Heap takes election dispute to Arizona Supreme Court

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(The Center Square) - Maricopa County Recorder Justin Heap filed an appeal to the Arizona Supreme Court after a state Court of Appeals issued a stay motion favoring the county Board of Supervisors in the ongoing lawsuit about who controls certain election functions.

The Arizona appeals court for Division One favored the Phoenix-based board in a 2-1 decision. That means an Arizona Superior Court’s decision that gave Heap control over disputed election functions in the county is on hold while the case continues.

The appeals court’s decision relied on the Purcell principle, which states “courts are reluctant to order last-minute changes in election rules and procedures because they can burden election workers and complicate and create confusion in the voting experience.”

“The practical impacts of these changes, and even the injunction’s claim to mitigate practical harms for the voter, all demonstrate that this is no mere backroom dispute over accounting principles or organizational charts. It is, by everyone’s assessment, a live conflict hurtling toward real-world consequences in elections about to begin,” according to the appeals court's majority opinion.

Early voting in Maricopa County for the July 21 primary election starts on Wednesday.  

Heap told The Center Square on Monday that the issue with the appeals court’s ruling is that “no Arizona court has ever adopted the Purcell principle as a rule.”

The claim with the appeals court ruling about it being too close to the election has an issue because the Arizona Superior Court ruling came down in April, Heap said.

“The board had almost eight weeks to try to implement this and for us to make changes. They largely ignored that ruling and continued forward, seeking a stay until that point,” he added.

Heap said the board has “created the crisis in which they’re now asking the court to remedy.”

“We don’t think it’s valuable to create a precedent where government bodies can just ignore court orders for an extended period until it’s a crisis situation and then use the crisis they created as grounds to get the ruling stayed,” Heap explained.

He added that he is asking the Supreme Court to lift the stay issued by the lower court.

The recorder noted he did not have a timeline for his appeal to the Arizona Supreme Court.

Supervisor Mark Stewart told The Center Square on Monday that the appeals court's ruling “was not a judgment about the case,” but rather a decision to settle the case after the elections were over.

Stewart said he has empathy for both sides in the dispute, noting ambiguity exists in local statute about who is responsible for certain election functions.

“I think most people think the recorder has a legitimate argument,” Stewart said. But he added the board also has an “operational argument” because “the ruling would create some confusion for how [Maricopa County runs] elections this fall.”

Stewart said he supports “restoration of the recorder’s authority based on what the statute says.” He added that he also favors mediation between the two sides.

Stewart requested a professional mediator in May, but a judge denied his request.

Heap and the board were scheduled for a court-ordered mediation hearing on Monday, but the board later withdrew its request after the appeals court granted the stay motion last week.

The recorder said he was interested in having a court-ordered mediation despite the appeals court ruling.

Instead of having court-ordered mediation, the board said it is interested in having public hearings, Heap noted.

Stewart said the board is “open to mediation, but the format in which that mediation would take place is where there’s some consternation and some disagreement about how that’ll be handled.”

Heap told The Center Square that he thinks mediation would be more effective in settling the dispute between the two sides because of the dispute's legal complexity.

According to Stewart, the tone between the two sides has “damaged trust.”

The board member said his goal since the beginning of the dispute has been to follow the law, protect the election calendar and “give staff clear direction to resolve” the dispute without endless litigation.

“Voters cannot be collateral damage in this fight, and that’s what’s happening,” Stewart explained.