Maricopa County Board of Supervisors wants judge to pause ruling in yearlong election fight

The Maricopa County Board of Supervisors will ask a judge to pause his ruling that handed Recorder Justin Heap a victory in a yearlong fight over control of the county’s elections.

That decision, handed down by Maricopa County Superior Court Judge Scott Blaney last week, found that the board illegally moved the recorder’s information technology staff and computer systems under the board’s control.

The supervisors had argued the move was made to improve efficiencies in the systems used by the board’s Elections Department and the recorder, who jointly administer the county’s elections.

But Blaney found that access to an “independent IT department is a necessary expense of county office,” meaning the supervisors are legally obligated to give Heap direct access to his own IT team.

The judge also provided clarity on Arizona’s complicated web of election laws, which divide administrative duties between county boards and recorders.

In some cases, those laws give control to “recorder or other officer in charge of elections” or the “board of supervisors or other officer in charge of elections.” When that happens, Blaney found the officer specifically mentioned in the law should be assumed to control that election duty, unless the board and recorder mutually agree to reassign the task.

A stay or appeal?

Supervisor Kate Brophy McGee, the board chairwoman, criticized most of the court’s decision, though she agreed with a caveat affirming the board’s ability to reject specific discretionary spending requests, like a ballot sorting machine sought by Heap’s office.

Shortly after Blaney issued the ruling, Brophy McGee said she would “explore all options with the Board of Supervisors, including an expeditious appeal.”

Kate Brophy McGee

On Wednesday, the board voted 4-1 to ask Blaney to stay his decision. The board also gave its attorney authorization to appeal the case to a higher court if Blaney rejects that request.

But the supervisors refused to explain exactly why they’re seeking a stay or what parts of Blaney’s ruling they could dispute in an appeal.

Supervisor Mark Stewart, the lone no vote, asked Brophy McGee to explain the decision ahead of the vote.

But McGee declined, saying those reasons were discussed in a three-hour executive session that took place before the vote.

“But I do not want to open this matter for further discussion, and the reason I don't is I will not allow privilege to be waived,” Brophy McGee said.

State law allows boards and other public bodies to meet in private executive sessions to receive certain types of privileged information, including legal advice. However, the law does allow boards to vote to waive that privilege.

Still, Stewart shed some light on why the board may wish to appeal, saying election staffers are concerned that the judge’s ruling could open them up to legal liability if they inadvertently perform an election task designated for a different office under state law.

“There's the officer in charge of elections, and some places that says ‘recorder,’ in some places that says ‘board,’” Stewart said. “That is creating some consternation for staff on what they get to do, because if they move forward, let's say for example, with jurisdictional elections, they can be held in contempt, based on the way the current ruling is written.”

After the vote, Brophy McGee issued a statement alluding to those concerns about upcoming local elections.

“With respect to the court, Judge Blaney’s ruling contradicts itself and injects uncertainty into the process just weeks before the upcoming elections,” she said. “As early voting begins this week for the May 19 jurisdictional elections, voters and election officials need clear guidance on how these elections are to be administered. To protect our staff and the voters they serve, the Board has voted to seek a stay of this harmful order and, if one is not granted, to file an appeal promptly.”

Stewart asked his fellow board members to ask Blaney to clarify his ruling rather than seek a stay.

Tick tock

The latest development creates more uncertainty with just months to go before Arizona’s primary elections on July 21.

Heap, the county recorder, asked the board to accept Blaney’s ruling and move on.

Tim Agne

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KJZZ

He pointed out that the Board of Supervisors voluntarily agreed to hand back Heap’s IT staff and give him control of early in-person voting — two of the major issues in the lawsuit — weeks before Blaney issued his ruling.

“Now that the court has directed the board to follow through on that commitment, the response appears to be not action, but more delay through a costly appeal,” Heap told the board. “Appealing this decision will only prolong this conflict indefinitely, waste taxpayer money and further erode the confidence of the voters in our system.”

But immediately complying with Blaney’s ruling could also cause problems.

For instance, under Blaney’s ruling the board must hand back control of some IT systems and staff to Heap as both sides are in the midst of preparing to run upcoming elections.

In court, the Maricopa County Elections Director Scott Jarrett, who works for the board, said the county’s election systems touch dozens of different tasks that are under the supervisors control every day, like developing ballots, determining voting locations and recruiting poll workers.

Those systems also deal with the recorder’s responsibilities like voter registration.

The board hired a contractor last year to examine how to split the systems, an evaluation that would take 14 weeks.

But Bryan Colby, the recorder’s chief information officer, argued in-house staff could accomplish the task in just two to four weeks — a claim the board’s attorney said is not true.

Under questioning, Colby admitted he hadn’t actually spoken about the project with the two staffers, Dustin Bryant and Michael Johnson, who he said could split the system in-house.