The race that wasn’t supposed to be: Phoenix suddenly set to be the largest post-Roe battleground
Ahead of last week’s primary elections in Arizona, the focus was on which brand of Republicanism would win: the older-school GOP that grudgingly accepted the results of the 2020 presidential race, despite Donald Trump’s claims of massive voter fraud, or the “ultra-MAGA” wing that has transformed the state’s Republican Party into a bastion of far-right conspiracy theories and barely concealed white nationalism. The outcome of Tuesday’s vote seemed to deliver a partial verdict on that question. The victories of secretary of state candidate Mark Finchem, a Jan. 6 protester, QAnon supporter and Oath Keepers militia member; Trump-backed Senate nominee Blake Masters, a self-described nationalist who embraces the racist “great replacement” conspiracy theory; and gubernatorial candidate Kari Lake, who has called for decertifying the 2020 election and imprisoning her Democratic rivals, was a clean sweep for the conspiracist wing of the GOP.
Beyond that spectacle, a down-ticket local race for Maricopa County Attorney seemed comparatively tame. Yet it’s this office — the third-largest prosecutorial district in the country, after only Los Angeles and New York City — that is poised to have the most tangible impact on Arizonans, particularly when it comes to abortion rights in a state poised to ban most or all abortions.
For more than three decades, the Maricopa County Attorney’s Office (MCAO) has been under Republican control. Over the last 20 years, it’s earned a reputation for aggressive and politicized prosecutions, corruption, and, most recently, a series of shocking ethical scandals that forced its chief prosecutor to resign this March, triggering this year’s special election. Now, thanks to that record and the Supreme Court’s June abortion decision, the choice facing voters this fall could hardly be starker.
On one side of the equation is Democratic candidate Julie Gunnigle, a progressive who narrowly lost her bid for county attorney in 2020 and who, this time around, has won endorsements from celebrities like Mark Ruffalo and John Legend. An Arizona native who worked as an assistant state’s attorney in Chicago’s Cook County, Gunnigle has also held leadership positions with the Arizona Poor People’s Campaign and the marijuana legalization group NORML, with whom she fought trailer park evictions during the COVID-19 pandemic and for the automatic expungement of cannabis-related criminal records. Recently Gunnigle represented a woman placed on Arizona’s child abuse registry for having used medical marijuana while pregnant and has notably vowed that, if elected, she won’t prosecute any abortion-related cases.
On the other side is Republican candidate and acting Maricopa County Attorney Rachel Mitchell, a 30-year veteran of the office, including 10 years as a sex crimes prosecutor. For her part, Mitchell has said she would “follow Arizona law” when it comes to prosecuting abortion.
“My role is to enforce the law and to look at cases as they come to me and make a decision and follow the ethical charging standards that we apply to every case, which is the reasonable likelihood of conviction,” Mitchell told reporters in June. Although she suggested that she would probably not prosecute abortions obtained in the aftermath of sexual assault or incest — saying, “I am not about the business of revictimizing victims” — after she won her primary last week, Mitchell seemed to embrace the more extremist position. “My opponent in the general election, she wrote in a Twitter thread celebrating her victory, “is a Chicago lawyer who spends more time as a political activist than a practicing attorney and who openly admits she won’t uphold the law.”
The contrast between the two candidates comes amid a broader battle over how the criminal justice system will enforce abortion laws in red states and the prospect of what the New York Times described in June as a “Balkanized” legal landscape. After prosecutors in Texas’ five largest counties pledged not to prosecute abortion cases, a Republican state representative said he would introduce legislation allowing rural prosecutors to file criminal abortion charges outside their jurisdiction if urban prosecutors failed to do so. Just last week, Florida Gov. Ron DeSantis made national news by suspending an elected state attorney in Tampa who vowed not to prosecute abortion cases.
“This is the largest prosecutor’s office on the ballot in 2022 in the entire nation.”
Mitchell is best known outside of Arizona for her role in the 2018 confirmation hearing of Supreme Court Justice Brett Kavanaugh, when she agreed to serve as the “female assistant” of Republican senators in interrogating Stanford University psychology professor Christine Blasey Ford regarding her allegations that Kavanaugh had sexually assaulted her. After those hearings, Mitchell declared that no “reasonable prosecutor would bring this case based on the evidence” — an assessment widely seen as clearing the way for Kavanaugh’s confirmation.
Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.
“It can’t go without notice,” Gunnigle told Salon, that Mitchell “was the prosecutor from the Kavanaugh hearings who embarrassed Arizona on the national stage, turned her back on victims and survivors of sexual assault and quite literally gave us Justice Kavanaugh, who gave us this decision” overturning Roe v. Wade. Should Mitchell win in November, Gunnigle warned, Arizonans would face not only the prospect of abortion being weighed for prosecution by the woman who arguably enabled their criminalization, but also one who has presided over Phoenix’s dismal record on handling sexual assault, including MCAO’s years-long failure to prosecute any sexual assault complaints from Arizona State University, turning its campus into what Gunnigle calls “a rape amnesty zone.”
“When we tie these issues together,” Gunnigle continued, “voters realize that if they are sexually assaulted in Phoenix and become pregnant, it’s more likely that they will be prosecuted for obtaining an abortion than their assailant would be for attacking them.”
Since the Supreme Court’s decision in June, the landscape of abortion rights in Arizona has been a confounding mess, leaving residents, abortion providers and even lawmakers uncertain of what rules apply. Last spring, Gov. Doug Ducey, a Republican, signed into law a 15-week abortion ban that is currently set to go into effect in late September. There’s also a fetal personhood statute passed in 2021 that Gunnigle says “creates the real possibility that a person could be taken to court on charges of first-degree murder for obtaining or providing an abortion,” or potentially even being “a conspirator” to one, by paying or driving someone to obtain abortion care. That law is currently held at bay by a temporary court order following a lawsuit from the ACLU and Center for Reproductive Rights, which argued that the law is unconstitutionally vague. But there’s a third law in play as well, dating back to either 1901 or 1864 — in either reading, long before Arizona gained statehood — that provides for a nearly total abortion ban and mandates prison sentences for providers. For almost 50 years, the ancient law has been blocked by a court injunction, but after the Supreme Court’s ruling in June, Arizona’s Republican Attorney General Mark Brnovich asked for the injunction to be lifted.
“We have Republicans, anti-abortion advocates and politicians in disagreement even with each other about what the status of abortion law is here and our attorney general is trying to take us back two centuries to an inhumane and near-complete ban,” said Brittany Fonteno, president and CEO of Planned Parenthood of Arizona, which has endorsed Gunnigle. “Reproductive health, rights and justice are hanging by a thread in Arizona and there’s been nothing but chaos and confusion. Many providers have been terrified to provide healthcare to their patients and people in the community have felt really fearful and confused as to what their rights are.”
While Republicans, including Mitchell, maintain that only abortion providers will be prosecuted under new, or newly-enforced bans, abortion rights advocates say the 1864 law — which also criminalizes advertising contraceptives — is broad enough that it could be interpreted to target abortion seekers and those who help them as well. Advocates warn Republicans are intent on pushing the boundaries of criminalization, whether by outlawing people crossing state or national borders to obtain abortion care or by enacting Texas-style bounty laws that transform private citizens into enforcers of abortion bans. Already Dr. DeShawn Taylor, founder of the Phoenix abortion provider Desert Star Family Planning, says she’s noticed an increased number of people with ectopic pregnancies or incomplete miscarriages that were not properly diagnosed elsewhere. This suggests a growing reticence to treat even clearly failed pregnancies, Taylor said.
“Whenever abortion is criminalized, from what we’ve seen in other countries, we already have the case studies of what is going to happen here,” explained Taylor. “We’ve already had people prosecuted for miscarriages in this country, so it sets up the state to surveil all pregnant people and to monitor their activity while they’re pregnant. All it takes is for a family member or healthcare worker to call the police, and a person is introduced into the carceral state and all the damages to their lives, finances, etc. that comes from that.”
Amid this confusion, what happens in Maricopa County matters more than in most other Arizona jurisdictions, since, with roughly 4.5 million residents, the county represents more than 60% of the state’s population and it is home to almost all the abortion providers in the state. The Maricopa County Attorney’s Office is equally massive, with a stable of 400 lawyers and jurisdiction over more than 70 county departments.
What MCAO decides to do with regards to abortion care then, said Fonteno, will “set a precedent for the rest of the state.” But more than that, since neither California nor New York are facing abortion trigger laws, the county is also the largest prosecutorial district in the entire country that is affected by new, post-Roe abortion bans, meaning it’s likely to become a bellwether for how abortion cases will be litigated in red states across America.
“This is the largest prosecutor’s office on the ballot in 2022 in the entire nation,” said Gunnigle. Its sheer size means what happens there affects the rest of the country. MCAO, she noted, is also the legal advisor to the Maricopa County Board of Supervisors, which is the entity in charge of ensuring election integrity, and which was subpoenaed by Arizona’s Republican Senate in the aftermath of the 2020 election, leading to the state’s long string of election audits.
“My opponent Rachel Mitchell just took an endorsement by the person who wrote this subpoena,” said Gunnigle. “So our elections are at risk unless we have a prosecutor who’s willing to keep this office out of your private life and to protect your right to vote. Those are not issues that are normally at the top of mind when you’re voting for a prosecutor, but they need to be this time.”
One of the most interesting things about the MCAO election though is that it wasn’t supposed to happen at all.
By the time she resigned this March, the last elected Maricopa County Attorney, Allister Adel, had served less than half of her four-year term. Her brief tenure was marked by repeated scandals that drew attention to the office’s already long history of controversy.
In 2004, Andrew Thomas, a close ally of Maricopa County’s notoriously anti-immigrant sheriff, Joe Arpaio, was elected as county attorney, and went on to prosecute undocumented immigrants for “smuggling” themselves across the border and to champion workplace immigration raids. Thomas joined Arpaio in sustained feuds against local political enemies that included bringing bogus charges against county supervisors, ultimately costing the county millions of dollars and helping lead to Thomas’ disbarment for abuse of power. Thomas’ successor, Bill Montgomery, was widely accused of trying to run MCAO in secrecy, including by blocking the disclosure of public police records through financial threats and promises of indemnity to local law enforcement departments. His tenure also sparked multiple sexual misconduct allegations against prominent MCAO staff. When Gov. Ducey appointed Montgomery to Arizona’s Supreme Court, he was replaced by Adel, who made the office the center of national scandal over the last year and a half, when it was revealed that MCAO had conducted political prosecutions of Black Lives Matter protesters, including by declaring some members of a fictitious street gang they dubbed the “ACAB” or “All Cops Are Bastards” gang. That scandal ended up being a tipping point for the office.
When George Floyd’s murder launched an unprecedented wave of racial justice protests across the country in the summer of 2020, they struck a particularly sensitive chord in Phoenix, where another Black man named Dion Johnson was fatally shot by a state trooper on the same day. The Phoenix Police Department had also recently earned the distinction of being the “deadliest” police force in the country, while Maricopa County is primarily responsible for Arizona’s astronomical incarceration rate — such a harsh record of enforcement, noted ACLU Arizona staff attorney K.M. Bell, that, if Arizona was a country, it “would have the fifth-highest rate of incarceration in the world.”
Phoenix’s Black Lives Matter protests were met with “an unbelievable and unprecedented response from MCAO,” said Lola N’Sangou, executive director of Mass Liberation AZ, a South Phoenix civil rights group that seeks to end mass incarceration through prosecutor accountability. “They had an entire process by which they were trying to be the national leaders in heavy-handed responses to Black liberation protesters.”
If Arizona was a country, Maricopa County would have the fifth-highest rate of incarceration in the world.
On the first weekend of demonstrations, more than 350 protesters were arrested and charged by MCAO with nearly identical language that Gunnigle calls “copy-paste indictments.” That October, another group of 17 protesters were arrested and ultimately charged with assisting a “criminal street gang,” thanks to an Arizona law that allows prosecutors to deploy gang-related sentencing enhancements for defendants if they meet just two of seven broad criteria, including wearing certain colors or making statements of “self-proclamation.” In the case of the October defendants, as investigative journalist Dave Biscobing of Arizona’s ABC News 15 reported in a series on MCAO’s “political prosecutions,” the 17 defendants were charged as members of the “ACAB” gang because they’d mostly worn black, had carried umbrellas (to shield their identity from far-right counter-protestors) and had chanted slogans — mostly things like “Black Lives Matter,” but also sometimes “All Cops Are Bastards” — that police and prosecutors claimed fit the criteria of “self-proclamation.” The prosecutor on the case, April Sponsel — a gang prosecutor who led a MCAO unit dedicated to trying crimes against police and other first responders, and who was married to a member of the state trooper force responsible for Johnson’s death — claimed the BLM protesters were as dangerous as gangs like the Bloods or Crips. Some demonstrators faced stacked charges that could carry sentences of 100.5 years.
Subsequent revelations about MCAO and Phoenix PD added fuel to the fire. Phoenix PD referred to the October protesters as “dickheads” and “asshole kids” who should be “stomp[ed]” or tear-gassed. Members of the same department made and sold a “challenge coin” commemorating a 2017 incident when police shot a protester in the groin that was engraved with a phrase riffing on the neo-Nazi slogan, “Good Night Left Side.” Adel’s chief of staff, meanwhile, had posted a picture of herself in blackface on Facebook, leading multiple staff members to quit the office’s diversity committee. In another incident, police lied on the stand during a grand jury indictment of Bruce Franks, Jr., a nationally-known civil rights activist and former Missouri state representative, who police falsely claimed had “bull-rushed” them during a protest outside Phoenix PD headquarters in August 2020, although body camera and other video footage obtained by ABC 15 subsequently proved that nothing of the sort happened, and also that police had identified Franks as a target for arrest before he even reached police headquarters.
Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.
The national attention around Maricopa County’s record of “political prosecutions” sparked significant repercussions. A week after Biscobing’s report on the “ACAB” gang indictments, nine Phoenix PD officers were reassigned and Adel dismissed the cases, acknowledging that her office had “failed to properly vet” them while she had been struggling with health issues from a head injury. The MCAO claimed other protester “gang” cases had been accidentally labeled as such as the result of a “clerical error.” Sponsel was put on administrative leave before being officially fired by MCAO in late June.
A public campaign to fire Adel was also launched, with petitions accusing MCAO of coordinating with the Phoenix PD and Maricopa County Sheriff’s Office “to politically target and prosecute civil rights leaders” as well as billboard campaigns and press conferences from groups like Mass Liberation AZ. Amid further revelations that MCAO had had to drop close to 200 cases because the office forgot to file them by their deadline, Adel also came under investigation by the State Bar of Arizona and faced numerous calls for her resignation, including, by mid-February, fellow Republican Rachel Mitchell. (Adel, who had publicly disclosed her struggles with alcoholism, died this April as a result of health complications, a month and a half after she resigned.)
Since Mitchell’s appointment as interim county attorney in late April, she has presented herself as a reform candidate, promising to look into police misconduct and ethical violations by attorneys as well as wrongful convictions. But Gunnigle is campaigning on the message that, as a 30-year veteran of the office, Mitchell has been among the office’s inner circle amid all its failings. By the time Adel resigned, the MCAO had a 20% job-vacancy rate, which Gunnigle attributes to fallout from the scandals.
Meanwhile, throughout the controversy, Gunnigle appeared at press conferences alongside civil rights groups like Mass Liberation AZ. She hired Bruce Franks, Jr. — one of the targets of the 2020 arrests and prosecutions — as her campaign manager. She’s called for establishing a MCAO unit dedicated to investigating police use-of-force cases. And she’s touted the fact that her endorsement from Planned Parenthood of Arizona comes after that organization adopted a policy, several years ago, to not endorse any candidates who accept police union money. That, Gunnigle said, is “anomalous in a city like ours where it’s just been tradition that the police unions get to pick the prosecutor and then collude with them after the election.”
Activists in Arizona say the effort may pay off. After Adel’s resignation and the county’s declaration of a special election in March, candidates for the office had only two weeks to gather the signatures required to qualify for the primary ballot. While Gunnigle said it took more than six months to obtain the signatures needed for her 2020 candidacy — which she ultimately lost by just 35,000 votes — this time she was so inundated with calls to run again that she gathered the qualifying signatures within just 21 hours of the county’s announcement.
“This was a forced election. This race wasn’t supposed to be on the ballot,” said N’Sangou. “So [Republicans] are scrambling to figure out what to do. But you know who’s not scrambling is Julie Gunnigle’s campaign, because she’s been watching what the movement has been saying, and has been staying relevant and in the community’s eyesight this entire time, interpreting the horrific things coming out of this office.”
“It’s important to note that the problems at MCAO are not new,” said Bell of the Arizona ACLU, which in 2020 began conducting educational campaigns to alert voters to the importance of an office that typically falls to the very bottom of the ballot. Aside from the individual personnel issues, Bell continued, the office’s attorneys “have also been some of the biggest opponents of any sort of meaningful criminal justice reform, so trying to safely reduce Arizona’s rate of incarceration has been actively opposed by prior occupants of that office.” The office has committed myriad violations of the “Brady rule” that mandates that prosecutors share exculpatory evidence with defendants, Bell said, as well as “many documented incidents over the years of them failing to comply with their constitutional obligations. So as scandalous as the political prosecutions are, they are very far from the only issue with that office.”
And yet now the office appears uniquely vulnerable.
“The scandal in 2021 was so egregious that I think it made its way into a lot of households that normally don’t tune in,” said N’Sangou. “Never before have you seen [Gunnigle’s] base as energized as they are, particularly with Roe overturning. So I think there’s a really strong chance we’re going to see a flip in that office.”
Gunnigle says the difference so far between this election and 2020 has been “night and day.” In 2020, when she canvassed voters across Maricopa County, Gunnigle usually had to explain what MCAO was. “Now, when I’m knocking doors,” she told Salon, “voters already know not just what the office does and why it is problematic, but they have their own ideas as to what needs to happen to make it a more just place.”