Attorney General Kris Mayes is displayed on a videoboard as she speaks at a public swearing in ceremony on Jan. 5, 2023. Photo by Jerod MacDonald-Evoy | Arizona Mirror
Every year since 2019, Arizona lawmakers have instructed the state’s attorney general to spend a half-million dollars to staff an “election fraud unit,” with no further instructions.
Democrats accused former Attorney General Mark Brnovich, a Republican, of using the unit for whatever was politically expedient, such as launching an investigation into Maricopa County’s 2020 election without ever making any final conclusions. Brnovich then hid findings that debunked claims of widespread fraud, according to documents first published Feb. 22 by the Washington Post.
Now, Republicans are making a similar complaint, after new Attorney General Kris Mayes, a Democrat, announced she will use the unit to combat voter suppression, to protect election officials from harassment, and even to protect vote-by-mail.
Without a script for what it’s supposed to do, the Election Integrity Unit is at the whim of the politician who runs it. And given that the attorney general already has the power and resources to investigate criminal voter fraud and voter intimidation even without the unit, both sides have questioned whether it should exist at all.
Even Mayes has questioned it. The funding for the unit comes not from taxes but from legal settlements from consumer protection and consumer fraud cases, and Mayes said during her campaign that this money should be used to protect consumers from fraudulent schemes, even calling for Brnovich to resign for spending it on election-related investigations.
“He should not be misusing the AG’s office and the people’s money to climb the political ladder,” Mayes said at the time.
She told Votebeat in an emailed statement last week that it’s the Attorney General’s job to “protect the rights of Arizonans, including their right to vote.”
“Under my administration, the election integrity unit will work to ensure every eligible Arizonan can exercise their right to vote without interference – including casting their vote by mail, upholding and enforcing our state’s voting statutes, and protecting our state’s elections workers from threats of violence and intimidation,” she wrote.
Republican state Rep. Alexander Kolodin, vice chair of the House elections committee, says that mission equates to “prosecuting conservatives for engaging in constitutionally protected First Amendment activities,” such as questioning election officials and procedures.
The funding for the unit remains in the initial budgets proposed by Republican lawmakers and by Democratic Gov. Katie Hobbs. But Kolodin said he is trying to gather support to eliminate the unit.
Asked recently if Arizona needs the unit, Secretary of State Adrian Fontes said, “Frankly, no.” Then, when told what Mayes is going to do with the unit, he said that he was supportive of it. He said he has been calling for threats to voters and election officials to be investigated in a more robust way for years.
Original intent was to ‘shoot down’ fraud allegations
When lawmakers originally funded the Election Integrity Unit in 2019, in the form of a budget line item, there were a few ideas about what it was supposed to be doing.
Brnovich brought the idea to the Legislature, his spokesperson Ryan Anderson told reporters at the time, to disprove the notion of pervasive voter fraud by investigating claims.
“We’re not starting from the premise that there is fraud,” said Anderson. “We’re saying, if there is fraud, let’s devote the resources to look at it, expose it, and prosecute as proper. If there’s not fraud … let’s look into the allegations and shoot down allegations if the proof is just not there.”
Separately, some lawmakers were looking to provide state oversight to county-run elections. Administrative problems had plagued Maricopa County’s elections for years, such as long waits at polling places in 2016 and late openings in 2018.
Former state Sen. Kelly Townsend, chair of the elections committee at the time, said that there needed to be some outside oversight of election procedures that would also help the Legislature learn what improvements to make. Her original intent, she says now, was to give that authority to the state Auditor General.
“If the goal is to restore the elections process to a point where the public could be confident that they are run well, that’s what would do well,” she said. “The Legislature needed to be educated, and our auditor general is under our wheelhouse.”
Her bill proposed to set up a bipartisan commission for election oversight. That bill got stuck in committee, and Townsend said Republican colleagues then asked her to support the unit in the Attorney General’s Office.
“It was, That’s your offer, take it or leave it,” Townsend said.
Townsend said she was reluctant to support the idea, because she didn’t believe Brnovich would do much with the office.
“I thought he was trying to stay out of controversial issues,” she said. “He wouldn’t touch anything that was political.”
Brnovich did not respond to an email or social media message seeking comment for this story.
Unit undermined by politics
The unit’s work was criticized from the start, in part because Brnovich hired Jennifer Wright as an assistant attorney general to oversee it.
Years before Brnovich hired her, Wright had worked alongside True the Vote, a Texas-based nonprofit organization known for making unfounded allegations of voter fraud, to train poll watchers in Arizona and Texas. Democrats said that effort targeted Hispanic and Black areas in an attempt to disenfranchise voters. Wright said those claims were false and she never disenfranchised anyone.
Wright told Votebeat in a recent interview that the immediate politicization of her role made it difficult to do what she wanted to accomplish. In part, Wright said had been hoping to use the office to educate the public about election myths, but the office became “very very cautious of me, and my position,” because of the negative public perception of her past work.
For example, she said when “Sharpiegate” began on Election Day in November 2020 — the false claim that poll workers were purposefully giving Republicans Sharpie pens so that ink would bleed through ballot paper and invalidate their votes — she had already researched the topic during the primary election and knew that it was false. The office confirmed shortly after the election that the use of Sharpies “did not result in disenfranchisement,” in a letter to the county. But Wright said the office decided it wouldn’t make sense for her to speak publicly further about the topic.
“How could I go out and dispel myths and rumors when they have already branded me?” she said.
It’s unclear whether having a specialized unit with four employees actually changed the AG office’s investigation directions and prosecution priorities. The unit comprised Wright, a criminal attorney, a special agent, and an administrative staffer.
Even before the Election Integrity Unit’s creation, the Attorney General — the chief legal officer in the state — prosecuted provable cases of criminal voter fraud. And its civil rights division investigates voting discrimination under the Arizona Civil Rights Act, such as denying someone the opportunity to register to vote or to cast a ballot.
In a November 2020 presentation to state lawmakers, Deputy Attorney General Josh Kredit rattled off what the unit saw as accomplishments, including Wright’s work reviewing the 2019 changes then-Secretary of State Hobbs wanted to make to the Election Procedures Manual, a document that further outlines state law and has the force of law. The office made 100 revisions, including ensuring uniform security measures for drop boxes and preventing Hobbs from allowing all-mail elections, Kredit said at the time.
Two other accomplishments were filing an injunction to block Fontes from sending out a mail-in ballot to all of Maricopa County’s Democratic voters in the presidential primary election, and defending in the U.S. Supreme Court the state’s decision to enact a law limiting how people can collect and cast others’ ballots and the state’s procedure for rejecting ballots cast out of precinct.
During that same presentation, Wright spoke about the more than 2,000 complaints of election fraud that were submitted to the office after the 2020 election.
After spending months and 10,000 hours of staff time— and millions of dollars and hundreds of hours in Maricopa County resources — investigating Maricopa County’s handling of the 2020 election, Brnovich released in April 2022 what he called an “interim report” of its findings, which raised even more suspicions about the county’s election but did not offer any conclusions.
That interim report hid broad conclusions from his investigators that there was no merit to the claims — including allegations of duplicate votes, satellites changing votes to favor President Biden, bamboo ballots — according to internal documents never released by Brnovich, but released by Mayes on Wednesday.
“The ten thousand plus hours spent diligently investigating every conspiracy theory under the sun distracted this office from its core mission of protecting the people of Arizona from real crime and fraud,” Mayes said in the news release Wednesday.
County officials, mostly Republicans, said the report was “full of false innuendo and misrepresentations” about the 2020 election and was shocked Brnovich would release it. Brnovich was running for U.S. Senate at the time, and he was accused of releasing it to appease Donald Trump and his supporters. He never issued a final report.
“Attorney General Brnovich shifted one direction to another depending on which way the political winds were blowing,” Fontes said in January.
Wright said she was focused on civil violations of election laws, not criminal violations. But the office rarely went to court for civil violations. Wright said part of her difficulty was she didn’t have the power to fully investigate and prosecute civil cases, such as when a county didn’t follow procedures under state law. The Attorney General’s Office power is limited, dictated by the Legislature.
Unit faced limits to its powers
Wright asked lawmakers during the November 2020 presentation for civil subpoena power, which she believed would allow her to better gather evidence of violations of criminal election law, rather than waiting for information from records requests that were at the whim of the government agencies she was investigating.
During the next legislative session, in February 2021, lawmakers proposed giving the unit the subpoena power. Townsend said she filed a bill on the matter. An example of this, Townsend said, would be Maricopa County failing to follow law for how to track duplicated ballots.
“If we aren’t going to enforce those laws, why are they on the books in the first place?” Townsend said.
But there was bipartisan opposition to the idea, with some Republicans saying that it would give the unit too much unyielded power and voting rights organizations saying the unit shouldn’t exist at all.
State Rep. Kelli Butler, a Democrat, asked what was to stop the attorney general from saying his or her own election wasn’t fair, and issuing subpoenas to investigate.
“How disruptive and chaotic would that be?” she said.
The proposal failed. Wright said that and the separation of duties between the criminal and civil side of the office made her work difficult. Asked in a recent interview what the original mission of the unit was and if she accomplished it, Wright paused.
“That’s a hard question,” she said. “My overall mission was … transparency and accountability in election administration. I don’t think we ended up with either. And that’s unfortunate.”
Wright said that a government body isn’t the right place for the unit.
“I wonder if having it in the state office is the right place,” she said. “It would be nice to have a bipartisan nonprofit of some sort that really focused on these issues, especially on the civil side.”
Wright left the office shortly before Mayes was sworn in.
Mayes wants to investigate election threats
Even before the election was officially called for Mayes, she made clear her plans to change the unit’s mission. She cited the people who watched voters drop off ballots at drop boxes as an example of the voter intimidation she would attempt to combat.
“I think we saw something this year that was really frightening and really unacceptable, which is that we had people going to the polls with guns, with body armor, with face masks, essentially trying to intimidate and threaten voters,” she said, according to the Arizona Republic. “When I’m attorney general, we will not put up with that.”
Asked last week how she felt her new mission for the office fit with what the attorney general was tasked with, Mayes said protecting voters and election officials was within her duties.
“As Attorney General, I will not allow threats and intimidation to go unchallenged,” she wrote. “And I will not stand by while hardworking public servants who serve as cornerstones of our democracy are driven from office for simply doing their jobs.”
She wrote that the office also has a role to play in prosecuting the rare cases of voter fraud, but it should be done in the way it has been historically, through referrals from county recorders or the Secretary of State’s Office.
“Not by politicizing the office and chasing down every conspiracy theory under the sun,” she wrote.
Former Attorney General Terry Goddard, a Democrat, said he doesn’t believe Mayes has the independent authority to pursue election lawsuits, outside of protecting civil rights, unless given that authority by the Legislature.
Goddard said that if Mayes wants to take on investigating election official intimidation, she could get that through an agreement with county attorneys stipulating that she will take the lead on related criminal cases, or by asking the Legislature for that power. She could also work jointly with Fontes in the Secretary of State’s Office, he said, in which that office brings a lawsuit and the Attorney General’s Office serves as the office’s attorney.
Kolodin, the state representative, said he believes it would be wrong for Mayes to use the office to go after people who are watching drop boxes or county officials who refuse to certify their elections when they have questions about them. He sees Fontes’ letters to Mayes asking for her to investigate the public release of voter signatures as an example of how the power could be abused.
State Sen. Ken Bennett, a Republican and former secretary of state who is now vice chair of the elections committee, said there are more effective ways of building trust in elections than through a unit in the Attorney General’s Office. He said the state needs to “get beyond the partisan aspects of elections and establish laws and procedures that make sense whether the leaders are Republicans or Democrats.”
“We just have to focus on what’s good public policy no matter what the letter is behind their name, and what do the people deserve as far as transparent and verifiable elections,” Bennett said. “That’s where our focus should be.”
***CORRECTION: An earlier version of this article incorrectly identified former state Rep. Kelli Butler as a Republican, not a Democrat.
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