PHOENIX — A judge won’t immediately block Attorney General Mark Brnovich from investigating — and even potentially prosecuting — Secretary of State Katie Hobbs over her decision to temporarily take an online petition site offline.
In a ruling Friday, Maricopa County Superior Court Judge Joan Sinclair said all Brnovich has done is send a letter to Hobbs saying that taking the E-Qual system offline would be “contrary to law.”
The judge acknowledged the letter does tell Hobbs that Arizona law makes it a crime — with potential fines and prison time — for her to knowingly fail or refuse to comply with state election laws.
But Sinclair said that, at least at this point, all that is is just verbiage. And unless and until Brnovich does take action, she said, there is nothing for her to block.
Friday’s ruling is a setback for Hobbs who had hoped Sinclair would order Brnovich to back off. And it leaves legally unresolved Hobbs’ contention that she is obligated to take the system offline on March 11 to perform what she said are necessary updates to account for the fact the lines for legislative and congressional districts have been changed.
Hobbs, however, does not intend to back down.
Aide Murphy Hebert said all Sinclair decided was that it was premature to for her to block further action by Brnovich. More to the point, Hebert said the judge did not rule on a separate request by Hobbs for a declaratory judgment that she is acting lawfully.
“She still intends to take the E-Qual system down on March 11, because that is when counties have indicated they will begin updating new district boundaries in the statewide voter registration system,” Hebert said.
Brnovich also is not budging, with aide Katie Conner referring reporters to that original letter that concluded it would be illegal for Hobbs to take the system down.
“Arizona’s laws are not merely suggestions,” Conner said. “Now more than ever, we need our election officials to avoid playing political games.
All that means the case between the two officials with political aspirations — Hobbs hoping to be governor and Brnovich a U.S. Senator — is likely going to wind up back before Sinclair.
The fight is over the E-Qual system, approved a decade ago by the legislature.
It allows candidates for federal and state offices to get the signatures they need on nominating papers online rather than having to collect them in person with pen and paper. E-Qual is considered secure because it is linked to voter information maintained by the state and counties.
It is that link, however, that is causing the current problem.
Last month the Arizona Redistricting Commission approved new boundaries for the state’s 30 legislative and nine congressional districts. Those changes reflect population shifts and are designed to ensure each district has roughly equal population.
The legislature, recognizing the upcoming April 4 deadline for petition signatures, did give candidates permission to seek out names from both their old and new districts.
Only thing is, the E-Qual system accepts signatures only of people who live within a candidate’s district.
Hobbs said it cannot accommodate two different sets of maps. So she wants to take it down to allow counties to update their data to ensure people are signing only those petitions to which they are legally entitled.
What is causing the heartburn is her plans would keep the system offline through the April 4 filing deadline. That becomes an issue for candidates who were hoping to finish the signature-gathering process online, though they remain free to continue with pen-and-paper efforts.
In the letter to Hobbs, a Brnovich aide cited statutes that say she must maintain the E-Qual system, with no exceptions. And that’s where Hobbs was told that failure to do so is at least a Class 3 misdemeanor, with up to 30 days in jail and a $500 fine, and possibly a Class 6 felony, which carries a year in state prison.
Hobbs’ response was to file suit, characterizing the letter as “threatening” her with “unprecedented civil and criminal enforcement actions” for performing necessary maintenance on the system and asking Sinclair to intercede.
The judge, however, said the fact Hobbs has not yet shut down E-Qual and Brnovich has not brought action against her leaves nothing to be decided.
“The secretary wants this court to issue an order to protect her from something that has not occurred yet or may never occur,” Sinclair wrote.
“If the secretary goes forward with her plan and takes E-Qual offline, the AG may or may not file any civil or criminal complaint against her,” the judge continued. “If she takes her planned action, and he responds with a civil or criminal complaint, then the matter would be ripe for adjudication.”
Sinclair acknowledged part of Hobbs’ complaint is that Brnovich is acting in a way that exceeds his legal powers. And, she said, there are provisions in state law that do allow judges to intercede in such situations.
But at this point, the judge said, all that is just conjecture.
“It is simply unknown if action taken in the future by the AG would be lawful or not,” Sinclair wrote. “Any ruling by the court would be mere speculation.”
Nor was the judge swayed by Hobbs’ contention that the wording of the letter itself requires judicial intervention.
“While the secretary clearly viewed this as a threat, the letter did not promise or guarantee prosecution and thus does not create a controversy properly before the court,” Sinclair said.
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