Tell Us Who You Are, Mark Brnovich

In 2021, a case called Brnovich v. DNC was the most important voting rights case to come out of the Supreme Court. I’m not using important in a positive sense here.

You may recall that a prior case, Shelby County v. Holder, gutted Section 5 of the Voting Rights Act, permitting jurisdictions with a history of discrimination to implement new rules for voting without any prior review to ensure they didn’t have a discriminatory purpose or effect. Brnovich had a similar impact on Section 2, narrowly interpreting it to make it more difficult for parties to successfully litigate to invalidate practices or procedures that discriminate on the basis of race, color, or membership in an identified language minority group.

Note the way the two cases dovetail: Section 5 used to allow parties to go to court to prevent newly passed discriminatory laws from going into effect. After Shelby County, those measures could became law, leaving parties to go to court only after the discriminatory rule was in place, in hopes of having it overruled before it did too much damage to voters’ rights. Brnovich made it far more difficult to win those lawsuits. After Shelby County and Brnovich, taken together, it’s more difficult to prevent voter discrimination and easier to get away with passing laws that suppress the vote.

Do you ever wonder about the names behind the lawsuits? Who is Brnovich?

Mark Brnovich was Arizona’s attorney general in 2021. He was the defendant in the Section 2 case, sued by folks who objected to restrictive measures used in the state under his interpretation of what Arizona law permitted. Brnovich’s bio is featured on the conservative Federalist Society’s website. He was an at-large delegate to the 2016 Republican National Convention, bound to support Donald Trump for at least one ballot. Previously, he worked for the private prison firm Corrections Corporation of America. His wife is a federal district judge, appointed by President Trump. (She was also appointed to serve as a state court judge by Janet Napolitano, who served as Barack Obama’s Homeland Security Secretary after she was Arizona’s governor.)

Brnovich favors an end to marriage equality. He is a staunch proponent of the death penalty. He sued the Biden administration, making the feigned claim that they shouldn’t be permitted to halt construction of the border wall because incoming migrants would have an adverse environmental impact.

When it comes to voting rights, Brnovich lined up on the side of the Big Lie. He warned DOJ against interfering in Arizona’s audit of the 2020 election. You may recall that Arizona’s Republican-led Senate hired a firm called the Cyber Ninjas, who had no experience with elections whatsoever, to audit the ballots from Maricopa County. DOJ expressed concerns about whether voters were being intimidated and preservation of ballots interfered with, in violation of federal law. Brnovich told DOJ to stay out of it.

Brnovich has made clear who he is and what he stands for. So on Wednesday, new headlines featuring Brnovich, while appalling, came as no surprise. None whatsoever.

In January 2022, Maricopa County election officials released their own 93-page report, which undercut virtually all of the allegations raised by Cyber Ninjas, affirming that the county, which had not voted for a Democrat since the 1950s, went for Biden. That wan’t enough for Brnovich.

Today, the Washington Post reported that he conducted his own investigation into the results in Maricopa County. He did that nearly a year after the election, using more than 10,000 hours of his staff’s time—10,000 hours paid for by Arizona taxpayers. In March 2022, those investigators wrote a report that concluded “virtually all claims of error and malfeasance were unfounded.” So Brnovich rushed straight out to reassure Arizona voters they should have confidence in their elections.

Um, no. No he didn’t.

In April, in the middle of a Republican primary battle to be the state’s nominee for the U.S. Senate seat ultimately won by Mark Kelly, Brnovich “released an ‘Interim Report’ claiming that his office had discovered ‘serious vulnerabilities.’ He left out edits from his own investigators refuting his assertions.” By September, his office had compiled a review of claims of fraud in the election that systematically refuted them, demonstrating that none of the groups making such claims, ranging from state lawmakers to so-called “election integrity” groups, supported their claims with any evidence.

Brnovich didn’t disclose the full report to the public before he left office in January.

Ironically, Brnovich had confirmed Trump’s loss in Arizona following the 2020 election in a timely fashion. The timing of his investigation into the election and his new interest in casting doubt on its outcome suggests that it was about his own Senate aspirations. When the results didn’t serve that purpose, Brnovich tried to selectively present them and them resorted to ignoring them altogether.

Given the current news cycle, this story may not have much of a life span. But it deserves one. Bottom line: Brnovich used his elected office to push false claims about voter fraud in Maricopa County, claims that his own staff concluded were false. Brnovich allowed mistrust in our elections to fester, which, in its own way, is as much a menace to American democracy as the insurrection on January 6. He withheld the results of his investigation, which concluded that there was no evidence of criminality or fraud during the 2020 general election, from voters who would have benefited from having that information when they went to the polls for the 2022 midterm elections.

Americans should never tolerate this sort of conduct from elected officials. Confidence in our elections is a bedrock necessity for a functioning American democracy. Subverting that confidence for personal political gain, which has become something of a theme for Republicans, is unacceptable. Brnovich’s name will forever be attached to a Court decision that made it more difficult for Arizonans—specifically, Black and brown ones—to vote. But it’s also one more name to associate with Republican efforts to make Americans doubt the validity of election results, conduct that sets a path for legitimizing not just Trump’s Big Lie, but perhaps future actions by people who challenge elections, not because there was fraud, but because they lost in a fair fight and they want power nonetheless. Americans should be on guard.

We’re in this together,

Joyce