Key Points:

• Judge rules grand jurors lacked key law before indictments issued

• Defendants argue actions lawful under 1887 Electoral Count Act provisions

• Mayes plans appeal; trial delay likely as case reexamined

Attorney General Kris Mayes will have to convince grand jurors once again to indict 11 fake electors and others she contends were part of a scheme to affect the outcome of the 2020 presidential race.

In a new ruling, Maricopa County Superior Court Judge Sam Myers said the grand jurors were not given access to the Electoral Count Act of 1887. Nor, he said, was the federal law explained to them before they concluded there was probable cause to indict them.

What makes that significant to Stephen Binhak, the attorney for one of those indicted, is that federal law “specifically addresses the possibility of competing presidential elector ballots from a single state and exactly how the Congress must handle them.”

That goes directly to the claim by Tyler Bower, his client, as well as all of the others that they did not intend to commit fraud or conspiracy by preparing and signing documents showing that they were the legitimate electors — all pledged to Republican Donald Trump — despite the fact that the official tally showed that Democrat Joe Biden won the state by 10,457 votes.

It is unknown whether providing that information to the grand jurors will make any difference in their decision to indict the electors and others. Still, Myers said the jurors are entitled to that information.

“The Electoral Count Act was central to defendant’s claims that they were acting lawfully and without an intent to defraud,” the judge wrote. That includes their theory that Biden did not win Arizona and that their alternate slate of electors was sent to Washington to be ready if Trump had won.

And Myers said attorneys for the state confirmed that they were aware, while the grand jury was deliberating, that some of the defendants claimed the federal law authorized their actions.

The judge said that the law was discussed during the presentation of the case to the grand jury, and the jury did ask a witness for the state about the requirements of the law.

But where the prosecutors erred, he said, was failing to give the grand jurors the actual texts of the law before they returned indictments charges all with conspiracy, forgery and conducting fraudulent schemes and practices in connection with the 2020 election.

“A prosecutor has a duty to instruct the grand jury on all the law applicable to the facts of the case,” Myers wrote. That includes instructing the jurors on “justification defenses” relevant to jurors who determine probable cause.

“Due process compels the prosecutor to make a fair and impartial presentation to the grand jury,” Myers said. That is true even if the jurors do not make any specific request for additional legal instruction.

“Because the state failed to provide the Electoral Count Act to the grand jury, the court finds that the defendants were denied a substantial procedural right as guaranteed by Arizona law,” the judge wrote.

Mayes intends to fight the ruling.

“We vehemently disagree with the court,” said press aide Richie Taylor. “And we are planning to file a special action to appeal the ruling.”

At the very least, that appeal delays sending the case back to the grand jury. That could mean the trial will not begin as scheduled on Jan. 5 — assuming that the grand jury, even after being presented with the new information, chooses to indict the defendants again.

The indictment charges 18 people with being part of a scheme to “prevent the lawful transfer of the presidency of the United States, keeping President Donald J. Trump in office against the will of Arizona voters, and depriving Arizona voters of their right to vote and have their votes counted.”

That plot, at least in Arizona, involved 11 Republicans signing a document claiming that Trump had won the popular vote here and that they represented the state’s 11 electoral votes to be cast for him. That list includes two then-current state senators — Jake Hoffman of Queen Creek, who is still in the Legislature, and Anthony Kern of Glendale, who is seeking reelection, as well as Kelli Ward who, at the time, was the chair of the Arizona Republican Party, and her husband Michael.

The defendants said they did nothing wrong and simply prepared the documents in case Trump won. But the indictment says the actions here — and similar ones in other states — were part of a larger plan to deny Biden the necessary 270 electoral votes he needed, throwing the decision on the race to Congress.

Charges were also brought against others in the Trump orbit, including former White House chief of staff Mark Meadows and several of Trump’s attorneys, including John Eastman, Christian Bobb and Rudy Giuliani. Another Trump attorney, Jenna Ellis, is having the charges against her dismissed after she agreed to cooperate with prosecutors.

Trump himself was listed as an unindicted co-conspirator.

At the heart of the new ruling is the claim by the defendants that there was no intent by those indicted to break the law. And that’s where the 1887 law comes in.

Binhak said that statute directly resulted from Congress receiving competitive presidential elector ballots from some states in 1872 and 1876. That, he said, led members of Congress to adopt the Electoral Count Act, which details that they count the electoral votes alone.

Then there’s the fact, he said, that grand jurors were never told that Kenneth Cheseboro, a Harvard Law educated practitioner, had explained to prosecutors that there was a legal basis for an “alternate elector” approach. All that occurred while there was pending litigation to challenge the results of the Arizona vote.

For their part, attorneys for the state said they did nothing wrong.

Assistant Attorney General Nicholas Klingerman said the grand jurors were presented with “relevant information,” including a letter from a Hoffman attorney explaining many of the legal theories and history that Hoffman’s lawyer argued exempt the defendants from legal liability.