BREAKING UPDATE, 10/12, 4:15pm: "9th Circuit Temporarily STOPS Depositions of Warren Petersen/Ben Toma In Voter Registration/Citizenship Case"
In a 2-1 decision this afternoon, the 9th Circuit has stopped depositions of Arizona legislative leaders Warren Petersen and Ben Toma in connection with an upcoming trial on the constitutionality of 2022 laws passed impacting voter registration and citizenship in Arizona.
The lawmakers are invoking legislative privilege, but District Court Judge Susan Bolton had decided that they had waived that privilege when they moved to intervene in the legal challenge.
Judges Callahan and Bennett said the lawmakers' appeal "raises issues that warrant an answer" and they set a briefing schedule deadline of October 25. They invited Judge Bolton to respond either by filing an answer with the 9th Circuit or issuing a supplemental order in her Court.
A different three-judge panel will consider the merits of the appeal in November. The case is currently set for trial on November 6, and this temporary stay could prompt a delay.
Judge Fletcher disagreed with the temporary stay.
BREAKING UPDATE, 10/2, 4:45pm: "Petersen/Toma File Mandamus Petition With 9th Circuit To Protect Their Legislative Privilege Before Trial On Challenged Laws About Voter Registration and Citizenship (READ Petition)"
As promised, Arizona House Speaker Ben Toma and Senate President Warren Petersen have gone to the 9th Circuit petitioning for a writ of mandamus to protect their legislative privilege. The 9th Circuit set deadlines today and is on track to decide the matter by next Tuesday.
Petersen and Toma moved late to intervene in a legal challenge to two laws passed last year that have caused a lot of confusion about purging voter rolls in Arizona and possibly unregistering thousands of long-time citizens in the process.
In advance of the November 6 trial, Judge Susan Bolton decided that the lawmakers had waived their legislative privilege by intervening, and would have to answer questions and provide documents about why they passed the laws.
HB2492 requires proof of citizenship and proof of location of residence be provided along with the voter registration form. This received a lot of attention last year partly because there was confusion as to how - and, how many - longtime registered voters might be impacted by the new requirements. HB2243 deals with how voter registrations must be investigated and possibly canceled by County Recorders. The two laws were passed and signed by Republicans in 2022, and went into effect on January 1, 2023.
Petersen and Toma asked Bolton to stay the Order while they appealed. She refused, and they filed a Petition and Emergency Motion with the 9th Circuit on Friday. Today, the court asked for a Response by Wednesday, with a Reply being due Friday. (Toma and Petersen asked for a decision by next Tuesday.)
UPDATE, 9/26, 1:50pm: "UPDATE: Judge Orders AZ Free Enterprise Club to partly back up its braggadocio about passing challenged laws about voter registration and citizenship"
Judge Bolton issued a second Order today, partly agreeing with the Arizona Free Enterprise Club's effort to quash subpoenas about its involvement in the 2022 passage of HB2492. However, she is requiring AZFEC to produce relevant documents they believed proving that non-citizens were voting in Arizona and how they believed the new laws would impact eligible Arizona voters.
Some of the plaintiffs challenging the constitutionality of the laws asked for many years of the dark money AZFEC's records and donor lists, and wanted to conduct a deposition. Bolton found that to be way too "wide-ranging".
"While FEC brags on its website that it was responsible for the passage of the voting laws and has blog posts with titles such as “How More Illegals Started Voting in AZ Elections and How House Bill 2492 Is Going to Fix It,” this does not open non-party, FEC to wide-ranging discovery about all its internal and external documents related in any way to elections issues and FEC’s advocacy and expenditures over many years. Much of what is sought is irrelevant to the primary issues before the Court for trial. For example, FEC’s opinions about the legality and constitutionality of the voting laws is not relevant. And as Equity Coalition points out, FEC doesn’t even have a lawyer on its staff. Many of the documents requested likely violate FEC’s First Amendment Rights."
Bolton noted that the rest of the discovery - including Toma and Petersen's non-legislative-privilege-protected answers - will produce relevant communications with AZFEC. With that in mind, she did order them to turn over:
"The Court will order FEC to produce the documents described in categories 1, 6 and 8. Any research or other documents in FEC’s possession that would demonstrate whether non-citizens were voting, how the voting laws would impact Arizonans eligible to vote and election outcomes, and information on the reliability and availability of the databases referenced in the voting laws are relevant. If FEC has no such documents in any of these categories, it shall provide Equity Coalition with a Declaration under oath to that effect."
UPDATE, 9/26, 12:30pm: "BREAKING UPDATE: Judge Slams Petersen/Toma's Slow Stay Request and Promise To Send the 9th Circuit After Her Legislative Privilege Waiver Ruling (READ Order)"
Judge Susan Bolton BLISTERED a request by Arizona Senate President Warren Petersen and House Speaker Ben Toma to stay her ruling that they waived their legislative privilege in a case challenging voter registration/citizenship laws passed in 2022.
After noting that they waited eight days to file an expedited request to stay the ruling, she also found their promise to obtain a mandamus order from the 9th Circuit (which they have not yet requested) unpersuasive. "They re-argue the arguments already rejected by this Court in its September 25, 2023 Order. Moreover, as pointed out by the Non-U.S. Plaintiffs, they have wholly failed to show any likelihood of receiving relief from the Court of Appeals on a request for the extraordinary relief of mandamus on a discovery order."
Bolton also noted that the stay would push back their deadline to respond to discovery requests to only one month before the November 6 trial date. She agreed with the plaintiffs that the lawmakers could produce the discovery under a Protective Order.
Petersen and Toma are represented by Kevin O'Malley at Gallagher & Kennedy.
(I am also posting Judge Bolton's September 14 Order limiting what will be at issue in the November 6 trial. The judge issued two separate orders on the 14th, and Arizona's Law only posted about the legislative privilege order, while the Arizona Republic focused only on the other. I understand that this caused some confusion, and I apologize for that. Read the last three pages of the Order for her decisions on the various issues.)
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ORIGINAL ARTICLE, 9/14: "BREAKING: Oops, Petersen/Toma's Aggressive Intervention Strategy Backfires In Arizona Voter Registration/Citizenship Lawsuits (READ Order)"
Arizona House Speaker Ben Toma and Senate President Warren Petersen's aggressive strategy of intervening in court cases backfired today, as a judge ruled that they waived their legislative privilege in a challenge to voter registration/citizenship laws passed last year.
Democrats will now be able to depose Toma and Petersen and to obtain otherwise-privileged communications into why they passed HB2243 and HB2492 in 2022. Democrats, Native American and progressive groups challenged the laws claiming they were discriminatory and would illegally disenfranchise thousands of voters.
HB2492 requires proof of citizenship and proof of location of residence be provided along with the voter registration form. This received a lot of attention last year partly because there was confusion as to how - and, how many - longtime registered voters might be impacted by the new requirements. HB2243 deals with how voter registrations must be investigated and possibly canceled by County Recorders. The two laws were passed and signed by Republicans in 2022, and went into effect on January 1, 2023.
The matter is set for trial beginning on November 6.
Judge Susan Bolton was not persuaded by Toma and Petersen's arguments that their intervention into the case could be distinguished from existing case law where the privilege was waived.
Like the defendants in Powell, the Legislators “are not seeking immunity from this suit,” but instead seek to “actively participate in this litigation” yet avoid the burden of discovery regarding their legislative activities. Plaintiffs did not seek discovery from the Legislators until the Legislators sought to “fully defend the laws passed by the legislature.” The Legislators also specifically put their own motives for passing the Voting Laws at issue when denying Plaintiffs’ allegations that the Arizona Legislature enacted the Voting Laws with discriminatory intent.
She did decide that Toma's and Petersen's intervention did NOT waive the legislative privilege for the other lawmakers who helped pass the bills.
The Speaker and the President have waived their legislative privilege as to information about their motives for the Voting Laws. The Speaker and President must produce communications that they have sent or received relating to the Voting Laws’ legislative process and have withheld on legislative privilege grounds. They may also be deposed about their personal involvement in the Voting Laws’ legislative process. Plaintiffs may not however conduct a 30(b)(6) deposition of the Arizona Legislature.
This article was reported by AZ Law founder Paul Weich.
"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.
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