TUCSON, Ariz. (KGUN) — UPDATE:
After hearing arguments for a little under an hour, the court ruled against Attorney General Kris Mayes and the State of Arizona, interpreting state statute as saying Cochise County's Board of Supervisors operated within its legal rights to designate some powers to the county recorder, and that the Board did not overstep its authority.
Judge Howard Fell said, "the Board does have the power to delegate at least some election duties to the recorder that are not otherwise specifically authorized by law."
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Members of the Cochise County Board of Supervisors and the County Recorder will appear in court Tuesday as they face a preliminary injunction from the State of Arizona over their move to delegate election duties to the Recorder's Office.
In the legal filing, the State calls the Board's move part of a "pattern of exceeding their statutory authority with respect to elections."
In a response, members of the Board say the intergovernmental agreement with County Recorder David Stevens is no different than the previous arrangement with the Elections Director, and that functions of the role will remain under the supervision of the Board.
The Board had voted 2-1 in late February—about a month following the resignation of Elections Director Lisa Marra—to assign elections duties to its County Recorder David Stevens.
That delegation of duties crossed a "legal line," according to Arizona Attorney General Kris Mayes, whose official statement read "In addition to this broad transfer of power, I am deeply concerned this move might shield or obscure actions and deliberations the Board would typically conduct publicly under open meeting law."
It was one piece of the picture as a legally-contentious 2022 election cycle wrapped up in Cochise County.
Back in November, the Board cast a 2-1 vote to order full hand-count audit of ballots, which was later ruled in Cochise County Superior Court as an unlawful act, outside the state's statutory auditing process. The Board was also court-ordered to certify its election results in late November, after the body had voted 2-1 to delay certification by the statewide deadline.
In the court filings for Tuesday's preliminary injunction, the State cites a "disregard" for state statute by consolidating election powers with their County Recorder ahead of an upcoming special election in May for a proposed tax to fund a new jail district:
On May 16, 2023, Cochise County will conduct a special election in which the voters will determine whether to approve a tax to fund a new jail district. Less than two months before the deadlines to register for and vote in that election, the Board of Supervisors executed a contract (the "Agreement") with County Recorder David Stevens that purported to transfer nearly all of the Board’s statutorily assigned election duties to the County Recorder.
This effective transfer of the Board’s powers to the County Recorder has no statutory basis and threatens the right of Cochise County residents to have their elections conducted lawfully and transparently. The State has brought this action to prevent and redress those harms. But the Court cannot un-ring the bell for the County’s voters once Defendants begin implementing the Agreement and exercising (or abdicating) authority thereunder in connection with the upcoming special election. Accordingly, the State respectfully asks the Court to preliminarily enjoin Defendants from implementing the Agreement.
In the Board's and Recorder's response to the injunction, they say their arrangement is "perfectly legal," and indicate that portions of the State's motion are vague:
Combining functions in one office is something that is common, and by the Attorney General’s own admission, is not illegal. But it is just the Challenged IGA that is the problem, as the Attorney General claims that it “goes over the legal line.” Of course, the Attorney General never says where this line is, and offers this Court nothing in the way of some sort of standard to judge which agreements are legal and which are not. Apparently, this is one of those “I know it when I see it” situations.
Additionally problematic for the State’s position is that, to take issue with the Challenged IGA, the State is essentially forced to inaccurately describe the Challenged IGA. In short, the Challenged IGA does not cede or delegate power to anyone. It simply assigns the responsibility for administering a Board function to another person, just as the Board did with the Elections Director previously.
Putting those flaws aside, the biggest flaw in the State’s argument is that even though the State pushes for a rushed resolution prior to the May 16, 2023 Cochise County Jail District vote, it ignores the fact that “the governing body of any election district authorized to conduct an election may contract with the board of supervisors and county recorder for election services.” A.R.S. § 408(D)(emphasis added). For the only election that the Challenged IGA is likely to be in effect for, the Jail District governing body, which is special taxing district authorized under A.R.S. § 48-4001 et seq. and separate from the Board of Supervisors, could contract with the County Recorder anyway.
Watch KGUN 9 live Tuesday at 5 and 6 p.m. when Craig Smith will have more on this story.
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Anne Simmons is the digital executive producer for KGUN 9. Anne got her start in television while still a student at the University of Arizona. Before joining KGUN, she managed multiple public access television stations in the Bay Area and has worked as a video producer in the non-profit sector. Share your story ideas and important issues with Anne by emailing anne.simmons@kgun9.com or by connecting on Instagram, Twitter or LinkedIn.
