AG tosses complaint against Fontes over early ballot costs

Adrian Fontes in 2017. Photo by Gage Skidmore | /Flickr/CC BY-SA 2.0

The Arizona Attorney General’s Office declined to pursue a complaint alleging that Maricopa County Recorder Adrian Fontes illegally spent taxpayer dollars on early ballots that he wasn’t allowed to mail to voters for the presidential preference election and that he should repay the cost out of his own pocket.

The Maricopa County Recorder’s Office spent $204,333 on 139,382 early ballots for voters who weren’t on the state’s Permanent Early Voting List and who hadn’t otherwise requested them, according to records the office provided to Arizona Mirror. Fontes had planned to send early ballots to every voter in the county so they wouldn’t have to go to the polls in person, saying the move was needed to help prevent the spread of COVID-19.

Jennifer Wright, who heads up the attorney general’s election integrity unit, wrote that it would have been illegal for Fontes to mail the ballots, a position that Attorney General Mark Brnovich and Secretary of State Katie Hobbs expressed at the time. But Fontes never mailed those ballots because Brnovich took him to court and obtained a temporary restraining order to stop him from doing so.

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The complaint was filed by a pair of Republican activists named Richard Hale and Marcus Milam, who alleged that Fontes broke the law by printing the ballots and therefore was personally liable to pay back the money he spent. Hale and Milam cited a state law allowing the attorney general to force public officials to repay money they’ve illegally spent, plus an additional 20%.

Wright concluded that “printing excess ballots for the PPE but not mailing them – which is what occurred here – is a budgetary and policy issue that must be addressed by the Maricopa County Board of Supervisors and the Secretary of State.” The Secretary of State’s office is responsible for reimbursing county recorders for the costs of conducting presidential primaries. 

And the Board of Supervisors has authority over the recorder’s budget and is responsible for ensuring that “county officers expend all public monies in a lawful and prudent manner, which does not appear to have happened here,” Wright wrote.

The recorder’s office said COVID-19 created a “complex situation” regarding the March 17 presidential preference election, and that Fontes’s “independent decision was made in response to a rapidly changing public health crisis.”

“While Recorder Fontes’ decision may have resulted in policy disagreements with other governing bodies, the Recorder’s Office continues to respect and acknowledge the independence of each governing authority. The Office will continue to work in collaboration to ensure that Maricopa County voters receive a high-quality voter experience that increases their access to voting while maintaining safety among this on-going health emergency,” the recorder’s office said in a statement to the Mirror.

Fields Mosley, a spokesman for Maricopa County, said the supervisors have little ability to dictate how Fontes spends his budget. Though the board sets annual budget guidelines, Mosley noted that elected officials have discretion on how to use some funds. He also said the board’s understanding is that the attorney general concluded it wasn’t illegal for Fontes to print the ballots, as long as he didn’t send them.

“The board’s responsibility is to make sure budgets are created and money is spent appropriately,” Mosley said. “We can’t do anything about it. There’s not a punitive component, and the voters ultimately have the say in November.”

Fontes, who was first elected in 2016, faces his first re-election in November. Republicans Stephen Richer, an attorney, and Clair Van Steenwyk, a radio host and perennial candidate, are running to unseat him.

Wright noted in her dismissal letter that Hale and Milam can still take Fontes to court on their own. Hale and Milam did not respond to emails from the Mirror, and it’s unclear whether they will file a private right of action against the recorder.

The costs that Fontes incurred including the printing, processing and destruction of the ballots, according to documents provided by the Maricopa County Recorder’s Office.

State law requires the Secretary of State’s Office to reimburse county recorders for the cost of conducting presidential preference elections. Statute sets a rate of $1.25 per registered voter, though the secretary of state can change that rate if she finds it to be insufficient.

Sophia Solis, a spokeswoman for Hobbs, said Fontes included the cost of the additional ballots in his nearly $4.2 million reimbursement request. Hobbs has not yet provided any money to the county for the presidential primary, and Solis said the office is still reviewing reimbursement requests.

Fontes still maintains that state law doesn’t prohibit counties from sending early ballots to voters who haven’t requested them. With the presidential primary just days away, and the COVID-19 pandemic beginning to take hold, he said he had to take action.

At the time Fontes made his decision, Ohio had just cancelled its own presidential primary due to COVID-19 fears, Gov. Doug Ducey and Superintendent of Public Instruction Kathy Hoffman had ordered Arizona’s K-12 schools closed, Maricopa County had decided to close 80 polling places and it was having trouble finding poll workers for the remaining locations.

“In my view, in order to be on the side of the voter, I had to make sure that voters had options. Sometimes leadership has to be bold,” Fontes told the Mirror last week.

County elections officials and the secretary of state’s office are planning to mail Permanent Early Voting List applications to all voters who aren’t already signed up to receive early ballots for the Aug. 4 primary and Nov. 3 general elections. There were about 3.9 million registered voters in Arizona as of April 1, according to the most recent totals available from the secretary of state’s office. Nearly 2.8 million of those voters were signed up for the PEVL in late May, Hobbs’s office told the Mirror.