Arizona AG uses lawsuit to criticize two Democrats

PHOENIX — Attorney General Mark Brnovich is using a lawsuit challenging Arizona’s early voting laws to instead attack two Democrats.

In filings with the Arizona Supreme Court late Friday, Brnovich, a Republican, sidestepped the question of whether he believes the state constitution permits people to cast their ballots by mail and ahead of election day. That is the heart of the complaint by the Arizona Republican Party to which he was responding.

Instead, the state’s top prosecutor who is running for U.S. Senate is telling the Arizona Supreme Court that portions of the “signature verification guide” put out by Secretary of State Katie Hobbs are “inconsistent with Arizona election law.” And Brnovich, who has repeatedly sparred with Hobbs over election issues, also said her policies on the use of ballot drop boxes is illegal.

But Brnovich is not limiting his criticism of Democrats in his new court filing to just Hobbs who is running for governor.

He also is using the filing to takes some swipes at Adrian Fontes, the former Maricopa County recorder who is running for secretary of state, suggesting that the signature verification process for early ballots “became less diligent” after he took office. And that critique in the legal papers comes even though Fontes is not a party to the litigation.

Brnovich, in his filing, told the justices the guidance Hobbs has provided to county election officials on signature verification is flawed.

For example, he said that guidance says there are two types of signature characteristics.

The first are broad characteristics, like type, speed, spacing, size and slant. The other are “local characteristics” like internal spacing, letter size, curves and pen lifts.”

Brnovich said Hobbs is telling election officials they can approve a signature based solely if a signature complies with just one of the set of characteristics. And it says the only time they can flag a signature for a second check is when there is a combination of characteristic differences.

Even then, he said the guide says a signature can be accepted if the person doing the review “can reasonably explain the differences.”

“That is much too amorphous to ensure the maximum degree of correctness, impartiality, uniformity and efficiency in election administration,” Brnovich said.

He also said the guide instructs election officials to accept “electronic signatures that appear to be cut and paste,” so long as that signature matches what he said is the already flawed review process.

“Allowing voters (or others) to skirt the signature verification process by utilizing electronically scanned and cut-and-paste signatures could result in election fraud or unreliable results,” Brnovich told the court. “At the very least, there is no authority under Arizona law for accepting such signatures.”

Brnovich told the justices the whole signature verification process is “vulnerable to non- and malfeasance.” He said that’s particularly true given the fact that close to 90% of the 3.4 million ballots in the last election were cast early and all needed to be properly verified in that five-week early voting period.

And he questioned how — and if — that took place in Maricopa County in the last two elections when the recorder’s office was being run by Fontes.

He said that in 2016, when Republican Helen Purcell was county recorder, her office got nearly 1.25 million mail in ballots. The county rejected 2,209 due to missing signatures and 1,451 over mismatched signatures.

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Two years later, with Fontes in charge, Brnovich said the number of mail-in ballots was close to the same. But just 1,856 were rejected due to missing signatures and 307 due to mismatched signatures.

And by 2020, with more than 1.9 million mail-in ballots, the county rejected only 1,455 ballots due to missing signatures and 587 due to mismatches.

Brnovich acknowledges the legislature ahead of the 2020 election did create a 5-day post-election period where people whose signatures did not match could “cure” them by explaining the disparity to election officials. But he said that doesn’t account for what he said is a dramatic decrease in ballots with missing signatures between 2016 and 2020, and the drop in mismatched signatures from 2016 to 2018.

“One possible explanation for these trends, and the AG acknowledges there could be others, is that Maricopa County became less diligent with signature review beginning in 2018,” Brnovich says. And he told the justices that his office already has asked the county to provide information about its signature verification policies and procedures.

But that’s not all. He also pointed to the results of a special review of 100 random signatures ordered by Maricopa County Superior Court Judge Randall Warner in one of many unsuccessful lawsuits filed by Republicans to void the election results that showed Joe Biden won the state.

In that case, an expert for challengers found six signatures inconclusive while the one for the county said 11 fell into that category. Brnovich said the fact that even the county’s own expert found 11 percent were inconclusive suggest that “improvement is needed” in the verification process.

But what neither expert found any signs of forgery of simulation in any of the ballots.

More to the point — and unmentioned by Brnovich — is the judge said every one of the reviewed ballots listed a phone number that matched a phone number already on file.

“The evidence does not show that these affidavits are fraudulent, or that someone other than the voter signed them,” Warner ruled. And the judge said there also was “no evidence ... that there was any misconduct, impropriety, or violation of Arizona law with respect to the review of the ballots.”

Separately, Brnovich also took a swat at Hobbs over her procedures on the use of ballot drop boxes, something that also has become a political issue for Republican at the Capitol.

Hobbs contends she is entitled to adopt procedures for drop boxes. And those procedure allow for unstaffed drop boxes, including those outside, as long as they are physically secured to prevent moving or tampering.

But Brnovich said even if they are permitted — a point he is not conceding — Arizona law requires they be “properly staffed.”

“Election officials must do more than simply set up a ballot drop box and leave it for the duration of the early voting period,” Brnovich told the court.

“Instead, ballot drop boxes must be monitored by an election official’s staff,” he continued. “Such staffing must be sufficient to secure the purity of election and in such a manner that secrecy in voting shall be preserved.”

All this comes as the Senate has approved a measure to require video cameras on all drop boxes to take pictures of those who drop off early ballots. The boxes also would be programmed to not accept more than seven ballots from any one person, a provision Sen. Kelly Townsend, R-Apache Junction, said is designed to help deter people from stuffing the boxes with multiple ballots.