Judge mulls request to halt AG Brnovich's threat to secretary of state

Arizona Secretary of State sues attorney general over prosecution threat

Arizona Secretary of State Katie Hobbs is suing Attorney General Mark Brnovich after he threatened to prosecute her if she temporarily shuts down for a required update to an online system that allows election candidates to collect the signatures they need to qualify for the ballot.

PHOENIX - A top lawyer in Arizona Attorney General Mark Brnovich’s office on Feb. 23 urged a judge to slap down Secretary of State Katie Hobb’s request for an order blocking him from prosecuting her if she temporarily shut down a candidate signature portal for a required update.

Deputy Solicitor General Michael Catlett told the judge that Hobbs would be breaking the law if she shuts down the "E-Qual" system that candidates use to collect signatures they need to appear on the ballot. And he said the shutdown she plans for the last four weeks that candidates can collect those signatures is entirely avoidable.

Catlett noted that the Democratic secretary of state can easily delay shutting down the system until after the April 4 filing deadline by having counties hold off on updating their systems to show newly drawn congressional and legislative district lines.

"We’re talking about an extended period of time," Catlett told Maricopa County Superior Court Judge Joan Sinclair. "And it’s not just any period of time. It’s the last four weeks in the period when candidates are fervently trying to gather signatures so that they can appear on the ballot."

Hobbs plans to take down the system that hundreds of candidates use on March 11. A shutdown is required because once any one of the state’s 15 counties starts loading the new district maps, the statewide system is unusable.

Hobbs’ attorney argued that the timing is unavoidable because some counties are holding elections in May. And lawyer Roopali Desai said Hobbs is stuck between two competing laws -- one requiring her to maintain an online signature system and another mandating that signatures only be accepted from voters who qualify because they live in the candidate’s district.

"If the AG agrees to not pursue violations of the second part of the statute, then the Secretary will leave E-Qual up," Desai told the judge. "However, it is critical that the Attorney General accept that that will create significant harm not only to the Secretary of State but to all of the county recorders who will have to address the massive litigation that will be incurred if individuals from all over the state are signing petitions that they’re not qualified to sign."

Arizona Attorney General Mark Brnovich and Arizona Secretary of State Katie Hobbs

Brnovich, a Republican who is running in his party’s primary for U.S. Senate, had one of his lawyers threaten to prosecute Hobbs last month if she temporarily shuts down the system. Hobbs is seeking her party’s nomination for governor.

Hobbs responded by filing a lawsuit against Brnovich seeing an order barring him from investigating or prosecuting her. The lawsuit said the attorney general was "pursuing unfounded and unprecedented enforcement action against the Secretary" and "threatening the Secretary with criminal prosecution for performing her duties as the State’s Chief Elections Officer."

Hobbs wants a judge to issue an injunction prohibiting the Republican attorney general from investigating or prosecuting her.

In court Wednesday, Desai said Brnovich is unqualified to interject himself in elections administration.

"If Attorney General Brnovich wishes to operate and administer elections, perhaps instead of running for the US Senate, he should run to be a county recorder," Desai told the judge. "He does not understand county elections administration. He does not understand how E-Qual works and even after raising my argument today the very real issue of a separate violation of the statute that will occur if the Secretary leaves E-Qual up."

Sinclair questioned Catlett about the need to update the E-Qual system and the law requiring the system be available despite that need.

"How does the Secretary ever do that?" Sinclair asked.

Catlett again pointed to her ability to do it after April 4 the filing deadline for the primary election.

Sinclair took the case under advisement and said she would try to rule quickly. Appeals of what decision she issues are likely.

The lawsuit is the latest dustup between the two elected officials and political rivals over the state’s election systems. They previously faced off over the elections manual Hobbs is required to update every two years but that Brnovich refused to approve.