Brnovich remains silent on fake electors who tried to give Arizona's vote to Trump

Arizona Attorney General Mark Brnovich speaks to a crowd of Republican voters at the party’s primary debate for the U.S Senate in Phoenix on June 23, 2022.
Robert Anglen
Arizona Republic

Arizona Attorney General Mark Brnovich in July 2020 took a hard-line stance against state electors who rejected the popular vote.

Rogue actors who defied the will of the people by voting for another presidential candidate threatened to turn elections into chaos, he said.

But the state's highest ranking law enforcement officer has remained mostly silent about groups of Arizona Republicans who in December of that year sent fake electors to Congress in a bid to keep former President Donald Trump in office.

Brnovich, who is running for U.S. Senate, won't answer questions about whether his office investigated the fake electors or if their efforts potentially violated any state laws.

"The U.S. Justice Department is exercising original jurisdiction to examine the complaints," his office said in an email response Friday. "Accordingly, if you have any questions about the criminal investigation, please contact the Department of Justice."

The statement came after The Arizona Republic questioned Brnovich about his position on electors in July 2020 and the fake slates of Trump electors in December 2020.

Among the questions:

  • Did the Attorney General's Office investigate? 
  • Did his office determine if a crime had been committed? 
  • Did his office make any referrals to other agencies?
  • What can Brnovich say about the fake electors?
  • Does he believe the electors acted legally? 

Fake electors scheme under investigation in 7 states

A federal grand jury is probing the scheme to reject votes for President Joe Biden in Arizona and six other states. The effort has also drawn scrutiny and subpoenas from the the House Select Committee investigating the Jan. 6, 2021, riot at the U.S. Capitol.

Members of the bipartisan committee describe the fake electors as part of a plot by Trump and his allies to undermine democracy by sowing doubt in the Electoral College process.

Under the U.S. Constitution, voters select a group of electors who cast the state’s official votes based on the results of the election.

The bogus slates of electors were intended to delay the official certification of the 2020 election results in Congress — even as Trump supporters stormed the Capitol.

The plan was the brainchild of John Eastman, a lawyer on Trump's legal team who proposed the competing slates could allow Vice President Mike Pence to toss out votes from all seven states and declare Trump the winner. 

John Eastman speech on Jan. 6: Georgia injected ballots to help Dems, Pence needs to act

Pence, however, refused to go along.

Trump lost the election in Arizona by about 10,000 votes. But in December, two separate groups falsely identified themselves as Arizona's 11 official electors and submitted fake documents to the federal government.

On Dec. 7, 2020, a group calling itself the Sovereign Citizens of the Great State of Arizona met and sent signed and notarized documents to the National Archives claiming their votes should go to Trump and Pence.

On Dec. 14, 2020, a separate group of 11 Republicans met at the Arizona Republican Party headquarters and signed a document declaring they were "duly elected and qualified" electors for Arizona. 

They asserted the state's 11 electoral votes should go to Trump and Pence. They commemorated the event in a YouTube video. 

Jan. 6 hearings:What to know about Arizonans and the committee

Arizona Republican Party Chair Kelli Ward sat at the head of the table and said a prayer for the group, which included State Rep. Jake Hoffman, R-Queen Creek; U.S. Senate candidate Jim Lamon; and former state representative Anthony Kern, now running running for a state Senate seat.

The other seven signers were: Tyler Bowyer, chief operating officer of the conservative nonprofit Turning Point USA; Nancy Cottle, a member of the Maricopa County Republican Committee; Samuel Moorhead, vice chair of the Gila County Republican Party; Robert Montgomery, former chair of the Cochise County Republican Committee; Loraine Pellegrino, former president of the Ahwatukee Republican Women; Greg Safsten, former executive director of the Arizona Republican Party; and Kelli Ward's husband, Michael Ward. 

The Department of Justice in June subpoenaed the Wards, Cottle and Pellegrino. It's unclear if any others received orders to testify.

Thomas Lane, a campaign official for President Donald Trump who appeared in the YouTube video, also was subpoenaed, the Washington Post reported.

No action against fake electors in Arizona

Arizona Attorney General Mark Brnovich

In Arizona, electors, by law, must follow the will of the people. But Brnovich's office has taken no public action against the fake electors.

The 11 electors actually chosen by Arizona voters cast their votes for President-elect Biden and Vice President Kamala Harris, formalizing the Democrats' victory nationally and in the state.

Brnovich, who is fighting to win the U.S. Senate GOP primary in August for the right to face off against incumbent Mark Kelly, has long sought to cast himself as a Trump Republican.

But his failure to support Trump's election fraud claims in Arizona has put him at odds with the former president. 

Trump's lawyers recently accused Brnovich of misleading voters with campaign ads implying he has former president's support. They sent Brnovich a cease-and-desist order threatening legal action if the attorney general did not stop sending solicitations invoking Trump's name and image.

Trump in June endorsed Blake Masters for the Senate race. Masters has embraced Trump's claims of election fraud.

It appeared in March as if Brnovich's office might be building a case against one group of fake electors. 

The Office of the Federal Register acknowledged the Arizona Attorney General’s Office first sought information a year earlier, in March, 2021, about documents submitted by fake electors. 

Inquiries, however, did not focus on the Republican Party fake electors, but on the sovereign citizens, according to emails released by the National Archives and Records Administration.

Specifically, the notarized documents affixed with the state seal the group sent to the National Archives. 

"I know we are looking specifically for the purported 'certificate of ascertainment' bearing the official seal of the State of Arizona which was filed with the National Archives sometime during the first two weeks of December 2020, along with any correspondence related to the filing of that document," a senior litigator for Bronovich's office wrote in an email.

The prosecutor queried how documents needed to be delivered in order to be "useable at trial."

'Respecting the will of the voters'

More than 16 months later, no state charges have been filed regarding any of the fake electors — and Brnovich is now kicking questions to federal authorities. 

Earlier in 2020, he publicly applauded a U.S. Supreme Court decision on "faithless electors," who in 2016 sought to prevent Trump from being elected president by steering Electoral College votes to other candidates.

The case isn't completely parallel to the fake electors in Arizona, but it shares broad themes about usurping the will of the people and attempts to undermine the popular vote.

And it represents one of Brnovich's only public statements about electors in Arizona.

Brnovich joined attorneys general in 44 other states on a legal brief saying Colorado and Washington had the right to check electors from substituting candidates of choice. 

"Today's ruling is about respecting the will of the voters," Brnovich said in a July 6, 2020, statement. "Our elections must never be thrust into the chaos by rogue actors failing to carry out their responsibilities."

Brnovich said the ruling effectively upholds the constitutionality of Arizona law, which calls for the cancellation of any electoral vote and the replacement of any elector who fails to vote based on the state's popular vote.

Arizona law further states any presidential elector who knowingly refused to cast the vote as prescribed "is no longer eligible to hold the office of presidential elector and that office is deemed and declared vacant," according to Brnovich's July 6, 2020, press release. 

"Respecting the authority of states to bind presidential electors to the will of the voters is a big victory for Arizona and our country," he said.

Robert Anglen is an investigative reporter for The Republic. Reach him at robert.anglen@arizonarepublic.com or 602-444-8694. Follow him on Twitter @robertanglen.