How Brnovich abused his power
As I was wading through the tedium of the dispute between Attorney General Mark Brnovich and Secretary of State Katie Hobbs over the Elections Procedures Manual, what P.J. O’Rourke used to say about his exegesis of Adam Smith’s “The Wealth of Nations” came to mind.
I read “The Wealth of Nations,” O’Rourke used to say about the 900page turgid tome, so you don’t have to.
I can’t make the manual dispute lively and jocular the way O’Rourke could make any topic. But I can share my conclusion.
Brnovich’s spin is that Hobbs was trying to sneak things into the manual that shouldn’t be there. With one exception, that’s not the case. Instead, the dispute is mostly about Brnovich abusing his writ to make a legal review of the document.
State law requires the secretary of state to produce an Elections Procedures Manual prescribing “rules to achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures for early voting and voting, and of producing, distributing, collecting, counting, tabulating and storing ballots.”
The secretary is to produce a draft of the manual by Oct. 1 of the year preceding a general election. The manual must be reviewed and approved by the attorney general and the governor. A final manual is supposed to be in place by Dec. 31.
The manual has a checkered record in recent Arizona history. Former Secretary of State Michele Reagan didn’t even bother to produce one for the 2016 and 2018 elections. One was produced on time for the 2020 election.
For this cycle, Hobbs produced a draft by her Oct. 1 deadline. Brnovich didn’t respond until Dec. 9, 10 weeks after submission and only three weeks before the final deadline. And Brnovich demanded wholesale changes in Hobbs’ draft.
Hobbs agreed to many of them, but refused on others. Last week, Brnovich sued seeking a writ of mandamus ordering Hobbs to issue a manual exactly as Brnovich dictates, including a couple of demands he never made prior to Dec. 31.
Where Hobbs arguably was trying to sneak something in related to out-of-precinct voting. Right now, the practice is that if you vote other than in your precinct, your ballot is completely invalidated. Hobbs wanted to change that so that the ballot would still be counted for races, such as for statewide offices, for which the voter was clearly eligible.
Brnovich had successfully defended the current practice before the U.S. Supreme Court. Hobbs argues that it isn’t mandated by state law, and her alternative is fairer. It may be fairer, but, pace Hobbs, state statutes are more reasonably read as invalidating the entire ballot in the case of out-of-precinct voting.
Much of the dispute involves disagreement about the scope of two recent state Supreme Court decisions regarding the manual. Both held that the manual did not have the force of law when it contradicted other statutory law or was outside its own statutory scope.
Brnovich contends that this means that the manual cannot address any subject beyond its statutory scope. But the two cases don’t explicitly say that. Hobbs believes that a more comprehensive manual is useful, with the ancillary matters being treated as guidance, not legal mandates.
The disputed subjects included voter registration, candidate nominating petitions, ballot measure petitions, political party recognition and campaign finance enforcement. Hobbs actually agreed to drop all of them except voter registration, maintaining that was within the statutory scope for the manual and necessary to comply with a consent decree over the use of national voter registration forms.
Brnovich has an excessively cramped view of the constraints of the court rulings. The manual serves no purpose if it’s just a recitation of other statutes. Its utility is in creating uniform implementation of voting procedures in grey areas.
Nevertheless, Brnovich objected to a provision saying that for counties employing a four-day work week, the five business days to cure signatures on early ballots only includes days on which the county offices are open. And one that said that on the Navajo reservation, which unlike the rest of the state observes daylight saving time, the 7 p.m. deadline for keeping the polls open on Election Day was DST.
In the lawsuit, Brnovich makes two new demands.
In 2020, Maricopa County used software to initially categorize signatures on early ballots, although all of them were reviewed and verified by hand. Brnovich demands that the manual include a section on signature verification that outlaws the use of anything other than human eyeball review.
There’s nothing in state law that remotely could be argued to prohibit what Maricopa County did.
Brnovich is also demanding that drop boxes be monitored by election officials 24/7. That’s based upon a state law making it a crime to set up a phony election repository not “staffed” by election officials. If the drop box is secure and only opened by election officials, it is “staffed” by them, even if not continuously monitored.
The legal review is supposed to be limited to ensuring that nothing in the manual manifestly violates state law, with due deference to the policy choices of the secretary of state.
That’s not the review Brnovich has conducted.