Judge to rule in Hobbs/Brnovich signature case

Republican Attorney General Mark Brnovich and Democratic Secretary of State Katie Hobbs are squabbling in court over the state’s online signature-gathering tool for candidates.  

A Maricopa County judge heard oral arguments on February 23 for a preliminary injunction in a case that would pave the way for elections officials to temporarily take the online signature-gathering tool offline for updates related to redistricting.  

The judge’s decision could impact how candidates collect the signatures they need to get on the ballot in this year’s elections.  

Judge Joan Sinclair said she plans to issue a ruling “as soon as I possibly can” given the time-sensitive nature of the case. The candidate filing period runs from March 5 to April 4. 

Hobbs has said she wants to take the E-Qual signature gathering system offline for three to four weeks, beginning in March, in order to update the system with the new district maps certified by the Arizona Independent Redistricting Commission earlier this year.  

But Brnovich has threatened to prosecute her for doing that, saying that taking the system down during the candidate filing period, which ends April 4, would violate state statute that says the secretary of state needs to provide the electronic signature-gathering system to candidates. 

Hobbs is seeking both declaratory judgement against Brnovich and a preliminary injunction. Much of the discussion centered on technical questions about whether an injunction was appropriate for the situation. 

Hobbs’ attorney Roopali Desai asserted that an injunction is needed so that the secretary of state and elections officials can legally do their jobs without fear of wrongful criminal prosecution. “This entire case is about the AG’s myopic focus on undermining elections and undermining elections administrators,” Desai said. 

Mike Catlett, a deputy solicitor general in the Attorney General’s Office, said that issuing an injunction would be tantamount to telling the AG that he can’t enforce state law and would “greenlight” a move that the AG asserts is unlawful. “She wants the court to preliminarily enjoin both the state and the attorney general from even investigating or enforcing the law requiring her to maintain that system,” he said. 

Sinclair posed just one question during the arguments, asking Catlett how, in the long run, the E-Qual system would ever get updated with new districts if it’s unlawful to take the system down and technical obstacles prevent it from being updated while staying online. 

“Assuming it must come down and it must be maintained, she does that consistent with her statutory duties by doing it after April 4,” Catlett replied. “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,” he said at another point. 

But Desai argued that choosing when to do necessary system maintenance is a decision the AG isn’t authorized or equipped to make. “He does not understand county elections administration. He does not understand how E-Qual works,” she said. 

The statute in question, A.R.S. 16-316 states, in part: “The secretary of state shall provide a system for qualified electors to sign a nomination petition and to sign and submit a citizens clean elections five dollar contribution qualification form for a candidate by way of a secure internet portal.” 

The case stems from questions that arose earlier this year, when reports showed that the E-Qual system couldn’t accept signatures from people living in a candidate’s new 2022 district. For now, E-Qual still only allows candidates to collect signatures from individuals living in their old 2020 district. That’s perfectly legal, thanks to the “safe harbor” law that legislators passed last year; and candidates can gather signatures the old-fashioned way, using physical, printed petition forms, in either their old or new districts. 

On February 23, Desai also raised the possibility that the AG was trying to block the secretary of state from updating E-Qual in order to force her into violation of another provision of state law – potentially with the plan to then prosecute that violation. 

A.R.S. 16-316 additionally states, of the online signature-collection portal: “The system shall allow only those qualified electors who are eligible to sign a petition for a particular candidate to sign the petition and only those qualified electors who are eligible to give a qualifying contribution to that candidate to do so and shall provide a method for the qualified elector’s identity to be properly verified.” 

Desai said that failing to update the E-Qual system as Hobbs plans could result in “individuals from all over the state… signing petitions that they’re not qualified to sign.” 

The hearing came as state lawmakers advanced legislation that would explicitly prohibit taking the E-Qual system offline. The measure, HB2703, passed the House on February 22 in a 31-28 vote. 

But even if the bill becomes law, it will probably be too late to have any impact on the current debate surrounding E-Qual. That’s because the party-line vote in the House fell short of the two-thirds majority necessary for emergency enactment. Non-emergency laws generally don’t take effect until months after the legislative session ends. 

Staff writer Nathan Brown contributed reporting.