Investigator cites no accountability for Secretary of State elections blunder, but no criminal offenses

Michele Reagan at her 2015 inauguration /Photo by Evan Wyloge/Arizona Center for Investigative Reporting

By Ben Giles | Arizona Center for Investigating Reporting

An investigation has found the Arizona Secretary of State’s Office broke state law when it failed to mail publicity pamphlets on deadline to hundreds of thousands of voters during a 2016 special election, but did not act criminally.

Secretary of State Michele Reagan had already conceded that her office broke the law by failing to meet deadlines for mailing pamphlets with details of what was on the ballot during a May 2016 special election, but had placed the blame squarely on IBM, a vendor for elections officials, according to a report produced by her staff shortly after the election.

Related: Arizona Voter Registration Continues To Increase Since July Report

Reagan now disavows that report and accepts full responsibility for the errors made, both by producing inaccurate mailing lists and failing to properly notify the public of the error for nearly three weeks, according to an investigation by former federal prosecutor Michael Morrissey, who Attorney General Mark Brnovich hired to review the elections blunder.

Reagan’s spokesman did not immediately provide comment for this story.

The failures of Reagan’s elections staff left some 200,000 voters without timely, valuable information during an election with two initiatives, one to tap state trust land for more K-12 school funding and another to change pensions for police and firefighters.

Despite the obvious violation of state law — publicity pamphlets for the May 17, 2016 election were required to be sent to voters by April 20 of that year, in time for early voting — the investigation did not find anyone at the Secretary of State’s Office criminally liable for what Morrissey described as an honest mistake. Elections staff were well aware of their duty to mail the pamphlets in a timely manner, and did not “knowingly fail to perform it,” he wrote.

“Despite errors of execution, Secretary Reagan and her staff approached the task of producing and mailing the publicity pamphlets with diligence and an acceptance of their responsibility,” Morrissey wrote.

Until April 22, 2016, when elections officials were first made aware of the issue, Reagan’s staff thought they had succeeded.

“The fact that the Secretary and her staff were mistaken does not change the conclusion that no violation of criminal law occurred in the attempted but failed execution of their duty,” Morrissey wrote in the report.

Still, Morrissey had much to say about the staff’s handling of their error, particularly that Reagan herself was kept in the dark for days and that the public wasn’t informed until 19 days after the error was discovered.

Reagan first learned of the pamphlet mailing error not from her staff, but from NPR reports beginning on May 6, 2016, according to the investigation. Three days after that, her staff finally briefed her on the gravity of their mistake.

Before that, staff had privately discussed mailing postcards to the 200,000 affected voters, but rejected the idea. Top staffers at the Secretary of State’s Office, including State Elections Director Eric Spencer and Assistant Director Janine Petty, “considered and dismissed various options without ever seeking input from or even informing Secretary Reagan that hundreds of thousands of pamphlets had not been mailed to voters,” Morrissey wrote.

Spokesman Matt Roberts was left to tell Reagan of the error in an email on May 9, and that publicity pamphlets had been printed and mailed at a later date.

“Did they make the statutory deadline?” Reagan responded.

Roberts replied that the pamphlets were “long past statutory deadlines” and that a complaint had been filed with the attorney general asking the election be delayed.

At the time, Reagan rejected calls to cancel the election, as did Brnovich, though the attorney general called the secretary of state’s handling of the matter “a complete fiasco.” He later hired Morrissey to determine what went wrong, and if criminal acts were committed.

Spencer’s interview with Morrissey provides some context for election officials’ lackluster response to their error. Morrissey wrote that Spencer said that “while ballot errors are a ‘big issue,’ a ‘publicity pamphlet is the phone book of the elections world’ as it is available everywhere.”

“That role is inconsistent with the role of the publicity pamphlet envisioned by the Arizona legislature, the courts, and more importantly, the voters. Further, it is not true that the publicity pamphlet was available everywhere,” Morrissey wrote.

Morrissey noted that while Reagan backed down from her office’s claim that IBM, not elections staff, was to blame for the error, there were no consequences for her staffers that bungled her office’s response and left her uninformed.

“While professing accountability however, Secretary Reagan declined Election Director Eric Spencer’s offer to resign in the aftermath of the Special Election, and no staff member was disciplined in any way for the failure to advise Secretary Reagan in a timely fashion of the extent and cause of the error,” Morrissey wrote.

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October 2017