Thursday, April 30, 2020

ARIZONA ELECTION CHALLENGES - Big and Small, Updated through April 30

Here is the complete, updated spreadsheet of election challenges from around the state. This is currently updated as of 5pm, April 30.

8:30pm update: Boyd Dunn's counsel indicates that they WILL appeal his removal to the Arizona Supreme Court. Details here.

It includes all of the cases from Maricopa County Superior Court - which handles statewide, multi-county, and county wide cases. It also includes cases from other counties that were provided to Arizona's Politics/AZ Law by readers or officials.

If you have info on any cases - from any county - that are not listed here, please email me all of the necessary data (and a link, if available) to Paul.Weich.AZlaw @ gmail.com. Ditto if you have updates on the spreadsheet.



UPDATE: Not Done Yet - Corporation Commissioner Boyd Dunn Will Appeal Removal To Supreme Court

UPDATE, 8:30pm: Boyd Dunn *will* appeal Judge Brodman's decision to remove him from the ballot. Dunn's attorney, Jack Wilenchik, tells AZ Law that the judge erred by combining the challenged signatures from each of the two separate lawsuits.

"It’s an issue of first impression, and I know the AZSOS and counties are very opposed to what the judge just did." Wilenchik says he agrees with the State's position that "allowing these challenges to assert each other’s signatures opens the window to even more litigation and prevents it from getting ballots printed on time."

* * * * *

Original article: Done? Corporation Commissioner Boyd Dunn OFF Of the Ballot, Judge Rules

Arizona Corporation Commissioner Boyd Dunn was removed from the August and November ballots this afternoon, after Superior Court Judge Roger Brodman ruled that he did not submit enough valid petition signatures.

Two different challenges were brought against Dunn, each challenging a different set of his signatures. Over Dunn's attorney's objections, Judge Brodman decided that the invalidated signatures from each of the challenges would be added together. That doomed Dunn's efforts, as 790 signatures were invalidated. That was well above the 699 that either challenger needed to strike.

Another major contributing factor was that Judge Brodman struck all 166 signatures collected by a circulator who confessed to having forged about half of those signatures. At least 100 were signed by the young woman herself or otherwise invalidated, but the judge followed a Supreme Court ruling that found that her certifications were false and that all of the signatures on those sheets must be struck.

The Minute Entry explaining the ruling is below. No word yet on whether Dunn will appeal the decision to the Arizona Supreme Court.  [Dunn's counsel *will* appeal Judge Brodman's decision to remove him from the ballot. Dunn's attorney, Jack Wilenchik, tells AZ Law that the judge erred by combining the challenged signatures from each of the two separate lawsuits.

"It’s an issue of first impression, and I know the AZSOS and counties are very opposed to what the judge just did." Wilenchik says he agrees with the State's position that "allowing these challenges to assert each other’s signatures opens the window to even more litigation and prevents it from getting ballots printed on time."]

* * * * *
And, here is the complete, updated spreadsheet of election challenges from around the state. (It includes all of the cases from Maricopa County Superior Court - which handles statewide, multi-county, and county wide cases. It also includes cases from other counties that were provided to Arizona's Politics/AZ Law by readers or officials.



BREAKING: No $300M In Damages, As Another "Frivolous" Arpaio Defamation Case Dismissed; Counsel Says Judge "Politicized" Matter

Former Maricopa County Sheriff Joe Arpaio lost another round in his ongoing efforts to collect hundreds of millions of dollars against media entities yesterday, when a District Court Judge called his latest case against Rolling Stone magazine and the Huffington Post "frivolous" while dismissing the case.

Arpaiol counsel Larry Klayman filed a Motion for Reconsideration less than 24 hours later, saying that the judge had made a "politicized decision". Judge Royce Lamberth was nominated by President Ronald Reagan.

Arpaio and Klayman have filed multiple defamation lawsuits against media entities that had classified him as a "convicted felon" as a result of him being held in criminal contempt of court before being pardoned by President Donald Trump. This action had been previously dismissed because there was nothing supporting "actual malice", and yesterday's Order indicates that Klayman "repackaged" the same facts and arguments.

While the judge dismissed the present case based on "res judicata" (i.e. if a claim was previously decided, you cannot re-bring it), he declined to sanction Arpaio and his counsel.

"Although the Court agrees with the HuffPost defendants that this case is frivolous, plaintiff’s decision to initiate Arpaio II is not as egregious as the plaintiffs’ actions in (previous cases). The Court is not convinced that plaintiff filed this case for an improper purpose. Rather, the filing of this case seems to be the result of a legal miscalculation, which the Court corrects today by dismissing the case."
Arpaio is running in the Republican primary in August to try to reclaim his Sheriff's badge in November.




BREAKING: Arizona Supreme Court Reprimands Juan Martinez For Ethical Misconduct In Three Older Cases (READ Opinion)

In a unanimous 6-0* ruling, the Arizona Supreme Court has reprimanded well-known prosecutor Juan Martinez for ethical misconduct committed in three 10-15 year old murder trials. The reprimand overrides a disciplinary hearing panel's determination that attorneys' ethics rules were not breached by Martinez's comments. The State Bar indicates that it is "pleased" with today's opinion.

Martinez - best known for his prosecutorial role in the Jodi Arias case - was fired by new Maricopa County Attorney Allister Adel in March; Martinez has appealed the termination.

The Opinion notes that previous decisions by the Supreme Court in the three murder cases had found that Martinez had acted improperly, but that his comments did not rise to the level of changing the verdicts. Justice John Lopez - writing for the Court - then used the opportunity to explain that there are real distinctions between "prosecutorial misconduct" and "ethical misconduct".

The term “prosecutorial misconduct” broadly encompasses any conduct that infringes a defendant’s constitutional rights. It sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct. Thus, because a prosecutor’s error may not implicate an ethical rule, the Bar’s position blurs the line between prosecutorial misconduct and ethical misconduct.
Justice Lopez also notes that the age of the misconduct instances does not prevent the Court from considering them, as the purpose of the inquiry is to protect the public and the administration of justice. "If anything, what is notable about the age of the claims is the systemic failure to timely scrutinize Martinez’s conduct under the ethical rules."

State Bar spokesman Alberto Rodriguez tells Arizona's Law that they are happy with the Opinion: "The State Bar received the Court’s ruling this morning.  We are pleased with the opinion, and believe that the Court’s reasoning is sound and the outcome fair."




*Former Maricopa County Attorney Bill Montgomery is now a Supreme Court Justice and thus had to recuse himself.


BREAKING: Shawnna Bolick To REMAIN On Ballot For Key State House Seat (READ Decision)

UPDATE, 2:55pm: We have not yet received word from plaintiff's counsel as to whether his client would appeal today's ruling to the Supreme Court. However, the Arizona Democratic Legislative Campaign Committee ("AZDLCC") did issue a statement this afternoon decrying the decision. "“If someone runs for office they should follow the law – period," said AZDLCC Executive Director Charlie Fisher. Without indicating who might have hired the plaintiff's attorney, Fisher added his "hope" that it will be appealed.

* * *

Arizona State Rep. Shawnna Bolick will remain on the August and November ballots, ruled a Superior Court judge this morning. Her nomination papers had been challenged as being false because she used a private mailbox store address on her petitions and nominating paper, instead of the
"actual residence address."

Judge M. Scott McCoy heard oral arguments on the issue yesterday afternoon, and issued his decision this morning. He relied upon the Arizona Supreme Court opinion from the 2016 Maricopa County Sheriff's race, in which the justices found that Dan Saban had "substantially complied" because the private P.O. box address was in the same zip code as his residence.

Plaintiff's attorney Jim Barton tells Arizona's Law that his client has not yet decided whether or not an appeal to the Arizona Supreme Court will be forthcoming.


Monday, April 27, 2020

BREAKING: Arizona Asks U.S. Supreme Court To Uphold Ballot Harvesting Ban, Out of Precinct Policy (READ Petition)

Arizona has filed its petition with the U.S. Supreme Court to reinstate the state's ballot harvesting ban and its out of precinct policies.

Explosively, the 9th Circuit found that the intent of the ban was to discriminate against minorities. It then allowed the state to keep the ballot collection law in place on the condition that it would file this appeal to the Supreme Court by today.

The Petition called that a "a loaded charge with potentially long-term legal, social, and practical consequences."

Attorney General Mark Brnovich said the 9th Circuit should not be allowed to decide how Arizona safeguards its elections. "This lawsuit has broad implications for the rest of the country, and we are optimistic the Supreme Court will take this case and provide clarity for the rule of law."

Friday, April 24, 2020

UPDATE: "Electoral Purgatory" Lasts Longer Due To "Unforeseen Spike" In Covid-19 Work - Arizona AG Asks U.S. Supreme Court For Extra Extension In Libertarian Party Case (ARIZONA'S LEGAL SHORTS)

The Arizona Attorney General's Office today asked the U.S. Supreme Court for an additional brief Covid-19-related extension to file its response to a petition by the Arizona Libertarian Party. If granted, the state will have until May 7 to respond.

The Libertarian Party has been fighting the Legislature's 2015 changes to the statutes which have made it nearly impossible for the minor party to qualify any (non-Presidential) candidates for Arizona ballots. The Supreme Court thought enough of their petition that they asked the State to respond to the claims that the amendments violate Libertarians' constitutional rights by calculating the number of petition signatures necessary based on the numbers of Libertarian AND non-affiliated voters.

This, the party claims, places them in the "electoral purgatory" of being a qualified political party but unable to qualify any of its candidates to be placed on the ballot.

The state's extension letter - described as a final request - states that "This very brief extension
is requested due to the unforeseen spike in the volume of work required of the Attorney
General’s Office in representing and advising state agencies working hard to respond to
the COVID-19 process."

The Libertarian Party's attorney does not oppose the extension to May 7.

Monday, April 20, 2020

READ COMPLAINT: AZ State Rep. Shawnna Bolick Facing Court Charges She Filed "False" Papers, Using Mail Drop Instead Of Residential Address

UPDATE, 4/30 AT 11:30am: Arizona State Rep. Shawnna Bolick will remain on the August and November ballots, ruled a Superior Court judge this morning. Her nomination papers had been challenged as being false because she used a private mailbox store address on her petitions and nominating paper, instead of the
"actual residence address." Details, and the Decision, here.

* * *

UPDATE, 4/29 at 4pm: Superior Court Judge Scott McCoy heard oral arguments this afternoon on whether Rep. Shawnna Bolick's nomination papers are false papers that should disqualify her from being placed on the August and November ballots. Judge McCoy took the matter under advisement.

The parties stipulated to the facts of the case - which are presented below - and agreed that the issue is purely a legal one. Representing Bolick, attorney Kory Langhofer noted that he had argued to the Arizona Supreme Court four years ago that using a private post office box in place of the required "actual residence address" was disqualifying. He lost that argument then, Langhofer stated.

Langhofer also noted that Bolick is also in the position of having a right to keep her address confidential because she is married to Supreme Court Justice Clint Bolick, and that she should not have to invite bad things to happen to her family. Attorney Jim Barton retorted that the Representative knows how to apply to the Court to shield her address from public record and that she did not make any attempt to do so here.

* * *

One nomination challenge filed in Maricopa County Superior Court today might draw national attention. Incumbent State Rep. Shawnna Bolick (R-LD20) finds herself as the defendant today, primarily for using a UPS Store mailbox instead of her actual residential address on her nomination papers and petitions.

The challenge was filed by Judith Lohr, who is represented by Jim Barton, an attorney well-known for representing labor and Democratic interests.

If Bolick is knocked off of the ballot, her seat would be very likely to flip to the Democrats. Fellow incumbent Anthony Kern and newcomer Democrat Judy Schwiebert would be the two candidates on the ballot, unless someone collects enough signatures to make the ballot as an independent. The top two finishers in November are the Representatives for the north Phoenix district.

The nomination paper requires an "actual residence address" and a certification that the information is true and correct. The petitions that she circulated also require the "actual residence address". Bolick used a UPS Store mailbox on Bell Road on those papers, although she lives elsewhere. (Edited to eliminate the name of the street that the recorded documents show she lives on.)

Bolick is married to Clint Bolick, a Justice on the Arizona Supreme Court. As such, he - and presumably, she - are entitled to keep their residential property information confidential. However, there is a (confidential) court process to accomplish this and documents recorded earlier this year indicate that they have not availed themselves of those statutory rights. (And, just using a mailbox store would not be the proper way to exercise that necessary right, either.)

LD20 is one of three State House districts where local and national Democratic groups have indicated that they would focus their efforts. (The other two are LD17 and LD6.) If the Democrats flip two of the three, that would give Democrats control of the State House for the first time in many years.

A trial on the challenge is scheduled for next Wednesday.
*

Friday, April 17, 2020

UPDATE: Enter the Appeal - Initiative Groups Ask 9th Circuit To Permit Online Petition-Gathering

The two initiative groups which lost their bid to force Arizona's Secretary of State to permit online signature-gathering in light of the pandemic social distancing orders have quickly appealed to the 9th Circuit Court of Appeals.

U.S. District Court Judge Dominic Lanza ruled against Arizonans for Fair Elections and Healthcare Rising AZ on Friday, saying that the Arizona Constitutional provision requiring initiative signatures to be gathered "in the presence of" a circulator cannot be ignored, even as the state has an E-Qual online system for digitally signing candidate petitions.

The groups wasted no time in filing the appeal this morning, a good move considering that the deadline to turn in more than 237,000 valid signatures is (still) July 2.

As noted in the original article, a separate effort by other groups circulating initiative positions is in front of the Arizona Supreme Court and is headed for a likely decision near the end of this month.

Here is the appeal:

READ: Federal Court DISMISSES Request To Force State To Allow Online Petition-Gathering For Initiatives During Pandemic (original article, 4/17)
Late this afternoon, U.S. District Court Judge Dominic Lanza dismissed an effort by two groups circulating petitions to force the state of Arizona to open up its online signature platform to allow the initiatives to gather signatures in light of the coronavirus pandemic.

A similar effort in state court is still outstanding.

Finding that the language of Arizona's Constitution - drafted more than 100 years ago - requires that the initiative petition must be a "sheet... signed in the presence of" the circulator must be respected.

"Enter the coronavirus," writes Lanza. It prompted plaintiffs to challenge the statutes written pursuant to the Constitution while not challenging the language of the Constitution itself. At the hearing earlier this week, Plaintiffs argued that opening up Arizona's E-Qual signature platform would substantially comply with the constitutional language.

Judge Lanza was not having it.

"Not only does this argument seem questionable, but Plaintiffs are effectively asking a federal
court to make a guess about an unsettled question of state law and then, based on that guess,
overturn a century-old state-law election rule. This outcome would be distressing from a federalism perspective and is precluded...."

Earlier today, the state of Arizona and the plaintiffs unloaded on each other in post-argument pleadings. The state asked Judge Lanza to refer the constitutional question to the Arizona Supreme Court if it was inclined to grant plaintiff's relief. "One cannot “substantially comply” with a (constitutional) requirement by obliterating it."

Attorney General Mark Brnovich explained it to Arizona's Politics/Arizona's Law this way: "We all share a common concern for public safety during this pandemic, but you can’t use a health crisis to disregard our state constitution. My job is to defend the law, and it is ultimately up to policymakers to decide whether they want to expand access to E-Qual, not the courts or the Secretary of State.”

The separate action already in front of the Arizona Supreme Court will likely be decided near the end of April.

More than 237,000 valid signatures turned in before July 2 are required for an initiative to be placed on the November ballot, and more than 356,000 for a proposed constitutional amendment petition.

The coronavirus response has made it extremely difficult to collect sufficient numbers of petition signatures.


BREAKING: Corporation Commission's Placing EPCOR In Charge Of Johnson Utilities' Operations Was Constitutional, Says AZ Supreme Court (READ Opinion)

The Arizona Corporation Commission did not exceed its constitutional authority in 2018 when it appointed EPCOR to serve as the interim manag...