Swing state election crisis brews with felony threats against poll workers

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

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A messy and longstanding feud between Maricopa County Recorder Justin Heap and the Maricopa County Board of Supervisors over control of the key swing county’s elections has spilled over into a new arena.

On Wednesday, Heap sent a letter to the board asserting his office’s authority over ballot drop boxes and warning that election workers who handle ballots deposited in “unauthorized” receptacles could face criminal penalties.

The letter, written by Heap’s attorney, arrived hours before county supervisors were set to take up a routine vote on drop box locations for the July 21 primary. It set the stage for a lengthy and fiery meeting that put the divisions between the county’s mostly GOP officials on full display.

The spiraling saga is amplifying questions about how effectively top county officials will be able to administer this year’s midterm election.

Supervisors called Heap’s latest letter “shocking,” “appalling,” and “outrageous.” They criticized Heap for not appearing at the meeting, which they said they’d asked him to attend — albeit on short notice.

Democratic Supervisor Steve Gallardo repeatedly said that he believed Heap, a Republican, was purposefully setting up this year’s elections to “fail” and called him “a coward.” Meanwhile, Supervisors Tom Galvin and Kate Brophy McGee sparred with fellow Republican Mark Stewart, the only supervisor who criticized the board’s handling of the situation.

After the meeting, the recorder’s office fired back with a statement, accusing the board of “attempting to seize control over ballot drop boxes” and calling supervisors’ remarks “political theater.” The office also insisted that it had not discussed the proposed drop box locations with the board’s elections department and did not know about them until the planned vote appeared on a public agenda.

But Elections Director Scott Jarrett said he has been meeting for months with recorder’s office staff for routine “menu of service” meetings in preparation for upcoming elections. He said he brought up drop box locations during those discussions.

Ultimately, the board unanimously approved a slate of voting locations — including the drop box sites — for the primary election.

This latest dispute is just the most recent in a larger fight between Heap and the board over election administration in the state’s most populous county. Heap contends that the board usurped much of his power in a deal it struck with his predecessor months before he took office. He has refused to abide by that agreement, which maps out how his office and county supervisors split election responsibilities, and sued the board last year when negotiations over a new agreement turned contentious.

In April, Maricopa County Superior Court Judge Scott Blaney handed Heap a legal win in the case, ordering the supervisors to return control of several election-related functions and information technology staffers to the recorder’s office. The board of supervisors has since appealed that decision.

Both sides are publicly acknowledging concerns about their ability to administer this year’s elections as the primary creeps closer. Heap’s statement said the board’s appeal “creates serious legal and operational concerns, particularly this close to major elections.” Brophy McGee and GOP Supervisor Debbie Lesko wrote in a letter to him Wednesday that the county “cannot proceed through the remainder of an important election year with the status quo.”

“The current level of confusion and conflict is not sustainable and does not serve the interests of county staff, election workers, or the public,” they wrote.

Supervisors historically choose drop box locations

County supervisors have long set ballot drop box locations under a provision of the state’s election rulebook that directly authorizes them to do so.

It reads: “All ballot drop-off locations and drop-boxes shall be approved by the Board of Supervisors (or designee).”

But Heap is now arguing that only he can designate such sites — and that the rulebook, which carries the force of law but can’t contradict statutes, is wrong.

In his letter to the board, Heap’s attorney, James Rogers, cited a state law that references the recorder’s ability to establish “early voting locations.” The following sentence of that statute, ARS 16-542, further specifies that such locations “shall require each elector to present identification … before receiving a ballot.” That would appear to suggest that the locations referenced in the law are ones where voters can cast a ballot in person, as that’s when they are required to show ID. Nonetheless, Rogers wrote in his letter that he believed the statute assigned drop boxes “exclusively to the recorder.”

“A ballot drop box is, under any reasonable interpretation of the plain meaning of the statutory text, an ‘early voting location,’ as it is a physical site where voters may deliver their voted early ballots during the early voting period,” he said.

Another statute, ARS 16-411, states that boards of supervisors can “designate one or more sites for voters to deposit marked ballots until 7:00 p.m. on the day of the election.” Rogers said he interprets that law as suggesting that the board has the ability to do so only on Election Day, not during early voting.

“These statutory provisions carefully circumscribe the board’s authority to maintain drop boxes: Only on Election Day and only at voting centers and polling places,” Rogers wrote, later adding that supervisors “cannot simply assume powers” that aren’t specifically prescribed to them in writing. “No statute grants the board authority to establish drop boxes during the early voting period.”

Maricopa County Superior Court Judge Scott Blaney’s recent decision in the legal battle between the board and the recorder’s office didn’t specifically assign drop boxes to either entity.

His order noted that Heap held authority over “voter registration, voter list maintenance, the distribution and signature verification of early ballots, and in-person early voting.” The board, he wrote, was in charge of “drawing precinct boundaries, selecting Election Day voting locations, preparing ballots, supplying polling locations, hiring poll workers, tabulating ballots, and canvassing.” His conclusions were based in part on the statutes that Rogers cited.

Heap’s attorney threatens charges for ‘ballot harvesting’

Rogers’ letter further alleges that supervisors could be opening themselves and their workers up to felony charges by maintaining control over drop box locations.

He pointed to ARS 16-1005, which prohibits a person or entity from collecting ballots by “misrepresenting itself as an election official or as an official ballot repository.”

“Any person or entity involved in establishing or operating such unauthorized drop boxes is committing a class 5 felony,” Rogers wrote, adding that bipartisan teams of workers who collect ballots from drop boxes could be charged with “criminal ballot harvesting.”

Supervisors broadly condemned that threat. Galvin said anyone attempting to “put handcuffs” on workers would have to go through the board first.

“The four of us will be the first ones to step in front of them and say, ‘Take us,’” Galvin said, referencing all of his colleagues except Stewart.

He added that Heap — who was elected to his seat with support from activists who questioned the integrity of the county’s elections — was fanning the flames of voter fraud conspiracies.

“We are stuck in this hamster wheel of the 2020 election,” Galvin said. “That is the basis of it — over and over and over again — and someone has to call out the recorder and say, ‘Cut it out.’”

Sasha Hupka is a reporter for Votebeat based in Arizona. Contact Sasha at shupka@votebeat.org.

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