9th U.S Circuit Court of Appeals | Arizona Capitol Times

9th Circuit suspends ruling to allow time to fix unsigned ballots

The James R. Browning United States Courthouse building, a courthouse for the U.S. Court of Appeals for the Ninth Circuit, is shown in San Francisco, Wednesday, Jan. 8, 2020. (AP Photo/Jeff Chiu)

A federal appeals court has put a hold on a judge’s ruling that gave people extra time after Election Day to sign their ballots.

The order Tuesday does not technically overturn last month’s decision by U.S. District Judge Douglas Rayes, an appointee of President Obama, that those who forgot to sign the envelopes before dropping them in the mail should have an extra five days to “cure” the problem. That will have to wait for a full-blown hearing which has not yet been scheduled.

But the three-judge panel said that, by their reckoning, a bid by Attorney General Mark Brnovich to overturn the ruling is likely to be successful. They said the current deadline to fix this kind of mistake is “reasonable” and that the five-day grace period to supply missing signatures “would indeed increase the administrative burdens on the state to some extent.”

If nothing else, the appellate judges, made up of nominees of Presidents Reagan, Clinton and Obama, said they do not like the idea of forcing a change right now.

“As we rapidly approach the election, the public interest is well served by preserving Arizona’s existing election laws, rather than sending the state scrambling to implement and to administer a new procedure for curing unsigned ballots at the eleventh hour,” they wrote.

In granting the stay, the appellate court likely has effectively killed any chance that voters will have this year to cure their ballots after Election Day. That’s because it may not be possible for the judges to have a hearing, issue a ruling and then have whichever side loses take it to the U.S. Supreme Court before Election Day.

It does, however, preserve the ability of the challengers to make their case for upholding Rayes’ decision ahead of the next election.

Tuesday’s order is a setback for the Arizona Democratic Party, the Democratic National Committee and the Democratic Senatorial Campaign Committee who had asked Rayes to block election officials from rejecting unsigned ballots.

There’s a political component to the fight.

Alexis Danneman, who represents challengers, said it was “inevitable” that Democrats — or those who would vote for Democrats — would not have their votes counted unless they were given an opportunity to cure their unsigned ballot envelopes.

On the other side of the fight, the Republican National Committee, the Arizona Republican Party and the Donald J. Trump for President Committee intervened to preserve the law.

In providing the extra five days, Rayes pointed out that Arizona lawmakers have provided that same grace period to those who are notified by election officials that the signatures on the envelopes do not match what is on file at county offices. The judge said he saw no difference or additional burden created by extending the same consideration to those who forgot to sign the envelope at all.

The appellate judges, however, said that misses a key point.

In the case of a mismatched signature, they said that could be the result of a subjective decision by an election worker.

“It is rational, then, that the state might voluntarily assume some additional administrative costs to guard against the risk of losing such votes at potentially no fault of the voters,” they said.

By contrast, the judges said, the failure of a voter to sign the ballot envelope is totally that person’s fault.

“The state may still reasonably decline to assume such burdens simply to give voters who completely failed to sign their ballots additional time after Election Day to come back and fix the problem,” they wrote. And they said that requiring people to sign their ballot envelopes imposes only a “minimal” burden.

Brnovich had help in his bid to stay the law, beyond the Republican organizations. The attorneys general of 20 states — all Republicans like Brnovich — submitted their own legal brief asking the appellate judges to leave the Arizona law in place and accusing Rayes of “overreach.”

9th Circuit upholds ‘ballot harvesting’ ban

Calling the lack of evidence of fraud irrelevant, a divided federal appeals court on Wednesday upheld Arizona’s ban on “ballot harvesting.”

In a 2-1 ruling, the judges acknowledged arguments by the state and national Democratic parties that the Republican-controlled Legislature adopted HB 2023, the 2016 law, without any proof that anyone who was collecting ballots had, in fact, tampered with them. And the majority noted there are other state laws which have, for years, made it illegal to tamper with ballots.

But 9th U.S. Circuit Court of Appeals Judge Sandra Ikuta, writing for the majority, said none of that is required for lawmakers to do what they did.

“A state need not show specific local evidence of fraud in order to justify preventive measures,” she wrote for herself and Judge Carlos Bea, both nominees of President George W. Bush. She said courts are entitled to uphold such laws if they serve the state’s interest in maintaining public confidence in the integrity of the electoral process, “even in the absence of any evidence that the public’s confidence has been undermined.”

Ikuta also said there was no evidence that the Republican lawmakers who approved the plan acted with the intent of discriminating against minorities.

She did say there was reason to believe that the change was approved, at least in part, by “partisan considerations.” But Ikuta said that fact does not make the law unconstitutional.

In the same ruling, the majority upheld another election practice which says that if people show up at the wrong polling place, their votes won’t be counted, even those for which a person would otherwise be entitled to vote had they been in the right place.

For example, a voter who should have been in Tempe but ended up in Glendale would not have votes counted for school board. But the Democrats argued that person’s votes for statewide and county offices should count.

Ikuta said these rules impose only minimal burdens and do not disenfranchise voters.

But the 9th Circuit’s chief judge, Sidney Thomas, a President Clinton nominee, said his colleagues are ignoring the evidence presented.

“Arizona’s policy of wholly discarding — rather than partially counting — votes cast out-of-precinct has a disproportionate effect on racial and ethnic minority groups,” he wrote, unconstitutionally burdening the right to vote. And Thomas said the data produced by Democrats on the ban on ballot harvesting, complete with penalties of a year in prison and a $150,000 fine, “serves no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.”

He pointed to claims by Sen. Don Shooter, R-Yuma, that ballot collectors steam open envelopes and decide whether to submit them based on what was inside. Even U.S. District Court Judge Douglas Rayes, who first reviewed the complaint, found that “demonstrably false,” with the trial judge saying Shooter’s views were “implicitly informed by racial biases.”

“And if Sen. Shooter was insincere, he purposely distorted facts in order to prevent Hispanics — who generally preferred his opponent — from voting,” Thomas said.

And then there was a soundless video produced by A.J. LaFaro, who was chairman of the Maricopa County Republican Party, which Thomas said showed nothing illegal but was accompanied by a voice-over from LaFaro saying the man was acting to stuff the ballot box.

Wednesday’s ruling is unlikely to be the last word on the issue.

The split decision in this case virtually guarantees that the Democrats will ask the full 9th Circuit to look at the issue.

And early next month the same three-judge panel of the appellate court will consider a separate challenge to the ballot harvesting law by Democratic activist Rivko Knox.

She contends the state law is preempted by federal statutes which specifically allow for any individual to deliver mail as long as it is done for free. And Knox said that once early ballots are in their envelopes they are mail.

That argument was rejected by Rayes, the same judge who threw out the challenge to the law by Democrats in this case.

What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on election day.

But the law requires mailed ballots to be delivered by election day. So anything dropped in a mailbox within a week or so may not get counted.

Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offered to take it to polling places on their behalf.

Republicans argued that presents too many opportunities for mischief, though they could not cite a single confirmed incident where a ballot was altered or did not get delivered.

Ikuta said the U.S. Constitution gives states the authority and obligation to manage the election process. And she said courts, when considering whether a regulation is permissible, has to balance the state’s interests against the burdens placed on someone challenging it.

More to the point, Ikuta said if the regulations are reasonable, courts will generally uphold them as long as they were not enacted for discriminatory reasons.

In this case, she said, Rayes found that the evidence presented showed that voters who have taken advantage of ballot collection services in the past “have done so out of convenience or personal preference,” not because of any hurdles placed in their path by Arizona law.

Ikuta also said Arizona has options for voters who may have difficulty getting to polling places, including required time off for workers and exceptions to the ballot-harvesting law allowing collection by family members, household members and caregivers.

AG to challenge court’s order to release man convicted in child slaying

A federal appeals court has ordered the state to release a man convicted of the 1994 death of a 4-year-old in Tucson.

In a unanimous opinion the judges said there was evidence that the attorneys assigned to Barry Lee Jones did not investigate evidence which suggested that the time line in the beating, sexual assault and death of Rachel Gray did not occur as prosecutors told the jury. And Judge Richard Clifton, a President George W. Bush appointee writing for the three-judge panel of the 9th Circuit Court of Appeals, concluded that ineffective assistance of Jones’ counsel resulted in a guilty verdict and a death sentence that might not have otherwise been imposed.

In the Nov. 29 order the judges ordered Jones released unless the state intends to retry him.

But Ryan Anderson, a spokesman for the Attorney General’s Office, said it may not come to that. He said the state intends to seek review by the full 9th Circuit and, if necessary, take the case to the U.S. Supreme Court.

And if that fails, Anderson said prosecutors will take the case back to court for a new trial.

According to court records, Jones was sharing his trailer on East Benson Highway near South Alvernon Way with his girlfriend Angela Gray, his own daughter and his girlfriend’s three children, ages 4, 11 and 14.

Early on the morning of May 2, 1994, Jones drove Angela and Rachel, the 4-year-old, to Kino Community Hospital where she was pronounced dead on arrival.

The cause was a laceration in her bowel due to blunt abdominal trauma. She also had other injuries, including a scalp laceration and evidence of sexual assault.

Jones, 36 at the time, was arrested the same day and charged with murder, sexual assault and child abuse. The jury found him guilty of all charges.

Significantly, jurors accepted the prosecution’s argument that all the events occurred within a two-hour window, which made Jones guilty of “felony murder.” That made him eligible for the death penalty and which the judge ultimately imposed.

Clifton, however, said the evidence presented about that timeline was not that clear.

More to the point, the appellate judge said that, based on testimony from others, Jones’ attorneys should have done further investigation. And he said there was a “reasonable probability” that had the lawyers challenged the timeline that the jurors might have reached a contrary result.

For example, Clifton noted, a doctor who testified at Jones’ trial later said that the abdominal injuries most likely occurred prior to May 1 and that he would have testified to that at the trial had the defense attorney asked the right questions.

It also turned out there was conflicting evidence about when the scalp injury occurred. And a doctor said that injuries as a result of a sexual assault predated the abdominal injury and may even have predated when Jones began living with Rachel and her family.

There also was inconsistent evidence between what was told to the jury in the Jones case compared with what was told to jurors in a separate trial of the girlfriend who was convicted of child abuse by criminal negligence and sentenced to 8.75 years in prison.

“`The evidence presented at the (post-trial) hearings undermines considerably the confidence in the outcome of the trial court proceedings,” Clifton wrote.

Arizona appeals decision to strike law banning state contractors from boycotting Israel

Attorneys for the state want a federal appeals court to allow it to deny public contracts to those who boycott Israel, saying Arizona has a legitimate interest in denying support to the Palestine Liberation Army and its “unsavory — and frequently murderous — ends.”

In new legal briefs Monday, Drew Ensign, an assistant attorney general, said Arizonans are free to express their views about the policies of Israel. They can contribute to candidates who would change U.S. policy toward that country and even can urge others to boycott Israel and firms that do business there.

But what they cannot do, Ensign told the 9th Circuit Court of Appeals, is participate in boycotts themselves if they also want to do business with the state.

The new filings come after U.S. District Court Judge Diane Humetewa voided a 2016 law that requires those who seek public contracts to promise not to engage in such boycotts. She said that illegally amounted to the state using its economic power to deny people the right to speak out and act on their personal beliefs.

Last week the appellate judges denied a request by Ensign to lift the injunction blocking enforcement of the law while they consider Ensign’s arguments. And now the state is sending notices to all of its agencies informing them that they cannot refuse to award a contract to anyone simply because that firm refuses to sign an agreement not to participate in the boycott — at least not unless or until a court upholds the law.

The law spells out that public agencies cannot enter into contracts with any company unless the deal

includes “written certification that the company is not currently engaged in, and agrees for the duration of the contract to not engage in, a boycott of Israel.”

Proponents said they wanted to use the economic strength of the state to undermine the international Boycott, Divest and Sanctions movement.

The idea behind the BDS movement is to get people to boycott companies that do business with Israel to pressure that country to change its policies ranging from settlements on the West Bank to claims of apartheid. Some targeted firms with an Arizona presence are Boeing and Caterpillar.

Humetewa, in her earlier ruling, said Flagstaff attorney Mik Jordahl has a First Amendment right to participate in a boycott, saying the U.S. Constitution protects “activities undertaken to achieve social, political or economic ends.”

Ensign, in Monday’s filings, said the First Amendment protects actions that are “inherently expressive,” designed to send a message. But he said that’s not the case here.

He said Jordahl, who has a contract with Coconino County, wants to be free to refuse to buy a printer for his office from Hewlett-Packard because that company aids Israel in its security work.

But Ensign said that if Jordahl decides to buy a printer from another company, it hardly conveys the message that he is protesting Israeli government policy. Instead, he told the court, it might simply be interpreted as Jordahl liked the features and price of the other printer.

Ensign told the appellate judges even if the content is expressive, the state still has “compelling interests in prohibiting discrimination and regulating commerce.” And in this case, Ensign said, the 2016 law simply aligns the awarding of state contracts – and state dollars – with the state’s public policy objectives and values.

“Israel is one of the few precious democracies in the Middle East and an important trading partner and ally of the United States,” Ensign wrote. “The state has acted to prevent commerce within the state from being used as an economic weapon against Israel and Israelis.”

Ensign said this is underlined by the fact that the effect of the BDS movement is to strengthen the hand of the Palestine Liberation Organization “which pays cash stipends to the families of terrorists.”

“The First Amendment does not leave the state powerless to prevent commerce from furthering such unsavory — and frequently murderous — ends,” he wrote.

And Ensign said the law says that those who get government contracts cannot engage in discriminatory practices.

“To refuse to do business with individuals and entities on the basis of their nationality is to discriminate on the basis of nationality/national origin,” he wrote. “Boycotts against Israel and Israelis are national-origin discrimination under any reasonable construction of that term, just as blanket refusals to conduct any business with Canadians, Mexicans, Belgians would be.”

Ensign also said the 2016 law also reflects the reality that a boycott against Israel disproportionately impacts Jews “and such boycotts often have anti-Semitic motivations.”

But the question of whether the law is really a form of antisemitism was questioned at the time of its approval by state Sen. Steve Farley, D-Tucson.

He said the measure was built on the flawed assumption that all Israelis and all Jews support that country’s current policies. But being an “active, free-market democracy,” he said people think different ways.

Farley specifically cited Jewish Voice for Peace which has a mission of seeking an end to Israeli occupation of the West Bank, Gaza Strip and East Jerusalem.

“It’s ironic that we are putting together the power of the state to coerce a business to not do business with someone they may want to do business with because we’ve decided politically that it’s not something we think is politically correct,” he said. “And we do this in the guise of a democracy defending another democracy.”

No date has been set for the appellate judges to hear the state’s arguments.

But Ryan Anderson, a spokesman for the Attorney General’s Office, said if the 9th Circuit refuses to reinstate the law he expects the case to go to the U.S. Supreme Court. Anderson said about 30 states have similar laws that could be affected.

Court refuses to block enforcement of horse-racing law

A federal appeals court won’t block enforcement of a law that requires companies that provide off-track betting signals to sell them to anyone who will buy then.

In a unanimous ruling on Aug. 20, the 9th U.S. Circuit Court of Appeals rejected arguments by the attorney for Monarch Content Management that the Arizona Legislature had no right to enact the 2019 law. The judges said nothing in the state’s regulation of OTB signals conflicts with federal laws regulating horse racing and wagering.

The judges also rejected claims that the statute interfered with the company’s First Amendment rights and its right to contract.

But it still does not mean that the owners of Arizona Downs in Prescott Valley, who had pushed for the law, are getting the signals they want for its seven OTB sites. Instead, Monarch, faced with the all-or-nothing choice simply chose the latter.

Co-owner Tom Auther said that’s a victory.

“We have the same signal as Turf Paradise now,” Auther said, meaning Turf and its OTB sites no longer has the competitive advantage of being able to offer wagering on races not available to those going to the seven Arizona Downs OTB sites.

Monarch has provided OTB signals from multiple tracks to Turf Paradise in Phoenix and its OTB sites around the state for years. That includes access to betting pools for the races being broadcast and access to real-time odds and other betting information.

In 2018 the newly reopened Arizona Downs also sought access to the simulcast. Monarch agreed to send its signals to the Prescott Valley track but refused to provide it for the OTB sites.

At least part of the issue is that three of the Arizona Downs OTB sites are in the Phoenix area, potentially setting them up as competitors to the Turf OTB facilities.

Last year, however, lawmakers voted to force Monarch into that all-or-nothing situation: If it wants to do business with Turf Paradise, the law reads, it has to provide the same signals to anyone else who wants it.

It also gave the Arizona Racing Commission the authority to review any contracts to determine whether the fees are “excessive or unreasonable” by comparing it to what is charged to others and determining whether the practices are “anti-competitive or deceptive.”

Monarch sued to block the law. Thursday’s ruling denies a bid by Monarch to keep the state from enforcing it while it mounts further legal challenges.

Monarch sells the signals from the tracks owned by the Sonarch Group, Monarch’s parent company. That includes California’s Santa Anita Park and Gulfstream Park in Florida. These are considered among the top tracks on which people like to wager.

It also also sells signals from other tracks its parent company does not own. And it sold the signals from the more than 130 days of live racing at Turf to other tracks.

Court refuses to wipe Arpaio’s contempt verdict after Trump pardon

Former Arizona Sheriff Joe Arpaio speaks Tuesday, May 22, 2018, at the Capitol in Phoenix prior to turning in petition signatures to the Arizona Secretary of State in his bid to appear on the ballot in the race to succeed retiring U.S. Sen. Jeff Flake. The Republican lawman's campaign says it turned in 10,000 signatures on Tuesday so he can compete in the GOP primary on Aug. 28. (AP Photo/Matt York) — Former Arizona Sheriff Joe Arpaio speaks Tuesday, May 22, 2018. (AP Photo/Matt York)

A federal appeals court has rebuffed the bid by former Maricopa County Sheriff Joe Arpaio to have his criminal conviction formally erased.

In a unanimous ruling Thursday a three-judge panel of the 9th Circuit Court of Appeals acknowledged that Arpaio was found guilty by U.S. District Court Judge Susan Bolton of criminal contempt. That stemmed from her finding that he had willfully violated an injunction issued by another judge prohibiting him from enforcing federal civil immigration laws.

Before he could be sentenced, though, President Trump granted the former sheriff a full and unconditional pardon. And appellate Judge Jay Bybee, writing for the court, said that left them with nothing to consider.

But Jack Wilenchik, Arpaio’s attorney, said he actually sees the ruling as a win.

He said the appeal was filed because Bolton, after considering the effect of the presidential appeal and dismissing the case, refused to vacate the verdict. And Wilenchik said Bolton suggested that conviction could be used against him in some future litigation.

What the 9th Circuit ruled, Wilenchik said, is that is not the case.

And Arpaio, who was sheriff from 1993 through 2016, told Capitol Media Services that’s precisely what he wanted.

“The main issue was I want this off my record,” said Arpaio, who again is running for sheriff this year.

The issue stems from a 2007 lawsuit filed by a group of Hispanic county residents who charged “illegal, discriminatory and unauthorized enforcement of federal immigration laws against Hispanic persons in Maricopa County.” They said that Arpaio and his deputies “engaged in profiling” of Hispanic motorists by detaining people based solely on their ethnicity.

In 2011 U.S. District Court Judge Murray Snow issued a preliminary injunction barring the sheriff and his deputies “from detaining any person based on knowledge, without more, that the person is unlawfully present within the United States.”

Five years later, Snow concluded that Arpaio and his department had intentionally failed to comply with the injunction.

Arpaio conceded his liability for civil contempt. But Snow concluded that the sheriff had “intentionally disobeyed” the order and he “did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity.”

The case was then referred to Bolton, with the case prosecuted by the U.S. Department of Justice. That ended with Bolton finding him guilty of criminal contempt of court.

Before he could be sentenced, though, Trump issued the pardon. But Bolton, while dismissing the charges, said that did not “revise the historical facts of the case.”

That led to the appeal.

Bybee, however, said there was really nothing to appeal.

“Arpaio never suffered a final judgment of conviction for criminal contempt,” he wrote, with no final judgment of conviction in the case. “Instead, there was a final judgment of dismissal with prejudice.”

And that, the judge said, means there cannot be “legal consequences” from the verdict, such as being able to use the conviction to enhance his sentence in any future criminal case. Nor can that conviction be used against him in any subsequent civil case.

Court rejects bid to declare Sonoran Desert bald eagle endangered

A federal court has rejected a bid to declare the Sonoran Desert bald eagle an endangered species, saying the U.S. Fish and Wildlife Service acted properly when it determined the birds were no different than other bald eagles.

The ruling August 28 by a panel of the 9th U.S. Circuit Court of Appeals is the latest turn in a years-long fight by environmental groups to gain protection for the desert eagles separate from other bald eagles in the U.S. Bald eagles were declared endangered in 1967 but were removed from the endangered species list in 2007 after making a remarkable recovery.

An official with the Center for Biological Diversity, which pushed for the protection, said the desert eagles should be listed as a distinct population because they “really are unique in that they are adapted to the desert.” He said the center is considering its next steps in the case.

Justin Augustine, the center’s counsel, said that without the protection the bald eagles in the Sonoran Desert are in grave danger. Despite the government’s finding, he said the desert eagles are clearly a separate population segment.

In several different reports, the Fish and Wildlife Service agreed that the desert eagles had “a number of unusual characteristics” such as a “preference for cliff nests,” and that they “are smaller than, and breed earlier than, other bald eagles.”

But those reports also said that bald eagles as a whole “are highly adaptable, wide-ranging habitat generalists … capable of inhabiting areas throughout North America, so long as a sufficient food source persists.”

The population under dispute is defined as “all bald eagle territories within Arizona, the Copper Basin breeding area in California near the Colorado River and the territories of interior Sonora, Mexico, that occur within the Sonoran Desert.”

The center first tried to have the desert eagles declared a distinct population in 2004, when the government began talking about “delisting” bald eagles as a whole. After study, the government rejected that request in 2006 – and again in 2010 and 2012 after the center went to court to challenge those decisions.

In one of the agency’s reports, it said the desert eagle’s unique characteristics did not require a conclusion in and of themselves that the birds were “ecologically or biologically significant for the bald eagle taxon as a whole.”

A three-judge panel of the 9th Circuit agreed. In his opinion for the panel, Judge William A. Fletcher cited the agency’s finding that there was “no evidence of distinctive traits or genetic variations among the Sonoran Desert Area population that suggest that loss of the population would have a negative effect on the bald eagle as a whole.”

Augustine challenged that reasoning.

“They are saying that if this population didn’t exist anymore it wouldn’t matter to the whole population,” he said.

Augustine said he didn’t understand the agency’s “shoddy” and “stingy” reasoning on the birds, adding that he is “deeply disappointed in the agency.” The center is considering its next step, which could be anything from an appeal to the U.S. Supreme Court to starting at square one with another petition to Fish and Wildlife.

In the meantime, he said, other efforts to help the birds will go on.

“There are still people voluntarily taking their own efforts to sustain the population,” he said. “Things are very concerning in the long term; I want to remain optimistic. We may be required to get on the Endangered Species Act through other means somewhere down the road.”

Court rules faulty implants doesn’t give patients right to sue

Just because a silicone breast implant ruptures does not give the patient the right to sue, a federal appeals court ruled Friday.

A three-judge panel of the 9th Circuit Court of Appeals acknowledged testimony from the doctor of Nicole Weber that one of her silicone implants she had obtained following a mastectomy in 2009 at age 53 had bled and lost about 2.8 percent of its mass.

The doctor said that caused health issues, including significant vision loss. And Weber, in her lawsuit, said even after removal she still has severe visual and immune system problems.

But appellate Judge John Owens said there was no evidence that Allergan Inc., which made the implant, had violated the manufacturing standards imposed by the U.S. Food and Drug Administration. And, absent that, the judge wrote, the company was immune to product liability lawsuits.

Owens said it comes down to the fact that the FDA, in granting approval to a company to market implants and other similar items “does not guarantee that every device manufactured in that process will work.”

“Rather, the FDA performs a cost-benefit analysis and approves devices knowing that they sometimes will fail,” the judge wrote. But he said that Congress, in enacting the laws giving the FDA oversight − and precluding other lawsuits − “struck a balance” between the benefits of making potentially risky devices available and “the cost to the few” who would be precluded from filing suit.

In filing suit, Weber said that the Allergan implants were not use defective and/or unreasonably dangerous but that the labeling was insufficient for anyone to make informed decisions regarding its selection and use. She also claimed that the company failed to warn users of the inherent dangers in using the product.

Owens, however, said her claims are precluded by federal laws dealing with medical devices.

The judge said the FDA “rigorously reviews” these kinds of devices.

“This includes a risk-benefit assessment of the device and an analysis of the adequacy of the manufacturer’s label,” he wrote. And he said the law allows the FDA to approve devices that present great risks “if they nonetheless offer great benefits in light of available alternatives.”

More to the point, once a device is approved, federal law says states cannot impose different or additional requirements related to safety.

Put simply, Owens said it would be legal for Weber to sue in state court if she was alleging that Allergan had violated FDA regulations related to the implant. But absent a showing of a violation — like the company changing the manufacturing process after it had been FDA approved — the judge said there is no right to sue.

And in this case, Owens said, there was no such showing to the trial court. He also said that evidence that some other implants produced by Allergan were defective does not indicate the company did not comply with FDA good manufacturing processes.

There was no immediate response from her attorney.

Court upholds ruling Colorado City abused power

Colorado City, Arizona. Photo by Sarah Nichols via Flikr Creative Commons

A federal appeals court has upheld the conclusion of a judge and jury that officials of Colorado City unconstitutionally used their power to discriminate against those who were not members of a certain religious sect.

In a unanimous ruling Monday, a three-judge panel of the 9th U.S. Circuit Court of Appeals said there was “overwhelming evidence” that the community along the Arizona-Utah border deprived residents who were not members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints of their constitutional rights. This ranged from the passive, like refusing to grant them the same legal protections and even water services, to the overt like the use of the police department to harass non-church members.

Monday’s ruling, unless overturned, upholds the decision of a trial judge to require supervision of top police officials and new training for police officers.

There also was a separate $1.6 million settlement between Colorado City and neighboring Hildale, Utah. The Utah community chose not to appeal the trial court decision, leaving only Colorado City.

Calls to the attorney representing the town were not immediately returned.

The lawsuit, which dates to 2012, traces its roots back a decade earlier when Warren Jeffs became the head of the church, which practices polygamy. That, according to the Department of Justice, led to a strict set of rules for FLDS members including prohibitions on vacations, toys, attendance at public schools, and displays of affection between husbands and wives.

According to the lawsuit, both Colorado City and Hildale and the towns’ agencies engaged in a pattern of discrimination against those who were not members of the church. In essence, they said that the governments functioned as an arm of the church and used municipal resources to advance church interests.

During the trial, the government offered testimony to argue that the church ran the government and the government was part of the church.

For example, appellate Judge Milan Smith Jr., a President George W. Bush appointee writing for the unanimous three-judge panel, said the evidence showed town marshals ignored violations of the law ranging from underage marriage to food stamp distribution by FLDS members. At the same time, the marshal’s office provided equipment like Tasers and night-vision binoculars to the church’s private security force.

A jury concluded in an advisory verdict that the town was guilty of violating the 1994 federal Violent Crime Control and Law Enforcement Act which prohibits government authority from engaging in patterns or practice that deprive people of their constitutional rights, privileges or immunities.

That paved the way for U.S. District Court Judge Russel Holland to rule that the marshal’s office “fostered excessive government entanglement with religion” in an effort to “endorse, favor or promote the FLDS church at the expense of non-FLDS residents. Holland also found that the marshal’s office “selectively enforced the law based on religion” and arrested several residents who were not church members without probable cause.

Holland then ordered both communities to work with a court-appointed monitor to institute national guidelines for constitutional policing.

In its appeal, Colorado City argued that the government could not be found guilty absent a showing that the town was liable for the actions of its officers and agents. But Smith said the law under which the town was found guilty does not require a showing that employees were acting under an official law or policy.

“The plain text of (the law) shows that any government agent who engages in a pattern or practice of conduct that deprives persons of their constitutional rights violates (the law),” he wrote. Smith said it was clear that Congress, in enacting the law, intended for local governments to be held liable when their employees act in unconstitutional ways.

Smith also rejected arguments that the trial court should not have allowed jurors to consider statements made out of court by others, mostly FLDS leaders including Jeffs, in an effort to prove a conspiracy. The judge said there was “extensive evidence” to back that claim.

“That evidence included testimony that officials from the towns attended meetings in which FLDS leaders instructed them on how to handle legal issues in a way that advanced the church’s interests,” Smith wrote. He also said that Jeffs excommunicated town leaders who did not follow his orders, that the church determined who would be mayor and council members, and that members of the marshal’s office helped Jeffs evade capture by the FBI.

Recent court filings in an unrelated case claim that Jeffs has suffered a mental breakdown.

That case involves claims against him and the trust that used to run the border communities by a woman who claims she was sexually abused by Jeffs when she was a child. Attorneys for Jeffs, who is currently serving a life sentence in Texas on charges he assaulted young girls he considered his “brides,” said his current mental condition means he cannot provide testimony.

Court, state work on new legal protections related to facial recognition

A new federal court ruling coupled with a provision in the state constitution could give Arizonans new legal protections against the use of software by private firms that captures and stores facial images.

On paper, the lawsuit involves claims of invasion of privacy being brought against Facebook by some Illinois residents. They claim the company’s practice of scanning uploaded photos to match against those already in its database violates that state’s laws against the collection of anyone’s biometric information by a private company without informing the person and getting a written release.

The 9th Circuit Court of Appeals earlier this month rejected a bid by Facebook to have the case thrown out.

In a sometimes strongly worded opinion, the judges said there is reason to believe that such practices are an invasion of privacy rights. More to the point, the court concluded that such an invasion can be considered a harm that victims can litigate.

Arizona does not have a similar law.

Mark Brnovich (Photo by Gage Skidmore/Flickr)

But Attorney General Mark Brnovich pointed out that Arizona does have something else: a specific right to privacy built in to the Arizona Constitution. And if that isn’t enough, Brnovich said state lawmakers should take action to enact a specific statute spelling out what private companies can and cannot do with someone’s biometric information, similar to what exists in Illinois.

“I don’t think it’s too much to ask that people respect our privacy,” he said.

House Speaker Rusty Bowers, R-Mesa, actually tried to do that earlier this year with legislation to restrict putting biometric information into a database for commercial purposes and generally prohibit that information from being sold, leased or disclosed for commercial purposes without the individual’s consent.

HB 2478 cleared the House Technology Committee without dissent. But a spokesman for Bowers said he yanked the measure from consideration before it got to the House floor “to give stakeholders more time to improve it.”

Brnovich, in an extensive interview with Capitol Media Services, said it’s important to realize what’s at stake.

“We’re talking about facial recognition, voice recognition, the way you walk, your mannerisms, maybe when it starts coming down to issues like DNA and blood information,” he said. “And that’s the kind of stuff that, if it’s compromised or stolen, you can never get back.”

For example, Brnovich said, if credit card information is stolen, the user can cancel the card and get a new one.

“But if someone steals the information on my voice or voice identity, my facial patterns and stuff, that’s something that I can’t change,” he said. “And that’s something that’s lost forever.”

That’s exactly the logic used by Judge Sandra Ikuta in writing the unanimous opinion for the 9th Circuit – the federal appeals court whose rulings govern 10 western states including Arizona – in allowing the lawsuit against Facebook to proceed.

In her example, Ikuta, a President George W. Bush appointee, talked about a social security numbers being compromised by hackers. In that case, she said, someone can get a new number.

“Biometric data are biologically unique to the individual,” Ikuta wrote. “Once compromised, the individual has no recourse, is at a heightened risk for identify theft, and is likely to withdraw from biometric-facilitated transactions.”

Brnovich said the possible harms go far beyond that, saying that once someone has digitized a person’s face, voice and mannerisms, it’s a small step to use artificial intelligence to create an image that mimics someone’s behaviors and patterns.

“There’s something really creepy about that,” he said.

According to court records, the specific issue here involves Facebook’s practice to analyze uploaded pictures to see if they contain faces.

If so, Ikuta said the technology extracts various geometric data points that make a face unique, like the distance between the eyes, nose and ears to create a face signature or map. Then the technology compares that to other faces in its database of face templates to see if there is a match, at which point Facebook may suggest “tagging” the person in the photo.

Ikuta said that process creates privacy concerns.

“Once a face template of an individual is created, Facebook can use it to identify that individual in any of the other hundreds of millions of photos uploaded to Facebook each day, as well as determine when the individual was present at a specific location,” she wrote. “Facebook can also identify the individual’s Facebook friends or acquaintances who were present in the photo.”

And it’s not just what can happen now she said, given how technology is developing.

“It seems likely that a face-mapped individual could be identified from a surveillance photo taken on the streets or in an office building,” Ikuta said.

“Or a biometric face template could be used to unlock the face recognition lock on the individual’s cell phone,” she continued. “We conclude that the development of a face template using facial-recognition technology without consent (as alleged here) invades an individuals’ private affairs and concrete interests.”

And that kind of conduct, Ikuta said, is grounds for litigation.

A spokesman for Facebook told Capitol Media Services the company plans to appeal the 9th Circuit decision allowing the lawsuit to go forward.

“We have always disclosed our use of face recognition technology and that people can turn it on or off at any time,” the spokesman said.

Brnovich said, though, that an issue in these kind of cases is how easy or hard it is to opt out.

In fact, he wrote to Facebook last year complaining that it took 21 different clicks and screens for someone to be able to opt out of the company’s data collection policies. The company subsequently agreed to make some changes.

That, however, still leaves the question of what rights Arizonans already have to sue over their images being collected, digitized and stored.

It starts with the Arizona Constitution Article 2, Section 8: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

“I have always believed that because we have that right to privacy that provides us more protection than the Fourth Amendment does,” Brnovich said, with the latter covering “unreasonable search and seizures” and requiring government agents to first obtain a warrant.

Still, he conceded, it remains unsettled law to exactly how broad is that right to privacy, especially when it is being invaded not by a government agency but by private corporations. And complicating matters, he said, is that the lines are not clear.

“One of the things that we have recently seen is government working with Big Tech and internet service providers to get information that affects individual rights,” Brnovich said. “So we’re starting to see that line blur a little bit more and more when government is using Big Tech and internet service providers to pretty much do its bidding.”

If nothing else, Brnovich said there needs to be a clear state law about how private companies can use information, particularly if they are making money selling it to others.

“Well, if that’s the case, I should have some sort of property right,” he said.

“So if companies want to buy it, collect it, trade it, sell it, whatever they’re going to do with it, then I should know about it and maybe, ultimately, be provided some sort of compensation for it,” Brnovich said.

Court: Tucson man wrongly jailed cannot collect for years behind bars

A Tucson man who spent 42 years in prison on 28 arson-related murder counts that were later vacated cannot now collect damages for the years he spent behind bars, a federal appeals court ruled Thursday.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals said it took “no pleasure in reaching this unfortunate result,” but said the deal that allowed Louis Taylor to go free after decades in jail also prevents him from winning damages from Pima County.

In a sharp dissent, Judge Mary Schroeder said the court’s ruling “magnifies an already tragic injustice” against Taylor, who was 16 at the time of the fatal fire at a Tucson hotel.

“He was convicted on the basis of little more than (his) proximity and trial evidence that ‘black boys’ like to set fires,” Schroeder wrote of the case against Taylor, who is black.

Timothy Stackhouse, one of Taylor’s lawyers, declined Thursday to comment on the ruling. Nancy Davis of the Pima County Attorney’s Office said the office would not comment on the case because it could go back to district court.

Taylor was 16 in 1970 when a fire broke out in Tucson’s Pioneer Hotel, ultimately killing 29 people. Investigators said the fire was arson and Taylor was arrested for setting it, then convicted in 1972 of 28 counts of murder in the blaze and sentenced to 28 consecutive life sentences.

But in 2012, Taylor and others working on his behalf presented new evidence that they said showed the fire was not set. The government disputed the new claim, according to the court, but offered Taylor a deal: It would vacate his previous convictions and reduce his sentence to time served if he pleaded no-contest to the murder charges.

After his release, Taylor sued the county and the city of Tucson claiming his rights to due process and a fair trial were violated in the original prosecution, including racial bias and withholding evidence, according to Schroeder.

A district judge rejected the county’s claim that it was immune from the suit, but said that Taylor could not recover damages for wrongful imprisonment.

The appeals court agreed. Judge Susan Graber wrote for the majority that under Supreme Court rulings a plaintiff “may not seek a judgment that would imply the invalidity of a state-court conviction,” and while his original convictions were vacated, the no-contest plea is in essence a valid conviction on the same charges.

James and Donna Hamm, who run Middle Ground Prison Reform in Tempe, said the deal offered by the county put Taylor – who had spent all of his adult life behind bars at that point – in a tough position. James Hamm said he agreed with the legal reasoning behind the case, but thinks that Taylor should never have agreed to the no-contest plea.

“He took the easy way out,” Hamm said. “If he had insisted on a new trial, he would have won, but it would have meant months or even years (longer) in jail.”

Donna Hamm was more blunt, saying Taylor’s lawyers should have known the precedent and expected the result.

“His lawyers need to go back to 101,” she said.

Schroeder said in her dissent that Taylor took the quickest route to getting out of jail instead of pressing for a new trial that could have taken years. She said the deal, offered to an inmate already in his 60s, was coercive.

“We should not tolerate such coercive tactics to deprive persons of a remedy for violations of their constitutional rights,” she wrote. “To say such a plea justifies the loss of 42 years, as the majority asserts, is to deny the reality of this situation and perpetuate an abuse of power.”

Ducey signs bill to prohibit changes to election deadlines

A school crossing guard stops cars for voters entering a polling station, Tuesday, Nov. 3, 2020, in Phoenix. (AP Photo/Matt York)

Gov. Doug Ducey on May 24 signed into law a measure that prevents government officials from changing election deadlines established by statutes.

HB2794, sponsored by Rep. Jake Hoffman, R-Gilbert, was created to address changes in voter registration deadlines that occurred during the November 2020 general election.

“This is something that we saw in an unprecedented election,” Hoffman said. “We saw all across the country, including here in Arizona, the attempt to change statutorily prescribed deadlines. This is a bill that says that in Arizona, the legislature as granted by the Constitution of the United States, has the authority for the management and administration of elections; that those deadlines should not be changed, and that if they are there is a penalty for doing so.”

Hoffman’s bill, which passed both the House and Senate by narrow margins of two and three votes respectively, received unanimous support from Republicans but was largely shunned by Democrats, who claimed that it violates separation of powers and gratuitously punishes election officials. Sen. Christine Marsh, D-Phoenix, was the only member of her party who did not vote against the bill, instead opting to refrain from voting altogether.

A U.S. District Court judge in 2020 extended Arizona’s statutory deadline to register to vote by 2½ weeks. The judge accepted arguments by Mi Familia Vota and the Arizona Coalition for Change that the Covid pandemic and restrictions on travel, businesses and public gatherings imposed in March 2020 by Ducey made it difficult to sign up voters.

The 9th U.S. Circuit Court of Appeals voided the ruling but allowed those who registered after the deadline to still vote. Republicans registered more voters than Democrats during the short extension.

“We’re adding a criminal component because we disagree with what the court did last year,” Rep. Athena Salman, D-Tempe, said. “We’re seeing a trend to now throw our election officials in jail when they do something we disagree with. It’s very concerning.”

While Democrats in the state legislature made their disdain for the bill very clear, they were not alone. Alex Gulotta, director of the Arizona chapter of All Voting Is Local, said the bill would create more problems than it would solve and that it could limit the ability of judges to resolve election cases.

“If that’s what we think this does, I think the bill may have constitutional problems,” Gulotta said. “If you bring your nominating petition to the recorder’s office five minutes before the deadline and they don’t want to take it, they refuse to take it because of your party, this [bill] says ‘a deadline’s a deadline, you don’t have a remedy.’ It’s bad policy.”

Gulotta also raised questions about the harsh penalty that comes with violating the law. Anyone who does so risks a class 6 felony conviction, which carries a maximum sentence of 5.75 years in prison.

“I’m very concerned,” he said. “It puts [election officials] in a position where to follow the court order, they have to put themselves at risk of a felony. That seems to be how it’s designed.”

The Republican legislators who sponsored the bill disagreed with Gulotta’s assertion that it undermined the role of the courts in determining how elections are held, arguing instead that the bill prevents individual election officials from influencing how the elections are run.

“The courts make a ruling on law,” House Government and Elections Committee chairman John Kavanagh, R-Fountain Hills, said. “That’s how the courts have a say. When a single elections official cuts a deal [with a judge], that’s a lot different than a court saying ‘as a matter of law, you are wrong. You must do this.’”

Hoffman reiterated chairman Kavanagh’s arguments, stating that the courts and Legislature each play a part in determining the law, and that the bill simply clarifies the courts’ responsibility.

“[The bill] is simply further defining and providing clarity in the law,” he said. “The settlements that are reached in those courts or in those negotiations must comply with [this bill]. The legislature sets these deadlines for an intentional reason, and they should not be changed on a whim.”

Family of boy slain in Mexico can sue Border Patrol

In this Oct. 10, 2014, file photo, a poster in the likeness of Jose Antonio Elena Rodriguez hangs next to a makeshift memorial, where he was fatally shot two years ago by U.S. Border Patrol near the Mexico- U.S border, in Nogales, Mexico. (AP Photo/Valeria Fernandez, File)

A federal appeals court ruled Tuesday the mother of a teen shot by a Border Patrol agent through the fence has a legal right to sue him — and, by extension, the federal government as his employer — in U.S. courts for wrongful death.

In a 2-1 opinion, the majority of the panel for the 9th Circuit Court of Appeals said the fact that Jose Antonio Elena Rodriguez was shot and died in Mexico does not overcome the clear evidence that the action started in this country with the bullets fired by Lonnie Swartz while on duty.

“We have a compelling interest in regulating our own government agents’ conduct on our own soil,” wrote Judge Andrew Kleinfeld for himself and Edward Korman. He said that gives federal courts jurisdiction here.

“Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason,” the judge wrote. “Enforcing that rule would not unduly restrict what the United States could do either here or abroad.”

Kleinfeld also suggested the U.S. Department of Justice was being inconsistent in filing its own legal briefs on Swartz’s behalf arguing against civil liability in this case. The judge pointed out that the same agency is using its criminal laws to prosecute Swartz in federal court on charges related to the same cross-border shooting incident.

But appellate Judge Milan Smith Jr., in his dissent, said federal courts have no authority to hear claims for actions outside the United States.

He also pointed out that another federal appeals court, hearing a case out of Texas where a Border Patrol agent shot a teen in Mexico, reached the opposite conclusion and found there is no right for the family to sue.

That split virtually guarantees this case will end up at the U.S. Supreme Court. And even if the justices there say Araceli Rodriguez, the teen’s mother, has a right to pursue her claim, that does not guarantee a jury in Tucson will see things her way.

“The ruling could not have come at a more important time, when this administration is seeking to further militarize the border,” said Lee Gelernt of the American Civil Liberties Union in a prepared statement. He is representing Rodriguez in the civil case.

Elena Rodriguez, 16 at the time, was in Mexico, near the international border fence in Nogales, when Swartz shot him from the Arizona side on Oct. 10, 2012.

Swartz’s attorney, Sean Chapman, has argued here — as he has in the criminal case — that the agent was defending himself against rock throwers when he fired his service revolver.

Evidence presented in that case shows that Elena Rodriguez was hit 10 times in the back. And Swartz reloaded, firing a total of 16 shots.

In that criminal case, a jury acquitted Swartz of charges of second degree murder but deadlocked on the lesser charges of manslaughter. A new trial on those charges is set for October, though Chapman is trying to get those dismissed.

The civil case presents two issues.

First is the agent’s claim that he is entitled to “qualified immunity” for his actions.

Kleinfeld acknowledged that the wrongful death claim by Rodriguez is based on her contention that her son was doing nothing more than walking on the street. And that, he said, is her burden to prove in court.

But Kleinfeld said that he and his colleagues are required at this stage of the case to decide the legal questions based solely on those allegations. And based on those facts, he wrote, “it is inconceivable that any reasonable officer could have thought that he or she could kill Jose Antonio for no reason.”

There was no mention in Tuesday’s ruling that federal prosecutors, in pursing Swartz in the criminal case, did not dispute that the teen was one of three individuals who was throwing rocks over the fence. Prosecutors also did not contest that the rock throwing was done to help two people on top of the fence who were trying to get back to Mexico after smuggling marijuana into the United States.

The thornier legal question is whether federal courts have the right to hear Fourth Amendment claims of illegal seizure — in this case, a life — when the incident occurs outside the country.

The teen was a Mexican national who was shot while in Mexico. And Kleinfeld acknowledged there are limits on the reach of federal courts in incidents that occur in other countries.

But he said that, given the facts in this case, there is no reason to bar a Fourth Amendment claim, what with the lawsuit is based on actions taken by Swartz in the United States.

Anyway, the judge said, there is no way that Swartz could have known that the teen was not a U.S. citizen, calling the agent’s claim of immunity on that basis “bizarre.”

“For all Swartz knew, Jose Antonio was an American citizen with families and activities on both sides of the border,” he said.

Kleinfeld dismissed claims that allowing Rodriguez to sue could undermine “national security concerns.”

“We recognize that Border Patrol agents protect the United States from unlawful entries and terrorist threats,” he wrote.

“Those activities help guarantee our national security,” Kleinfeld continued. “But no one suggests that national security involves shooting people who are just walking down a street in Mexico.”

Kleinfeld also said Rodriguez would be left without a meaningful remedy if she cannot sue for wrongful death in federal courts, citing federal laws that preclude other claims.

Nor was he persuaded by the arguments by attorneys for the federal government that if Swartz is found guilty of manslaughter that federal law will require him to pay restitution to the family.

“A criminal charge is the government’s remedy, not the victim’s.” Kleinfeld said. He also pointed out that a criminal conviction requires proof “beyond a reasonable doubt” while jurors in a civil case need only conclude it is “more likely than not” that Swartz used objectively unreasonable force to award damages to Rodriguez.

Judge asks whether prison health care deal should be tossed

A federal judge who has criticized Arizona’s persistent noncompliance with a settlement requiring improvements to health care for prisoners has ordered lawyers for the state and inmates to decide whether they want to throw out the 5-year-old deal and instead bring the case to trial.

Holding a trial is one of three options offered Friday in an order by Judge Roslyn Silver, who said the state can also make a good-faith reaffirmation of its promise to comply with the settlement or draw up a replacement agreement.

Silver said tossing the settlement is the only option available if the state, which is in violation of the deal, continues to argue that the court lacks the power to enforce the agreement.

The judge said she was previously hesitant about throwing out the settlement and calling an expensive, time-consuming trial. But she said a lawyer for the state recently told an appeals court that scrapping the settlement was a possible path forward.

Silver, who took over the case about a year ago, made it clear she won’t tolerate the state’s failure to follow through on its promises, saying “it makes very little sense for defendants to expend public funds paying attorneys to defend their undisputed breaches of the agreed upon stipulation (settlement).”

The judge’s order came about a week after a court-appointed expert issued a report saying under-staffing, inadequate funding and privatization of health care services are significant barriers in improving health care for the 34,000 inmates in Arizona’s 10 state-run prisons.

Corene Kendrick, an attorney representing the inmates, said the lawyers for the prisoners are reviewing the benefits and drawbacks of each of the three options presented by the judge.

“The court is frustrated with ADC’s failure to comply with the stipulation and the frivolous arguments they have made — first at the district court and at the 9th Circuit (Court of Appeals) — that this agreement they signed five years ago has no binding effect on them and the court has no power to enforce it,” Kendrick said.

The Department of Corrections didn’t immediately respond to a request late Monday morning to comment on Silver’s order.

The state’s noncompliance has so far been costly.

In the summer of 2018, then-Corrections Director Charles Ryan was found to be in civil contempt of court and the state was fined $1.4 million for noncompliance with elements of the settlement.

Earlier this year, Silver threatened a second contempt fine, which could be as high as $1.2 million, for its continued noncompliance.

The state is appealing the first contempt finding, arguing another judge who made the decision didn’t have contempt powers available to enforce the settlement.

If the state decides to keep the current settlement, its lawyers will have to identify the enforcement mechanisms available to the court, Silver wrote.

“It is foolish to believe the parties meant for the court to have no enforcement mechanisms,” Silver wrote.

The settlement resolved a 2012 lawsuit that said Arizona’s prisons didn’t meet the basic requirements for providing adequate medical and mental health care. It said some prisoners complained that their cancer went undetected or that they were told to pray to be cured after begging for treatment.

The state denied allegations that it was providing inadequate care, and the lawsuit was settled without the state acknowledging any wrongdoing.

Ninth Circuit Court to hear case on Arizona ballot harvest ban

A federal appeals court is going to give Democrats a new chance to argue that an Arizona law banning “ballot harvesting” is illegal.

In a brief order, the majority of the judges on the 9th Circuit Court of Appeals said they want to review and reconsider a 2-1 ruling by one of their panels last year that upheld the 2016 law that bars Arizonans from collecting and delivering the ballots of others.

In that ruling, the majority brushed aside complaints from the state and national Democratic parties that the Republican-controlled Legislature had no evidence of fraud from the practice. Nor were they persuaded by arguments that the restriction has a harsher effect on the voting rights of minorities than Arizona residents in general.

Judge Sandra Ikuta, writing for the majority in that decision, did say there was reason to believe that the change was approved, at least in part, by “partisan considerations.” But Ikuta said that fact does not make the law unconstitutional.

The order does not mean that a full panel of 11 judges intends to override what Ikuta wrote for herself and Judge Carlos Bea. But it is relatively rare for the full court to grant such review.

No date has been set for a hearing.

In a prepared statement, a spokeswoman for Attorney General Mark Brnovich said her boss is unconcerned with the court reviewing the earlier ruling.

“The state of Arizona has successfully defended this important common-sense law for nearly three years and will continue to defend the rule of law,” said Katie Conner.

What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on Election Day.

But the law requires mailed ballots to be delivered by 7 p.m. on Election Day. So anything dropped in a mailbox within a week or so may not get counted.

Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offered to take it to polling places on their behalf.

But Republicans, in approving HB 2023 to ban the practice in 2016, argued that presents too many opportunities for mischief.

The law does have exceptions for family members, those living in the same household, and caregivers for those in nursing homes and similar facilities.

During the debate, however, supporters of the ban did not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, Rep. J.D. Mesnard, R-Chandler, argued it’s irrelevant whether there is fraud or not.

“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”

The challengers to the law already have one important voice on their side: Chief Judge Sidney Thomas.

In his dissent on the original ruling, Thomas said his colleagues ignored evidence presented.

“Arizona’s policy of wholly discarding – rather than partially counting – votes cast out-of-precinct has a disproportionate effect on racial and ethnic minority groups,” he wrote, unconstitutionally burdening the right to vote. And Thomas said the data produced by Democrats on the ban on ballot harvesting, complete with penalties of a year in prison and a $150,000 fine, “serves no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.”

And Thomas derided the evidence cited by some lawmakers in supporting the ban.

He specifically mentioned claims by Don Shooter, then a Republican state senator from Yuma, that ballot collectors steam open sealed envelopes and decide whether to submit them based on what was inside. Even U.S. District Court Judge Douglas Rayes, who first reviewed the complaint, found that “demonstrably false,” with the trial judge saying Shooter’s views were “implicitly informed by racial biases.”

“And if Sen. Shooter was insincere, he purposely distorted facts in order to prevent Hispanics — who generally preferred his opponent – from voting,” Thomas said.

Thomas was no more impressed by a soundless video produced by A.J. LaFaro, who was chairman of the Maricopa County Republican Party. The judge said it showed nothing illegal but was accompanied by a voice-over from LaFaro claiming the man was acting to stuff the ballot box.

The new legal development in the Arizona comes as the practice of ballot harvesting has drawn national attention with the results of a North Carolina congressional race being delayed by an investigation into whether Republicans there illegally collected the ballots of minority voters and then purposely failed to turn them in.

But attorney Spencer Scharff who represents Democratic interests in a separate challenge to the ballot harvesting law, said whatever mischief that took place in North Carolina is irrelevant and should not be used as an excuse to allow Arizona lawmakers to ban the practice here.

“There are numerous laws currently on the books, both state and federal, that properly regulate criminal behavior as it relates to elections,” he said. And Scharff said that’s not just true in North Carolina.

“Before they passed HB 2023 it was already a crime to tamper with someone’s ballot, to steal someone’s ballot,” he said. “It was already a crime to collect someone’s ballot and then fail to deliver it, effectively stealing that ballot.”

What that leaves, Scharff said, are simply the additional hurdles that a ban on ballot harvesting creates for voters.

Scharff is representing Democratic activist Rivko Knox in a separate challenge to the ballot harvesting law. She argues it interferes with her First Amendment rights and contends that the Arizona law illegally infringes on the exclusive right of the federal government to regulate who can deliver mail.

That argument fared no better before the same three-judge panel, with even Thomas rejecting those arguments. Scharff is filing his own separate bid to have the full 9th Circuit review the ruling.

Ousted lawmaker takes case to 9th Circuit

Don Shooter awaits a vote by the state House on whether to expel him on Feb. 1, 2018. He was later removed from office by a vote of 56-3. (Photo by Katie Campbell/Arizona Capitol Times)

Former Rep. Don Shooter has hired new legal help in his claim he was wrongfully ousted from the House, a firm that has built a reputation on defending civil rights of college students accused of sexual misconduct.

Attorney Stuart Bernstein told Capitol Media Services he hopes to prove that a federal judge got it wrong when he threw out the lawsuit filed by the Yuma Republican. Bernstein said there is plenty of legal precedent to show that the process used by the state House to expel him early in 2018 were legally insufficient.

And even if that claim fails, Shooter has separate legal claims pending in Maricopa County Superior Court against former House Speaker J.D. Mesnard and Kirk Adams, the former chief of staff to Gov. Doug Ducey. These allege that Shooter was improperly ousted “in retaliation for his investigation into corruption at the highest levels of the Arizona Legislature” according to Andrew Miltenberg, another of Shooter’s new lawyers.

A press statement by the law firm says Miltenberg and Bernstein “specialize in due process violations by universities and other organizations throughout the country.” It also says they are currently representing students and faculty at several institutions including Columbia University, Princeton University and University of Southern California.

Shooter told Capitol Media Services he was quite aware of their client list and their reputation.

“It’s why I hired them,” he said. “I hired them because they defend people whose rights have been trampled on.”

Shooter said he is not concerned about going to court with attorneys who have made a name for themselves by representing male students who have been accused of assaulting and harassing women on campus.

“Maybe every guy that was accused by some girl was guilty,” he said.

“I don’t know,” Shooter continued. “But don’t you think you ought to give them a chance to state their case?”

And that, said Shooter, is precisely what is at issue in his case and why his new lawyers are a perfect fit.

“I was the first legislator in the history of the United States to be thrown out of office without a committee hearing,” he said.

That goes to how the complaints of sexual harassment against Shooter were handled by Mesnard.

In general, the procedure for discipline of legislators that had been followed until last year was that someone accused of misconduct would get a hearing before the House Ethics Committee. That also would provide the legislator or his or her lawyer the chance to question witnesses.

The Ethics Committee would then make a recommendation to the full House whether there were sufficient facts to conclude there was misconduct and, if so, what would be the appropriate punishment. That could range from a reprimand or censure to expulsion.

In Shooter’s case, Mesnard hired outside council to prepare a report for the full House. There were no hearings, with the House voting to oust Shooter based on what was in the report.

U.S. District Court Judge Dominic Lanza threw out the civil rights claim earlier this year, ruling that there is no clear settled law that legislators have a right to ask a federal court to intercede in matters involving their removal. And that, the judge wrote, means that Mesnard and Adams are entitled to qualified immunity for any actions they say they took in their official capacity.

But Bernstein said his law firm has won a number of cases in federal appellate court overturning decisions where trial judges said individuals cannot pursue civil rights claims.

Those most notably include male students who have been kicked out of universities after facing charges of sexual assault. Bernstein said the issues there – and here – deal with the due process rights of the accused.

Bernstein conceded that there is really no way for any court to overturn the House vote to oust Shooter. But he said there are other reasons to pursue the case.

“While we may not be able to get him seated again, we certainly can clear his name,” Bernstein said.

And there’s something else. Bernstein said that the process could “shed light on what he was looking to do before all the shenanigans took place.”

That goes to Shooter’s claim that the charges of sexual harassment against him by another lawmaker, some lobbyists and others was really part of a plan to keep him from looking at no-bid contracts being awarded by the state. If he gets to take his case to court, Shooter’s attorneys will have an opportunity to demand certain documents that he claims are relevant to the case.

Shooter was first removed as chair of the House Appropriations Committee, where he would have had the ability to subpoena documents. Ultimately, though, he was removed following a 56-3 vote of the House which concluded that he had engaged in sexual harassment and other inappropriate conduct.

“Corruption is at the heart of this case,” Bernstein said.

“There are many facts that have yet to be made public,” he said. “This case is important as it exposes the manner in which Don Shooter was victimized by the personal interests of other elected officials.”

Reinstating the lawsuit also could allow him to seek release of documents and interviews done by an outside counsel hired by Mesnard to investigate the sexual harassment allegations. Shooter contends that some of what the investigators discovered about his accusers was not presented to his colleagues before they voted to remove him.

All that, however, is academic unless and until Shooter can get his day in court, assuming the appellate judges say his due process rights were denied.

But attorney Steve Tully, who represents Mesnard, argued to Lanza during a court hearing that Shooter has no property or liberty interests in being a state lawmaker, something Tully said is necessary to claim that he had something illegally taken from him.

As to that due-process claim, Tully said the only legal requirement for removing an elected lawmaker is a two-third vote of the House.

“He received the only process to which he was entitled,” Tully said, telling the judge that this is strictly a “political issue,” and not one for the courts.

Attorney Betsy Lamm, who represents Adams, echoed the theme, saying that nothing in Arizona law says Shooter was entitled to make a written response to the findings in the investigative report. Anyway, she said, the record shows that investigators did interview Shooter, allowed him to respond to the charges of sexual harassment, some of which he admitted were true, and included his response in the report.

Shooter has alleged that, as chairman of the House Appropriations Committee, he found multiple instances where the state was awarding contracts without seeking the lowest bid. Tom Horne, who was Shooter’s attorney at the earlier federal court hearing, said Shooter approached Adams as Ducey’s chief of staff and threatened to have hearings and subpoena witnesses and documents unless the situation was remedied.

What happened, said Horne, is that Adams worked with Mesnard to suspend Shooter from his role as chairman of the panel by using various charges of sexual harassment. That led to the investigation and, eventually, the House vote to eject Shooter.

Editor’s note: This story has been revised to put greater emphasis on the law firm representing Don Shooter.

State argues unsigned ballots invalid

An attorney for the state asked a federal appeals court July 7 to let Arizona refuse to count early ballots that voters forgot to sign initially and did not fix by election night.

Assistant Attorney General Drew Ensign did not dispute that current law gives up to five days after the election to those whose signatures do not match to “cure” the problem.

That distinction is what caused U.S. District Court Judge Douglas Rayes to last year declare that it is illegal to deny the same ability to those who did not sign the ballot at all.

But Ensign told a three-judge panel of the 9th Circuit Court of Appeals that Arizona lawmakers are entitled to have stricter rules — and an earlier deadline — for those who neglect to sign at all.

In striking down the deadline last year, Rayes did agree to stay his original order. That kept the current deadlines in place for the 2020 election.

Now the question is what rules will govern the 2022 vote, the one at which all statewide offices are up for grabs along with what is expected to be a close race for the U.S. Senate.

And that is why the Arizona Democratic Party is trying to keep the extended deadline in place — and why the state, joined by the state and national Republican parties, wants to return to the election night deadline.

There are not a lot of ballots at issue. In 2018, for example, just 2,435 ballots statewide were rejected because they arrived in unsigned envelopes and the voters never made the trip to county election offices by 7 p.m. on Election Day to “cure” the problem.

Attorney Elisabeth Frost, representing the Democrats, told the judges that giving the extra time would impose only a minimal burden on election officials. And she pointed out that both Secretary of State Katie Hobbs and recorders from most counties said they saw no problem with providing voters the extra five days.

The outlier was Pima County where Chris Roads, who was the deputy recorder, provided statements that it would create a significant administrative burden. He said it would require staffers to locate the unsigned ballot, something that can be handled only with workers of two different parties present.

But Rayes, in his ruling last year, brushed that aside.

He noted that Pima County rejected just 75 ballots in 2018 due to missing signatures. The judge said that doesn’t qualify as a significant enough burden to justify the election night deadline and deny someone the “fundamental right” to vote and have it counted.

Frost also argued that an unsigned ballot is the functional equivalent of someone showing up at a polling place on Election Day without the proper identification. In that case, she said, the voter is given five days to provide the necessary ID to ensure the completed ballot is counted.

But Judge Susan Graber, a judicial nominee of President Clinton, said she’s not buying that comparison.

“They’re not fully completed,” the judge said of the unsigned ballots.

“That’s the problem,” Graber continued. “If they were fully completed, we wouldn’t be having this conversation.”

Ensign, for his part, urged the judges not to buy the argument that those who forget to sign their ballots should be given the same opportunity to fix the problem as those whose signatures did not match what county officials have on file.

“With signature mismatches, it typically is not the fault of the voter whatsoever, which contrasts completely with the missing signature which is virtually always the complete fault of the voter,” he said. Beyond that, Ensign said that signature matching — the process used by election officials to compare signatures on early ballot envelopes with what is on file — is “inherently subjective and has rates of error for which there are reasons to have cure periods.”

“By contrast, there is absolutely no evidence in the record whatsoever that Arizona has ever wrongfully determined that a ballot was unsigned when it was, in fact, signed,” he said.

And Ensign said a mismatched signature can be dealt with by a phone call with the voter to verify that she or he was the one who mailed in the ballot. By contrast, a missing signature requires the voter to go to election offices where workers, one from each party, accompany the ballot and watch the missing signature be put into place.

That, he said, can slow up the process of counties finishing their counting on time.

Daniel Shapiro, representing the Republicans, had other legal theories about why the deadline of 7 p.m. on Election Day is legally valid for unsigned ballots and why those who signatures do not match should get that extra five days.

“Mismatched ballots have long been seen in Arizona to be complete but invalid, making it OK to cure them after the election deadline,” he told the court.

“But, really, signing an unsigned ballot after Election Day is, in effect, voting after Election Day,” Shapiro continued. “And there is no right to do that.”

He also called the election night deadline “minimally burdensome.” He said that fact alone should have resulted in Rayes tossing the original lawsuit and ruling against the Democrats.

Frost, for her part, disputed that the election night deadline imposes only a minimal burden on those who are otherwise legally entitled to vote. But even if the burden is minimal, she argued that Rayes was correct in ruling that is not legally justified.

This case is different than many of the other challenges that have been made to Arizona election laws.

In those cases, the claim has been that the law in question results in disparate treatment based on a what the law considers a “protected class,” like gender, race or ethnicity. There has been no evidence presented here of such inequity.

But Frost said that still does not entitle the state to come up with differing rules for “curing” ballots.

The judges gave no indication when they will rule.

State justices end tribal dispute with ski area

In this Dec. 10, 2016, photo, snowboarders are on a slope at Arizona Snowbowl Ski Resort (Wikimedia Commons/Courtesy of Coconino National Forest)

The Arizona Supreme Court has squashed what could be the last legal maneuver to block the use of treated effluent to make snow on the San Francisco Peaks.

In a 5-2 ruling Thursday, the majority concluded the Hopi Tribe has no right to file a claim that the practice creates a “special nuisance” because it interferes with the ability of tribal members to practice their sacred rituals on the mountains north of Flagstaff.

The majority said the effect of claimed environmental damages on tribal members is no greater than those suffered by other members of the general public who use the land. And the justices said only those with a specific interest in the land, whether by virtue of ownership or financial impact, are entitled to bring such “special nuisance” claims under Arizona law.

The ruling drew a stinging dissent from Justice Scott Bales who chided his colleagues for failing to understand what he said is the special nature of the harm the tribe is alleging.

Bales, joined by Justice Clint Bolick, said long before there was Snowbowl — and long before the public was concerned about the Coconino National Forest — tribal members were going to what they considered sacred peaks to conduct sacred rituals. All that, he said, would be changed if treated effluent, which is unfit for human consumption and retains some contaminants, is used on the land.

“In the spring melt, sacred springs will be tainted with the melting wastewater, turning formerly pure ceremonial locations into a secondary sewer,” Bales wrote.

“Moreover, the myriad chemicals in the water will wreak unknown damage on the local ecosystem, further degrading traditional and sacred Hopi resources and locations,” he continued. “In sum, the Hopi face the destruction and desecration of some of their most sacred locations and places.”

But Justice John Pelander, writing for himself and the four other justices, said allowing the Hopi to block the use of treated effluent based solely on a claim of religious interference would effectively empower the tribe to veto decisions made by public officials who, after hearing testimony and considering evidence, decided that the practice would be in the public interest.

Tribal chairman Tim Nuvangyaoma said he was disappointed in the ruling.

“This has been a long-fought battle, in many different forms, and through it all we had hoped that justice would be done,” he said in a prepared statement. “Unfortunately, we did not prevail.”

Thursday’s ruling appears to be the last gasp in a fight that dates back decades, first in an unsuccessful bid to try to block the ski operation on public lands. When that failed, the Hopi along with other tribes went to federal court, making various environmental and religious freedom law claims to preclude Snowbowl from using treated effluent purchased from Flagstaff to make snow.

Those, too, ended up a legal dead-end in 2008 when the 9th Circuit Court of Appeals tossed the case.

That led to this 2010 lawsuit by the Hopi to use state public nuisance laws to make its case as Flagstaff was moving forward with the sale of treated effluent to the resort.

Coconino County Superior Court Judge Mark Moran tossed the case, agreeing with Snowbowl and the city that only those who suffer a particularized injury can bring public nuisance lawsuits. Earlier this year, however, the state Court of Appeals said tribal members are entitled to make the case that they will be harmed in a way beyond that of the general public.

Pelander, however, said that’s not how Arizona nuisance laws work.

He said those alleging a “special injury” must show that the activities they are seeking to enjoin will have an effect on their use and enjoyment of their own property. A claim of some financial loss also would be sufficient, Pelander said.

Extending that right to sue based on religious importance, the justice said, creates all sorts of problems.

“Because a particular place’s religious importance is inherently subjective, courts are ill-equipped to determine whether one form of incidental interference with an individual’s spiritual activities should be analyzed differently from that of another,” he wrote.

Pelander also noted that the approval for the use of treated effluent had been through several reviews, including not just the city’s vote but also had the approval of the U.S. Department of Agriculture and the U.S. Forest Service.

“Aside from its disagreement with the outcome, the tribe does not allege that any aspect of this process was procedurally flawed or otherwise defective,” Pelander said. Instead, he said, the tribe wants Arizona courts to balance the tribe’s claim against that decision.

The majority said it might be different if the tribe has a property or financial interest in the land at issue. But a strictly religious interest claim, they said, can’t be made in state courts.

That last contention drew derision from Bales.

He said that means the tribe could sue if the Forest Service allowed the Hopi to sell pine boughs, pinon nuts or native tobacco from the San Francisco Peaks, something it does not.

“We may live in a material world,” Bales wrote. “But it is a sad comment on our law to suggest that other interests — such as religious traditions and practices manifest through millennia and recognized by federal law — cannot support a claim of special injury for purposes of the public nuisance doctrine.”

Supreme Court declines baseball wage case

Arizona Diamondbacks starting pitcher Luke Weaver throws against the Colorado Rockies during the second inning of a baseball game, Saturday, Sept. 26, 2020, in Phoenix. (AP Photo/Matt York)

The U.S. Supreme Court has given a key victory to players on minor league baseball teams, clearing the way for them to sue to be paid the minimum wage while they’re in spring training in Arizona.

Without comment on Monday the justices refused to disturb an appellate court decision that says the players are entitled to pursue a class-action lawsuit to show that the 15 teams that train here were not obeying minimum wage laws. That specifically includes Arizona law which currently mandates that all employees get at least $12 an hour.

Friday’s ruling comes more than a year after state Rep. T.J. Shope, R-Coolidge, attempted to undermine at least part of the players’ claims by seeking to amend state law to exempt baseball teams, including the Arizona Diamondbacks, from the voter-approved laws that mandate what employees must be paid. That measure also effectively would have let teams work their minor league players as much as they want without having to worry about overtime — or, in some cases, paying them at all.

It died amid legal questions about whether Arizona lawmakers have the power to alter what voters had approved.

Attorney Bob King who represents the players called Monday’s high court decision “great news.”

“After almost four years on appeal, the players can now return to the trial court to ensure that Major League Baseball and team owners comply with minimum and overtime wage laws, a welcome development for minor leaguers in a very unusual year,” he said in a statement.

Garrett Broshuis who represents minor league players, has told Capitol Media Services he did not know how much money is at stake in terms of missed pay for work already done.

“You have players that are required to report to spring training every spring and they have to work for no pay there,” he said. “We believe that is fundamentally unfair and that no worker should be forced to work for free.”

But he said part of the focus now is changing the rules for future players. And Broshuis said that the financial hit to teams with payrolls of more than $100 million a year should not break them.

In a prepared statement, MLB said it does not comment on litigation. But the organization also suggested the lawsuit was unnecessary.

“MLB had long planned to increase minor league player salaries as part of our next agreement with minor league clubs,” the statement says, saying that players will receive salary increases ranging from 38% to 72% for the 2021 season. And the organization said it is focused on efforts to “enhance” the experience for players, including “renovated facilities, reduced travel, and improved daily working conditions.”

Central to the dispute is that most major professional sports in this country have their own farm system to develop talent. For baseball, according to court records, it’s an extensive minor league system with nearly 200 affiliates across the country employing about 6,000 players.

All minor league players are required to sign a seven-year Uniform Player Contract, a contract that spells out that first-year players are paid a fixed salary of $1,100 a month during the regular season.

But beginning in early March, the minor league affiliates conduct spring training in Arizona and Florida. And appellate Judge Richard Paez, a President Clinton nominee, writing for the majority in last year’s ruling by the 9th Circuit Court of Appeals, said that contract “strongly indicates” that participation is mandatory.

More to the point, virtually all players are not paid during the four-week period, with some players saying that training entails working seven days a week. There also are “instructional leagues” after the regular season, with Paez saying that the contract strongly implies that participation is required.

“And just as with spring training, players are virtually never paid for participation in the instructional league,” he wrote.

In fact, Paez said that of the 21,211 players who participated in spring training between the 2009 and 2015 seasons, only 11 were paid a salary.

That led to the class-action lawsuit against Major League Baseball and all the teams charging them with violating labor laws in Arizona, Florida and California, with more than 2,200 current and former minor league players opting in.

Attorneys for the league and the teams sought to quash the class-action move, arguing among other things that players from teams across the country should not be able to argue that they are entitled to the protections of Arizona’s laws, which have a higher minimum wage than required under federal laws. Paez rejected that contention.

“The laws of Arizona and Florida should apply to the work performed wholly within their respective boundaries,” he wrote.

Paez also said that the heart of the case involves minimum wage violations. That, he said, means that liability can be established simply by showing that the players performed “any compensable work.”

And he specifically noted that, under Arizona law, the failure of an employer to keep appropriate records of hours worked “raises a rebuttable presumption that the employer did not pay the required minimum wage.”

Monday’s Supreme Court ruling clearing the way for the class-action lawsuit does not mean the players ultimately will win.

Paez, in issuing the appellate ruling, said the case will come down to two questions: Are they employees, and do the activities they perform during those times constitute “compensable work.”

“As nearly all players are unpaid during these time periods, if the answer to those two questions are resolved in plaintiffs’ favor, liability may be established by showing that the players performed any work,” he wrote.

Shope’s bill sought to exempt the players from the state minimum wage. On paper, that would have left them subject only to federal law.

But two years ago lobbyists for Major League Baseball pushed a measure through Congress dubbed the “Saving America’s Pastime Act” which exempts teams from all federal wage laws as long as they pay the players at least $290 a week. That’s the equivalent to $7.25 an hour for a 40-hour week — the federal minimum wage — but with a specific exemption from overtime, meaning they can force the players to work as many hours as they want for that $290.

That change was buried on page 1,967 of a $1.3 trillion spending bill signed into law by President Trump.

Shope, the House speaker pro-tem, said he was sponsoring HB 2180 at the behest of lobbyists here for Major League Baseball. He said they told him there are reasons that it makes no sense to try to reduce player pay to an hourly basis.

Supreme Court passes on appeal of Libertarian Party voter case

This April 23, 2018, file photo shows the Supreme Court in Washington. (AP Photo/Jessica Gresko, File)

The U.S. Supreme Court has quashed a last-ditch effort by the Arizona Libertarian Party to void a state statute which was designed — and succeeded — at keeping its candidates off the ballot.

Without comment the justices on Monday rejected a bid by attorney Oliver Hall from the Center for Competitive Democracy asking the court to look at the 2015 law which sharply increased — sometimes by a factor of 30 — the number of signatures needed for Libertarian candidates to qualify for the ballot. That decision leaves in place a 2019 ruling by the 9th Circuit Court of Appeals which acknowledged the hurdle but suggested it is one of the party’s own making.

At the heart of the fight is that 2015 law which changed the number of signatures required for candidates to qualify for the ballot.

Prior to that, candidates for all recognized parties could get on the ballot simply by submitting petitions with the signatures of one-half of one percent of those registered with the party. In 2018 for the Libertarians, a statewide candidate would have had to collect around 160 names.

That year Republicans lowered the requirement to one-quarter of one percent. But they engineered it so that the figure was based on all who could sign a candidate’s petition.

That added political independents to the base, who actually outnumber Democrats and run a close second to Republicans.

So in 2018 the minimum signature requirement for a Libertarian running statewide was 3,153, about 10 percent of all those actually registered as Libertarians.

Meanwhile the numbers for Republican and Democrat nominations remained close to what it always had been: 6,223 for the GOP and 5,801 for Democrats, both a small fraction of each party’s voter base.

The move had political motives.

The record shows that J.D. Mesnard, then a GOP representative from Chandler and now a state senator, told colleagues that Republicans would have been elected to two congressional seats had it not been for what he said were Libertarian candidates in the same race siphoning off votes — votes he said otherwise would have gone to the GOP contenders.

“I can’t believe we wouldn’t see the benefit of this,” Mesnard said during a floor speech.

Hall argued that the law had its desired effect: Only one Libertarian qualified for the ballot in 2016 — and none at all in 2018.

“Arizona has relegated the Arizona Libertarian Party to a state of electoral purgatory,” Hall wrote. “The party is ballot-qualified under Arizona law, but it cannot place its candidates on the ballot.”

All that, he said, is unconstitutional.

In its ruling last year, Judge Margaret McKeown of the 9th Circuit Court of Appeals acknowledged that, for some offices, the party’s desire to have petitions signed only by party faithful could amount to 30 percent of registered Libertarians.

But she said that Libertarians, just like Republicans and Democrats, are free to seek the signatures of just 1 percent of those who are eligible to sign petitions. That means not just Libertarians but more than a million Arizonans who are registered to vote as independents.

McKeown said it is the decision of the Libertarian Party — and not the Legislature — to allow only party members to participate in the primary.

Put simply, McKeown said the problem is of the party’s own making because of its exclusionary policy. And she said that voiding the 2015 law — and going back to the prior law — would “incentivize parties to have fewer registered members and therefore artificially reduce the signature requirements.”

Hall, however, said forcing Libertarian contenders to rely on the support of independents is unconstitutional, saying it amounts to “a form of compelled association.”

“Arizona has no legitimate interest in requiring that Libertarian candidates demonstrate support from independent voters who are not eligible to vote for them, and who have no reason or incentive to support the candidates’ effort to obtain (the party’s) nomination.

He also told the justices that what the state wants is unusual.

The politics of the change — and the reason for GOP support — came out during one of the debates.

Proponents cited the 2012 congressional race.

In the First Congressional District, which runs from Flagstaff and the Navajo Nation to the edge of Tucson, Republican Jonathan Paton garnered 113,594 votes against 122,774 for Democrat Ann Kirkpatrick. But Libertarian Kim Allen picked up 15,227 votes — votes that Mesnard contended likely would have gone to Paton.

Similarly, in the newly created Ninth Congressional District, which encompasses parts of Tempe and Phoenix, Democrat Kyrsten Sinema bested Vernon Parker by 10,251 votes, with Libertarian Powell Gammill tallying 16,620.

Supreme Court to rule on Arizona voting laws as term comes to close

The sun rises behind the Supreme Court on Capitol Hill in Washington, Monday, June 29, 2020. (AP Photo/Patrick Semansky)

It’s not just the future of whether Arizona gets to keep its ban on “ballot harvesting” that the U.S. Supreme Court will decide this week.

Hanging in the balance could be how far Arizona — and other states — get to go in enacting new restrictions on registration and voting, particularly when they are found to have disparate effect on minorities.

On paper, the justices are looking at the simple question of whether the state can regulate who can take someone else’s voted early ballot to a polling place. That had been the practice of some civic groups in Arizona for years.

They would go door to door and ask people if they had remembered to return their early ballot. And, given that a ballot has to be received by 7 p.m. on Election Day, they offered to take it to a polling place rather than risk it not arriving on time.

In 2016, however, the Republican-controlled legislature voted to make that a felony. The law has only a handful of exceptions, like family members, people living in the same household and caregivers.

Proponents argued that this would prevent fraud.

But during legislative debate supporters could not cite a single instance of someone’s early ballot being stolen, manipulated or discarded. In fact, J.D. Mesnard, then a state representative from Chandler and now a senator, argued that it’s irrelevant whether there is fraud or not.

“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”

The state and national Democratic parties sued and a trial judge upheld the law.

But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire of the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, an appointee of President Clinton, writing for the majority, said the record shows it had that effect.

What makes that particularly relevant is the current debate in Arizona and elsewhere on legislation to alter registration and voting procedures.

For example, one measure already approved this year by the Republican majority would remove people from the permanent early voting list if they did not cast an early ballot during two successive election cycles.

Democrats argued this would have a harsher effect on minorities, saying they often are the ones who come out and vote only when there are issues of interest. And that, they said, occurred this year with a record turnout.

Another effort would have required voters to provide certain identification when they send in early ballots. And a third would have effectively outlawed early ballots, saying people could still get them by mail but would have to turn them in at a polling place.

All that goes to a key question before the high court: How far can a state go in the name of election security — especially when there is no proof of a problem — when there is evidence that minorities are more likely to be affected.

In this case, Fletcher said the record from the trial court showed that, prior to the 2016 law, minorities were more likely than non-minorities to get someone else to turn in their ballots.

“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collection as a Get Out the Vote strategy,” he wrote.

“The base of the Republican Party in Arizona is white,” Fletcher continued. “Individuals who engaged in ballot collection in past elections observed that voters in predominantly white areas were not as interested in ballot-collection services.”

That, in turn, relates to Section 2 of the Voting Rights Act. It bars enactment of any voting practice of procedure which results in “denial or abridgment” of the right to vote on account of race or color.

Attorney General Mark Brnovich, in defending the law, said there is nothing inherent in the ballot harvesting statute that decreases the opportunity for minorities to vote. He said that is the test under Section 2, regardless of whether there is some evidence that minorities are more likely to depend on someone else to take their early ballots to the polls.

He acknowledged there are “slight statistical differences” in how the law affect minorities. But Brnovich said the court needs to look at the totality of the circumstances.

“No one was denied the opportunity,” he said.

He said the state provides many ways of voting, including early voting and at voting centers ahead of Election Day. And the state has a “no excuse absentee balloting,” meaning that anyone can ask for an early ballot by mail.

“So there are a whole plethora of options in ways for people to exercise their right to the franchise,” Brnovich said.

But there is a political side to all of this.

The Arizona Republican Party was granted the right to intervene to help defend the 2016 law. That led to a question by Justice Amy Coney Barrett about why his client is in the case.

“Because it puts us at a competitive disadvantage relative to Democrats,” he acknowledged.

“Politics is a zero-sum game,” Carvin continued. “And every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing an election.”

The justices actually have two Arizona laws before them.

Also at issue is the legality of a state statute that says only votes cast at the proper precinct are counted. Challengers said there is no reason to ignore votes that would be legal regardless of where they were cast, like for a president or statewide office.

Brnovich argued that is necessary to properly administer the voting system.

He also said that the extent of the impact of that law is minimal, saying that in the 2016 election there were only 3,970 ballots that were rejected because they were cast in the wrong precinct out of more than 2.6 million votes cast by all methods, including early and day-of voting.

But Jessica Ring Amunson, representing challengers, said the important thing for the justices to consider is the evidence that minority voters were twice as likely to have their ballots rejected because of being in the wrong precinct than white voters.

U.S. Supreme Court keeps ban on uranium mining at Grand Canyon

In a major victory for environmental groups and the Havasupai Tribe, the U.S. Supreme Court on Monday rebuffed a bid by mining interests to overturn a 20-year ban on extracting uranium from about a million acres around the Grand Canyon National Park.

The justices, on their first day back from the summer recess, refused to consider a claim by the National Mining Association that allowing the U.S. Department of Interior to make such unilateral decisions violates the right of Congress to decide the use of such public property. The justices gave no reason for their action.

Monday’s move leaves intact a 2017 ruling by the 9th Circuit Court of Appeals that Kenneth Salazar who was Interior Secretary in the Obama administration, had the right to take the action in 2012. The appellate court said while there may be differences in opinion on what danger the mining poses to the water supply, that did not make the withdrawal either arbitrary or capricious.

Judge Marsha Berzon, writing for the unanimous three-judge panel, also said Salazar and his department did not violate requirements for the federal government to promote multiple uses of public lands.

But the implications from Monday’s decision are far broader than whether uranium mining around the Grand Canyon will be off limits through at least 2032. Timothy McCrum, the attorney for the mining group, told the justices that their action – or inaction — also would affect the availability of hundreds of millions of acres of federal lands for mineral and other development.”

The decision drew praise from various groups that intervened in the case to keep the ban intact, including the Havasupai Tribe.

“The mineral withdrawal is a necessary way to protect the land and the water that our people and our village depend on,” said tribal Chairwoman Muriel Coochwytewa in a prepared statement.

While the legal arguments have run out, Monday’s ruling may not put the issue of mining near the canyon to rest.

Earlier this year, the Department of Interior, now under the Trump administration, published a list of 35 minerals considered “critical to the economic and national security of the United States.”

And in July the Department of Commerce launched an investigation into whether the “quantity and circumstances of uranium ore and produce imports into the United States threaten to impair our national security.” That followed a conclusion by the agency that uranium production, which had met 49 percent of U.S. requirements in 1987, had fallen to just 5 percent.

That latter investigation in particular could lead to a requirement that at least 25 percent of the uranium needed in the United States come from domestic sources.

“That could potentially open up places around Grand Canyon,” said Sierra Club lobbyist Sandy Bahr as there is additional pressure on the administration and Congress to overturn the 20-year ban, something that apparently remains a legal possibility.

Mining association spokesman Connor Bernstein acknowledged as much, saying that “unwarranted” withdrawals like this of public lands from mining endanger mineral supplies, and not just uranium.

“Our import dependence for key mineral commodities has doubled over the past two decades,” he said. “As it is the U.S. is 100 percent import dependent for 21 key mineral resources and more than 50 percent import dependent for an additional 29 mineral commodities.”

Bernstein said public health has to be the top priority.

“The question is, can we have balance,” he said.

And the association also is counting on the change in administration.

“This administration is looking at all these issues with a fresh set of eyes,” said Bernstein.

Uranium was first found near the park in the late 1940s. As prices spiked in the 1980s and 1990s, production surged.

But Berzon, in last year’s ruling, said the collapse of the Soviet Union and decommissioning of many nuclear warheads pretty much halted mining in the area.

There was another price spike in 2007. But Salazar, reacting to concerns about the effect of mining radioactive materials, proposed withdrawing about a million acres from new claims.

The mining interests sued. After being rebuffed in 2014 by a federal judge in Arizona they took their case to the appellate court.

Berzon, a President Clinton appointee, said there were legitimate concerns about the potential impact of a large-scale increase in mining. That starts with the mining process contaminating water supplies with both uranium and arsenic, chemicals she said which may affect plant and animal growth, survival and reproduction. And Berzon noted that multiple reports “all acknowledged substantial uncertainty regarding water quality and quantity in the area, the possible impact of additional mining on perched and deep aquifers, and the effect of radionuclide exposure on plants, animals and humans.”

The result, she said, was a “measured approach” by the department, saying that keeping new mining from starting for 20 years will allow for additional data on things like groundwater flow paths and the contribution that mining makes to radiation.

Berzon said it would be one thing if Salazar’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

But she said courts give great deference to the actions of an agency and uphold them “if a reasonable basis exists for its decision.” And Berzon said that evidence was there.

For example, she said an analysis of more than 1,000 water samples within the region found 70 sites where contamination from heavy metals exceeded federal standards. And she said samples from 15 springs and five wells indicated uranium concentrations exceeded standards.

Berzon acknowledged that some analysts within the Interior Department disagreed with the risk.

The appellate court also backed the finding that the area is of “profound significance and importance to Native American tribes.” And the judges said nothing in law requires the Interior Department to limit protection to smaller carve-outs rather than preserving larger areas which have multiple cultural and historic sites.

Berzon agreed with arguments that existing laws and regulations might mitigate the impact of uranium mining on environmental, cultural and visual resources, and wildlife and human health. But she said the final environmental study “does not suggest that simply enforcing existing laws and regulations would suffice to meet the purposes of the withdrawal.”

U.S. Supreme Court takes on Arizona ballot harvest law

Arizonans remain legally barred from taking someone else’s ballot to the polls, at least for this election.

Without comment, the U.S. Supreme Court on Friday agreed to review the decision of a federal appeals court which earlier this year had voided the state’s ban on “ballot harvesting” after concluding that the Republican-controlled legislature enacted the 2016 law with the intent of suppressing minority votes. That law makes it a felony, subject to one year in state prison and a $150,000 fine, to handle anyone else’s already voted ballot.

Judge Amy Coney Barrett, President Donald Trump's nominee to the Supreme Court, meets with Sen. Mike Lee, R-Utah, not pictured, at the Capitol, Tuesday, Sept. 29, 2020 in Washington. (Stefani Reynolds/Pool via AP) — Judge Amy Coney Barrett, President Donald Trump’s nominee to the Supreme Court, meets with Sen. Mike Lee, R-Utah, not pictured, at the Capitol, Tuesday, Sept. 29, 2020 in Washington. (Stefani Reynolds/Pool via AP)

The only exceptions are for family members, others in the same household, caregivers, election workers and the postal service.

Friday’s decision does not necessarily mean the law will be overturned. But it does mean that at least four justices found sufficient merit to arguments by Republican Attorney General Mark Brnovich and the Arizona Republican Party that lawmakers, in enacting the law, had valid concerns about the possibility of fraud.

Friday’s decision also means the justices will review another part of the same 2016 law which says if someone votes in the wrong precinct, all of the votes that person cast are discarded. The appellate court said the state should count the votes that would have been legal had the person been at the right place, such as for a statewide office like governor.

The justices now need to set a date for a hearing, presumably one where Trump’s latest appointee, Amy Coney Barrett, will be sitting on the bench. A ruling may not come until June.

What’s behind the whole practice is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places.

But state law requires mailed ballots to be delivered no later than 7 p.m. on Election Day. That means anything dropped in a mailbox within a week or so may not get counted.

Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offering to take the papers to polling places on their behalf. But Republicans, in approving HB 2023 to ban the practice in 2016, argued that presents too many opportunities for mischief.

During the debate, however, supporters of the ban did not cite a single confirmed incident where a ballot was altered or did not get delivered. In fact, then-Rep. J.D. Mesnard, R-Chandler, argued it’s irrelevant whether there is fraud or not.

“What is indisputable is that many people believe it’s happening,” he said. “And I think that matters.”

The state and national Democratic parties sued and a trial judge upheld the law.

But in a divided decision, a majority of the 9th Circuit Court of Appeals concluded that what actually was behind the law was a desire by the GOP majority in the legislature to suppress minority votes. And Justice William Fletcher, a nominee of President Clinton, writing for the majority, said the record shows it had that effect.

He said the change in law cannot be examined solely in a vacuum.

“For over a century, Arizona has repeatedly targeted its American Indian, Hispanic and African-American citizens, limiting or eliminating their ability to vote and to participate in the political process,” Fletcher wrote.

The judge cited extensive testimony at trial about the number of ballots collected and turned in both others. More significant, he said the record from the trial shows that before the law was enacted in 2016, minorities were more likely than non-minorities to get someone else to turn in their ballots.

“The district court found that, in contrast, the Republican Party has not significantly engaged in ballot collect as a Get Out the Vote strategy,” Fletcher said.

“The base of the Republican Party in Arizona is white,” he continued. “Individuals who engaged in ballot collections in past elections observed that voters in predominantly white areas were not as interested in ballot-collect services.”

Brnovich, in his arguments to the high court, said the fact that there were no documented cases of fraud related to ballot harvesting is irrelevant.

“Prohibiting unlimited third-party harvesting is a commonsense means of protecting the secret ballot and preventing undue influence, voter fraud, ballot tampering, and voter intimidation,” he wrote.

And Brnovich rejected the contention that the law is simply an attempt by the Republicans who control the House and Senate, then and now, to get and keep a political edge. He pointed to the 2005 recommendations of the Commission on Federal Elections Reform, co-chaired by former President Jimmy Carter, a Democrat, that said states should prohibit outsiders from handling absentee ballots of others.

“There’s 20 states that have similar measures,” Brnovich said. And then there are the exceptions for family and household members and caregivers.

Brnovich also wants the justices to ignore one thing cited by Fletcher in the ruling: comments by then-Sen. Don Shooter, R-Yuma, who attempted to get colleagues to enact a similar law. That was after he won his 2010 election with just 53% of the vote — receiving 83% of the non-minority vote but only 20% of the Hispanic vote.

Fletcher said Shooter was “in part motivated by a desire to eliminate what had become an effective Democratic GOTV strategy.” And he said that, in finally enacting the laws in 2016, “Republican legislators were motivated by the unfounded and often far-fetched allegations of ballot collection made by former Sen. Shooter.”

Brnovich told the justices all that is irrelevant.

“Each legislator is an independent actor,” the attorney general wrote.

“It has long been settled that what motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it,” he said. “Anyway, Brnovich said, even if there is a correlation between race and political affiliation — and even if legislators are aware of that — there is no proof that Arizona lawmakers acted with racial motives.

Friday’s decision also is a setback for Secretary of State Katie Hobbs.

In her own legal filings with the Supreme Court, she pointed out that it was the secretary of state’s office that had been sued, years earlier, before she held the office. And Hobbs said that means she, as the current holder of the office, had sole authority to decide whether to appeal the 9th Circuit ruling.

Hobbs said she believes the appellate judges got it right. And she argued, unsuccessfully, that Brnovich cannot maintain a legal action to defend the law.

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