Tuesday, May 11, 2021

TODAY IN ELECTION AUDIT LEGAL NEWS: Dismissal of Democrats' Challenge To Audit Signed By Judge (Settlement Agreement Still In Place)

In today's legal news surrounding the State Senate Republicans/Cyber Ninjas recount/audit of Maricopa County's November election:

1) Superior Court Judge Daniel Martin officially dismissed the Arizona Democratic Party's lawsuit challenging the audit/recount. The parties had asked for the dismissal as part of last week's Settlement Agreement. Per the stipulation, if any of the parties allege that the agreement has been breached, they can bring a new action to the courts after giving the other side a chance to fix the alleged breach. The Settlement Agreement can be read here.

2) KJZZ's Ben Giles gave a good breakdown this morning of the intra-AZGOP legal battle regarding an audit and/or a re-vote in the state party elections from January. (Here's the Minute Entry dismissing one of the cases, and our article on the parallel tussle.

3) The Arizona Supreme Court wasted NO TIME in getting rid of the Secret Government Takeover special action filed yesterday. In a unanimous, en banc decision within 48 (business) hours, the Justices treated the effort to invalidate 2018, 2019 and 2020 elections as an election contest. Under Arizona law, that had to have been filed within five days of the official canvass of (each) election.

Saying that "Although our courts have recognized that electors may have an implied private right of action to challenge voting machines’ compliance with applicable statutory requirements in certain limited circumstances, nothing in the statutes Petitioners cite grants them a private right of action to remove office holders and sit in their stead."

The Justices also gave "We the People" until Monday to file a motion to keep their identities sealed. Otherwise, the Court will follow its Open Records Policy.

  "AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

Monday, May 10, 2021

TODAY IN ELECTION AUDIT LEGAL NEWS: New State Senate GOP Subpoenas To County For Passwords & Routers, Anonymous Group Goes To AZ Supreme Court, More

 The political action surrounding the recount/audit by the Arizona State Senate/Cyber Ninjas continues to swirl. We are focusing on all of the related legal threads today. Check back for updates as we post updates and filings.

1) Arizona Democratic Party/Supervisor Gallardo v. Fann/Cyber Ninjas/etc: The parties reached a Settlement Agreement last week. Late Friday, they filed the Stipulation to Dismiss the case. (The agreement gives parties the right to go back to court if there are unaddressed breaches of the agreement.) The Stipulation is published below the jump.

2) A group of pro-Trump folks have anonymously filed a Special Action Petition with the Arizona Supreme Court. They also sent a letter to Arizona Attorney General Mark Brnovich notifying him of their extreme effort to nullify all Arizona election results from the past two general elections (2018 and 2020). They acknowledge that state law only gives the AG the right to seek this type of remedy, but since  "you (are) on the list of inadvertent usurpers" they are filing it themselves.

Not only are they requesting that the court un-do the results of Arizona's 2018 and 2020 elections and Tucson's 2019 election, they are offering themselves as temporary replacements for all those suddenly-vacant offices. (In their Motion to keep their names secret "due to a reasonable fear for our safety because of the heightened rhetoric in Arizona", but they are willing to step forward once appointed by the court.) It should be noted that the anonymous group is not represented by legal counsel.

The gist of their argument is that the voting machines used by Arizona (and Tucson) have "invalid VSTLs and uncertified VSM equipment" and that the elections during that time are "illegal".

(Speaking of "inadvertent", please take a moment to appreciate the irony of slide #99 in their Powerpoint presentation to the Supreme Court Justices. BTW, they are the same Justices who were also on the 2018 and 2020 election ballots.)

Their filings - including more than 100 pages of "evidence" are published below the jump. Please check back soon for more information about those filings.

3) State Senate Republicans are issuing new subpoenas for the Maricopa County Supervisors and Sheriff Paul Penzone. They are seeking passwords and routers that the County did not turn over following their previous subpoena battle. (We will update once the subpoenas are issued and available.)

4) The "other red meat audit" saw some action last week. Check out our article here.

UPDATE, 3:30pm: Judge Kemp today granted the AZGOP's motion to dismiss the case. "Whether or not any chicanery took place in the voting process on January 23, this Court finds that it does not have judicial authority to intervene in an inter-party dispute...." Another lawsuit seeking to review all of the election documents and materials is still pending.

(The filings related to (2) are "below the jump". Please click on the "read more" button.)

 "AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

Saturday, May 8, 2021

BREAKING: Judge DISMISSES Lawsuit To Force AZGOP Special Meeting To Address Voting "Irregularities" In Election Of Ward, Others (TODAY IN "THE OTHER RED MEAT AUDIT" NEWS*)

UPDATE, 5/10 at 3:30pm: Judge Kemp today granted the AZGOP's motion to dismiss the case. "Whether or not any chicanery took place in the voting process on January 23, this Court finds that it does not have judicial authority to intervene in an inter-party dispute...." Another lawsuit seeking to review all of the election documents and materials is still pending. The 3-page Minute Entry dismissing the case is published below.

ORIGINAL ARTICLE: "NEW: AZGOP "Fundamentally Dishonest" About Results Of Yesterday's Audit/Inspection; No Attorney Disqualification"

While most eyes continue to be focused on the Veterans Memorial Coliseum and the swirling news around the recount/audit being conducted by the State Senate/Cyber Ninjas, plenty was happening in the ironic intramural clash roiling the Arizona GOP over its (state-mandated) party reorganization election.

The rebellion began immediately following the results of that January meeting, in which Kelli Ward was relected as the Chairperson. The lawsuits focus on that and two of the other races for seats on the state committee - Sandra Dowling (former long-time Maricopa County School Superintendent) was first announced has having won before it was changed and Bill Beard lost a southern Arizona (CD2) seat.

On Tuesday, Superior Court Judge Mike Kemp refused to allow the AZGOP to force attorney Tim LaSota from representing the plaintiffs and has taken the AZGOP's Motion to Dismiss under consideration after oral arguments. LaSota has represented the state party in other matters, and the judge admonished him to "not use any information relating to his prior representation that would disadvantage Defendants in any way."

Friday, a group met at attorney Jack Wilenchik's (representing the AZGOP in this case) office to inspect the ballots and other records. More concerning than the small discrepancies between the number of ballots and the reported totals, according to the plaintiffs' supporters, were a large pile of completed ballots which were found together with blank ballots. 

Further frustrating the plaintiffs was that the inspection did not include other integral documents which could validate - or, invalidate - the election results. Jeremi Hale, a career auditor and state committeeman who was at both the January meeting and yesterday's inspection, described those missing items: "There were no credential reports or other crucial evidentiary artifacts to validate the ballots they gave us were complete or reflected total eligible votes."

The AZGOP declared the inspection "a win" in an email to party members, with state committeeman Constantin Querard declaring that "fundamentally dishonest".

In a statement to Arizona's Law/Arizona's Politics, Querard - who was present for yesterday's inspection - bluntly explained the frustration and irony of the situation:

I can't know for sure why they limited it, but I know that when the Maricopa County authorities or Democrats try to limit or stop audits the GOP wants of the November election, the AZGOP's position is that they are afraid, they're hiding something, they did something wrong, they cheated/stole, etc...  Do we apply the AZGOP's rhetoric to the AZGOP when it does the same thing?  Feels kind of harsh, so I'd generally want to avoid it.  But things were not done very well from what we were allowed to see, the counts were off compared to the number of ballots cast, and the Party is refusing to allow anyone to see any of the usual documents (credentials, sign-in sheets, proxies, etc.).  Why is anyone's guess, but if they did a great job and ran an accurate election, there would be no reason to spend big $ fighting in court to prevent people from being able to prove they ran an accurate election, right?

Two court cases are still proceeding, and if Ward and her folks manage to short circuit the meeting that had been called by the State Committeemen, I'm sure another call will result.  Sooner or later the Party will do things right.  Hopefully sooner, so we can move on past this.  (emphasis added)

Hale also notes that although the ballots cast number was three off in CD2 (Beard) and that was the exact number he lost by, it does not constitute proof that the election was intentionally tampered with, but it is another point of concern.

The AZGOP again urged the plaintiffs to "drop the nonsense" so that the Party can "remain focused on our sole mission: to elect Republicans and defeat Democrats." Meanwhile, Ward and the AZGOP twitter account remained focused on what she calls "America's Audit" (even though the stated purpose is to improve election laws).

(Correction: It was the CD8 at-large race which was off by three ballots, not CD2. Corrected in article. Re-correction: the original version was correct. Also, clarified that the lawsuits could also impact the State Chair results.Thanks to both Hale and Querard for post-publishing clarifications.)

*THIS WEEK IN "THE OTHER WHITE RED MEAT AUDIT" LEGAL NEWS

 "AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

Friday, May 7, 2021

BREAKING: IT'S BACK ON! Election Subpoena Battle Between State Senate, Maricopa County Resumes

The Maricopa County Board of Supervisors is again responding to threats of subpoenas for election-related materials this afternoon. After yet another emergency executive session was called to respond to a threatening letter from State Senate President Karen Fann's attorney, Board Chairman Jack Sellers issued a statement saying that the County is only looking at ways of providing virtual images of the County's routers.

"Today the attorney for the Arizona Senate President once again threatened the Board of Supervisors with subpoenas to compel us to come to the Senate and explain what we have already made clear.  The physical routers commanded in the January subpoenas route network traffic across 50 different County departments, not just the Elections Department.  Those routers contain some information that is confidential; some is related to classified law enforcement activities; and access to this map of the County network could potentially allow someone to intercept sensitive data entrusted to us.

In addition to these concerns, we have learned providing the physical routers will cripple County operations and cost as much as $6 million if we must replace the routers while the Cyber Ninjas have them.  We explored providing virtual images of the routers, but the security issues mentioned above remain the same."

Here's the letter sent by Deputy County Attorney Joe La Rue to Fann's counsel (Kory Langhofer).

(This is a developing story. Please check back frequently for updates.)

 "AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

Thursday, May 6, 2021

ANALYSIS: Fmr AZ Secretary of State Ken Bennett Proves Maricopa Recount/Audit Is a Five Alarm Fire

 A GREAT interview by @JenAFifield!

I'm ALARMED and have to tug on this thread. Pls bear with me!

ANALYSIS: It's more clear than ever that State Senate Pres. @FannKfann & "liaison" - fmr Secy/State - @BennettArizona have ABDICATED their responsibilities to @maricopacounty & ALL of its voters. (Thus, ENTIRE SENATE has abdicated, too.) This interview is evidence that can/should be reviewed/used by @TheJusticeDept's @CivilRights.

The "contract" between Fann & Cyber Ninjas is insufficient, the so-far-disclosed procedures are insufficient. 

When you add insufficient oversight by the liaison, you have a train wreck that is about to get MUCH worse. 

IF door knocking with our private info & under *color of state law* is permitted, there MUST be indep observers at every door. (Even if it adds to intimidation factor, strict oversight is needed.) Heck, @Arizona_DPS can probably lend some BODY CAMS!

HISTORY & GOVT REFRESHER: Arizona's Legislature - and, courts - have spent 109 years+ passing laws to ensure that our elections are fair, accurate and that voters can trust them If the Senate GOP felt a need to do a "full forensic audit" of just 1 county, they woulda/coulda/shoulda passed new laws providing the guiderails. They didn't and we are seeing the bad results.

I've previously expressed my alarm at the financial abdication and legislating abdication by the State Senate GOP.

But, Bennett's interview & overseeing abdication adds several alarms.

We now have a FIVE ALARM BLAZE threatening the foundation of our democracy. And, it is the arsonists who are trying to block the emergency response (not "Antifa").


Wednesday, May 5, 2021

BREAKING: Settlement Agreement Reached In AZ Democrats' Lawsuit Against State Senate/Cyber Ninjas Audit/Recount (READ Agreement)

The State Senate and Cyber Ninjas have agreed to settle the lawsuit filed against their audit/recount by the Arizona Democratic Party and one Maricopa County Supervisor. In the agreement (below), they agree that (1) the Cyber Ninjas will not compare early ballot envelope signatures with those in the voter registration files; (2) that they will allow news reporters freer access to the recount presently taking place at the Veterans Memorial Coliseum; (3) will continue to allow the Secretary of State to send observers to the recount; and (4) continue to abide by all of the policies and procedures which they submitted to the court last week.

The parties also agreed to procedures to follow in case either side believes the other is breaching the agreements. Along those lines, Secretary of State Katie Hobbs delivered a 6-page letter this afternoon detailing 13 concerns which must be addressed within the 48 hours specified in the settlement. The letter was addressed to Ken Bennett, a former Secretary of State who is now acting as the State Senate's liaison to the Cyber Ninjas.

Those concerns include a "partial list of incidents" compiled by the Secretary's observers on April 30 and May 1: 

--ballots left on tables unattended

--scrap paper tally sheets

--table leads "correcting" counters' tally sheets 

--assts "intermixing ballots from separate stacks" 

--counters conferring on how to tally a vote

--more

The audit/recount twitter account - formerly controlled by Bennett but now apparently operated by committee - has lashed out at Hobbs' letter, saying "AZ @SecretaryHobbs continues to make baseless claimes about this forensic audit but has never led an election audit in her entire career."

The suit was filed  by the Democrats on April 22, the day before the recount portion of the audit was set to begin. The case was marked by a chaotic initial hearing at which the judge proposed a temporary pause conditioned on the Democrats posting a $1M bond. After the audit continued, the judge recused himself upon discovering that one of the Cyber Ninjas' attorneys used to extern for him. 

The Cyber Ninjas then (unsuccessfully) tried to delay the hearing in front of the new judge by firing those attorneys the night before. The judge refused to stop the recount but also refused to allow the Cyber Ninjas to secretly file their policies and procedures. The parties agreed that the security plan for the site could remain confidential, but the Cyber Ninjas had not properly filed it and it was temporarily publicly released by the court.

Arizona Secretary of State Katie Hobbs intervened into the action, and issued a statement about today's settlement. Nonetheless, she uses the present tense while saying that her "concerns about this ongoing exercise increase every day."

 (This is a developing story. Please check back for more details.)

 "AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

BREAKING: Judge Denies Cyber Ninjas' Request For Emergency Hearing Re: Security Plan

Superior Court Judge Daniel Martin has flat-out rejected the Cyber Ninjas' request for an emergency hearing on the mistakenly-filed security plan. The company in charge of the State Senate's recount/audit had sought to file the security plan - along with other documents - under seal last week. After Judge Martin rejected that, the Cyber Ninjas reached an agreement with the other parties to the lawsuit to keep only the security plan under wraps.

Unfortunately for them, they had improperly presented the documents to the court initially, and the security plan became public at noon on Thursday. On Thursday night, attorneys for Cyber Ninjas filed a motion asking for an emergency hearing on what they claimed was the court's inappropriate release.

After no response from opposing attorneys and silence from the court, the judge this morning simply said that there were no grounds for an emergency hearing and denied the request.

Arizona's Law had posted on Thursday afternoon about the portion of the security plan which concerned the possibility of "Antifa" and "militia" activity near the Veterans Memorial Coliseum and stating that Antifa might try to cause a major emergency at the adjacent chemical tanks and then block emergency response personnel in order to create a security problem at the recount.

 "AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

Tuesday, May 4, 2021

BREAKING: Judge Dismisses Libertarian Case, Says Maricopa County's Bonus Election Audits In February Did NOT Require Parties' Presence

Maricopa County conducted two extra election audits in February, but did not need to invite the political parties to observe them. That was today's ruling by Maricopa County Superior Court Judge Joseph Mikitish, throwing out the Libertarian Party's lawsuit against the County.

In the statutorily-required election audits and tests - both before and after the election, the County does invite observers from the Democratic Party, the Republican Party and the Libertarian Party. However, in January, under political pressure from Republicans claiming that there was fraud in November's election, the Board of Supervisors approved additional audits to again try to convince the conspiracy theorists that the election was fraud-free.

The Libertarians filed the lawsuit during the February "bonus" audits, and the County moved to dismiss. (The Arizona Republican Party* tried to join in on the Libertarians' side.) In today's Minute Entry, Mikitish granted the Motion.

Mikitish explained his reasoning:
The Manual does not require political party participation in forensic audits not set forth by
statute. Rather, the Manual allows counties to conduct additional logic and accuracy tests not provided by law, “including with participation from representatives of the recognized political parties.” Election Procedures Manual at 86, n. 22. The “including with” language in the Manual is not mandatory. If the Secretary of State, who prepared the Manual, had intended party participation to be mandatory in discretionary post-election audits, she could have made that intention clear. For example, she could have stated that audits shall include party representatives or that no audits, mandatory or discretionary, could take place without party representation. She did not do so. 

Michael Kielsky, attorney for the Maricopa County Libertarian Party, tells Arizona's Law that his client has not yet decided whether or not to appeal the dismissal, but that he believes the judge struggled with his decision before accepting the County's strict reading of the statutes and EPM.

The case has some interesting parallels to the current recount/audit currently being conducted by the Republicans in the State Senate and the Cyber Ninjas. Like the County's February audits, the current activities are extra-legal - not anticipated or covered by either statutes (passed by the State Senate, etc) or the Elections Procedures Manual. 

*The AZGOP was represented by Chris Viskovic and Alexander Kolodin, the same firm currently representing the Cyber Ninjas at Veterans Memorial Colisseum.

 "AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

TODAY: AZ Supreme Court Tosses Law Unconstitutionally Capping Accident Restitution (READ Opinion)

The Arizona Supreme Court today unanimously tossed a law capping the amount of restitution that an accident victim can receive. The unconstitutional law was passed in 2006 to limit restitution to only $10,000*, although the Victims' Bill of Rights - passed by voters and added to the Arizona Constitution - calls for "prompt restitution".

In this case before the Court, the accident victim's damages were more than $160,000. Phoenix Municipal Court awarded full restitution, but it was overturned by Superior Court. The Court of Appeals reinstated the full award based on the constitutional argument.

The Supreme Court unanimously decided today that the trial judge - and the Court of Appeals - had it right. The VBR is in the Constitution and that trumps the cap placed on it by the Legislature. (The bill was sponsored by now-Congressman Andy Biggs and former Senator (and later, Superintendent of Public Instruction) John Huppenthal had offered the cap idea.)

Justice Bill Montgomery authored the opinion for the 6-0 majority, noting that Arizona voters certainly intended the "prompt restitution" to full compensate the victim.

The scope of restitution afforded to victims when the VBR was considered supports this conclusion. At the time voters approved the VBR, victims were clearly entitled to full restitution. A.R.S. § 13-603(C) (providing that “the court shall require the convicted person to make restitution . . . in the full amount of the economic loss as determined by the court”). And just as we presume that the legislature is aware of the law when it enacts a statute, we presume voters are as well.** 

Getting rid of the cap was appealed by the Phoenix prosecutors and the Attorney General's Office, the Arizona Crime Victim Rights Law Group and National Crime Victim Law Institute all argued in favor of today's decision. 

Attorney Randall Udelman represented the latter two groups and tells Arizona's Law that today's decision "reinforced the notion that a victim of crime may recover the full amount of their economic loss whether or not the choice of weapon to further their crime was a gun, a fist, a knife or a car." He added that it "advances the constitutional goals spelled out in the Crime Victim Bill of Rights passed by Arizona voters thirty-one years ago. 

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcast.

*It was increased to $100,000 in 2018, but that did not apply to this case... and now, it will not apply at all.

**This principle may also come into play in a case currently before the Arizona Supreme Court over the details of the successful 2020 initiative known as Invest In Ed.



Wednesday, April 28, 2021

TODAY In Election Audit Legal News

 Stay tuned for court filings, and coverage of today's Superior Court arguments.

ADGRG


GGA

TODAY IN ELECTION AUDIT LEGAL NEWS: Dismissal of Democrats' Challenge To Audit Signed By Judge (Settlement Agreement Still In Place)

In today's legal news surrounding the State Senate Republicans/Cyber Ninjas recount/audit of Maricopa County's November election: 1)...