Wednesday, December 30, 2020

NEW: AZ Attorney General Brnovich Dips Toe In Post-Election Disputes, Pushes Validity of Legislative Subpoenas For Ballot Envelopes, Etc; Status Conference On Monday Morning (READ: Pleadings)

 Arizona Attorney General Mark Brnovich's office - including its Election Integrity Unit - has not indicated that its investigation has found any reason to seize ballot images/envelopes/software/equipment - from Maricopa County or any other county. However, it is today telling a Superior Court judge that he should let State Senate President Karen Fann and Sen. Eddie Farnsworth take such action against Maricopa County.

Meanwhile, Superior Court Judge Timothy Thomason has set a status conference for Monday morning (11:00am). 

The AG's Office asked to be allow to file an amicus ("friend of the court") brief in the heating-up battle between the lawmakers and their Republican colleagues dominating the Maricopa County Board of Supervisors. After issuing the subpoenas to the County, the County filed the current case asking the Court to find them unlawful. (Fann and Farnsworth filed a separate suit, but that was dismissed.)

The AG's argument that the legislative subpoenas are lawful rests largely on the premise that Fann and Farnsworth have said they need to have the information to inform any new legislation that might be necessary in the future. Even though they also want the materials to prove alleged fraud and undermine the results in last month's Presidential election, the valid purpose of helping craft legislation, ahem, trumps that and the court should be deferential to the legislature's powers.

Yesterday, we pointed out that Fann/Farnsworth's attorneys ironically used the U.S. Supreme Court's decision in Congress's subpoenas of President Trump's accountants to support the current subpoena. The AG's proposed brief similarly reaches to the federal level, quoting the words of President Woodrow Wilson about Congress's broad authority to investigate, and noting that "One hundred and thirty-five years later, President Wilson's words still ring true."

Here are the Attorney General's filings:

"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.


NEW: AZ Attorney General Brnovich Dips Toe In Post-Election Disputes, Pushes Validity of Legislative Subpoenas For Ballot Envelopes, Etc; Status Conference On Monday Morning (READ: Pleadings)

 At Arizona's Law, we strive to dig deeper into Arizona-related court cases and find the most news-worthy items which could be missed. So, my hat is off to the dean of Arizona political news coverage, Howie Fischer, for exposing the Response filed last week by the state's Department of Revenue in the suit challenging the constitutionality of the Invest In Ed proposition passed by Arizona voters last month.

Fortunately or unfortunately, that article led to Governor Doug Ducey promptly firing DOR Director Carlton Woodruff. He stated that agency directors should not be getting into policy issues such as the case currently awaiting a decision by Superior Court Judge John Hannah. 

Woodruff is defending the Response filed, noting in the Arizona Republic today that it was only intended to inform the court that the Director was a "nominal defendant". In fact, by stipulation of the parties, he was dismissed from the case last week before oral argument.

Here - with a thanks and hat tip to Fischer - is the full Response filed by DOR's outside counsel, Brian Bergin. As you can see, the primary reason for urging denial of the preliminary injunction is that the surcharge on high earners' income would not be due until April 15, 2022. However, the Response then does go into further arguments against the injunction.

"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.


Netherlands Police Can Enforce $7.1M Judgment Against M.D. Helicopters In Arizona, Supreme Court Rules In 5-2 Decision (READ Opinion)

The Arizona Supreme Court decided today that the Netherlands CAN enforce its $7.1M dollar judgment against Mesa's MD Helicopters here in Arizona.

The justices split 5-2 on whether Arizona's recent law permitting the domestication and enforcement of foreign money judgments in Arizona requires the nation to have a reciprocal law passed by its legislature, or whether nearly 100 years of court decisions and practice sufficed.

MD Helicopters actually began the legal action years ago, when it sued the Netherlands national police agency for failing to pay for a 2001 order. The national police successfully counterclaimed because the MD subsidiary had not delivered the helicopters in time. The court in the Netherlands entered a $7.1M (£5.8M) judgment, which the national police tried to domesticate in Maricopa County Superior Court in 2015.

Coincidentally - or, perhaps not(?) - that was just after Arizona changed its laws on recognizing such foreign judgments, enacting its version of the Foreign-Country Money Judgments Recognition Act. It requires that the country had “adopted or enacted a reciprocal law related to foreign-country money judgments that is similar" to the law.

So, the question before Arizona's Supreme Court was what is the meaning of "a reciprocal law". And, Vice Chief Justice Ann Timmer, writing for the 5-2 majority, found that the word "adopted" indicates Arizona's legislature was looking to more than simply laws "enacted" by a legislative body, that the Legislature did not limit the reciprocity to "laws" and that it was concerned with how Arizona judgments would be treated in that nation.

Justices Bill Montgomery and Clint Bolick dissented, suggesting that the Netherlands Supreme Court itself has described its reciprocity as "disguised", because the Arizona judgment would only be "recognized" there but could not be "enforced".

Arizona's Law has reached out to MD Helicopters for reaction to today's decision and will update as warranted.

"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, December 29, 2020

BREAKING: Arizona Election Audit Subpoena Battle Is *On Again*, As State Senate Pres. Fann Files For Injunction; Fun Trump Subpoena Twist

 After a Christmas weekend break, Arizona Republican lawmakers have resumed their court battle to force Maricopa County to comply with subpoenas for broad swaths of ballots, information and equipment related to the November 3 Presidential election.

State Senate President Karen Fann and Judiciary Committee Chair Eddie Farnsworth answered the suit filed by Maricopa County on December 18. Fann/Farnsworth also struck back with their own suit (aka "counterclaim") and a new Motion for a Preliminary Injunction to force compliance. Both pleadings are published below.

Attorney Tom Basile tells Arizona's Law that today's pleadings make their previous lawsuit unnecessary. Judge Randall Warner had dismissed that case but specifically allowed them to file an Amended Complaint based on an Arizona law that they had not previously cited.

The new injunction request is primarily based on that statute, as well as constitutional grounds. And interestingly and ironically, it cites a U.S. Supreme Court opinion from earlier in the year where the Justices determined that President Donald Trump's accounting firm (Mazar's) was required to comply with Congressional subpoenas. 

As the United States Supreme Court recently reaffirmed in discussing the cognate power of the Congress and its committees embedded in Article I of the federal Constitution: Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power to secure needed information in order to legislate. This power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function . . .The congressional power to obtain information is broad and indispensable. It encompasses inquiries into the administration of existing laws, studies of proposed laws, and surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020)
Given that “the power of the [Arizona] legislature is plenary . . . unless that power is limited by express or inferential provisions of the Constitution,” then the same prerogative must necessarily reside in Article IV of the Arizona Constitution.  (citations omitted)

While Fann and Farnsworth previously indicated that they wished to obtain the information and equipment from the County in conduct an audit before Congress convenes on Jaunary 6 to count the Electoral College votes - and, most Trump supporters are still talking about the need for the information before then - today's Motion is careful to stress that the reasons for the subpoenas are to help the Legislature make good laws for the future.

Superior Court Judge Tim Thomason has not yet set a hearing on the injunction request.

"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: Counsel for AZGOP/Rep. Gohmert Confer With USDOJ/Vice President Pence's Attorneys (READ Motion)

(UPDATE, 5:25pm: Plaintiffs' counsel indicates that they have now properly served Vice President Mike Pence.)

On Sunday, the Arizona GOP and Texas Rep. Louie Gohmert filed a "friendly" lawsuit against Vice President Mike Pence in U.S. District Court, seeking to invalidate the federal laws used to conduct the Electoral College process - the Electoral Count Act. (Arizona's Law reported on the Complaint yesterday.)

Today, their attorneys - many of the same ones who have brought a number of so-called Kraken suits - told the Court that they have conferred with the Vice President's Counsel - Gregory Jacob - and had a conference today with five governmental attorneys. The conference was supposed to continue this afternoon, according to the Motion, but Christopher Healy from the Civil Division of the Department of Justice asked for additional time.

The Plaintiffs have asked District Court Judge Jeremy Kernodle (a Trump nominated judge) to set an accelerated briefing and argument schedule, so that a decision can be issued before Congress is set to meet to count the Electoral College votes on January 6.

As Chandler attorney Tom Ryan points out, the nonsensical part of this "emergency" is "there is nothing in the Complaint that had to wait until now to decide. The 12th Amendment to the US Constitution was adopted in 1804 and the Electoral Count Act was adopted in 1887."

Judge Kernodle has quickly responded to plaintiffs, reminding them that they still need to finish serving the defendant. (Plaintiffs' counsel was obviously hoping that serving the US Attorney in the Eastern District of Texas and the DOJ in D.C. would be enough.) The terse order states "The Court ORDERS that a briefing schedule will be set on Plaintiffs emergency motion after Plaintiffs file proof of service in accordance with Federal Rule of Civil Procedure 4(i)."


"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.

"DANGEROUS TERRITORY": AZGOP Attorney Warns Judge Not To Show *More* Bias By Ordering Party To Pay State's Legal Fees For Election Audit Lawsuit (READ)

 "DANGEROUS TERRITORY": AZGOP Attorney Warns Judge Not To Show *More* Bias By Ordering Party To Pay State's Legal Fees For Election Audit Lawsuit (READ)

The Arizona Republican Party sent a warning to a judge last night, saying he is in "dangerous First Amendment territory into which the Court should not dream of treading". The AZGOP is trying to convince Maricopa County Superior Court Judge John Hannah not to order it to pay Arizona $18,000 in legal fees spent on the post-election lawsuit Hannah determined to be "futile" and "meritless".

The case alleged that Maricopa County had violated the law by hand counting ballots at 2% of the vote centers used on November 3 instead of 2% of precincts. (The difference in the number of ballots checked is minimal.) After hearing arguments from the parties, Judge Hannah found that the County (and several other counties) had properly followed the law and dismissed the case with prejudice.

Earlier this month, Arizona Secretary of State Katie Hobbs asked the Court to allow it to recover her attorneys' fees from the GOP, pursuant to an Arizona statute (A.R.S. 12-349) designed to discourage inappropriate legislation.

The AZGOP's Response (below) begins by attempting to demonstrate why the party and the attorneys had a good faith basis for filing the lawsuit. (Here is the article containing the Complaint.) Noting that he had to file the case within hours of learning of the possible legal problems with the audit and that neither he nor the party knew that the hand count audit had already taken place.

 "(U)ndersigned counsel cannot emphasize enough that he was first approached about this case, and had to write up the Complaint and Application for Order to Show Cause, on the same night in between 6 PM and midnight, on November 11, 2020. Counsel was extremely mindful of the (infamous) elections-law case of Lubin v. Thomas (2006), in which the Arizona Supreme Court found that a filing was untimely even though it was filed within the statutory time limits, simply because the Court felt that it had “a very short time in which to review and decide the matter.”. In spite of this, the Application showed a well-reasoned (and certainly “debatable”) argument, which the Court chose not to accept; but to even contemplate sanctions on the basis of lacking substantial justification is wholly unwarranted." (citations omitted)

The Response then takes a turn towards the dark side, warning the Judge that he may have shown bias in last week's Minute Entry, when he described the decision about sanctions in a stark way.

"But more troublingly, there is a degree of bias in the way that the Court frames this issue – to “cast false shadows on the election’s legitimacy.” The Court has apparently concluded, even though it was not an issue to be litigated in this suit, that it would be “false”—and even constitute harassment—to doubt the legitimacy of this election. This puts the Court at odds with around a third of the general population, and around half of the Republican Party in this State, according to polls conducted by NPR, Reuters and Politico among others."

Upon further review, however, the Judge's use of the "false shadows" term was only in the context of stating what the Secretary of State would need to prove, not expressing his conclusion.*

The AZGOP Response ends with a strident political appeal that the judge look to the larger picture - even if that picture has been largely drawn by the President, his supporters and the ongoing parade of lawsuits:

Public mistrust following this election motivated this lawsuit, and there is absolutely nothing improper or harassing about that. Courts are intended to be a forum for airing democratic grievances and safeguarding the integrity of elections. These goals are not well served when courts are openly hostile to anyone who dares to even question an election, much less when courts equate widely-held political beliefs to mere “harassment.” Because in this territory, one man’s “harassment” is another man’s crusade; one man’s heresy is another man’s religion. This is dangerous First Amendment territory into which the Court should not dream of treading, both in order to maintain the appearance of impartiality of the Court, and to encourage like respect in the citizens that it serves as well as other hard-working officers of the court. (emphasis added)

Wilenchik asks Judge Hannah to set a hearing on whether or not attorneys' fees should be assessed against the AZGOP (and/or its attorneys). 

The Arizona Republican Party has several other lawsuits active in both the trial courts and the appellate courts. Wilenchik has an election contest stalled in front of the U.S. Supreme Court, Arizona's Republican slate of electors has their Arizona Kraken case stalled in front of the 9th Circuit, and they just filed a new suit in Texas U.S. District Court with several of the same attorneys challenging the laws governing next week's counting of the Electoral College votes.

* From the Order: "This order explains why the Arizona Republican Party’s case was meritless, and the dismissal order filed November 19, 2020 was required, under applicable Arizona law. What remains is intervenor Arizona Secretary of State's application for an award of attorneys' fees. That application will require the Court to decide whether the Republican Party and its attorneys brought the case in bad faith to delay certification of the election or to cast false shadows on the election’s legitimacy."

"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, December 28, 2020

BREAKING: AZGOP Files 3rd Generation Kraken LAWSUIT AGAINST VP Mike Pence (In Texas) To Try To Derail Electoral College Count On Jan. 6 (READ "Grandson of Kraken" Complaint)

(UPDATE, 1:10pm: Have added the plaintiffs' request for emergency injunctive relief, along with their proposed order.)

The Arizona GOP joined with Texas Congressman Louie Gohmert to file an emergency lawsuit yesterday against Vice President Mike Pence, in an attempt to derail the ceremonial nature of the January 6th counting of the Electoral College votes finding that Joe Biden and Kamala Harris defeated Donald Trump and (you guessed it) Mike Pence.

The suit was filed in federal court in Texas, and AZGOP Communications Director Zachery Henry confirms to Arizona's Law that it is an official effort by the Arizona Republican Party. In addition to Chairwoman Kelli Ward and her husband, Michael, the other nine members of Arizona's GOP slate of electors and Rep. Gohmert are plaintiffs. They are represented by some of the same national attorneys who represented AZGOP (and, others) in previous unsuccessful suits around the nation alleging widespread fraud. None of those cases have been successful. (Those attorneys are Howard Kleinhendler (NY), Julia Haller (DC), William Lewis Sessions (TX) and Lawrence Joseph (DC). The first two represented Arizona GOP previously, and Haller was in the Trump Administration until recently.)

The new action asks the court to find that the federal Electoral Count Act is unconstitutional and that current VP Pence should be able to accept Arizona's Republican slate of electors rather than the Democratic slate that was certified as the winners of Arizona's November 3 election by 10,457 votes.

In support, the Complaint attaches a Joint Resolution signed by 20 of Arizona's 90 State lawmakers claiming fraud and requesting that the Trump/Pence electors be accepted from Arizona or that no Arizona Presidential votes be counted until an audit is completed. The Complaint claims that the "massive multi-state electoral fraud" also swung results against Trump/Pence in at least four other swing states.

The case has been assigned to Judge Jeremy Kernodle, a judge recently nominated by President Trump.

"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, December 24, 2020

Judge Dismisses Arizona Lawmakers' Subpoenas For Ballot Images, Election Software and Equipment (READ)

 

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"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, December 22, 2020

Judge Seriously Considering Awarding Sanctions Against AZGOP/Attorneys For "Meritless" Lawsuit; Minute Entry Demolishes "Futile" Handcount Suit (READ Opinion)

The judge who dismissed the Arizona Republican Party's lawsuit challenging Maricopa County's hand count audit methodology has issued a detailed opinion excoriating the party's "futile" lawsuit and indicating that he is close to awarding sanctions against the party and its attorneys.

Reaching back to fraud allegations between Arizona's *first* two Governors, Superior Court Judge John Hannah also found a very appropriate summation for this year's post-election campaign by President Donald Trump and his Republican allies. He was explaining why challenges to election procedures that can be brought *before* the election cannot be brought afterwards:

The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so great as when it is known precisely how many votes it will take to change the result; and men who are willing to sell their votes before election will quite as readily sell their testimony afterwards, especially as the means of detecting perjury and falsehood are not always at hand until after the wrong sought to be accomplished by it has become successful and the honest will of the people has been thwarted.

That nugget came from the 1917 Arizona Supreme Court case between George W.P. Hunt and Thomas E. Campbell. The two men were Arizona's first two Governors*, and the opinion sorts out multiple theories of fraud.

Back in the present day, Judge Hannah noted that the AZGOP could have challenged Maricopa County's decision to audit 2% of vote centers instead of 2% of precincts months earlier and had no good reason to wait, and that it could have challenged it for future elections. "That it did not do so demonstrates that its real interest was not the audit procedure as such. The real issue, evidently, was the outcome of the 2020 election."

The Hunt v. Campbell opinion provides a combination of compelling facts - including "whisky and gambling" - with legal principles that was irresistible to Hannah. After citing Chief Justice Alfred Franklin's principle that "election results are presumed to be valid and free of fraud," Hannah states "(t)hese longstanding rules have stood the test of time. They remain vital today, guarding the electoral process against the gamesmanship of those who might otherwise hedge against a loss at the polls by holding legal issues in reserve or use the law as a tool to thwart the will of the voters."

Hannah's Order comes days before AZGOP and its attorneys have to respond to the Secretary of State's request for $18,000 in attorney's fees as sanctions against both party and attorneys (jointly and severally). Hannah notes the statute indicates that he will consider "whether the Republican Party and its attorneys brought the case in bad faith to delay certification of the election or to cast false shadows on the election's legitimacy." (Footnote 4 indicates the judge is trying to figure out whether AZGOP's attorneys - Jack Wilenchik and company - knew that the hand count audit had been completed before the suit was filed.)

*Campbell won the 1916 election to replace Hunt in the Governor's mansion. This court case turned the state's keys back over to Hunt, although Campbell defeated him again in 1918 - presumably, fair and square.

"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: State Senate Republicans Speed Up Court Proceedings Re: Election Subpoenas, Intend To Send Congress An Update Before Electoral College (READ)

State Senate President Karen Fann and Judiciary Committee Chair Eddie Farnsworth filed their own lawsuit to try to enforce their election-related subpoenas against Maricopa County. Superior Court Judge Randall Warner has set a fast-tracked oral argument on jurisdictional issues for Wednesday afternoon.

Maricopa County's Republican-dominated Board of Supervisors filed suit on Friday, calling the subpoenas "unlawful". Not satisfied, Fann and Farnsworth hired outside legal counsel Kory Langhofer and Thomas Basile to file a special action yesterday, noting that January 6 and January 11 are both key dates. Congress meets on the former to accept Arizona's 11 Electoral College votes for Joe Biden, and the current State Legislature terminates on the latter date.

Judge Warner refused to allow the Republican slate of electors to intervene in the case, and he will later decide whether the two separate cases should be consolidated into one. Right now, he sees "real jurisdictional challenges" to the Legislature's suit, asking "what can the court do that the Legislature can't do" in enforcing the legislative subpoenas? He also wanted to know "why is this a Special Action", and "why does the court get involved at all in a legislative subpoena?"

The parties have until 2pm tomorrow to brief the jurisdictional and standing issues, and he will hear the oral arguments at 4pm.

Here is the Special Action Complaint filed by the Republicans' outside counsel:

Fann v. Maricopa County - Special Action Complaint 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 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, December 18, 2020

BREAKING, READ: Maricopa County's Legal Action To Quash "Unlawful" Election-Related Subpoenas

After this afternoon's decision by the Maricopa Board of Supervisors to get a judge involved in the State Senate's subpoenas for copies of everyone's ballots and most of the election hardware and software, it did not take long for the Maricopa County Attorney's Office to file the Complaint in Superior Court.

State Senate President Karen Fann and Judiciary Committee Chair Eddie Farnsworth had issued the subpoenas on Tuesday and demanded turnover of the information, etc. by this afternoon.

After two meetings and more than 7 1/4 hours of Executive Sessions to receive advice from legal counsel and to discuss the matter, the Supervisors voted 4-1 to ask for clarification from the courts about whether and how to comply.

All five of the Supervisors - the Board is made up of four Republicans and one Democrat - expressed their support for further auditing measures to demonstrate that Maricopa County pulled off a safe, fair and accurate election in November (and the previous two elections with the same process).

Steve Chucri was the sole "nay" vote, and he indicated that he thought the Supervisors should have paired the lawsuit about the subpoenas with a promise of an audit. The County had said that it had independent auditors ready earlier, but had sent them home because litigation was still ongoing. Arizona GOP Chairwoman Kelli Ward has appealed two different court dismissals - one to the 9th Circuit and one to the U.S. Supreme Court.

Board Chairman Clint Hickman said the lawmakers had given him a "slap in the face" when they sent the subpoenas the day after he had testified at their hearing the day before. "There are real constitututional issues with these subpoenas," he said.

Arizona's Law has detailed some of the issues the County faced in deciding whether or not to comply with the subpoenas, and why the discussions were taking a long time. Existing election integrity statutes have very specific provisions about how ballots and records are to be kept safe, for example.

County spokesman Fields Moseley told Arizona's Law that he did not know of any discussions between the two governmental entitities this week, but that individual Supervisors may have spoken with state lawmakers.

Here is the Complaint. It claims that the subpoenas are "unlawful" for a variety of reasons, including that they are invalid, serve no "legitimate legislative purpose", violates "secrecy of the ballot" and ballot security, and other reasons.

Interestingly, for the first time in this post-election war, Maricopa County hired outside legal counsel to collaborate with the team at the Maricopa County Attorney's Office. Stephen Tully from the national law firm Hinshaw & Culbertson is now on the case. He was the State House Majority Leader as a Republican Representative in the early 2000's.

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Maricopa County Election Subpoena Complaint by arizonaspolitics on Scribd

Maricopa County Letter to President Fann and Sen. Farnsworth by arizonaspolitics on Scribd

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(This is a developing story. Please check back 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.


BREAKING: "Bride of Arizona Krakenstein" Case Appealed To Arizona Supreme Court (aka Pinal County election contest)

Staci Burk is appealing the dismissal of her Pinal County Election Contest lawsuit to the Arizona Supreme Court. 

Pinal County Superior Court Judge Kevin White dismissed the case on Tuesday, citing multiple fatal defects - lack of timeliness, failure to name the required parties, laches, and (most interestingly) that Ms. Burk is not a registered voter.

Ms. Burk began the appeal process the same day, although it was not publicly known until today.

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Burks - Ruling in Pinal Cty Superior Court by arizonaspolitics on Scribd

Notice of Appeal and Statement Designating Case as an Expedited Election Matter Pursuant to Rule 10 Arizona... 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 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, December 17, 2020

NEWS ANALYSIS: Et Tu, Brute?* The Arizona Election Subpoenas - What Can Legislators Subpoena, How Can Maricopa County Respond, Appeals, Etc.

UPDATE, 12/18, 1:10pm: The County Board of Supervisors voted 4-1 to file a legal action in Maricopa County Superior Court to determine what can and should be turned over to the State Senate in response to the election-related subpoenas. The vote came after approximately 7 1/4 hours of Executive Session deliberation time (Wednesday and today). (The Supervisors were not sequestered.)


The majority of the post-election battles have now moved from the courts to several state legislatures, and Arizona's is trying to move to center stage. In fact, the one we are watching most closely now are the subpoenas that State Senate President Karen Fann and Eddie Farnsworth have served on the Maricopa County Board of Supervisors.

Both the subpoenaing Senators and the County recipients are almost entirely Republican, which may be the reason behind the drama.

As noted earlier, the two subpoenas are for digital images of all of the early ballots (i.e. the vast majority of ballots cast) and nearly all of the election equipment and information used in the election process. The legislators are looking to do audits on the information, in an effort to show that fraud tipped the outcome from Donald Trump to Joe Biden. The subpoenas give the County until Friday to comply.

The County Board of Supervisors - controlled by Republicans, 4-1 - met in Executive Session for 4 1/2 hours Wednesday, receiving legal advice from the Maricopa County Attorney's Office (also, Republican) and discussing their options. They adjourned without making any public decisions and set a new Executive Session for Friday morning.

What are some of the laws that the Supervisors need to consider in responding to their counterparts, and maybe avoiding a nasty legal fight over the subpoenas? We invited a couple of fellow election law attorneys to help explain the situation.

Our first expert has been involved in some of the predecessor legal battles - the current evolutionary period goes back to the infamous 2000 Presidential election which ended up in the U.S. Supreme Court. This attorney shared a great summary, but wishes to keep his/her name out of this increasingly-nasty fray:  

Arizona law requires that after the canvass, county election officials deliver the ballots cast in that election in sealed packages to the county treasurer, who must place them in the treasurer’s secure facility for 24 months, before destroying them without opening the packages.  Another statute extends that to “electronic data from and electronic or digital images of ballots [must be] protected from physical and electronic access”.  Similarly, any media used to program or operate a tabulation device or “used in compiling vote totals shall be kept under lock and seal.” None of these laws provides for turning over ballots, ballot images, or programs used in the tabulation process in response to a subpoena, whether issued during litigation or by a  legislative committee.  Indeed, the law expressly allows a court to order production of ballots or ballot images only if it is overseeing an election contest filed within six months of the election.  

Given these provisions for securing ballots and other election-related materials, Maricopa County is in the unenviable position of choosing between violating state law or being held in contempt of the Legislature.  The County could object to the subpoena and force the Legislature to take further steps to enforce it.  Or, it could try a more cooperative solution by negotiating with Senator Farnsworth’s committee to jointly seek a court order allowing the County to provide the requested materials.  A court order could have the added benefit of imposing court-enforceable protections on how the materials are used and secured once provide to the Legislature.

His/her first paragraph makes it clear that previous sessions of the GOP-controlled Arizona Legislature have already passed "election integrity" laws and have tried to balance those considerations with privacy issues, with the mostly-Republican Governors signing those laws into effect. 

You could easily view the current lawmakers' subpoena efforts as a way of making "new election law on the fly, something not permitted in our system of government."

Tom Ryan, an East Valley attorney who has long been involved in election law cases (mostly for Republican interests), also weighed in for Arizona's Law/Arizona's Politics readers:

If I were the County, I would (1) respond to the subpoena by pointing out the statutory protections afforded to the ballots and the program software, (2) would not turn over the data citing these statutes, and (3) advise Eddie F if he wants it all he can go to court and ask for it. I believe the County (a) has a duty to follow the law as currently existing and (b) has a duty to protect the privacy of the ballots on behalf of all voters. I don’t see this duty as waivable by the County, any more than the attorney client privilege is waivable by the attorney alone. But, hey, what do I know. I’m just a little guy from the dusty, dirty cotton town of Chandler.

As both of our experts suggest, yesterday's decision to continue the meeting until Friday may be an indication that there are discussions taking place behind the scenes. And, if the County decides on Friday morning to turn over all requested information, we might see others virtually running up the courthouse steps seeking a court order halting any turnover. 

Further complicating the situation is that there are still court cases actively being pursued by the same parties clamoring for new election integrity measures. Arizona GOP Chairwoman Kelli Ward and the state party have appealed two different cases. Their "Arizona Kraken" case in federal court is on appeal to the 9th Circuit and their state court election contest is currently pending appeal to the U.S. Supreme Court.

Maricopa County has suggested that they were prepared to conduct additional auditing measures, but could not while litigation is pending.

*Part of the headline was prompted by a popular thread on Twitter today. This QAnon-related account compared Donald Trump and last month's election to when "the Roman Senate ordered Julius Caesar to disband his army and return home or become an "Enemy of the State"."

"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, December 14, 2020

BREAKING: U.S. Supreme Court Takes Unusual Route To Reinstate Arizona Prisoner's Death Sentence (READ Opinion)

By a vote of 6-3, the U.S. Supreme Court reinstated an Arizona prisoner's death sentence today, taking an unusual route to vacate the lower court's decision. 

Last year, Arizona's Law reported on the en banc 9th Circuit's decision granting a new sentencing to convicted murderer George Kayer. The court reasoned that the defense attorney had messed up by not properly presenting possible mitigating factors.

Today, the Supreme Court granted Arizona Attorney General Mark Brnovich's Petition for a Writ of Certiorari and simultaneously vacated the 9th Circuit decision, saying that the lower court had not been deferential enough to the Arizona court's sentencing determination. 

Kayer killed his friend, Delbert Haas, in the desert in order to rob him. His girlfriend turned him in to security at a Las Vegas hotel several days later. 

The 13-page unsigned opinion had three dissenters, but Justices Breyer, Sotomayor and Kagan did not explain their reasons for disagreeing.

Scotus - Kayer Per Curiam 121420 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 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, December 11, 2020

BREAKING: AZGOP Chair Ward Challenging Constitutionality of Electoral Count Act's Safe Harbor Date In SCOTUS, Attorney Tells AZ Law

UPDATE, 10:55am: Attorneys for Kelli Ward have now filed their U.S. Supreme Court Petition (for a Writ of Certiorari) and have asked for expedited consideration. As promised in the original article below, she is challenging both the constitutionality of the Safe Harbor date in the Electoral Count Act and the due process violation which she alleges occurred as a result of the fast-tracked state court process.

In this case, the discovery schedule was severely curtailed due to the perceived “deadlines” imposed by the Electoral Count Act. Petitioner therefore asks the Court to declare the Electoral Count Act deadlines unconstitutional as applied to state court litigation, and to reverse and remand this case to the lower courts to proceed in a manner not inconsistent with this Court’s Opinion. The lower courts should be given to decide whether Petitioner should be granted additional time for inspection of ballots, without regard for the Electoral Count Act deadlines.

Here is what they have filed:

Arizona SCOTUS Challenge - Petition for Writ -Ward v. Jackson, Et Al by arizonaspolitics on Scribd

Arizona SCOTUS Challenge - Motion to Expedite Ward v. Jackson by arizonaspolitics on Scribd

Original article, 10:20am: BREAKING: AZGOP Chair Ward Challenging Constitutionality of Electoral Count Act's Safe Harbor Date In SCOTUS, Attorney Tells AZ Law

 Arizona GOP Chairwoman Kelli Ward is excited to be bringing one of her election challenges to the U.S. Supreme Court today. Although yesterday, she announced it would be the Arizona Kraken challenge in federal court, it is actually the Election Contest that she (alone) had filed in State Court.

Ward is going to challenge the constitutionality of the federal law that establishes the Safe Harbor deadline that passed on Tuesday.

That contest was the one where Superior Court Judge Randall Warner allowed the parties to first review 100 duplicated ballots in Maricopa County and the parties then agreed to review additional. (They also reviewed 100 signature envelopes.)

Judge Warner then ruled that insufficient evidence had been presented to change the results of Arizona's Presidential election, and the conservative Arizona Supreme Court unanimously affirmed this past Tuesday.

The U.S. Supreme Court appeal will be based upon a violation of due process, according to Ward. Ward's attorney, Jack Wilenchik, explained to AZ Law that the "Petition asks the Court to resolve the crucial issue of whether state courts are bound by the Electoral Count Act’s “deadlines” when resolving state-court litigation, given that Constitution does not expressly grant such authority to Congress. This question has obvious significance in light of the extensive state-court litigation over the presidential election this cycle."

Ward's daily video explains it further, saying she was denied due process because the judge set "unrealistic deadlines" under the incorrect assumption that he had to make a decision and leave the AZ Supreme Court time before the Safe Harbor date.

The Safe Harbor date in the Electoral Count Act is not a "drop-dead" deadline by which the results must be certified and all litigation must be completed. Rather, it is a date that, IF MET, means that Congress CANNOT CHALLENGE the state's electoral slate when it meets to confirm the Electoral College vote on January 6. 

[National election law expert Prof. Rick Hasen responded to this article with a tweet decrying the premise of Ward's Supreme Court Petition, saying "People ask me when the litigation is going to stop. I say perhaps not through the entire Biden presidency. But when will the serious litigation stop? It already has."]


The petition to try to convince the Supreme Court to review Arizona Supreme Court decision will be filed later today - the highest court in the land does not offer electronic filing.

Other current Arizona-related election news from AZ Law:

--ONE MINI-SURPRISE: 2 Of AZ's U.S. Representatives and a Baker's Dozen AZ State Lawmakers Urging SCOTUS To Hear Texas' Trump Case; AZAG Brnovich Walks the Line

--NEW: U.S. Supreme Court To Consider Arizona Election Case TOMORROW; No, Not THAT One, the One Allowing Gov. Ducey To Appoint Kyl/McSally For 2+ Years Before Special 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. 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.

NOT SO FAST: Maricopa County Does NOT Have Agreement To Turn Over Election Materials To Senate President Fann, GOP

"There is no agreement finalized. Period." Maricopa County Supervisor Steve Gallardo told Arizona's Law this afternoon that t...