Tuesday, May 25, 2021

BREAKING: AZ Secretary of State Hobbs Filed Pre-Election Bar Charge Against AG Brnovich (READ Complaint)

In a just-discovered development, Arizona Secretary of State Katie Hobbs filed a 21-page Bar Charge/complaint against Attorney General Mark Brnovich last October. The battle between two of Arizona's top elected officials apparently took that hard turn due to disagreements on how the state should be represented in various election-related lawsuits, including the one currently in front of the U.S. Supreme Court about Arizona's so-called "ballot harvesting" prohibition and out of precinct voting laws.

The status of the Bar Complaint is not known at this point, but Arizona's Law has acquired a redacted copy of the complaint from the Secretary of State's Office (below).

Hobbs also provided us with the following statement: "Attorney General Brnovich has engaged in a pattern of behavior—directed at me and my office—that violates his ethical duties as an attorney. He frequently sought to substitute his judgement for my own and allowed his political preferences to interfere with his obligation to represent me as a client, in my pursuit of the best interests of Arizona voters. Because of this, last October I filed a complaint with the State Bar of Arizona. I asked the State Bar to treat the complaint confidentially and have not spoken of it publicly, in the hope that it would be resolved professionally and free of politics. Unfortunately, it appears that AG Brnovich isn’t asking forgiveness for his behavior—he’s asking our legislature to authorize it. The people of Arizona elected me to serve as our state’s Chief Election Officer. Despite partisan attacks and political power grabs, I’ll continue to get the job done on behalf of all Arizona voters.”

Katie Conner, a spokesperson in Brnovich's office, calls the complaint "politically-motivated" and focuses on it reaching to attorneys working in the office. "The Secretary of State’s decision to file politically-motivated bar complaints against AGO lawyers and target their professional standing and reputation has fundamentally altered the historical track record of the offices working together despite differing political affiliations. The assistant attorneys general have steadfastly adhered to their statutory and ethical obligations. Their livelihoods should not be threatened for political purposes."

It should be noted that Hobbs apparently filed the charges in October but did not release them to the public. Today's news came out from an unrelated source.

Phoenix attorney Dan Barr wrote that "An attorney has no greater ethical duty than the duty of loyalty to a client. If you disagree with a client, you don't do so publicly. The 21-page Bar complaint that @SecretaryHobbs filed last October 1 against @GeneralBrnovich lists multiple appalling ethical violations. For example, an ethical attorney does not make derogatory comments about his client. Nor does his office defend his client in the trial court, but then switch sides on appeal to his client's detriment. That's pretty basic, right? Nor do ethical attorneys attempt to assert legal positions that they know their client disagrees with, especially when they do get advanced permission from the client to do so."

After reviewing the letter, Chandler attorney Tom Ryan points out to Arizona's Law that "a lawyer's duty to the court is highest, even above the duty to the client....If these allegations are true and General Brnovich cannot refute them, this is serious enough to have his ticket yanked (i.e. suspended or disbarred)."

Arizona's Law will be seeking comment from the Attorney General's Office, and will be providing further updates 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

NEW GUEST ANALYSIS/COMMENTARY: State Budget Bill Also Aims To Steal Power From Citizens Clean Elections Commission

Arizona's state budget bill was introduced yesterday, and it passed the House Appropriations Committee today on a 7-6 vote. Yesterday, we tweeted about the provision which temporarily takes power away from the Secretary of State and reassigns it to the Attorney General. This guest analysis and commentary from Tom Collins explains how it also grabs power from the voter-approved Citizens Clean Elections Commission. (Below the analysis is the current text of the budget bill.)

For those of you who don’t know, Clean Elections is Arizona’s bipartisan, voter approved, anti corruption and voter education law. 

There is really nothing like it in the country. 

We provide voter education, correctives for mis and disinformation, and access to information for voters in each corner of the state. We also provide financing for candidates who chose to set aside large private and pac donations and abide by strict spending rules, breaking the link between dollars and political favors. 

So it’s no surprise the new budget bills take aim at clean elections. 

*HB2891*

First, Section 15

This section provides that GRRC, The Governor’s Regulatory Review Council, can reach out strike Commission rules on its own recognizance, rather than requiring a petition or any notice to the public.  

In other words the Governor’s council could override Commission decisions at will. This is contrary to the Voter Protection Act. 

Under Prop. 306 (2018) and  Prop. 200 (1998) this is an amendment requiring a three-quarter vote as applied to the Clean Elections Act.  

I have yet to hear any lawyer, including the legislators own, suggest that expanding GRRC's authority over the Commission does not constitute an amendment. 

Notably, GRRC is entirely appointed by the Governor, while the CeC is appointed partly by the Governor and partly by the Secretary. So this provision is a double whammy. 

Second, Section 24 is written so broadly that it appears to seek to amend or supersede the Clean Elections Act.  It does this primarily by designating the Attorney General as " the. . . sole authority in all election litigation to direct the defense of election law."  This section expires with the current terms of the AG and the SOS. 

However,  the language making the AG the sole authority directly contradicts the Commission's express authority to intervene in cases where the constitutionality of the act is in question, among other things.  ARS 16-960. 

While the bill may be aimed at Secretary Hobbs, it seeks to inflict clear legal damage on the Clean Elections Act. It does so by attempting to preempt the role of defending clean elections that the voters granted to the Commission. 

Likewise, Subsection A. of Section 24, which alters the relationship between the AG and election officials, appears to usurp the Arizona Supreme Court's authority to determine the scope of conflicts for government law firms.  See Ariz. Supreme Court Rule 42, Ethical Rule 1.13, cmt. 9 (stating conflict rules governing organization apply to government organizations.). 

You might wonder why the AG needs to be relieved from these rules. One reason is they prevent him from advising clients one way then suing them. 

Here, the bill provides the AG will not advise the SOS, leaving CEC as the agency that must rely on attorneys who reserve the right to sue their clients. This is troubling for anyone concerned about the independence of the agencies responsible for the 2022 election. 

While these issues may not grab the headlines of some of the other provisions of these bills they are nevertheless serious legal problems that undermine the confidence of the public not only in elections, but in government ethics and transparency. 

Tom Collins is the Executive Director of Arizona Citizens Clean Elections Commission. 

Arizona's Law/Arizona's Politics occasionally runs guest commentaries and analysis. If you would like to submit a column, please email to Paul . Weich . AZlaw @ gmail.com (without spaces).

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

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

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

Friday, May 21, 2021

BREAKING UPDATE: Court Orders Psychological Exam For Key Jan. 6 Participant Jacob Chansley (aka "QAnon Shaman")

(Clarification: Chansley's attorney asked for the psychological examination. The Court docketed the Minute Entry that it granted the speaking motion after posting the Order. The Order did not reference the speaking motion.)

Jacob Chansley, the so-called "QAnon Shaman" who was one of the most recognizable participants in the January 6 insurrection at the U.S. Capitol, will undergo a psychological exam. That was District Court Judge Royce Lamberth's Order this afternoon, granting the Defendant's attorney's speaking request.

The Mesa man has been in federal custody since turning himself in shortly after he became a key figure on January 6. The Court's Order will move him from the facility in Virginia to another on for up to 30 days to perform the competency examination. The exam is to determine whether "he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."

Yesterday, the USDOJ filed with the Court the list of materials that they have turned over to Chansley's attorney. There were several new disclosures just this past week, giving some insight into the ongoing nature of the investigation into Chansley and others who were arrested after Jan. 6. (The list is below.)

Here is today's Order:

 

"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.

THIS WEEK IN ELECTION AUDIT LEGAL NEWS: Thursday Hearing Set On Demand For State Senate/Cyber Ninja Contracts and Records

The election audit world has not stopped simply because the Veterans Memorial Coliseum is hosting high school graduations.

1) Superior Court Judge Mike Kemp has set a Thursday hearing on American Oversight's public records request lawsuit. The group is demanding that State Senate President Karen Fann be required to turn over all requested public records surrounding the Senate's/Cyber Ninjas' audit/recount of the November 2020 election in Maricopa County.

The return hearing will be at 10am on May 27.

Here is the Complaint that was filed earlier this week, including the records requests and the correspondence back and forth with the attorneys for the State Senate.

 

2) Jacob Chansley, the so-called "QAnon Shaman" who was one of the most recognizable participants in the January 6 insurrection at the U.S. Capitol, will undergo a psychological exam. That was District Court Judge Royce Lamberth's surprise sua sponte (i.e. on the court's own consideration) Order this afternoon. Additionally, the government released a list of materials that it has turned over to Chansley's counsel, including several supplemental disclosures this week. More details here.

3) Embattled Kraken attorney Sidney Powell is not listed as a speaker at any of the Arizona events this coming week focusing on Maricopa County's audit, but her fundraising vehicle - Defending the Republic - is under intense scrutiny in Florida. According to a new report by investigative reporter Grant Stern today, Florida authorities have been investigating whether Powell committed a felony for fundraising - for her suits in Arizona and elsewhere - without registering or disclosing her activities to charity regulators. Here is that report.

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

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

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

Thursday, May 20, 2021

BREAKING: Arizona Supreme Court Says Group That Tried To Invalidate 2018-2020 Elections CANNOT Remain Anonymous (READ: Order, Original Affidavits)

An anonymous group tried to invalidate Arizona's 2018-2020 elections and take temporary control of many of the elected offices. The Arizona Supreme Court quickly rejected that. And today the Court ruled that the individuals did not have the right to remain anonymous. They released the group's identities today.

The Court did keep the individuals' addresses, telephone numbers and dates of birth redacted, noting that they did not need to provide that information in the first place.

Here is the group of 20 would be replacement officials and who they had proposed to temporarily sit in for:




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

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

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

Monday, May 17, 2021

TODAY IN ELECTION AUDIT LEGAL NEWS: "Don't Dox Us" - Anonymous Group Who Tried To Overturn Arizona Elections Pleads With Arizona Supreme Court

 As we prepare for Maricopa County and the State Senate Republicans to hold competing meetings today and tomorrow, we have these developments to ponder:

1) The anonymous band of 20 petitioners who unsuccessfully asked the Arizona Supreme Court to overturn Arizona's elections between 2018 and 2020 - and temporarily install them in the vacated elected offices - today asked the Justices to not engage in the "dangerous practice" of "doxing" them by unsealing their identities.


The entire Motion is posted below. The Supreme Court had immediately dismissed the Petition to find that 2018, 2019 (Tucson) and 2020 elections were void because voting machines licenses had expired and proper recertification procedures had not been followed. Petitioners had suggested that they fill the elected offices until a new election could be held.

There is no word yet on when or how the Supreme Court will rule on this filing. However, if inclined to grant the motion to keep the identities sealed, the Court would likely invite a response from Defendant Governor Doug Ducey and the other parties.

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

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

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


Friday, May 14, 2021

TODAY IN ELECTION AUDIT LEGAL NEWS: Maricopa County Prepares To Refute "False Accusations" From State Senate Pres. Fann, Cyber Ninjas

1) Maricopa County - the Board of Supervisors, the Recorder and the County Attorney's Office, all run by Republicans elected in 2020 - are preparing for their Monday afternoon hearing to counter the Karen Fann letter "containing false accusations regarding Maricopa County, its elected officials and employees."

Here is the description of that meeting, as put in the official agenda released this afternoon:

We have not yet seen any announcement from the State Senate on what will happen with the Tuesday meeting that they set to bring in the County Supervisors (etc). One County official likened that meeting to "a show trial".

2) One of the elected officials who has avoided involvement in the State Senate/Cyber Ninjas' audit/recount - both political involvement and involvement in the legal cases - is Arizona Attorney General Mark Brnovich. Brnovich is term-limited and will not be seeking re-election in 2022.

Two Republicans have filed statements of interest to run for the office. One of those is newly-retired Arizona Supreme Court Justice Andy Gould. Arizona's Law spoke with him this afternoon - both about his time on the Supreme Court and about his possible candidacy. 

The entire conversation will be posted on the Arizona's Law podcast next week. But, here is the portion of the conversation about the AG's office.

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

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

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

TODAY IN ELECTION AUDIT LEGAL NEWS: Maricopa County Prepares To Refute "False Accusations" From State Senate Pres. Fann, Cyber Ninjas

1) Maricopa County - the Board of Supervisors, the Recorder and the County Attorney's Office, all run by Republicans elected in 2020 - are preparing for their Monday afternoon hearing to counter the Karen Fann letter "containing false accusations regarding Maricopa County, its elected officials and employees."

Here is the description of that meeting, as put in the official agenda released this afternoon:

We have not yet seen any announcement from the State Senate on what will happen with the Tuesday meeting that they set to bring in the County Supervisors (etc). One County official likened that meeting to "a show trial".

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

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

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


TODAY IN ELECTION AUDIT LEGAL NEWS: Maricopa County Prepares To Refute "False Accusations" From State Senate Pres. Fann, Cyber Ninjas

1) Maricopa County - the Board of Supervisors, the Recorder and the County Attorney's Office, all run by Republicans elected in 2020 - are preparing for their Monday afternoon hearing to counter the Karen Fann letter "containing false accusations regarding Maricopa County, its elected officials and employees."

Here is the description of that meeting, as put in the official agenda released this afternoon:

We have not yet seen any announcement from the State Senate on what will happen with the Tuesday meeting that they set to bring in the County Supervisors (etc). One County official likened that meeting to "a show trial".

2) One of the elected officials who has avoided involvement in the State Senate/Cyber Ninjas' audit/recount - both political involvement and involvement in the legal cases - is Arizona Attorney General Mark Brnovich. Brnovich is term-limited and will not be seeking re-election in 2022.

Two Republicans have filed statements of interest to run for the office. One of those is newly-retired Arizona Supreme Court Justice Andy Gould. Arizona's Law spoke with him this afternoon - both about his time on the Supreme Court and about his possible candidacy. 

The entire conversation will be posted on the Arizona's Law podcast next week. But, here is the portion of the conversation about the AG's office.


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

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

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

TODAY IN ELECTION AUDIT LEGAL NEWS: County To Address "False Accusations" From State Senate President Karen Fann, Cyber Ninjas

1) Maricopa County - the Board of Supervisors, the Recorder and the County Attorney's Office, all run by Republicans elected in 2020 - are preparing for their Monday afternoon hearing to counter the Karen Fann letter "containing false accusations regarding Maricopa County, its elected officials and employees."

Here is the description of that meeting, as put in the official agenda released this afternoon:

We have not yet seen any announcement from the State Senate on what will happen with the Tuesday meeting that they set to bring in the County Supervisors (etc). One County official likened that meeting to "a show trial".

2) 

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

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

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

Thursday, May 13, 2021

"Today In Election Audit Legal News": State Senate's Version of De-Escalation - Send Letter Instead Of Subpoena

The political action surrounding the recount/audit by the Arizona State Senate/Cyber Ninjas continues to swirl. Check back for updates as we post updates and filings.

5) 7pm: Supervisors and Recorder/Elections Department will hold preemptive meeting on Monday to address the Senate's/Ninjas' allegations. Probably won't show up for Senate's "meeting" on Tuesday. Following their Emergency Meeting this afternoon, Supervisors' Chair Jack Sellers (R-Dist. 1) issued the statement below.

And, Maricopa County Recorder Stephen Richer (Repub.) made a rare public statement on the matter tonight, tweeting "Enough." The full comment: "Enough with the defamation.  Enough with the unfounded allegations. I came to this office to competently, fairly, and lawfully administer the duties of the office. Not to be accused by own party of shredding ballots and deleting files for an election I didn’t run. Enough."

1) The Maricopa County Board of Supervisors has called an emergency meeting for 4pm today, in order to discuss and decide how to respond to last night's letter from State Senate President Karen Fann. The letter is below.

2) The letter sent by State Senate President Karen Fann to the Board represents a bit of a de-escalation. Rather than the subpoenas that were previously promised, Fann sets out the issues from her perspective and requests that the Board appear at "a meeting" next Tuesday. The meeting will be livestreamed, but it would apparently not be an under oath hearing with threats of contempt for not appearing. (As had been threatened in the past.)


3) Analysis and Commentary: Even with a less threatening tack, it would appear that these are all questions/issues that the Republicans in the State Senate and the Cyber Ninjas would already know answers to IF they had proceeded in a civil/orderly manner from the get-go, and that it was irresponsible for them to NOT have tried to gain an understanding of the process beforehand. 

As my colleague and friend Tom Ryan puts it, "(c)ivility by the AZGOP was never going to happen because this effort was never about the truth of the results of the 2020 election. It has always been about three things: sycophancy, red meat and punishment. I say sycophancy because the ring leaders of this operation want the approval of Donald Trump. They live for his Mar-a-Lago messages affirming that he approves of this fraudulent audit. It is all about the advancement of their political careers. I say it’s about “red meat” because that is what the hard-right base of the AZGOP wants. The AZGOP base want to see anything not Republican get destroyed. This false narrative about a stolen election feeds the maw of the angry red GOP masses. And lastly, I say this is about punishment because the base wants those Republicans who did their constitutional duty and verified the results punished. The GOP base wants their party to win, even if it means creating a false narrative about the election being stolen. Nope. There was never going to be any civility in this process."

4) Dominion Voting Systems - the company that owns the Maricopa County voting machines, and the company that has been at the center of unsupported conspiracy theories about the November election nationwide - spoke out on the demands made by the Cyber Ninjas. Channel 12's Brahm Resnik published this statement from Dominion today:



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

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

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

Tuesday, May 11, 2021

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

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

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

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

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

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

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

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

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

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

Monday, May 10, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 8, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, May 7, 2021

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

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

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

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

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

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

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

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

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

Thursday, May 6, 2021

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

 A GREAT interview by @JenAFifield!

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

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

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

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

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

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

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

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

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


Wednesday, May 5, 2021

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

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

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

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

--ballots left on tables unattended

--scrap paper tally sheets

--table leads "correcting" counters' tally sheets 

--assts "intermixing ballots from separate stacks" 

--counters conferring on how to tally a vote

--more

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

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

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

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

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

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

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

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

BREAKING: Maricopa County to State Senate Republicans: Take This Subpoena and Shove It

Maricopa County and Dominion Voting both notified the attorney for the State Senate Repubicans this afternoon that they would not be providi...