Katie Hobbs takes Mark Brnovich to court over E-Qual threat

Secretary of State Katie Hobbs is going to court against Attorney General Mark Brnovich, asking a Maricopa County judge to bar him from bringing what she argues would be baseless criminal charges against her over a scheduled, temporary shutdown of the state’s online signature-gathering website for congressional and legislative candidates. 

Hobbs is planning to take the online signature portal E-Qual offline for congressional and legislative candidates in early March so Arizona’s 15 counties can update their precincts and voter registration information to account for the new districts drawn by the Arizona Independent Redistricting Commission. That means candidates won’t be able to use the system for the last month before the April 4 deadline to collect signatures on the nominating petitions that qualify them for the ballot. 

That prompted Jennifer Wright, who heads up the Elections Integrity Unit at the Attorney General’s Office, to inform the Secretary of State’s Office that state law mandates E-Qual to be available to candidates and allege that Hobbs will be breaking the law if she takes it offline. Violating that law, Wright alleged, would be either a class 3 misdemeanor or a class 6 felony. 

In a motion filed Tuesday in Maricopa County Superior Court, attorney Roopali Desai, who represents the Secretary of State’s Office, said the attorney’s general’s allegations are false and nonsensical. 

It would be impossible for counties to update their voter information databases without temporarily shutting down E-Qual, Desai wrote. Many counties also have elections in either March or May, and it isn’t possible to update the systems during those election seasons. That means there’s a relatively small window to complete the process, Desai wrote. 

The state’s voter registration database uses geographic information system-based software, Desai wrote, which means it can’t use two different sets of congressional or legislative maps at the same time. And because many districts cross county lines, it must use an all-or-nothing approach with the district maps. Desai said there’s no way to use the old districts in some counties and new ones in others. 

While state law mandates that the secretary of state provide E-Qual to candidates, it also requires that the system only allow voters to sign online petitions that they’re legally eligible to sign. People can only sign petitions for legislative and congressional districts in districts where they’re registered to vote. 

That means that the secretary is complying with the law, not violating it, by taking the system offline to update it, Desai said. If the law were to demand that Hobbs keep the system online while also demanding updates that require it to be temporarily shut down, Desai said that would violate judicial precedent that bars judges from interpreting laws in ways that would create “impossible or absurd consequences.”

“It’s a sad reality that the state’s Chief Elections Officer faces threats of criminal liability just for doing her job. It’s sadder still that she faces these threats when she’s complying with relevant statutes, and merely making necessary administrative updates,” Desai wrote. 

Hobbs, a Democrat who has repeatedly clashed with the Republican Brnovich over the past few years, also accused the attorney general of selectively targeting her while ignoring past instances in which secretaries of state have shut down E-Qual or otherwise failed to follow the laws governing it. 

Desai noted that Republican Secretary of State Ken Bennett, who was in office before Brnovich’s time as attorney general, shut down E-Qual shortly after the original system went online in order to update it for the new district lines in 2012 after the last round of redistricting. He faced no allegations of lawbreaking for doing so, she said. Lawmakers created the E-Qual pilot program in 2011, expanding it into a permanent program three years later. 

In 2016, the legislature again expanded E-Qual to include congressional and local candidates. But Republican Secretary of State Michele Reagan, who served through 2018, never actually upgraded the system to accommodate local candidates.

“Nobody accused Secretary Reagan of violating the law and the AG did not threaten civil or criminal enforcement action against the Secretary,” Desai noted.

Brnovich has served as attorney general since 2015. 

Unless the court grants Hobbs’ request for a preliminary injunction, she will “suffer irreparable harm from these threats of unlawful criminal prosecution that could affect her livelihood,” Desai wrote. 

Hobbs is currently seeking the Democratic nomination for the 2022 governor’s race. Brnovich is seeking the Republican nomination in the race for U.S. Senate. 

Katie Conner, a spokeswoman for Brnovich, said the Attorney General’s Office will respond to Hobbs’ specific allegations when it files its response with the court. 

“It’s disappointing that the Secretary of State tries to politicize every issue. She seems more concerned with avoiding the blame than fixing the problem,” she said.