Arizona Secretary of State | Arizona Capitol Times

Billionaire identified as source of $500K contribution to Ducey campaign

Gov. Doug Ducey’s reelection campaign is quietly conceding that a $500,000 donation listed as coming from a newly formed company actually was a billionaire who works for a company that owns more than two dozen auto dealerships in the state.

Capitol Media Services has discovered that the Ducey Victory Fund on Wednesday retroactively amended the campaign finance report it filed on July 16 to remove the name of Blue Magnolia from the donation. The report now reads that the money came from billionaire Larry Van Tuyl who runs the Berkshire Hathaway Automotive Group after he sold his 28 dealerships to the firm in 2014.

That amended filing comes just two days after the Attorney General’s Office received and began investigating a complaint from the Campaign Legal Center that the committee set up to help the governor get a second four-year term violated laws making it illegal to donate money to a campaign in the name of someone else.

But Brendan Fischer, director of the organization’s federal reform program, said the fact that the disclosure now has been corrected and the true source of the dollars is now public should not end the probe.

“It’s not enough that a half million-dollar contribution is reattributed once the secret donor gets caught,” he said. “It’s important that Arizona authorities send a message that this kind of conduct is impermissible.”

And Fischer does not think the probe should end with how it was actually Van Tuyl who put the money into Ducey’s campaign in May through the limited liability company that had been formed in Delaware just two weeks earlier. He wants Attorney General Mark Brnovich to find out what the governor and his campaign staff knew and when they knew it.

“The public has a right to know whether the governor knew about the true source,” Fischer said.

He pointed out that the reports available to the public as of Election Day continued to list only Blue Magnolia as the donor of the $500,000.

“The governor may have known where this money was coming from,” Fischer said. “But the public did not.”

Ducey himself has refused to answer what he knew about the $500,000 donation. Nor would he say whether he even questioned getting a check that large from a limited liability company that did not exist two weeks earlier and, according to the complaint, had no visible assets or cash.

On Thursday, J.P. Twist, who managed Ducey’s reelection campaign, would say only that the Ducey Victory Fund “received a request from the donor to reclassify the contribution as personal.” It was that request, Twist said, that resulted in the amendment filed Wednesday of the report that originally had been submitted in July.

Arizona law makes it a crime to make a contribution in the name of another person or to knowingly accept a contribution made by someone in the name of another person. Violations are a Class 6 felony, which carry up to a one-year prison term and a $150,000 fine.

The original CLC complaint, filed Dec. 4 with the Secretary of State’s Office, said there was reason to believe that the $500,000 Blue Magnolia donation actually came from Van Tuyl.

That wasn’t just idle speculation.

Months earlier the CLC had filed a similar complaint with the Federal Elections Commission about a $100,000 donation made by Blue Magnolia to DefendArizona, a political action committee set up to help Martha McSally in what ultimately proved to be an unsuccessful bid for the U.S. Senate. After that complaint was submitted, DefendArizona amended its own federal campaign finance reports to show that the cash actually came from Van Tuyl.

Fischer said that CLC, which monitors federal election filings, had been unaware of the Blue Magnolia donation to the Ducey Victory Fund until it was reported by Capitol Media Services. That resulted in the Dec. 4 complaint.

Less than a week later, though, state Elections Director Eric Spencer forwarded the complaint to the Attorney General’s Office. Spencer said his office generally does not handle campaign finance complaints if the underlying conduct is a crime, versus a simple civil violation that could be remedied with a fine.

“We take all allegations very seriously and we are actively reviewing it,” AG’s spokeswoman Katie Conner said of the complaint. “No further comment will be made at this time.”

Van Tuyl at one time owned more than 75 auto dealerships nationwide, including 28 in Arizona, with an estimated $8 billion in annual revenues. The 2014 sale, described at the time as an all-cash deal, put those in control of Berkshire Hathaway where Van Tuyl is now president and chairman of the board of the company’s automotive group.

Celebritynetworth.com lists Van Tuyl’s net worth at $2 billion.

The Ducey Victory Fund is actually only one of the campaign committees set up by the governor and his supporters to take contributions.

One, the Ducey for Governor Committee, lived within the limits set by Arizona law. That includes a cap of $5,100 on any individual contribution and a prohibition against taking corporate dollars.

But the Ducey Victory Fund had no such constraints.

Aides to the governor said non-corporate contributions to that fund within the $5,100 limit were transferred to the governor’s own committee. The other dollars were given to the Arizona Republican Party which has no constraints on the size or source of donations. And the party then could spend money on its own commercials and efforts promoting Ducey’s reelection.

Campaign finance websites still broken as election 2020 nears

The 2020 election is a year away and the state’s campaign finance websites are broken.

See The Money – a website that presents data visually – has never worked properly, and the state’s campaign-finance database has had its own set of problems since the 2018 election, and the Secretary of State’s Office is now approaching a crucial deadline. Come January, candidates from throughout the state will be filing their first financial reports for the 2020 campaign cycle and the public will want to follow the money.

See The Money was a pet project of former Secretary of State Michele Reagan, and now Secretary of State Katie Hobbs is in charge of managing and marketing it, and more immediately, trying to fix it.

“It doesn’t work, and we want it to work,” Hobbs said. Her staff has spent the past year focused on improving the reporting side, making sure the information going into the system through Beacon, the new reporting portal, works with the website’s framework and accurately displays that information in a simple and intuitive way.

Hobbs said by election time, things will change.

“Our obligation is to house campaign finance reports and the goal of my administration is transparency to the public and that’s the biggest reason for campaign finance reporting,” Hobbs said. She said it’s crucial for the public to have access to that information, but what limits them, is their role in all of this – her office is a filing agency, not an enforcement agency.

“People think we dig through campaign finance reports and find problems – we don’t,” Hobbs said. “The reason complaints are made and campaign finance reports are found is because the public looks at those reports and they report problems to us. We rely on that.”

But Hobbs said it needs to be a “functional tool” for that to happen, and it’s not there yet. Complaints come mostly from campaign staff, lobbyists, or anyone else involved in politics.

They say it doesn’t display data in a way that is easy to understand. Overlooked campaign finance reporting loopholes and flaws have led to misleading or confusing figures, confusing and infuriating even to the most seasoned political operative. If they can’t understand it, they say, how is the public, who was initially the target demographic, supposed to?

One of them, Arizona Advocacy Network Deputy Director Morgan Dick, said she and her colleagues can’t remember the last time they used the website because they’ve had so many issues with it. Most of Dick’s job deals with digging through campaign finance reports, which can be tedious.

The idea and initial promise of See The Money was a godsend, she said, and it would have made her job easier. It was a great idea, Dick said, but it just wasn’t executed right.

“We often saw things were not congruent with what the campaign finance report said,” Dick said. “These data charts that you can export, they just didn’t accurately display the kind of spending we were seeing in the campaign finance side of the reporting.”

It’s so unreliable that Dick and her coworkers have to use third party sites like Follow The Money, hosted by the National Institute on Money in State Politics, which she said is generally more accurate but still has its issues. With the way things are now, it’s almost always easier, and more accurate, to go to the original documents, copy and paste them into a spreadsheet and do their own analysis, Dick said.

Secretary of State Katie Hobbs in her office. Hobbs said problems with the state’s campaign-finance websites will be fixed by the 2020 election. (Photo by Andrew Nicla/Arizona Capitol Times)

For a long time, because of issues with transferring what’s reported, it’s been garbage in, garbage out. Those issues have been chipped away through years and hundreds of thousands of dollars.

“When you had the old campaign-finance system and See The Money was put in place, they didn’t necessarily talk to each other the right way,” Hobbs said.

She said there hasn’t been any statutory changes in what or how this information is reported, rather the way that the information is transferred and presented has.

What remains is an accessibility issue: people completely new to the system often don’t know what they’re looking at or what to look for. Now the office is working to better display the information and ensure that what’s being displayed is as accurate as they can assure it is.

Once that’s fully fixed and the website is made more accessible, it will be useful, Hobbs said, but it will never live up to the original vision. What was originally proposed was a place for every campaign finance report in the entire state, including local jurisdictions.

However, that dream never materialized because Hobbs nor her staff can compel other jurisdictions to participate and, Hobbs said, there’s no political will in the Legislature to do that. Even if there was interest, the system isn’t equipped to deliver.

If that did happen, Hobbs and others feared people would be charged to use that system. Change has been slow and hard to accomplish, Hobbs said, because her administration was a victim of circumstance – she walked into a project

The website was one of Reagan’s 2014 campaign promises: making it easier for people to see where candidates get their campaign money. Over $1 million has been spent to build the site and make it accessible for most people, but it still has issues.

Five years later, the website is still being tweaked.

Under Reagan, the office spent hundreds of thousands of dollars on the project, hiring a contractor that didn’t finish and forcing it in-house in 2016. Reagan, her staff and the contractors she employed hailed the website as a success with minor issues.

Former Secretary of State Michele Reagan at her inauguration in 2015. Reagan promised during her 2014 campaign to make it easier for people to see where candidates get their campaign money. Over $1 million has been spent to build a campaign-finance website and make it accessible for most people, but it doesn’t work. (File Photo/Arizona Capitol Times)

Together, Reagan and Hobbs have spent more than $1 million on the project.

One of the original developers for See The Money, Al Kawazi, said the larger problem has always been how the data is received. Kawazi said he and the other developers did their job.

“The problem is that the data is only as good as the data that’s coming in,” Kawazi said. “So if somebody puts in data that is wrong or they misallocated funds where they should have gone to as an expense, they put it as income, or whatever the reason may be – you can easily see that in the visualizations.”

Another problem, Kawazi said, was categorizing names and grouping contributions from the same person or not for people with similar names. Sometimes, when filing, mistakes can happen; someone misspells their name, changes a number in their address or even puts down their second home and not their primary address. Whatever the case, Kawazi said inconsistencies in data make it more difficult for developers or their algorithms to reasonably group entries from people or organizations and to assume they are identical.

Kawazi and company were experimenting with machine learning, a form of artificial intelligence, and beginning to aggregate people by jobs, addresses and other information they gave. Compiling that accurately became hard at times because some people clearly, intentionally misreported their name or address consistently, knowing the information would be public and fearing people would send them letters or show up at their house, Kawazi said.

Kawazi said that flaws aside, the state has one of the most organized systems for presenting this data, but the problem remains that the data is dirty.

When Reagan first was elected, she had hoped to complete the website during or before June 2016, but she ended up being late, over budget and needed more money.

To help foot the $462,000 bill to develop a new campaign finance website to replace the other project that failed to launch, Reagan asked the Citizen’s Clean Election Commission to pay $200,000, and $50,000 each year for maintenance.

Director of the Citizens Clean Elections Commission Tom Collins said he’s not sure where exactly that money spent was put toward, if it was worth it and he’s not confident that it’s “up to snuff.” Collins often hears complaints from members of the public about the site and about how information can be misreported often enough to warrant double checking the original documents, confusion over the definition of a particular vendor, not distinguishing between different types of transactions and just a general lack of explanation for what exactly people are looking at.

At the end of the day, it’s not reliable, Collins said, adding that it doesn’t achieve the goals that the commission considered when it decided to make the service agreement. Collins understands that website development is hard work and said he isn’t criticizing Hobbs personally, rather he wants to make sure this project lives up to its full potential.

“If See The Money does not provide voters information they can use, grab on-the-go and use, without having to double check the campaign finance database, what did our $200,000 buy in the first place?” Collins said.

Election officials, advocates push to use college IDs for voting

A woman arrives to her polling station, Tuesday, Aug. 28, 2018, in Tempe, Ariz. Elections officials say 62 polling locations in the Phoenix area weren't operational when voting began in Arizona's primary. (AP Photo/Matt York) — A woman arrives to her polling station, Tuesday, Aug. 28, 2018, in Tempe, Ariz. Elections officials say 62 polling locations in the Phoenix area weren’t operational when voting began in Arizona’s primary. (AP Photo/Matt York)

As Katie Hobbs prepared to take over as Arizona’s newly elected secretary of state, one question was repeatedly asked: Can a student ID be used to vote?

The short, easy answer was “no.”

But the longer, more complicated answer is “yes, but if.”

A footnote in the draft of a new Elections Procedures Manual, a handbook for running elections in Arizona, now states that IDs issued by a public college, university or other public educational institutions are technically “government-issued” IDs.

Public schools have always been government institutions, so it makes sense that the IDs the schools issue fit the description in the manual as “government-issued,” according to Hobbs’ election director, Bo Dul.

That clarity is important, Dul said, because a valid, government-issued ID is one of the few forms of identification that can be used as a voter’s sole ID when voting.

But that doesn’t mean student IDs alone can be used to verify a voter’s identity. Those identifications would still need to meet other requirements in Arizona law – namely the inclusion of three elements: the student’s name, photo, and residential address.

It’s the address that’s missing from most student identification cards.

“The question that we kept getting was, is a student ID valid for voting? So we just wanted to clarify that our interpretation is that it could be – it just needs to have all the same elements as any other government-issued ID,” Dul said.

Perhaps the footnote “can be an impetus to the universities to start including addresses so it can be used for voting purposes,” Dul said.

Joel Edman, executive director of the Arizona Advocacy Network, said he requested the clarifying language, along with the Arizona chapter of All Voting Is Local, a national voting rights organization. If approved, the manual would “provide clarity to students on which forms of ID work for voting,” Edman said.

It might also empower students to advocate their administrations to start printing addresses on student IDs, he added.

“Even for now at least, it’s a signal to students that your ID can get you at least part of the way there, if you’ve got a bank statement or something else with your address you can pair,” Edman said.

In a statement, Arizona State University officials said they’ve already been exploring the issue, but raised some concerns. Many ASU student IDs are tied to bank accounts, and adding an address could put the security of those accounts in jeopardy. The university is also concerned about its own costs – given how often students move, requests for IDs to be repeatedly updated would add to printing expenses.

A spokeswoman with Northern Arizona University echoed concerns about the costs, not only as students move and need to change their address, but also for encrypting student data and meeting federal ID requirements.

Officials from all three public universities stated they strongly encourage civic engagement. Per the ASU statement, “we continue to explore possible solutions and will of course continue our efforts to work with student organizations to provide eligible students with opportunities to register to vote,” the statement added.

If public universities such as ASU and community colleges start printing addresses on student IDs, it’d make it easier for college students to vote in a state where some legislators have sought to make the process more difficult.

In 2017, Rep. Bob Thorpe, R-Flagstaff, pushed legislation to require college students to use their permanent address to register to vote, arguing that students “unfairly influence” local elections in the college communities they reside in only part of the year.

Specifically, Thorpe wanted to bar campus addresses from being used to register to vote in Arizona. The measure failed to gain any traction.

The updated Elections Procedures Manual is still just a draft. After accepting public comments for much of September, the secretary of state has until October 1 to submit a final draft to the attorney general and the governor, who have the authority to approve or reject it.

Editor’s note: This story has been revised to include statements from Arizona’s other state universities.

Federal judge extends Arizona’s registration deadline to Oct. 23

Voter Proudly Displays Evidence that He Voted on Election Day in the United States.

In an October surprise, a federal judge extended Arizona’s voter registration deadline from Oct. 5 to Oct. 23.

The news came with mere hours of today’s original deadline for Arizonans to register or update their registration. The court’s ruling gives Arizonans another 18 days to register.

Progressive groups Mi Familia Vota and Arizona Coalition for Change sued Arizona Secretary of State Katie Hobbs, a Democrat, in a last-ditch effort to postpone Arizona’s Oct. 5 voter registration deadline, citing difficulties registering voters during the COVID-19 pandemic.

In his ruling, U.S. District Court Judge Steven Logan told Hobb’s office to direct county recorders to accept all voter registrations received by 5 p.m. on Oct. 23.

Logan agreed that COVID-19 and travel restrictions put in place by Gov. Doug Ducey made it difficult for the plaintiffs and others to fulfill their goal of getting more people to register to vote.

Mi Familia Vota and Arizona Coalition for Change claimed they were on track to meet or exceed their goals of registering 30,000 and 25,000 new voters, respectively, before Ducey instituted his stay-at-home order on March 30. The numbers plummeted soon after, they said. Mi Familia Vota reported registering 1,523 new voters in the last week of March but only registered an average of 193 voters per week between March 30 and the middle of August, when Ducey and the Arizona Department of Health Services eased restrictions on businesses, schools and public gatherings.

Sen. Martin Quezada, D-Glendale, called the ruling a “wonderful news” and suggested the state shouldn’t have such an early deadline to begin with. “I’ve proposed Same Day Voter Registration every year since I’ve served in the #AZSenate,” he wrote on Twitter.

Rep. Jennifer Longdon, D-Phoenix, echoed Quezada, and Rep. Raquel Teran, D-Phoenix, tweeted her thanks to the plaintiffs and other “grassroots organizations.”

Before the extension, Arizonans were already setting records for registration numbers in Maricopa County and statewide.

Numbers from the Secretary of State’s Office shows more than four million Arizonans are registered to vote. Of the four million, 75 percent are on the state’s Permanent Early Voting List. The breakdown shows Republicans make up roughly 35 percent, Democrats 32 percent, and Libertarians, independents and other non party affiliates roughly 33 percent of the vote.

After hitting a record turnout in the August primary elections, many expect to see more than three million ballots cast for the first time this year.

The bulk of new voters registered between the primary election and the original Oct. 5 deadline. Indeed, more than 210,000 voters have registered since the August 4 primary election. The previous record happened in 2008, when 188,000 Arizonans registered to vote between the primary election and the deadline.

Reporter Julia Shumway contributed to this article.

Homie’s appeal for vote grabs attention

This sign in Phoenix appears to be for a political campaign, but it is really to advertise for a real estate company. In previous election years, a sign like this would have required it to be 51 percent political, but a U.S. Supreme Court ruling took away the requirement. (Photo by Ben Giles/Arizona Capitol Times) — This sign in Phoenix appears to be for a political campaign, but it is really to advertise for a real estate company. In previous election years, a sign like this would have required it to be 51 percent political, but a U.S. Supreme Court ruling took away the requirement.

A new guerilla marketing campaign is taking advantage of an election season loophole in Arizona, and leaving some Phoenix-area residents wondering: Who is “Homie,” and why is he or she running for the U.S. Senate?

Homie is actually a Utah-based real estate company that expanded into the Phoenix market in January. Their digital ads are a frequent sight on streaming services such as Hulu, but their latest attention-seeking venture features a slew of teal signs posted on street corners and other public right-of-ways that read: “Vote for Homie… Significant Change.”

The sign refers interested voters to HomieforSenate.com, which declares that “significant change is coming… to your pocket.”

But it’s not crystal-clear who, or what, Homie is without a lengthy read of the website, which goes on to declare that “Arizonans want change” – the monetary kind, that is.

“They want change in their taxes, change in the political climate and, most importantly, they want change… in their pockets,” the website states. Homie purports to save homebuyers and sellers money by charging a flat fee for its real estate services and by offering loans.

Officials with Homie could not be reached for comment.

The presence of the non-campaign campaign signs in Phoenix is reminiscent of a similar advertisement for Stingray Sushi. In 2011, marketing consultant Jason Rose capitalized on the mayoral election to draw attention to the restaurant. Signs posted around town showed the Stingray logo, but also included clever phrases to tie sushi to the two mayoral candidates, Greg Stanton and Wes Gullett.

Pulling off the campaign trail marketing stunt meant clearing several legal hurdles at the time, Rose said. Now, due to a 2015 U.S. Supreme Court ruling, those hurdles no longer exist, according to attorneys for the League of Arizona Cities and Towns.

In 2011, Rose registered a political action committee with the Arizona Secretary of State’s Office. And a majority of the Stingray Sushi signs posted around town had language directly tied to the election: “We had legal advice that said 51 percent of the signs had to be devoted to political speech,” said Rose, who added he’s not involved in Homie’s campaign

“While the signs had the Stingray logo on them… they were engaged in the election,” he added.

Rose went on to repeat the strategy during the 2012 presidential election, posting sushi signs tied to presidential candidates. That required registration as a political committee with the Federal Elections Commission. That’s because commercial signs were, and still are, regulated by local ordinances. Cities and towns have their own laws dictating when, where and how signs may be posted, and can remove signs that violate local laws.

Not all those laws apply during election season, according to Ken Strobeck, executive director of the League of Arizona Cities and Towns.

State statute on political signs supersedes local ordinances, allowing the slew of candidate signs and posters dotting Arizona street corners beginning 60 days before the primary election and ending 15 days after the general election.

For that five-month period, political signs are free from the restrictions normally enforced by municipalities.

That’s why Rose went as far as registering as a political committee with the Secretary of State, to ensure that the Stingray advertising campaign was political enough to protect the signs from local laws. Those legal gymnastics are no longer required, Strobeck said, thanks to the U.S. Supreme Court’s ruling in Reed v. Town of Gilbert. The court ruled that governments cannot impose “content based” regulations on signs, which are a form of free speech.

Attorneys for the League interpret the ruling to mean that during election season, when state law dictates cities must allow political signs on public right-of-ways, they must allow other types of signs, too.

For example, Phoenix zoning ordinances have a permitting process required for most signs, but political signs are exempt in accordance with state law. During campaign season, that means political and non-political signs are exempt from the requirement, since they must be treated equally, according to Strobeck. The only ordinance that still applies in Phoenix is one that requires campaigns to provide the name and number of an official who can be reached to remove a sign if needed.

“The Legislature has carved out this period of time during election season when political signs are legal and can be placed anywhere and everywhere, and so under that same doctrine, any other sign can be placed anywhere and everywhere that are similar in size and placement… you can’t discriminate on the basis of content,” Strobeck said.

Rose said the campaign signs are incredibly cost-effective given the amount of exposure they provide – a sign and two pieces of rebar cost a fraction of what it would take to purchase time on a billboard or bus stop.

In fact, given that the ads don’t even need to be election-related to be protected from local ordinances during campaign season, Rose questioned the value in Homie launching such an “obtuse” ad.

“You’re trying to interest someone in the U.S Senate race, who then is going to actually take the time to research who the hell the candidate is, and then go, ‘Oh, it’s not actually a candidate at all, it’s a mortgage company,’” Rose said. “So the percentage of people that might actually do that and then go, ‘Oh my god I’ve been looking for a mortgage company,’ I think is infinitesimal.”

On the flip side, at least Homie got someone to write about its ads.

“I like it from an earned media standpoint, for the reasons that we’re having this conversation,” Rose quipped.

Judge penalizes AZGOP for election suit

A Maricopa County Superior Court judge is blasting the Arizona Republican Party, saying it filed an utterly meritless lawsuit solely to undermine public confidence in the 2020 General Election.

In a 10-page ruling excoriating the GOP for filing suit, Judge John Hannah said Arizona law gives political parties a “privileged position” in the electoral process, part of what’s necessary for self government.

“The public has a right to expect the Arizona Republican Party to conduct itself respectfully when it participates in that process,” Hannah wrote in ordering it to pay more than $18,000 in legal fees. “It has failed to do so in this case.”

And he even accused the party of “gaslighting” him in how it sought to frame the legal issues as it sought to escape those fees.

Hannah said it was clear from the start there was no legal basis for the party and its attorney to demand a different kind of hand count audit of ballots than the one spelled out in state law.

“That statement shows the groundlessness of the plaintiff’s legal position, because it is flat wrong as a matter of law,” the judge wrote in a ruling released Monday.

The only basis for such a claim, Hannah wrote, is if there is an allegation of fraud or that the result would have been different had proper procedures been followed. But what the GOP wanted was a different method of doing the legally required — and already performed — hand count “to ensure voter confidence and integrity.”

Only thing is, the judge said, the party never cited any legal authority in its lawsuit against Secretary of State Katie Hobbs for him to order a different kind of hand count. Instead, the attorney said he has the authority to “decide what the law is.”

“But that power is not a roving commission to declare the law and order people to follow it,” Hannah wrote.

But what really provoked Hannah’s ire — and his decision to order the party to pay $18,238 in legal fees run up by Roopali Desai, the private attorney hired by Hobbs — was the admission that “public mistrust following this election motivated this lawsuit.”

“The plaintiff is effectively admitting that the suit was brought primarily for an improper purpose,” the judge wrote.

“It is saying that it filed this lawsuit for political reasons,” he continued. ” ‘Public mistrust’ is a political issue, not a legal or factual basis for litigation.”

Jack Wilenchik, the attorney for the state GOP, promised an appeal, saying the ruling will be reversed, rejecting the judge’s conclusion the lawsuit was “groundless.” And he took a few swats of his own at Hannah,

“An order like this only serves to stop plaintiffs from rightfully invoking the courts to hear their issues, and it encourages public distrust in the government for being openly hostile to them,” he told Capitol Media Services. “For a county judge to say that widespread public mistrust in an election is an ‘improper’ reason for a political party to be in his court is sorely disrespectful to the view of the many Americans whom I am proud to represent.”

The issue of fees stems from the legally required random hand count of ballots. That procedures has officials from both parties select a batch of ballots and races within those ballots to determine if what the machine tallied matches what humans concluded.

In all cases, the match was 100%.

But Wilenchik charged that the law requires the audits be conducted at 2% of voting precincts.

Only thing is, Maricopa County — and six others — use voting centers where any individual can go to cast a ballot. So the audit was conducted at 2% of these vote centers. He argued that was illegal and sought to hold up the formal canvass of the election results.

Hannah, however, ruled last year that when legislators allowed counties to establish vote centers they also gave the secretary of state the power, through the official Election Procedures Manual, to allow audits in that method.

Then there was the timing issue. The judge said it was “inexcusable” that the party filed suit three days after Maricopa County had publicly announced the result of the hand count.

He said Ward and the attorney denied knowing that.

“But they certainly had constructive knowledge, since the party’s own representatives had participated in the audit,” Hannah said.

“And surely the plaintiff had a duty of inquiry,” he continued. “That the plaintiff did not do so suggests it did not consider the information important — another marker of lack of good faith.”

And there’s something else: what the GOP did after being told that the hand count was complete and it showed the electronic tabulation was flawless.

“At that point the plaintiff could have quietly walked away from the lawsuit and publicized the audit results to reassure the public,” Hannah said. “Instead it filed ts petition to enjoin the election canvass.”

The judge was particularly angry that Wilenchik suggested that awarding Hobbs her legal fees would, in Hannah’s words, “cause the public to question the court’s impartiality and undermine respect for the courts.”

“It is a threat to the rule of law posing as an expression of concern,” the judge wrote. “It is direct evidence of bad faith.”

Hannah had one other legal bone to pick with the party: the claim that it was exercising its First Amendment rights.

“The First Amendment does not give a litigant the right to file and maintain a groundless lawsuit,” he wrote.

Judge rules for Fontes, Hobbs in video voting dispute

A judge said Monday that some people who vote remotely are legally entitled to use video screens to cast their ballot despite a state law that makes it illegal.

In an extensive ruling, Maricopa County Superior Court Judge Randall Warner, an appointee of former Democratic Gov. Janet Napolitano, agreed with Assistant Attorney General Michael Catlett that Arizona law clearly requires that a ballot “be delivered” to someone who is seeking the help of a “special election board.” These are panels set up in each county, consisting of one Republican and one Democrat, who go to homes, nursing homes and other facilities to help people who are unable to fill out their own ballots.

“The statute is unambiguous,” Warner wrote.

But the judge said that doesn’t end the issue.

“The county recorder has a duty — as does everyone else involved in the election process — to ensure a voter’s disability does not prevent them from voting,” he said. That includes a requirement to make “reasonable modifications.”

“If a person’s disability is such that they cannot meet with a special election board in person, then the ‘in person’ requirement must yield to federal law,” Warner wrote.

The practice at issue comes up when a voter cannot or will not meet with a special election board. That can range from individual concerns by someone who may have a compromised immune system to those confined to nursing homes, assisted living centers and similar facilities where access has been restricted due to COVID-19.

Instead, the policy crafted by Maricopa County Recorder Adrian Fontes — and echoed by guidelines issued by Secretary of State Katie Hobbs for other counties — has election workers use a computer tablet to “meet” with someone who is confined. That voter can use his or her own computer or a tablet furnished by the election board.

Election workers would go through the ballot line by line with voters, confirm the ballot reflects their views, and then effectively “sign” the ballot for them.

Catlett argued there is no need for video voting at these facilities, even in the face of COVID-19. He pointed out the Arizona Department of Health Services has decreed that election workers are “essential” and are permitted to enter these premises.

That argument did not impress Warner.

“The issue is not the legal impediment to in-person contract, it is the health risk,” the judge said. “Federal law does not allow Arizona to impose on a disabled voters the choice between voting and protecting their health.”

Still, the judge said, his ruling isn’t a broad license for expanded use of video screens to cast ballots.

“That does not mean the county recorder is free to use video voting whenever he wants or for any voter who asks,” Warner wrote. He said the law still requires that personal contact, a requirement that “only yields to federal law when necessary to allow a disabled person to vote.”

Catlett, however, argued that what’s being proposed here is not just different but also dangerous.

“It strips away the one method for voter integrity that the Arizona Legislature included in the statutory procedures,” he said.

“It may be the wave of the future,” Catlett told Warner.

“It may be a great thing,” he continued, even if there are safeguards. “But all of those considerations need to be decided by the Arizona Legislature.”

Warner dismissed that contention, saying the risk of fraud is low.

“Bipartisan special election boards are a safeguard against that,” Warner said. “Conversely, there would be irreparable harm if disabled voters are unable to vote, and it is later determined that this violated their rights under Arizona and federal disability law.”

But Monday’s ruling also was not a clear victory for Fontes.

He had asked Warner for a blanket ruling to rule his policy of how and when to allow video voting is necessarily legal. And Fontes was backed by Hobbs who put out her own guidelines for video voting that mirrored what Maricopa County had adopted.

Warner refused.

“There is no way to know in advance exactly what situations will necessitate a video interaction,” the judge said. More to the point, Warner said he can’t determine when video voting is legal and when it is not without having a specific case in front of him.

“The court cannot issue declaratory relief approving the policy in advance of its application,” the judge said.

During arguments earlier in the day, Catlett even suggested that Fontes and Hobbs actually have a broader goal in mind than helping a handful of voters who need this kind of assistance.

“It’s fairly clear that they contemplate 100% virtual voting,” he told Warner, saying that Fontes plans to use FaceTime to allow people to vote online, “which is completely insecure.”

Catlett complained that those guidelines are far too broad, allowing for “full video voting” if someone is unable to mark a ballot.

“There’s no connection that has to be because of illness or injury or physical limitation or qualifying disability under the ADA or under the federal law,” he said. “There’s any number of reasons why somebody may be unable to mark their ballot.”

In fact, he said, the guidelines even allow for video voting for people who are “uncomfortable” with face-to-face voting due to COVID-19.

“The way their policies are written, if you forgot to request a mail-in ballot, you’re afraid to go to the polls in person due to COVID, you would qualify to take advantage of this procedure,” Catlett said.

Attorney Joshua Bendor, representing Fontes, told Warner that Catlett was raising issues that did not exist in a bid to quash all forms of video voting.

“This case is about the recorder’s attempt, using a very targeted policy, to ensure the disabled people in Maricopa County who are physically unable to mark their own ballots due to disability can vote in the election this year,” he said.

Ken Bennett blames SOS for falling short of $5 contributions

Arizona Secretary of State Ken Bennett certifies the 2014 primary election canvass on Sept. 8, 2014. (Photo by Evan Wyloge/Arizona Capitol Times) — Republican gubernatorial candidate Ken Bennett (Photo by Evan Wyloge/Arizona Capitol Times)

Gubernatorial hopeful Ken Bennett is blaming Secretary of State Michele Reagan for coming up short of the $5 donations he needs to qualify for public funding.

Bennett spokeswoman Christine Bauserman said the web site run by Reagan’s office for online contributions for Clean Elections funding went dark at 5 p.m. Tuesday. Only thing is, Bennett had until midnight to reach the 4,000 he needed to free up $839,704 for his bid to become the Republican nominee.

Officials in Reagan’s office are not disputing what happened. And they say that the site was restored — apparently several hours later — after being informed of the problem.

But spokesman Matt Roberts said the problem originates with how the site was first programmed years ago, when people were allowed to make their $5 donations online. He said it was designed to stop taking donations at 5 p.m. on deadline day.

And the person in charge of the office at that time was Ken Bennett, who left office at the end of 2014.

That explanation drew an angry response from Bauserman.

“So you’re telling me that over four years with all the advancements in technology and payment methods, that the system has not been re-looked at or redesigned?” she asked, saying that if that’s the case it amounts to “gross incompetence.”

“There wasn’t a reason to change anything,” Roberts responded. And he said that’s backed up by the fact that Bennett, who become secretary of state in 2009, did not do updates ahead of the 2012 or 2014 elections.

Bauserman said Bennett is weighing whether to seek judicial relief, whether in the form of reopening the site now, after the deadline, or some other method to give him his chance to qualify for that public funding.

Tom Collins, executive director of the Citizens Clean Elections Commission, said any fight that Bennett has is with Reagan’s office. But he suggested that, at least on a surface level, Bennett has a legitimate complaint about the site going down early.

“I don’t know of any statutory authority to shut it down at 5,” he said.

Less clear, Collins said, is whether Bennett can get any legal relief, whether from a court or even the commission.

“He would have to show, it seems to me, that he has some reasonable likelihood of collecting some actual qualifying contributions,” he said. “And he’d have to show that number is the number he’s short by.”

Bauserman declined to say how many $5 contributions Bennett has on hand, whether through the web site or people giving in person or by mail. Collins said it was his understanding that on Aug. 6, the last time he got an update from the Bennett campaign, there were about 3,100 donations.

And Collins said even if Bennett could show he could squeak in with barely more than the 4,000 needed, that’s not likely to be good enough.

He said a random sample of those are sent to county recorders to verify that the names and signatures match those of registered voters. And Collins said there always are some that are thrown out.

The fight leaves a related question: How quickly could Bennett get the money — and could he even make use of it given the election is Tuesday?

No protection in election law for some campaign signs

PHOTO BY CARMEN FORMAN/ARIZONA CAPITOL TIMES

Removing or replacing damaged signs is a part of Jenny Clark’s daily routine.

The spokeswoman for the Yes on 305 campaign – an effort to get voters to uphold a 2017 law that would expand Arizona’s school voucher program – fields multiple calls and texts each day with reports of signs in support of her cause that have been cut in half, tagged with graffiti, or just plain wrecked.

“It seems to me to be a lot of vandalism and destruction,” Clark said, but her focus is on spreading the Yes on 305 message. There’s not enough time or energy to be focusing on vandals who damage the campaign’s signs, she said.

Even if she did, there’s not much state election officials would do about it.

That’s because of a loophole in Arizona election law, which states it’s a misdemeanor to alter, damage or remove a political sign, but only those signs for “any candidate for public office.” The same goes for mailers, flyers or other hand-delivered materials. The protections apply during a period of time that begins 45 days before the primary election and ends seven days after the general election.

But no such protections are offered to the myriad signs dotting Arizona right-of-ways that advocate for or against ballot measures like Proposition 305.

Even if Clark were to lodge a complaint with the Secretary of State’s Office, “I don’t think anything could be done under election law, unfortunately,” said Elections Director Eric Spencer. “I assume that the statute in question… was amended over the years based on candidate-related incidents, so that explains why it’s so candidate-centric. But in my mind, there is no rational distinction between a ballot initiative sign and a candidate sign.”

It’s a loophole that some lawmakers have been aware of for years. Rep. John Allen, R-Phoenix, sponsored a bill in 2015 to clarify that all political signs should be protected during campaign season. His bill defined political signs as those that are meant to influence the outcome of the election.

That bill never made it out of the House of Representatives.

Allen’s effort followed accusations against former lawmaker Bob Robson, who was briefly charged under election law for tampering with campaign signs. The Maricopa County Sheriff’s Office, headed at the time by Sheriff Joe Arpaio, led the investigation.

The charges against Robson were later dropped by the Maricopa County Attorney’s Office. Officials said the facts of the case didn’t fit the elements of the offense as defined in statute.

That’s because the sign at the heart of the case wasn’t a sign for a candidate for public office, an argument that attorney Tom Ryan had floated to defend Robson.

“If they’re not a candidate sign, they’re not protected. The law is specific to candidate signs,” Ryan said.

Attorney Kory Langhofer said the oversight in election law isn’t a big deal. After all, the misdemeanor penalty in election law matches the penalties for destruction of property in the state’s criminal code.

It’s a Class 2 misdemeanor to knowingly destroy property that’s valued at $250 or less. Political campaigns could always seek recourse through county attorneys, or look for recourse in city ordinances, Langhofer said.

Langhofer acknowledged that prosecutors are often reluctant to take up those types of misdemeanor cases. And Ryan said the chances of a county or city attorney taking on such a case would be “slim to none.”

Spencer signaled a willingness from the Secretary of State’s Office to take action, if only the law were changed to allow them to scrutinize claims based on an amended election law. Signs making arguments for or against ballot measures qualify for the same First Amendment protections as signs that support or oppose candidates for public office, he said.

“There’s a legitimate political need for folks in the election world to be able to make a complaint to the Secretary of State’s Office and have the complaint be evaluated under election law, as opposed to a sort of robotic referral to the Attorney General’s Office for a property crime,” Spencer said. “It’s not like a bike theft.”

Pandemic’s role unknown in rise of early voters

In this March 10, 2020, file photo, a King County Election worker collects ballots from a drop box in Seattle for the primary election in Washington State, where elections are all mail. In Arizona, where voters can ask for a mail-in ballot, Democrats and some Republican election officials are calling for an all mail election, at least for this year as the coronavirus causes anxiety for face-to-face contact at the least and sickness and death at the worst. PHOTO BY JOHN FROSCHAUER/ASSOCIATED PRESS

Election officials say it’s nearly impossible to know if the pandemic has led to an increase in voters who have registered to the state’s Permanent Early Voting List compared to other election years because nobody keeps track of that data.

Some counties update information in real time, but do not save information from previous days, months or years – and that includes the Secretary of State’s Office. As of May 5, there were 2,772,998 early voters, according to the office. But with no information to compare that data to, there’s no statistical way to know how many people have joined since COVID-19 kicked off nor how many people on average sign up in any given election year.

However, in Maricopa County they have daily information readily available on the recorder’s website and seem to at least track the first week of every month. Updated numbers from May 7 show 1,748,152 early voters in the state’s largest county. That’s an increase of 2,668 from one month ago and an increase of 37,111 since February 7. Though some county officials estimate a higher increase can be from preparing for voting in the Democratic Presidential Preference Election on March 17.

David Stevens, the Republican county recorder in Cochise County, said his county saw an increase of about 10% of voters on the list, but those mostly came in February.

“It always increases as you get closer to an election,” Stevens said.

Yavapai County Recorder Leslie Hoffman, also a Republican, said because counties don’t ask voters why they are signing up for the list, there’s no actual way to know if they are signing up due to the pandemic or because an election is approaching.

Hoffman said one thing she has noticed, though, is the interest in joining the list has increased.

“The biggest thing we’ve had are people calling asking ‘How do I get on it?’” she said.

Yavapai County already has 77.6% of its registered voters on the permanent early voting list, which Hoffman says is the largest percentage in the state.

Maricopa County has 73.6% of its voters on the list, and the state has a rate of 70.6%.

A further breakdown from the Secretary of State’s Office shows the highest percentage of PEVL voters are Republicans at 37% compared to Democrats at 35%, Libertarians at 1% and other party or non-party affiliated voters at 27%.

For Pima County, Christopher Roads, the chief deputy recorder, said numbers have increased from 411,110 last December to 420,239 as of May 5.

After Arizona Capitol Times inquired to the Secretary of State’s Office, a spokeswoman said they would likely start keeping track of this data monthly to prepare for future questions about the information. But no reason was provided as to why the data was not being tracked already.

Hoffman also wanted to clarify misreporting regarding the Maricopa County Elections Department, asking the board of supervisors to approve a new plan for early voting in August.

She said it’s being reported that Maricopa County Elections Director Scott Jarrett asked for approval to extend early in-person voting by 14 days, but state law already requires early in-person voting to be open for 27 days before an election.

Hoffman said what Maricopa County was trying to do is open more voting centers for 14 days before the primary on August 4.

Megan Gilbertson, a spokeswoman for the elections department, confirmed what Hoffman said. Jarrett was asking the board of supervisors to open 75 to 100 voting centers to help prevent further coronavirus spread and increase social distancing, much higher than the previous election.

“In 2018, we provided anywhere between five to 35 voting locations prior to Election Day,” Gilbertson said.

Hoffman said in Yavapai County they will have 25 voting centers open for the primary, but that could change if they can’t find enough poll workers. A problem she said extends to the entire country.

Stevens said Cochise will have 17 voting centers open.

Voters who are interested in signing up for the list can still do so and can also request a one-time ballot by mail for the August primaries since it’s more than likely there won’t be a universal ballot by mail option due to Republican elected officials opposing the idea.

Non-party affiliated voters can vote in the primary election by choosing which party’s ballot they want to receive, which is different from presidential preference elections where voters must be registered to that party to vote.

Latest figures released by the Secretary of State’s Office show Democratic voters now outnumber independents by about 28,000, likely due to the Democratic-only election that was held in March.

System could help tribal members past one voter registration hurdle

National Congress of American Indians literature touting tribal voting. Advocates welcomed a new policy in Arizona that makes it easier for people without standard street addresses - a common issue in tribal areas - to register to vote. But they also note that addresses are just one of many hurdles Native Americans may face when it comes to voting. (Photo by National Congress of American Indians/Creative Commons) — National Congress of American Indians literature touting tribal voting. Advocates welcomed a new policy in Arizona that makes it easier for people without standard street addresses – a common issue in tribal areas – to register to vote. But they also note that addresses are just one of many hurdles Native Americans may face when it comes to voting. (Photo by National Congress of American Indians/Creative Commons)

Advocates said a new policy that lets Arizona residents without traditional street addresses register to vote online is not perfect – but it’s a vast improvement over the old process.

Navajo Nation President Jonathan Nez said of the change this month by the Arizona Secretary of State’s office is critical.

“This is a very important election, I think, across the country, and we want our votes to be counted,” Nez said.

The change allows prospective voters with nontraditional addresses to still register online with the use of “plus codes” – latitude- and longitude-based location codes that can be used to identify homes without street addresses.

Before the change, Arizona voters could not register online with nontraditional addresses like post office boxes or general-delivery addresses. That disproportionately affected rural tribal communities in Arizona, where just 18% of Native Americans have home mail delivery, according to a 2020 Native American Rights Fund report.

Nez said last week that a “super-majority of our Navajo people utilize the post offices to get their mail. There’s no residential addresses, no street addresses here.”

The new policy was announced Sept. 4 by Arizona Secretary of State Katie Hobbs, whose “office is continually working to ensure a more inclusive process,” a spokeswoman said.

Alex Gulotta, Arizona state director for All Voting is Local, said Hobbs “should be congratulated because, this late in the cycle, this close to the deadline, they are implementing a fix that … will allow people with nonstandard addresses to access a system they haven’t been able to access.”

Hobbs’ office said it had already successfully processed registrations with non-standard addresses and plus codes in the days after the change.

But Native advocacy groups said that within days of the change, they had heard of at least one person for whom the new system failed, said Travis Lane, assistant director of the Inter Tribal Council of Arizona.

Lane said he expects the system to have problems, but “because it’s the only option that we have, we are promoting it.” Hobbs’ office has provided Native voter advocacy groups a special link that can help tribal members confirm whether their registration went through and the office will send out a paper form to people who report problems.

While the change could solve one major voter registration challenge for Native Americans in Arizona, non-traditional addresses are only one of 10 common barriers tribal members face when registering, according to the Native American Rights Fund’s report. Other challenges include limited internet access and lack of day-of in-person voter registration at polling stations.

Nez said he was happy to see the change but worried that, since it came “late in the game,” people may have tried to register earlier and been unsuccessful. He said his office will continue letting Navajo voters know they can still register, including online.

Usually, Gulotta said, the fix might not have made a big difference for tribes since most Native voters register in person due to poor internet connectivity on much of reservation land. But COVID-19 has hit tribal communities particularly hard, and closed traditional in-person registration sites and events.

Given this reality, providing tribal communities a registration avenue that didn’t exist before “could make a measurable difference,” Gulotta said.

Nez said the tribe has set up drive-up wireless hotspots in communities for tribal members to use for any number of needs, like registering to vote.

While the update is worth celebrating for the upcoming election, Gulotta said Arizona’s online registration system is still clunky and should be updated, which would give the secretary’s office greater flexibility to make changes when needed.

Modernizing Arizona’s voter registration system and policies around voting – like adding same-day voter registration – needs to be “on the top of the priority list in January,” but the latest change is a good start.

“They were able to create a fix for the address issue that I would say is a temporary fix – but it’s a really good temporary fix,” Gulotta said.

The Breakdown: HOBB-ling toward 2020

The Arizona Secretary of State’s campaign finance websites are broken. The See the Money feature was a pet project of former Secretary of State Michele Reagan and now five years after its inception, it’s still not working properly. What does this mean for next year’s election?

And there are 49 days until the 2020 session so bills are now coming in, what can we expect from legislators in the near future?

Don’t forget to subscribe to The Breakdown on iTunes and Stitcher.

Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.

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Issue: Arizona Secretary of State