Capitol Media Services / 2016

PHOENIX — The failure of Secretary of State Michele Reagan to get ballot brochures on time to the homes of 200,000 voters ahead of last year’s election broke state law, according to a report Wednesday.

Attorney Tom Morrissey, asked to investigate by Attorney General Mark Brnovich, said his year-long inquiry found Reagan’s staff failed to follow various procedures designed to ensure that Arizonans knew what they were voting on in the May 2016 special election.

Potentially more significant, Morrissey said Reagan was aware of the problem more than two weeks before she notified the public that many voters would not be getting the brochures on time.

The brochures described the details of Proposition 123 to put more money into public education and Proposition 124 to make changes to public pension plans.

He said if people knew they were not getting the pamphlets in the mail before early voting started, as required by law, they could have made efforts to seek out the information for themselves. But by the time Reagan made the failure public — which she did only after attorney Tom Ryan complained to Brnovich — some people had already voted and put their ballots into the mail.

That, Morrissey said, was unacceptable.

But he found no evidence of criminal violations by Reagan, state Elections Director Eric Spencer or the staff.

The attorney said only “knowing” violations of state election laws subject violators to potential jail time and fines. And Morrissey said staffers were trying to comply with the law, even though they did not succeed.

That still leaves Reagan, as the top state election official, in civil violation of the law. But Morrissey said a gap in state statutes provides no penalty.

Brnovich spokesman Ryan Anderson said attorneys within the office are reviewing the findings to see if further action is necessary. But without a change in the law, Anderson said, there is nothing to deter election officials from repeating the error.

“As we said last year, mistakes were made and we were responsible,” Reagan said Wednesday in a prepared statement. “Since, we’ve made staffing changes, added additional layers of quality control and will utilize a different vendor.”

Arizona law mandates that one pamphlet go to every household with a registered voter ahead of people getting their early ballots. The pamphlet contains not only what is supposed to be an impartial explanation of every measure but also pro and con arguments. By law, that should have happened by April 20, 2016.

Morrissey found that staffers in Reagan’s office tried a method of generating a mailing list different than one used by her predecessors. But the list excluded voters in 13 of the state’s 15 counties who were also on another list where they automatically get early ballots.

Overall, with multiple voters at some homes, the failure to get 200,000 of the 1.9 million brochures out by the deadline may have left 400,000 without the information.

There were just slightly fewer than 1.1 million votes cast at the May 17 special election, and Proposition 123 was approved by a margin of 19,416 votes.

Morrissey said county election officials began notifying Reagan’s office as early as April 22 about voters not getting pamphlets. And by April 26, he said, “it was evident that the failure was widespread and not limited to a single county.”

He said, though, that Spencer advised staffers to respond only to county election officials who made specific inquiries.

“For 19 days ... Secretary Reagan’s staff and Secretary Reagan chose not to widely disseminate information,” Morrissey wrote. “The staff did not inform all county election officials, or the public, that certain pamphlets had not been delivered.”

Spencer specifically rejected the idea, he said, of mailing a postcard to affected voters to tell them that the pamphlets would be coming, albeit late.

“Other remedial options that would have provided wider notice to voters of the nature and scope of the problem, such as a press conference, or notice to the election officials in all 15 counties, were also not adopted,” Morrissey said.

Reagan finally acknowledged the problem on May 11, six days before the election and after about half a million votes had been cast.

But even then, Morrissey said, Reagan was not being honest with voters, saying the problem was with an outside company that was preparing the mailing list.

“In blaming IBM, Secretary Reagan failed to acknowledge that her staff, not IBM, was responsible for and produced the household mailing list,” he said. Morrissey said that was the fault of Reagan’s office, which “deviated from successful practices of previous secretaries of state.”

Morrissey also took issue with Spencer who, while being interviewed for the investigation, minimized the importance of the brochures. “That view is inconsistent with the role of the publicity pamphlet envisioned by the Arizona Legislature, the courts, and most importantly, the voters,” Morrissey wrote.

“Further, it is not true that the publicity pamphlet was available everywhere,” he said. For example, Morrissey said, many voters lack access to the internet to get one online.

Morrisey said Reagan declined Spencer’s offer to resign in the wake of the problem and no staff members were disciplined.

In complaining to Brnovich, Ryan asked that the election be postponed. The attorney general acknowledged the violation of state law but said nothing in the statutes gives him such authority.