are counted.
According to the lawsuit, that violated the recorder’s “duties under Arizona’s election statutes.”
Early ballot processing can be overseen by the board or recorder under state law.
“The Board of Supervisors or the governing body of the political subdivision shall appoint one or more early election boards,” according to state law.
In a joint statement, Board of Supervisors Chairman Thomas Galvin and Supervisor Kate Brophy McGee denied the claim that the Recorder doesn’t have access to IT services.
“Justin Heap’s frivolous lawsuit is full of falsehoods, particularly the claim that the board isn’t properly funding his office,” Galvin said in a statement.
And they denied claims that the board usurped any of the Recorder’s statutory authority.
“I can only conclude Recorder Heap has no intention of fulfilling the duties he was elected to do and would rather spend valuable taxpayer dollars on lawsuits that perpetuate a false narrative about Maricopa County elections,” Brophy McGee said.
The Board of Supervisors also contends Heap may not have the authority to file the lawsuit in the first place.
“However, this lawsuit may be flawed in that the firm that filed the lawsuit on behalf of the Recorder in his official capacity may not have been authorized to do so by the Maricopa County Attorney, which runs counter to state statute,” according to the board’s statement.
The Maricopa County Attorney’s Office functions as the attorney for county elected officials, including the Board of Supervisors and the recorder. And the county attorney has the power to appoint an outside counsel to represent the parties when a conflict exists between county officials.
That occurred earlier this year when the county attorney’s office assigned outside counsel to represent the board and recorder as they sought to solve the election agreement dispute. Maricopa County Attorney Rachel Mitchell assigned former state Supreme Court Justice Andy Gould to represent Heap in that dispute.
However, Heap’s new lawsuit was filed by the America First Legal Foundation, a Washington, D.C., group aligned with President Donald Trump.
Mitchell’s office said she did not assign America First Legal to represent Heap, and it sent a cease-and-desist letter to James Rogers, the attorney that filed the lawsuit on Heap’s behalf.
“This letter is to inform you that I am the recorder’s attorney, and you do not represent the Maricopa County Recorder’s Office or Recorder Heap in his official capacity,” Mitchell wrote. “I am, therefore, demanding that you cease and desist from any further representation of the Recorder.”
Mitchell argued that under state law, the county attorney is the recorder’s lawyer, and only she can appoint outside counsel to represent him.
“I have not assigned you as outside counsel to represent the Recorder for any matter,” Mitchell wrote. “Consequently, neither you nor America First Legal Foundation represent the Maricopa County Recorder’s Office or Justin Heap in his official capacity.”
She pointed to the statute outlining the county attorney’s duties. Mitchell also cited several court cases dealing with county officials who attempted to hire their own outside counsel "holding that the Board of Supervisors 'has no authority to employ private counsel to advise the Board and other county officers or employees,'" referring to a 1978 Arizona Supreme Court decision.
All that means Rogers was not authorized to file Heap’s lawsuit in the first place, Mitchell argues.
“Further, because you do not represent Recorder Heap, the lawsuit that you and America First Legal Foundation filed on his behalf is a legal nullity … You should file a notice of voluntary dismissal immediately, because you did not have the authority to file the lawsuit on the recorder’s behalf in the first place,” Mitchell wrote.
The Recorder’s Office and America First Legal could not be immediately reached for comment.
