Key Points:

• In tossing the indictment into alleged “fake electors,” a judge kept open the possibility for more charges in the future

• Some of the defendants claim a law preventing political prosecutions should protect them from future indictments

• If the Court of Appeals makes a decision, it could have a big effect on future politically charged cases

PHOENIX — Republicans indicted in the “fake electors” scheme are using a state law designed to deter political prosecutions to get an appellate court to block Attorney General Kris Mayes from ever bringing new charges against them.

The original indictment charged 11 Arizona Republicans with forgery and conspiracy when they signed documents after the 2020 election falsely claiming that Donald Trump had won the popular vote in Arizona. Eight others also were charged, all allies or lawyers for Trump.

In August, the trial judge threw out the indictment after concluding that the grand jury had not been provided all the relevant information they needed.

But in doing so, Maricopa County Superior Court Judge Sam Myers cleared the way for the state to seek a second indictment down the line.

Now one defendant, former U.S. Senate candidate Jim Lamon, is arguing to the state Court of Appeals that Myers should have dismissed the charges outright under the state’s anti-Strategic Lawsuits Against Public Participation, or anti-SLAPP, law.

It requires dismissal of any prosecution found to retaliate against, deter or prevent political speech. Seven more defendants are preparing to make or join the same argument on appeal.

“If a state actor, driven by improper motive, is permitted to file criminal charges against a political opponent and then evade the consequences of the anti-SLAPP Statute by dismissing the case once that improper motive has been proven, then the purposes of the anti-SLAPP Statute will be thwarted,” Lacy Cooper, an attorney for Lamon, wrote in a special action filed with the Arizona Court of Appeals.

Besides Lamon, four other defendants have filed notices of appeal and plan to litigate the anti-SLAPP issue: John Eastman and Christina Bobb, former Trump attorneys; Mark Meadows, Trump’s former chief of staff; and Tyler Bowyer, chief operating officer of Turning Point Action.

State Sen. Jake Hoffman, Trump adviser Boris Epshteyn and local Republican Nancy Cottle also joined in notices of appeal.

“The defense position is that you can’t just dismiss your way out of an anti-SLAPP violation,” said Ashley Adams, an attorney for Eastman. “This has to be addressed because that’s the purpose of the statute — to make sure people aren’t prosecuted for exercising their First Amendment rights.”

The appellate court’s decision could set new precedents about when the anti-SLAPP law could be used to short-circuit future prosecutions.

In the filing, Lamon’s attorneys argue Myers not only must rule on the anti-SLAPP issue but must grant the motion, dismiss all pending charges and award attorneys’ fees.

“The trial court had jurisdiction to act, and it also had a duty to act,” Cooper wrote.

Defendants have sought to end the case using the anti-SLAPP law from the start.

Of note is that the original statute covered only civil lawsuits. But in 2022, ahead of Mayes’ election, the Republican-controlled Legislature expanded it to require dismissal of criminal charges, a first in the nation among anti-SLAPP laws.

To win dismissal, defendants must first prove the prosecution was “substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.”

In February 2025, Myers found the electors had done that.

He ruled that statements Mayes made on the campaign trail previewing the coming investigation and indictment of those in the “fake elector” case at least initially established some motivation to target the defendants’ exercise of a constitutional right.

With Myers ruling for the defendants, the burden shifted to the state to prove to him it did not, in fact, seek to deter the defendants’ constitutional rights.

The state never took that step. Instead, Mayes appealed the anti-SLAPP ruling, and the appellate court paused lower court proceedings.

The Court of Appeals declined to consider the state’s case. But by the time the anti-SLAPP appeal had wrapped, the original underlying indictment had been tossed based on the judge’s ruling that prosecutors had failed to provide all relevant information to the grand jury.

Bobb also is appealing Myers’ ruling granting the state’s motion to dismiss without prejudice after the judge threw out the original indictment, as well as his ruling denying a separate motion to disqualify Mayes based on association with the national elections group States United Democracy Center.

Whether the appeals court takes up Lamon’s special action and the defendants’ appeals could be especially instructive for future use of the anti-SLAPP law.

Arizona is the only state to include criminal charges in its anti-SLAPP law. And, so far, appellate courts have declined to issue binding rulings on how it should be used.

Richie Taylor, a spokesperson for Mayes, declined to comment on Lamon’s special action, the pending appeals or any plans to refile charges. The state’s response to Lamon is due Oct. 16. The court has yet to set a briefing schedule for Meadows, Bowyer, Bobb and Eastman.