Wednesday, November 25, 2020

BREAKING: Monday Morning Hearing On AZGOP Contest of Arizona's Presidential Election (READ pleadings); GOP Works With Trump Campaign, Targets Heavily Mormon Area

 There will be a Monday morning hearing on the likely legal contest challenging Arizona's Presidential election, filed by the Chairwoman of the Arizona Republican Party.

Kelli Ward filed the legal papers Tuesday afternoon, minutes before closing. Maricopa County Superior Court Judge Randall Warner noted the 4:55pm time in his Minute Entry this morning, and noted that the Court is closed on both Thursday and Friday for the Thanksgiving holiday. Therefore, the 10:30am hearing on Monday morning will be an immediate hearing.

Arizona's Politics asked AZGOP Communications Director Zach Henry about the action. The Arizona GOP is "working closely with all interested parties, including the RNC and the Trump campaign, to ensure all legal ballots are accurately counted and any fraudulent ballots are not counted." Henry declined to identify who the party was in contact with at the campaign or the RNC, and whether there was an agreement regarding funding.

The AZGOP attorneys - Wilenchik & Bartness - are asking the Court to allow them to begin looking at mail-in ballot envelopes and duplicated ballots in all of Maricopa County. They allege that legal observers from both parties were kept to far away from the adjudication of questioned signatures.

The other part of the likely contest action is that there allegedly were a high number of damaged or illegible ballots in the Queen Creek/Congressional District 5portion of Maricopa County. When that happens, the election workers - in bipartisan teams - inspect and duplicate the ballot so that it can be tabulated, and Ward would like to inspect the original and duplicated ballots. (Representative Andy Biggs won re-election in CD5; however, the district also contains a large number of Republican voters who are members of the LDS Church.)

The proposed Complaint suggests the reason: "The results in CD5/Queen Creek were strongly inconsistent with voter registration data (party affiliation) and with historical voting data (voting in previous elections including the 2016 Presidential election)."

"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.

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Friday, November 20, 2020

DISMISSED WITH PREJUDICE: "Sharpiegate 2: The Unknowing" Has Its Disaster Day In Court, Does Not End Well

 There are no remaining court challenges to Arizona voters tilting toward Joe Biden over Donald Trump on November 3.


Judge Margaret Mahoney gave the so-called Sharpiegate plaintiffs a full day in Maricopa County Superior Court on Friday, although she was pleased with neither the lack of a comprehensible case nor courtroom know-how by the attorneys.

Arizona's Law was fortunate to have Chandler attorney Tom Ryan brilliantly live-tweeting the bulk of the all-day evidentiary hearing. (We'll thread it and post it here shortly, followed by a thread of our end-of-the-day coverage.)


Several times during the hearing, attorneys for Maricopa County noted and argued that the county was certifying its vote totals in favor of Biden at about the same time that Mahoney declared "Dismissed with prejudice."

In the meantime, here is a compendium of our previous coverage of Sharpiegate and the court cases that resulted.

BREAKING: Republican National Committee has moved to INTERVENE in Sharpiegate lawsuit

BREAKING: Trump Campaign Sues To Stop Maricopa County Vote Canvass, Blames Poll Workers Who Permitted Overvotes (READ Complaint)




"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 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 podcasts.

Monday, November 16, 2020

BREAKING: Judge Will Hold Wednesday Hearing To Consider Delaying Maricopa County Canvass of Election Results

A judge will consider a request by the Arizona Republican Party to delay Maricopa County's canvass of election results. The arguments will be heard and considered on Wednesday; the County planned to certify the results on Thursday or Friday.

This is the case brought by the Arizona Republican Party (without the President's campaign), seeking to force the county to hand-audit 2% of *precincts* rather than 2% of *voting centers*. 

The County told Superior Court Judge John Hannah that it planned to canvass - or, certify - the county's results on Thursday, or Friday at the latest. Arizona law requires it be completed by November 23, but also vaguely allows for 6 one-day postponements if some returns are "missing". The Secretary of State is obligated to certify the results of all of Arizona's counties by November 30.

The AZGOP is citing the state's statutes which specify a hand audit of 2% of precinct polling places. Over the past 10 years, several of Arizona's counties have moved away from precinct polling places and now use Voting Centers where people from all over the county can vote. (Not just at your neighborhood precinct polling place.)

The Arizona Election Procedures Manual - which has the effect of law after being approved by the Governor and Attorney General - permits counties to sample 2% of the Voting Centers instead, presumably because the random sample would still audit approximately 2% of the votes.

This is the first election cycle where the Republican-controlled Maricopa County Board of Supervisors approved the Voting Center model for the state's most populous county. The 2% audit was conducted the week after the election and found zero discrepancies.

The GOP's attorney (Jack Wilenchik) asked for a week "to let the dust settle" and to conduct discovery. That brought a blunt response from Deputy Attorney Joseph LaRue for the County, saying "it is not possible to do what Mr. Wilenchik wants", because the ballots are stored by Voting Center and not by precinct. It would be "a very time-consuming process" to re-sort the ballots in time for the statutory certifications.

Despite having an unrelated week-long trial starting tomorrow, Judge Hannah shortened the time and asked for the parties to file their written arguments by midnight tonight. The hearing will take place Wednesday afternoon.

Maricopa County filed a Motion to Dismiss the case earlier this morning. Neither the judge nor the plaintiffs had had a chance to read it carefully, let alone rule on it or respond to it.

To read the Republican Party's Complaint, please see our previous article

A second case, brought by the conservative Public Interest Legal Foundation, will have an initial hearing this afternoon. That action is kind of an update of their previous lawsuit focused on the  Sharpiegate issue.

Maricopa County Defendants Motion to Dismiss by arizonaspolitics on Scribd


 "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 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 podcasts.

Friday, November 13, 2020

BREAKING: AZGOP, Conservative Group File TWO New Cases Challenging Maricopa County Election (READ Complaints

 The Arizona Republican Party now has overlapping lawsuits challenging Maricopa County's conduct of the election, and the Sharpiegate plaintiffs also filed a new lawsuit against the county last night.

Both Complaints were filed yesterday in Maricopa County Superior Court as Judge Daniel Kiley was winding down a full-day trial.

(Clarification, 11:50am: The AZGOP Complaint alleged that the County had not yet conducted its post-election hand-count audit. In fact, it has already taken place. We have added that to the body of this article. h/t to my colleague @modernista64.)

The Arizona GOP - a party to yesterday's action - has retained Jack Wilenchik, his father Dennis and former Republican Party official Lee Miller - to file last night's action. (See below) It claims that the County's election officials - overseen by Recorder Adrian Fontes and the Board of Supervisors - should be required to hand count more ballots.

State law requires a hand count of 2% of the precincts. This year, Maricopa County went to the Vote Center model; that eliminated the precinct polling places present in past elections. The County last week conducted a post-election hand count of 2% of the 175 Vote Centers. The lawsuit claims that they should have actually been required to audit 2% of the 748 precincts in the county. (It would seem that - depending on the locations chosen at random - you would be likely to hand count approximately the same number of ballots.)

The case from the Sharpiegate plaintiffs - which they dismissed this past Saturday - covers most of the same ground of yesterday's trial. That case was brought by Donald Trump's campaign and the Arizona and national Republican committees, and is awaiting the judge's decision. Earlier, Judge Kiley determined that the Sharpiegate plaintiffs could not intervene in yesterday's trial because they had already filed a suit and dismissed it. The plaintiffs are again represented by the Public Interest Legal Foundation (a conservative group) and local attorney Alexander Kolodin.

Here are the new complaints:

Aguilera Complaint #2 by arizonaspolitics on Scribd

AZGOP Complaint #2 by arizonaspolitics on Scribd

"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 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 podcasts.

Thursday, November 12, 2020

LIVE: Trump Campaign's Arizona Court Challenge to Maricopa County Voting

UPDATE, 11/13, 11:15am: The Trump campaign and Republican groups have filed a notice confirming that their lawsuit has become "partially moot" because the number of overvotes in the Presidential race is less than the final margin of Biden's victory in Arizona.

Additionally, the Secretary of State's attorneys filed a notice with the court demonstrating that other close races in the state and Maricopa County are also very unlikely to be impacted by Election Day in-person overvotes being re-inspected.

We are live-tweeting today's evidentiary hearing and oral argument in the Trump campaign's court challenge to Arizona's voting. Click on the below tweet to follow the latest:



"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 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 podcasts.

Wednesday, November 11, 2020

BREAKING AWAY: Snell & Wilmer Dumps Trump Election Irregularities Case

 As the Trump campaign's Arizona election irregularities case goes to trial tomorrow morning, the plaintiffs will be without two of the high profile attorneys who helped begin the case on Saturday.

Two of Snell & Wilmer's partners - Eric Spencer and Brett Johnson - had helped Donald J. Trump for President and the Republican National Committee successfully intervene in last week's so-called Sharpiegate case. When the plaintiffs in that case - represented by the conservative Public Interest Legal Foundation - dismissed the suit on Saturday, Snell & Wilmer and Statecraft Law immediately filed a new case on behalf of the Trump campaign, the RNC and the Arizona Republican Party. 


The case was filed only a few hours after most news organizations projected that Joe Biden had defeated the President. Less than 21 hours later and without any public developments, Spencer and Johnson filed a little-noticed withdrawal.

The attorneys not only withdrew, but they attempted to make it clear that they had not been representing either the Trump campaign or the AZGOP. (They did not file an after-the-fact withdrawal in the previous case, which makes it unclear if they had represented the President in that case.) Their withdrawal was only from representing the RNC.

Phoenix-based Snell & Wilmer is on the cusp of being one of the 100 largest law firms in the nation (measured by the number of attorneys). Spencer was Arizona's State Election Director under former Secretary of State Michele Reagan, and Johnson is one of the best-known election law attorneys in the state and has represented Governor Doug Ducey in a number of recent Covid-related legal actions.

Their withdrawal came just before the New York Times published an article reporting on the "Growing Discomfort at Law Firms Representing Trump in Election Lawsuits". That article lays out some of the pressures from other clients for the large firms as well as internal discussions about representing the Trump campaign.

"Some senior lawyers at Jones Day, one of the country's largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections," read one portion.

In Arizona's case, the Trump campaign and the Republicans are alleging that Maricopa County poll workers disenfranchised many Republican voters and that that may have cost the President "up to thousands of votes" for the President. (It turned out to be a maximum of 180 votes.)

Although Spencer and Johnson are closely associated with the Republican party, Snell & Wilmer attorneys were much bigger financial supporters of the Biden campaign than the Trump reelection effort. Federal Election Commission filings show that ten attorneys contributed $1,000 or more to the challenger while only one attorney gave $1,000 to the President. (It was neither Spencer nor Johnson.)

Arizona's Law requested comment from several people at Snell & Wilmer and will update if responses warrant.

The Trump and Republican case goes before Maricopa County Superior Court Judge Daniel Kiley on Thursday. Arizona's Law and Arizona's Politics will be there to cover it.


Trump Lawsuit - Notice of Clarification and Withdrawal by arizonaspolitics on Scribd

"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 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 podcasts.

Monday, November 9, 2020

NOT TOO SHARP-IE: Trump Campaign's Arizona Lawsuit Set For Evidentiary Hearing On Thursday

Judge Daniel Kiley has set Thursday, November 12 as the trial on President Trump's lawsuit alleging that poll worker errors dealing with potential overvotes may have cost the President "up to thousands of additional votes" for the President (and other Republican candidates).

At a rushed Monday afternoon hearing, attorneys for Maricopa County and the Secretary of State told the Superior Court judge that only 180 ballots cast on Election Day contained overvotes in the Presidential race. (If anyone else had inadvertently voted for both Donald Trump and Joe Biden, he or she opted to "spoil" that ballot and properly mark a new ballot.)

Trump campaign attorney Kory Langhofer attempted to refocus the issue by noting that they were also concerned about overvotes in other races.

Kiley did put the kibosh on a portion of the legal maneuvering, when he denied an attempt to intervene by the plaintiffs who had filed last week's so-called Sharpiegate case. After the judge in that case conducted a Thursday hearing and set a scheduling order on Friday, the conservative Public Interest Legal Foundation dismissed the suit on Saturday. 

Hours later, the Trump campaign filed its action broadening the allegations of harm allegedly caused by the marking pens. The Sharpiegate attorneys moved today to join in the case, saying that they got caught in a "clash of titans" (when the political parties intervened) and that they still wanted to be involved. Judge Kiley said that they had had their chance.

For pleadings and more information on the case, please see our articles from earlier, here, here and here.

"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 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 podcasts.

BREAKING, UPDATE: Judge Denies AZ Secy/State Motion To Consolidate Sharpiegate Case With Trump Lawsuit (READ)

UPDATE, 4:30pm: Judge Daniel Kiley has set Thursday, November 12 as the trial on President Trump's lawsuit alleging that poll worker errors dealing with potential overvotes may have cost the President "up to thousands of additional votes" for the President and other Republican candidates.

Attorneys for Maricopa County and the Secretary of State told the judge that only 180 ballots cast on Election Day contained overvotes in the Presidential race. (If anyone else had inadvertently voted for both Donald Trump and Joe Biden, he or she opted to "spoil" that ballot and properly mark a new ballot.)

UPDATE, 2:00pm: Judge Daniel Kiley has given the parties to the Trump campaign lawsuit 95 minutes notice of an initial conference this afternoon. The attorneys are to appear by video at 3pm. The court will discuss scheduling and the motion(s) to intervene at the hearing. The Order came 1 1/2 hours after Judge Margaret Mahoney dismissed the preceding "Sharpiegate" case. (details below)


 The so-called Sharpiegate lawsuit is dismissed and will NOT be consolidated with the suit filed Saturday by the Trump campaign. That was the ruling moments ago from Maricopa County Superior Court Judge Margaret Mahoney.

Mahoney denied the bid by Arizona Secretary of State Katie Hobbs to keep the first case active in order to expedite a decision on the Trump campaign's Saturday lawsuit alleging that poll workers improperly handled voters' ballots on Election Day.

As more fully explained in our earlier article, the Secretary of State - represented by outside attorneys at Coppersmith Brockelman - argued that the Sharpiegate plaintiffs' notice of dismissal on Saturday should not be accepted because the Republican National Committee had filed an Answer to the Complaint that became accepted when Judge Mahoney allowed them to intervene.

Mahoney noted this morning that the Answer did not immediately become filed and that it was just a "Proposed Answer".

Mahoney had set a hearing schedule for this week in the now-dismissed Sharpiegate case. The new judge in the Trump campaign case filed Saturday night will need to move quickly to match that schedule.

Shapriegate Minute Entry Ruling by arizonaspolitics on Scribd

"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 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 podcasts.

NOT SO FAST, BUT FASTER: AZ Secy/State Tries To Block "Sharpiegate" Dismissal To Expedite Trump Campaign Lawsuit

UPDATE, 12:15pm: Judge Mahoney denied the Secretary of State's motion to consolidate the two cases and to not dismiss the Sharpiegate case. More details and the ruling itself can be found here

The legal maneuvering surrounding Arizona's ballot counting for the Presidential race kicked into high gear over the weekend, as Arizona's Secretary of State tried to block the Plaintiff in the so-called Sharpiegate lawsuit from voluntarily dismissing their case hours before the Trump campaign filed a new suit alleging irregularities.

The Sharpiegate notice of dismissal came Saturday afternoon, shortly after Superior Court Judge Margaret Mahoney had issued a scheduling order that would move the case along quickly without discovery.* That was quickly followed by the new case filed by the Trump campaign (and the national and Arizona Republican parties).

Sunday night, attorneys for Arizona Secretary of State Katie Hobbs moved to block the Sharpiegate dismissal and to consolidate it with the Trump suit. They noted that the issues significantly overlap and that that would be the most efficient way to resolve these issues. (The Trump lawsuit takes the Sharpie bleed-through issue a step forward and alleges that poll workers did not properly advise voters how to handle ballots the tabulating machines flagged.)

The Secretary of State's pleading (below) notes that the RNC had filed a proposed Answer to the Sharpiegate lawsuit when they asked to intervene, and that the Answer was accepted the moment Judge Mahoney allowed both political parties to intervene. Consolidating the two lawsuits would expedite the matter because the same parties would not have to start from square one in front of a new judge.

(Not surprisingly, the conservative legal group behind the Sharpiegate suit this morning asked to intervene in the Trump campaign's lawsuit.)

Hobbs Move to Block Dismissal of Sharpiegate, Consolidate by arizonaspolitics on Scribd


*Normally, a plaintiff can dismiss a case without approval of other parties or the judge if no one has filed an Answer to their Complaint.

"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 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 podcasts.

Saturday, November 7, 2020

BREAKING: Trump Campaign Sues To Stop Maricopa County Vote Canvass, Blames Poll Workers Who Permitted Overvotes (READ Complaint)

Donald Trump's campaign - along with the national and Arizona Republican parties - filed a lawsuit Saturday afternoon to stop Maricopa County from moving forward with canvassing the results. The action claims that poll workers improperly dealt with potential overvotes by voters on Election Day.

The President's campaign would like the court to force the county to review any such ballots and that they believe it will "yield up to thousands of additional votes for President Trump", as well as for other Republican candidates.

At the present moment, Joe Biden leads Donald Trump for President in Arizona by more than 18,000 votes.

The groups are represented by four well-known Arizona election law attorneys - former State Elections Director Eric Spencer, Brett Johnson, Kory Langhofer and Thomas Basile. They have collected declarations from several voters and poll observers who claim that poll workers allowed ballots to be accepted without informing the voter that an overvote might ruin their entire ballot.

Here is the Complaint filed this afternoon:
"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 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 podcasts.

BREAKING: Monday Morning Hearing On AZGOP Contest of Arizona's Presidential Election (READ pleadings); GOP Works With Trump Campaign, Targets Heavily Mormon Area

 There will be a Monday morning hearing on the likely legal contest challenging Arizona's Presidential election, filed by the Chairwoman...