Oral Arguments in Kari Lake's 2022 Election Contest

UPDATE, 5/2, 2pm: "Oral Arguments in Kari Lake's 2022 Election Contest"

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Original article, 3/27: "BREAKING: Kari Lake's *2022 Election Contest* Appeal Pops Back Onto Calendar For Oral Arguments; What's It Mean? (NEWS ANALYSIS)"

Kari Lake's almost-forgotten Election Contest appeal is - as simple minds would put it - alive and kickin'. More than four months ago (Nov. 14, 2023), briefing was completed. Neither side requested oral argument, and the appeal was deemed "submitted" (for decision) on November 27.

This past week, Division 2 of the Court of Appeals - the Tucson-based division that Lake fought a transfer to - decided to ask the attorneys to come in for short oral arguments on May 2. They did not present counsel with any issues that they would like to see addressed.

Lake appealed the judgment against her on four of the six counts, back in May 2023. The issues raised included not only Maricopa County's 2022 printer problems, but "new evidence" about their certifications of tabulators and their signature comparison process.

What does this sudden request for oral argument mean? A couple of possibilities come quickly to mind:

1. The three-judge panel is deadlocked on one or more issues and/or the result, and thinks that oral argument could help sort that out. I would suggest that that is less likely, given that they (a) do not need to be unanimous although they would like to be, and (b) that they did not provide any guidance to attorneys on specific questions.

2. This sequence tracks closely with that taken by the trial judge in Abe Hamadeh's Election Contest (which was just conferenced last week and is currently under advisement in Division 1 of the Court of Appeals, by the way). When that Mohave County Superior Court judge sua sponte (on his own) set oral argument, it was widely seen as a way to hide a procrastination problem. It is worth noting that this case was transferred from Division 1 to Division 2 as part of a program to equalize caseloads for the appellate judges.

Arizona's Law has privately produced a Petition to change the rules for future Election Contest appeals. There are rules to make sure that the cases are heard by trial judges expeditiously, and there are rules for expedited appeals in some elections cases. The new Petition seeks to amend these rules to prevent these types of delays in the 2024 (and future) election cycles, in order to improve the administration of justice in these high profile cases. 

If you are an Arizona attorney interested in this petition, please contact me at Paul .  Weich . AZlaw @ gmail.com (no spaces)

By the way, Lake has THREE active cases which have all been in the news this past week. Here is "where are they now" and how to tell them apart.

1. The Election Contest (2022) that is the subject of this article. (see above)

2. Stephen Richer's Defamation Case. (It is in the news this week because Lake defaulted in Superior Court following unsuccessful appeals, and she is now asking Judge Jay Adleman to hold a damages (against her) hearing. Richer is asking for discovery to prove the damages. An April 24 status conference is now on the books.

3. The ban Electronic Voting Machines Case, filed by Lake and Mark Finchem before the 2022 election. That case was dismissed by the federal judge and affirmed by the 9th Circuit. Lake/Finchem this month asked the U.S. Supreme Court to reinstate the case, claiming new evidence. They later filed a faux Motion to Expedite to introduce that new evidence. The Supreme Court does not have to accept their appeal. (Their appeals of $122,000 in sanctions are pending in the 9th Circuit.)

"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. 

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AZ Public Schools Supt Horne Tags Wife; New Complaint Attacks Dual Language Instruction After State Suit Fails (ARIZONA'S LAW SHORTS)

Arizona Superintendent of Public Instruction Tom Horne used his office to pump up a new private lawsuit attacking dual language instruction shortly after his taxpayer-funded attack failed. The new action was filed by his wife on behalf of a woman whose son is not in the sued Creighton School District.

The suit is well-covered in other media reports. Here is the full, unredacted Complaint with exhibits.

The case has been assigned to Maricopa County Superior Court Judge Melissa Julian.

"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 podcasts.

BREAKING UPDATE: Judge Says Kari Lake Lost "All Rights To Litigate the Merits" of the Defamation Case, Asks Parties to Meet and Confer About Discovery and Mediation

UPDATE, 3/28, 7am: "BREAKING UPDATE: Judge Says Kari Lake Lost "All Rights To Litigate the Merits" of the Defamation Case, Asks Parties to Meet and Confer About Discovery and Mediation"

Leaving little doubt of what he thinks of Kari Lake's legal maneuver of admitting default, the judge hearing the case wrote that she "effectively concede(d)" and ordered her attorneys to seriously meet and confer with Stephen Richer's attorneys about discovery and setting up a settlement conference or mediation.

Judge Jay Adleman took the case back from the Court Commissioners' calendar with yesterday's Minute Entry (posted this morning), and noted that Lake's default comes with a well-established price: "a defaulted party loses all rights to litigate the merits of the cause of action."

Lake tried to take the steering wheel on what happens next, but Adleman grabbed it back, and

gave the parties three weeks to meet about agreeing to a discovery schedule and either a settlement conference or mediation. He set a status conference for April 24 to make sure everyone is moving forward.

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UPDATE, 3/26, 2pm: "BREAKING: Lake Intentionally Defaults,Accepts Responsibility For Defaming Stephen Richer Re: Election Claims (NEWS ANALYSIS)"

In a highly-unusual legal maneuver, Kari Lake allowed herself to be defaulted in Stephen Richer's defamation lawsuit against her. The deadline to file an Answer passed last night, and today she filed a Motion to move toward a default judgment hearing.

Such a Motion is (almost) always filed by the Plaintiff in the case. But, Lake's attorneys* believe that they can force embarrassing discovery against Richer before the limited hearing on what remedies the court will grant Richer.

Claiming that Lake did not just admit all of the allegations in Richer's Complaint - they claim that that is a "misnomer" - the attorneys signaled their intent to question Richer about the mental health issues Lake's repeated attacks on Richer and the election system caused. They also want to find out what campaign contributions he may have lost because of the attacks.

Lake is likely correct that the perception that a default is akin to admitting everything is somewhat overstated, and that Richer will still have to prove up the causation issue. (The link between Lake's statements/actions and the claimed harm.) However, in a default hearing, it is unlikely that Judge Jay Adleman (or a Commissioner) will give Lake the same leeway as if it was a trial on the merits.

On the other side, Richer and his attorneys have been chomping at the bit to depose Lake and conduct other discovery on the damages issues. 

Richer said that, “(b)ecause of their actions, my family and I have faced an endless barrage of threats—including calls for our execution—I have lost close personal relationships, and I have had my reputation irreparably damaged. I have said from the beginning that no one is above the rule of law and today further validates that belief. I look forward to entering the damages phase of this case.”

Anticipating today's filing, Richer's legal team yesterday asked for sanctions against Lake's attorneys and/or Lake for the delays.

* ASU's First Amendment Clinic has been listed as co-counsel at every stage of the case so far. However, they are not participating in today's maneuver.

UPDATE, 3/25, 5pm: "Richer Asks For Sanctions, Accuses Lake of Intentionally Defaulting In Defamation Case and Playing Other Games To Delay Discovery"

In an unusual filing, Stephen Richer's attorney is asking the judge to impose sanctions on Kari Lake and/or her attorneys for intentionally defaulting in the defamation case simply to delay depositions and other discovery.

Arizona's Law reported last week on the default, which becomes effective only if Lake does not file an Answer before midnight tonight. Today, Richer told the judge that not only was the default an intentional ploy to delay discovery, but that Lake's attorneys have been playing other games to delay.

The Motion asks Judge Jay Adleman to enter an offered Scheduling Order and procedures for exchanging electronically stored information ("ESI"). Further, it asks for Lake's attorneys (and/or Lake) to be sanctioned.

Arizona's Law has asked both sides whether an Answer has yet been filed, and will update as warranted. The electronic filing window is open 24/7, so it could be filed at 11:59pm. (However, it would not be shown on the Court's public docket for another few days.)

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Original article, 3/20: "BREAKING OOPS: After Supreme Court Rejection, Kari Lake Defaults To Stephen Richer In Defamation Suit"

Kari Lake has defaulted in the defamation suit brought by Maricopa County Recorder. Her attorneys' oops is not fatal to her defense, and it follows the swift rejections of her appeals to the Court of Appeals and Supreme Court.

Richer's attorneys appropriately entered the default last week after the Supreme Court's rejection (earlier this month). By Arizona's court rules, the default does not become effective if Lake files an Answer within two weeks. (Her new deadline is March 25.)

Judge Jay Adleman issued a Minute Entry today, noting that it would be up to Superior Court Commissioners to proceed with the default process. This is a standard procedure.

Of course, Lake's attorneys - a team of Tim LaSota, Jennifer Wright and ASU's First Amendment Clinic - did file the unsuccessful Motion to Dismiss and other efforts (including stopping discovery). However, upon the upheld denial, an Answer to the defamation Complaint was required.

Richer filed the lawsuit last June, alleging that Lake's false claims alleging "bogus ballot injection", and "ballot size sabotage" have caused significant harm to him and to our elections.

Richer used news of the default to reiterate his readiness to begin discovery, including deposing Lake and others.

We’re ready, and have been ready for some months, to start discovery.

Lotta documents, recordings, etc we’d like to look at.

And depositions… we’re gonna need a bigger boat… https://t.co/8e4yk0V9Za

— Stephen Richer—MaricopaCountyRecorder (prsnl acct) (@stephen_richer) March 20, 2024

"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 podcasts.

BREAKING UPDATE: UPDATE: Lake/Finchem Mis-Accuse All Opposing Attorneys Of Ethical Breaches and/or Admissions; Supreme Court to Discuss Case In 2 Weeks (NEWS ANALYSIS)

UPDATE, 4/4: The Supreme Court has refused to accept the so-called Supplemental Brief filed by the Lake/Finchem team. (See, below)

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UPDATE, 4/3, 3pm: "UPDATE: Lake/Finchem Mis-accuse All Opposing Attorneys Of Ethical Breaches and/or Admissions; Supreme Court to Discuss Case In 2 Weeks (NEWS ANALYSIS)"

In a stunning misreading of court rules, Kari Lake's (and Mark Finchem's) attorneys last night asked the U.S. Supreme Court to find that Arizona's (and several county's) attorneys all committed ethical breaches and/or admissions by not (yet) answering their recent appeal.

The Lake/Finchem/Mike Lindell team have claimed to file new evidence supporting their right to continue fighting to ban electronic voting machines in Arizona's upcoming elections. Attorneys from the Arizona Attorney General's Office, Maricopa County and Pima County all told SCOTUS ("Supreme Court of the United States") that they would stand by and not file a Response unless the Justices felt it necessary. This was on a Supreme Court official form and is a standard practice set out in the court's policies. The Supreme Court only accepts approximately 1-2% of the petitions filed.

Attorneys Kurt Olsen, Larry Joseph and Patrick McSweeney (all from the DC area) filed their 39-page "Supplemental Brief" yesterday, claiming victory. They rely on a triple bank shot:

1. The opposing attorneys had an ethical responsibility to oppose the appeal if there was a misstatement of law or fact in the Petition. 

2. Therefore, by filing the waiver form they admitted everything Lake's team said was perfect, and

3. the Justices should therefore rule in our favor without going through any formal briefing or argument.

The problem is (2). The court's Waiver form should be titled "Conditional Waiver", because the attorneys were actually telling the court that "I do not intend to file a response to the petition for writ of certiorari UNLESS ONE IS REQUESTED BY THE COURT." (I re-emphasized for clarity; the form emphasizes the first part of the sentence.) 

This conditional language is also supported by a January 2023 Memorandum from the Court. In it, they set out "The Court will sometimes schedule a case for conference, but then request a response from the respondent(s) before the petition is actually considered at conference.  Such a request will be noted on the docket, and will generally give the respondent 30 days to submit the response."

Based on the Lake team's uneven record of following the Supreme Court's rules, Arizona's Law believes that the misreading of the waiver is intentional. They were able to follow the rules iu requesting multiple extensions of their deadline to file the Petition (appeal) and they followed the rules to submit yesterday's Supplemental. On the other hand - as detailed below - they obliterated the rules by filing a bogus Motion to Expedite. This accusation appears more designed to make their supporters think they are winning than convincing the Supreme Court to take some radical action.

It is unclear whether Arizona and county attorneys will also decide not to respond to this latest tactic. None of the attorneys reached wanted to go on the record with Arizona's Law.

We should expect the Justices' reaction to this on either April 22 or 29. Today, the Court indicated that the Justices would - privately - conference about this (and other) cases on April 19. The Court's calendar shows four days of oral arguments the following week (including Trump v U.S. on Thursday), with Orders being released each Monday.

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BREAKING UPDATE, 3/21: The Real Reason *WHY* Kari Lake Late-Filed Request To Expedite SCOTUS Appeal To Ban Arizona Vote-Counting Machines (NEWS ANALYSIS)

In a move that can best be described as "rich", Kari Lake and Mark Finchem today asked SCOTUS to expedite her appeal Petition. And, the real reason is not that they are (suddenly) more worried about vote-counting machines being used in November - which is what they claim.

The Motion to Expedite comes more than five months after the 9th Circuit issued its Opinion on Oct 16, (as published here, below, in the original article). 

Lake had 90 days to appeal. She asked for not one, but TWO, month-long extensions, citing other professional obligations. (Justice Kagan granted them.)

We did not previously publish the extension requests. However, they now are much more relevant. Here they are, below.

Lake's attorneys - Kurt Olsen and Larry Joseph - filed the Petition for Writ of Certiorari (asking the Justices to accept the discretionary appeal) just under the extended deadline last Thursday. The Clerk set April 17 as the government's deadline to respond. 

If they had filed the Motion to Expedite with the Petition, the Court could have decided when to set the response deadline.

However, the real reason for filing the expediting request today was not in the (too-long) 23-page Motion. Rather, it is found in the 176-page Appendix filed separately.

There, we see three new affidavits from key election fraud advocates Clay Parikh, Ben Cotton and Walter Daugherity. These are dated March 18, 19 and 16, respectively.

In other words, even with the five months and two extensions, Lake's/Finchem's/Lindell's team could not finish putting together their Petition. This Motion to Expedite was simply an improper effort to get a de facto third extension to cover up their most recent (work management) failure. (Remember, this case was dismissed, sanctioned, and affirmed on appeal.)

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 UPDATE, 3/14/24: "BREAKING: Kari Lake Goes To the (U.S.) Supreme Court, Brings New/Not New Allegations To Outlaw Voting Machines (READ Petition)"

Kari Lake and Mark Finchem told the U.S. Supreme Court today that they have uncovered new evidence of unlawful conduct in past Maricopa County elections, and that the Justices should therefore find that they had standing to file their 2022 suit to ban electronic voting machines.

While not repeating the claims they made in the lower courts that Arizona does not use paper ballots, Lake/Finchem attorneys Kurt Olsen and Larry Joseph do claim to have recently discovered that Maricopa County gave Dominion employees control over the election systems and committed other violations in 2020. Their argument is that the lower courts would not have dismissed the case (and assessed $122,000 in sanctions) but for these discoveries.

Their summary of what they want the Supreme Court to now consider also includes allegations that Maricopa County did not do required logic and accuracy tests, that passwords were not tightly controlled, and software was altered. The full list is found on pp. 17-18 of the Petition, below. However, they are theories that have long been thrown around - maybe even in this case. 

Asked about today's laundry list, Maricopa County Recorder Stephen Richer told Arizona's Law "And, they're not even new."

After considering responses, the Supreme Court will conference and decide whether or not to accept review of the case.

Olsen, Alan Dershowitz and Lake's other attorneys have separately appealed the sanctions to the Ninth Circuit, with oral arguments expected to be in July.

(Previous article: https://arizonaslaw.blogspot.com/2023/10/breaking-9th-circuit-re-dismisses-kari.html)

"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 podcasts.

BREAKING: AZ Supreme Court REVERSES $27,000 of sanctions against the AZGOP for post-2020 election case.

The Arizona Supreme Court today decided that the Arizona GOP did not file a "groundless" post-election suit in 2020, and unanimously reversed $27,000 in sanctions levied by both the trial and intermediate courts.

The lawsuit was the one that waited until after the election and mandated hand count audits to challenge Maricopa County's decision to select 2% of voting centers to audit instead of polling places. The AZGOP knew of that decision prior to the election, but had not challenged it.

Justice John Lopez wrote the opinion for the Court, and soundly rejected the lower courts' determinations that the case was sanctionable.

"Facially, Petitioners’ claim is more than “barely” colorable in this context. Petitioners correctly point out there is a plain-language conflict between § 16-602(B), which requires a precinct hand count, and the 2019 EPM, which permits a voting center hand count."

Lopez however emphasized that the Court was not finding that the then-EPM did impermissibly contradict the statute; only that the GOP's claim was not groundless.

Similarly, he dismisses the lower courts' unanimous decisions that the lawsuit (and, appeal) was/were sanctionable because it needed to be brought BEFORE the election. "Fairly debatable", he states.

The Court did not find that Superior Court Judge John Hannah's findings that the case was "futile" and "meritless" were clearly erroneous. However, they did find that that did not reach the level of groundlessness necessary to justify the sanctions award.

And the Opinion warns future judges to not base sanctions on political motive. "Our courts should be cautious that, in their zeal to ensure that election challenges are properly grounded in fact and law under the guise of defending an “election’s legitimacy,” they do not inadvertently inflict real damage to our republic by slamming the courthouse door on citizens and their counsel legitimately seeking to vindicate rights, which is also important to maintaining public confidence in elections."

The AZGOP had posted a bond for the sanctions, and will now be able to get that bond released back to them (their surety).

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Original article, 3/14: "UPDATE: AZ Supreme Court Hears Arguments On Grandaddy of All Elections Sanctions Cases; Near Finality On AZGOP's 2020 Case"

The Arizona Supreme Court heard oral arguments this morning on the grandaddy of all elections-related sanctions cases, and the Republican-appointed justices seemed skeptical of the AZGOP's post-2020 lawsuit that prompted the sanctions.

The arguments were heard on the road, at ASU's College of Law.

Representing the AZGOP, attorney Dennis Wilenchik echoed earlier arguments that the sanctions for a bad faith filing were only based upon "the political motivation". Jack Wilenchik had warned the Superior Court judge that he would was in "dangerous First Amendment territory into which the Court should not dream of treading".

Judge John Hannah accused Wilenchik and the AZGOP of "gaslighting" and sanctioned them approximately $18,000 for the "futile" and "meritless" suit. The Court of Appeals not only affirmed those sanctions, but added $9,000 more for the "muddled" appeal.

Arizona statutes refer to a post-election hand-counted audit of 2% of voting precincts. However, the then-in-place Elections Procedures Manual recognized that some counties had moved to voting centers, and that an audit of 2% of those would satisfy the law.

The AZGOP knew in September of Maricopa County's intent to audit voting centers, yet did not file the challenge until after the audit was conducted and the official canvass of the election was fast approaching.

Both lower courts found that the lawsuit was groundless because it was against "the wrong parties at the wrong time, and sought the wrong relief", Assistant AG Karen Hartman-Tellez told the justices.

To reverse, the Supreme Court justices would have to greatly redefine the interpretation of Arizona's sanctions statute in order to overrule both lower courts' detailed findings, and likely carve out some special exception for elections law cases.

An opinion in this 2020 elections case is expected within the next few months. (Certainly before a new batch of post-elections cases are filed in November.)

"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 podcasts.

BREAKING: AZ Supreme Court Splits 4-3 On Odd Statutory Conflict Resulting From 2022's Prop. 209 (Predatory Debt Collection Protection Act)

Arizonans in bankruptcy who received refundable tax credits can breathe a bit easier today, after a divided Arizona Supreme Court ruling on the unfortunate sequencing of a 2022 law and the citizens' initiative restricting "predatory debt collection". However, dissenting Justices fret that the result may usher in an era of the Legislature preemptively amending future citizens' initiatives.

The 4-3 majority determined that Prop. 209 - the "Predatory Debt Collection Protection Act" that passed overwhelmingly - did NOT delete the portion of the exemptions statute that protected certain tax credits (e.g. earned income tax credits and child tax credits). Why the confusion? Because then-Gov. Doug Ducey signed the Legislature's bill adding the tax credit exemption on the SAME DAY (July 6, 2022) that the Healthcare Rising group turned in hundreds of thousands of signatures to put Prop. 209 on the November ballot.

That initiative touched another subsection of the exemption statute (increasing the exempt funds in a bank account), but did not mention the not-yet-existing tax credit subsection. The bill became law in September; the initiative after the election was certified in November.

Once people filing bankruptcy began claiming the new tax credit exemption, a bankruptcy trustee objected, claiming that Prop. 209 effectively repealed it (and he could seize and distribute the money to creditors).

The Supreme Court majority opinion, written by Justice John Lopez, said it is easy to see that it not explicitly repeal it. "Although the Governor signed S.B. 1222 into law on July 6, it did not take effect until September 24 because the Arizona Constitution delays the effective date of non-emergency legislation to allow challenges via referendum. See Ariz. Const. art. 4, pt. 1, § 1(3). Thus, subsection (A)(11) did not legally exist at any point during Prop. 209’s qualification process, and it did not become operative until well after Prop. 209’s filing deadline."

Writing for the three dissenting Justices, Justice Clint Bolick bemoans* the possible impact of this decision. "(I)f we green-light the legislature’s ability to preemptively amend ballot measures prior to an election, we may inadvertently turn a highly uncommon situation into a tool to blunt or frustrate the effect of prospective ballot measures. We will then be faced with deciding when to give full effect to the prior statute as amended, when we will seek to harmonize the statute and the ballot measure, and when we will hold that the ballot measure implicitly invalidates the statute."

*Justice Bolick's spouse is in the Legislature, and has recently spoken out against citizens' initiatives. Although the abortion initiative currently circulating is a proposed Constitutional amendment, it is not hard to imagine legislative efforts to preemptively amend future statutory initiatives.

**Author works with amicus Arizonans Fed Up With Failing Healthcare

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. 

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

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

Lawmakers Kolodin and Rogers Getting Early Start On "Arizona Election Audit 2024"? We Have Questions (NEWS ANALYSIS, Read Memorandum of Understanding)`

Who will be play the role of the Cyber Ninjas in the new release of "Arizona Election Audit 2024"? That is probably the least important of the many questions that Arizona lawmakers Wendy Rogers and Alex Kolodin have prompted with their new announcement of a "Memorandum of Understanding" with Runbeck Election Services.

The press release coming from the Legislature touts their agreement as a "significant achievement" and attaches a one page MOU (without a signature page). It is reproduced below. 

Runbeck is a private company that contracts with Maricopa County, most of Arizona's other counties and elections departments throughout the country to provide specialized elections services. Runbeck is currently owned by Black Mountain Investment Co., which is run by Mihai Toma. Toma's brother, Ben, is the Speaker of the Arizona House and said he would divest his interest in the company last year. (No new financial disclosure statements have been filed since that statement, either with the state or the U.S. House.)

For the most part, the new agreement involves minor improvements to oversight of Runbeck's processes, some of which have been the subject of public records requests in the past. (Runbeck had said it wasn't subject to PRRs.) For example, Runbeck is allowing the Republicans to look at video footage of Runbeck's loading dock from election night in 2022.

The 2nd item in the MOU raises more questions, however. Titled "Legislative Audits of Software", it accepts a new taxpayer-funded audit by some third party hired by the legislative Republicans of Runbeck's use of software in Maricopa County's signature verification and ballot duplication process.

And, this raises a number of questions:

1) Individual legislators - even if they are committee chairs - do not typically have the authority to enter into agreements. (Now-Senate President Warren Petersen had similar issues when he issued post-election subpoenas.) Although no signature page is shown, how are they binding the Legislature (and taxpayers)?

2) At least one of the items seem to allow Rogers and Kolodin to appoint two observers to watch the 2022 loading dock video. Yet, it does not provide for bipartisan observation, as is typical in elections processes. How do they think they can shut out the minority party?

3) This MOU is also a clear end run around the Maricopa County Recorder's Office and the Maricopa County Board of Supervisors - both Republican-controlled. How does Runbeck enter into this MOU without written permission from the agencies that have hired it?

4) In the PRR lawsuits, Runbeck has claimed to be exempt from the requests on the basis that it is simply a contractor with a government agency. Will this MOU end up destroying that defense? And, if so, is that necessarily a bad thing? The Cyber Ninjas might have something to say about this. 

5) Does Runbeck's private sharing of information with two hyper-partisan lawmakers allow for selective and misleading release of information - misinformation or disinformation, even - similar to recent disputes in the U.S. Congress?

6) Similar to the State Senate/Cyber Ninjas audit, is this furthering the bypassing of the longstanding, ever-evolving body of *laws* and regulations ensuring that Arizona's elections are efficiently, fairly  and securely run?

Many more questions could - and, should - be asked about this odd agreement between individual state lawmakers and a county vendor. But more importantly, who and how are going to answer these questions? We have begun to ask around, and will supplement as needed.

Responses from state officials, county officials, other lawmakers (and maybe the courts) incoming.

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. 

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

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