The Maricopa County Recorder and Board of Supervisors were back in court on Monday in a fight over control of the county’s elections that has dragged on for more than a year, resulting in confusion and instability ahead of Arizona’s upcoming primary election.
Heap asked Judge Scott Blaney to hold the supervisors in contempt and fine them $100,000 per day, accusing the board of willfully ignoring an April 17 ruling that found it had illegally withheld information technology staff and resources from the recorder’s office.
“None of the IT assets or personnel have been returned to the recorder,” James Rogers, Heap’s attorney, said.
Blaney’s order also interpreted Arizona’s complicated system of election laws, which divide duties between county recorders and supervisors, in an attempt to clear up which office is responsible for various responsibilities.
Rogers accused the board of blocking Heap from fully controlling some of those duties, such as early voting, that belong to the recorder.
“Control over early voting has not been returned to the recorder, and there's been, from the recorder's perspective, basically no movement from the board to comply with any aspect of it, which is particularly concerning, given that early ballots are set to be mailed out in just over a week,” Rogers said.
The board denied the allegations.
“I have literally never been involved in a case where misstatements to the court were as pervasive as they are here,” Kory Langhofer, the board’s attorney, said. “Even in the last five minutes, I've lost count of the number of false statements that you have heard.”
For instance, Langhofer pointed out that the supervisors approved funding allowing Heap to hire eight new IT positions.
But he accused Heap of failing to take steps to actually hire that staff.
“What he's done is come to you and said that we need to be held in contempt after we'd given him exactly what he asked for,” Langhofer said.
He also said Rogers’ claims that the board initiated a criminal investigation into Heap’s staff are false.
That refers to an ongoing investigation prompted by security footage that captured staff from the Recorder’s Office removing voting equipment and ballot affidavit envelopes from a county election facility during a recent Tempe election.
However, that investigation is being conducted by a special prosecutor appointed by County Attorney Rachel Mitchell, not the Board of Supervisors.
What’s next?
Blaney, who has overseen the case since Heap filed the lawsuit last summer, repeated a request that both sides resolve their issues outside of the courtroom.
“As I stressed before, please keep talking to each other,” he said. “I know it'd be a miracle if this thing resolved outside of court, but you know miracles are still possible.”
That request has mostly fallen on deaf ears as the board and recorder continue to spar in public in between hearings in the case, repeatedly accusing the other of negotiating in bad faith or spreading lies about the case.
But on Monday, attorneys for both sides appeared to agree to meet with a mediator.
Langhofer initially requested the court order Heap to negotiate on camera with board Chair Kate Brophy McGee and Vice Chair Debbie Lesko, accusing Heap of blocking previous invites to negotiate.
But Rogers, Heap’s attorney, balked.
“Recorder Heap has declined those requests because generally public meetings in front of the board have turned into situations where the board grandstands,” he said.
Both attorneys said their clients would likely be OK meeting in front of an independent mediator to hash out their issues.
But even that discussion was colored by the larger ongoing fight between the recorder and the board, who have accused Heap of intentionally sewing distrust in Maricopa County’s elections in order to justify unproven conspiracy theories about President Donald Trump’s loss to Democrat Joe Biden in 2020.
When asked to suggest mediators, Rogers suggested Cleta Mitchell, a conservative attorney who worked with Trump on efforts to overturn the 2020 results and helped raise money for the Arizona Senate’s flawed review of that election.
Rogers, who works for a firm called America First Legal that was founded by Trump advisor Stephen Miller, called Mitchell “a noted national election attorney.”
But Langhofer, the board’s attorney, described her differently, saying she is “overtly biased.”
“I think Cleta Mitchell has said on the record that Maricopa County elections should be raided by the FBI,” Langhofer said. “She said that while this case was pending; it's not a great start for a mediator.”
Instead, he suggested opting for a retired judge — something both Rogers and Blaney seemed to support.
Blaney had rejected Supervisor Mark Stewart’s request to appoint a mediator, but now indicated he will support the effort.
Unless the sides manage to solve their difference through mediation, the recorder and supervisors are due back in court for another hearing in late June, after early ballots have been mailed in the July 21 primary election.
Lawyer up
At a separate hearing earlier in the day, county officials also sparred over Rogers’ role advising Heap on the ongoing election dispute.
Mitchell, the county attorney, said the Trump-aligned legal organization that represents Heap is exerting too much influence over the office
Mitchell sued last year, arguing only her office could appoint lawyers to represent the recorder and that Heap had no right to retain Rogers without her permission.
But now, Mitchell accused Rogers of using that order to engage in “an unprecedented power grab.”
Rather than sticking to the case, Mitchell claims that America First Legal is now representing itself as Heap’s attorney in all election cases.
But that job belongs to the county attorney, she argues.
“This untenable situation goes well beyond the Court’s limited orders, requiring immediate intervention to maintain comity between the county officials,” according to Mitchell’s court filing that asks Blaney to issue a restraining order.
And Brett Johnson, a lawyer for the county attorney, said Mitchell would not appoint America First Legal to represent Heap, citing the firm's ties to Trump.
“In this context, the county attorney feels strongly that it's not appropriate for a partisan law organization to be given advice to what is supposed to be an impartial, neutral recorder,” Johnson said.
Rogers denied the allegations that he was overstepping Blaney’s order and accused Mitchell of a conflict of interest.
Blaney scheduled a second hearing later this month to allow both sides to provide evidence backing up their arguments.
Full conversation on The Show
LAUREN GILGER: The yearlong battle between the Maricopa County Board of Supervisors and Recorder Justin Heap keeps heating up. Now they’re trading barbs in court, and the county attorney has stepped in, arguing a Trump-aligned legal organization that represents Recorder Justin Heap is exerting too much influence over his office.
And on top of that, a special prosecutor has been brought in to investigate allegations that some of Heap’s employees illegally removed a ballot scanner and provisional ballots during a recent local election.
KJZZ’s Wayne Schutsky has been covering every twist and turn of this ongoing saga, and he joins us now to tell us all about it. Good morning, Wayne.
WAYNE SCHUTSKY: Good morning.
LAUREN GILGER: OK, so where do we even begin here? Let’s start with this special prosecutor, the removal of this ballot scanner. There’s surveillance video of this I’ve seen, right? Like the the big machine being wheeled out of the building into a van.
WAYNE SCHUTSKY: Yeah, so this is like a a scanner, a pre-tabulation scanner that scans in different types of mail ballots. And essentially, yeah, we’ve got the recorder’s top information technology employee and an unknown other employee whose face was blurred, taking it out of MCTEC, which is like the central tabulating facility. This happened during tabulation, during the Tempe jurisdictional elections. No evidence at this point that it affected the election in any way, but also beyond that machine, also taking a handful of like ballot affidavit envelopes.
So, yeah. So as you said, a special prosecutor, Maricopa County Attorney Rachel Mitchell kind of conflicted herself out because she’s technically the attorney for both of these sides, which we’ll get into later. And so she appointed a special prosecutor, former Pinal County Attorney Kent Volkmer to just basically figure out if anything illegal happened. An HR investigation already determined that something improper happened, but they want to determine whether any crimes were actually committed.
LAUREN GILGER: OK, OK. What has Heap said about this? I mean, he was mad that ... was a it was a Pinal County Sheriff’s officer, off duty knocking on one of their doors?
WAYNE SCHUTSKY: Yeah, he showed up at the at that top information officer and just like to let him know he’s under investigation. I don’t know exactly what occurred in there, but yeah, that that set the Recorder’s Office off saying that “the Board of Supervisors is siccing law enforcement on us now.”
What actually happened is that we found is this outside special prosecutor was appointed to avoid a conflict of interest, just to determine whether any crime occurred and he retained an off-duty sheriff’s deputy from Pinal County to help with that investigation. He said that he believes the scanner belongs to the Recorder’s Office, so nothing improper happened. But again, that’s another dispute in this long line of disputes between the recorder and the board. The board has shown documentation showing that this belongs to the Elections Department, which is under the board’s control.
LAUREN GILGER: OK. So let’s go on to some of those other ongoing disputes. We have Maricopa County Attorney Rachel Mitchell stepping in here. Her office was in court arguing that the attorney that is representing Heap — because she is conflicted out on this one — has maybe been too partisan?
WAYNE SCHUTSKY: Yeah, so this all goes back to this ongoing legal fight between Heap and the board that’s been going on since Heap took office and the new board took office, where they’re both arguing like control of different election activities, who controls what, big disagreement over that. And then Heap also alleged that his information technology staff was taken away from him, which a judge affirmed.
Anyway, Heap brought in his own attorney in this case, which is American First Legal, which is a Trump-aligned law firm founded by Trump advisor Stephen Miller. And Mitchell has already argued in court that he can’t do that, that only her office can appoint these attorneys. Now, she lost that case. A judge said, “No, the recorder’s an elected official, there’s nothing in state law that says only the county attorney can do this. So Heap, you can keep your attorney.”
However, now the county attorney is arguing that they’re overstepping the bounds of that order and he’s basically acting as the recorder’s election advisor in all capacities, not just related to the case. County attorney says, “Wait a second, that’s not what the judge ordered, and that’s my job.” And, “It’s either me, or if I have a conflict, I can appoint someone else, but — and I would never appoint this guy,” basically. Because they’re saying, “It’s a partisan group, that’s not the type of attorneys we want advising the recorder on election issues.”
LAUREN GILGER: And we’re heading into an election, you know, let’s not forget, pretty quickly here.
WAYNE SCHUTSKY: Yeah yeah, next week. We’ve got early ballots going out.
LAUREN GILGER: Right. So all of this kind of heating up right now. Let’s talk about what happened in court this week as well, Wayne. I mean, they were there yesterday. You watched the whole thing. There were some pretty serious allegations being thrown about. We even heard the attorney for the board, Kory Langhofer, accusing Heap’s team of lying to a judge. Let’s take a listen to what he had to say.
KORY LANGHOFER: I’ve literally never been involved in a case where misstatements to the court were as pervasive as they are here. Even in the last five minutes, I’ve lost count of the number of false statements that you have heard.
LAUREN GILGER: Sounds like a lot of back and forth.
WAYNE SCHUTSKY: Yeah, so as I mentioned, this is all that case where a judge actually ordered that the board illegally removed Heap’s IT staff and access to IT resources when they kind of consolidated it all under the board’s supervision. Ordered them to give it back, and Heap’s attorney has said they haven’t done that, and they’re not complying with other parts of the order, saying like, Heap controls early voting, for instance, and they’re saying they haven’t given him all those responsibilities.
What Langhofer is saying is a lot of the claims they’re making are untrue. He points out that the board has funded eight new IT positions for Heap’s office and that Heap just hasn’t hired them. You know, pointing other claims that, “We’re trying to talk to the recorder, but (he is) refusing to meet.”
Now, on the other side of this, Heap’s attorney is saying, “No, every time you guys have him in an open meeting, you just grandstand and yell at him, and so we are not going to participate in that again.” So, it’s just these back and forth, they’re both saying they’re lying. And it’s really difficult with all these backroom conversations and things to determine what the truth is.
LAUREN GILGER: OK. Tell us about the judge in this case and what he has ordered so far. It sounds like they may be agreeing to go into mediation and kind of take this out of court altogether?
WAYNE SCHUTSKY: Yeah, despite all these disagreements, it seems like maybe we might be getting to a point where we get a a mediator in the middle of this who could actually maybe tell us what the truth of the matter is and what everyone’s agreeing to.
After all those disagreements, Langhofer kind of floated the idea of, “Well, let’s just do an on-camera meeting and then, you know, everyone will know what was said.” Now again, the grandstanding issue came up, and so Heap’s attorney said, “What about a mediator?” Which has been brought up before, and the judge previously declined, but now he seems to be thinking that might be the best option.
So he hasn’t quite ordered it yet, but he indicated he is supportive of that, and they kind of discussed here’s a judge or an ex-judge or retired judge who we might be able to pick to to sit down, someone trustworthy who can actually actually do the job.
LAUREN GILGER: Real quick, Wayne, timeline on that given early ballots going out very soon?
WAYNE SCHUTSKY: Oh goodness, the judge did indicate it has to happen quickly, and so they have to find a mediator who can kind of sit down immediately. If it doesn’t happen, there are further hearings in these disputes scheduled for the end of the month, which is after early ballots already went out, so.
LAUREN GILGER: OK, here we go. KJZZ’s Wayne Schutsky with our politics desk. Wayne, thank you for your all of your reporting on this, appreciate it.
WAYNE SCHUTSKY: Yeah, thank you.
