Bolick text to Ducey makes recommendation on political appointment

Clint Bolick (Capitol Media Services file photo by Howard Fischer)
Clint Bolick (Capitol Media Services file photo by Howard Fischer)

Supreme Court Justice Clint Bolick urged Gov. Doug Ducey to name Maricopa County Attorney Bill Montgomery to the U.S. Senate just days after John McCain died.

In a text message sent to Ducey obtained by Phoenix New Times, the judge called Montgomery “one of the few who could fill Sen. McCain’s shoes,” and someone “who is supported by all parts of the GOP, yet unfailingly conservative.”

Bolick told Capitol Media Services Tuesday there was nothing improper about his endorsement of Montgomery.

He acknowledged that the rules that govern the conduct of judges prohibit them from publicly endorsing candidates for public office. But the text, he said, was meant to be a private message to Ducey.

Bill Montgomery
Bill Montgomery

But attorney Tom Ryan, a Chandler attorney who has been involved in political issues and legal disputes over conflicts of interest by public officials, said that ignores the fact that Bolick sent the text from his court-issued cell phone. And that made anything he sent from there a public record, whether he intended that or not.

Even if there was no technical violation of the rules that govern judicial conduct, Ryan said Bolick should not have weighed in. He said the glowing words about Montgomery create an appearance of favoritism for the county prosecutor that would cause concern by any defense attorney who is arguing a case before Bolick.

Bolick, however, brushed aside any such concern, citing his record on the bench since being appointed by Ducey in 2016.

“I think Bill would be the first to note that his record before me is far from perfect in terms of my voting for him,” Bolick said.

Anyway, the judge said, this wasn’t a political “campaign.” Instead it involved the governor fulfilling his legal duty to fill vacancies created in the Senate.

Ryan dismissed that argument, calling the appointment of a senator — who in this case had to be a Republican like McCain — an “overtly political act.”

The text, sent the afternoon of Aug. 27, starts with an apology “for joining what I am sure is a tsunami of unsolicited advice.”

“Wicked smart principled, West Point, very modest beginnings, young enough to be there for a long time,” Bolick wrote. “Can work across the aisle.”

Bolick said he was acting on his own and not on any request by Montgomery, who he said is “very much in the mold of Jon Kyl.”

Doug Ducey
Doug Ducey

“Clint — thank you,” Ducey texted back.

“Always value your advice and recommendations,” the governor continued. “I share your admiration of Bill. He is one of our finest.”

As it turned out, Ducey named Kyl to serve until the 2020 election.

Kyl, however, may not remain that long.

In being appointed, however, Kyl, who had served in the Senate for 18 years before retiring at the end of 2012, vowed only to serve through January. That enabled him to vote to confirm Brett Kavanaugh to the U.S. Supreme Court after having been tapped in his private practice to help guide him through the confirmation process.

Kyl’s press office in Washington did not respond to a query about the senator’s intentions. But if Kyl does quit, Ducey will have to find someone to take his place.

Montgomery on Tuesday sought to distance himself from the whole issue.

“I was one of many who supported Sen. Kyl’s appointment and did not ask, seek, or have any conversations about being appointed,” he told Capitol Media Services. And he said too much was being made of what Bolick had done, calling it “an unsolicited private email making a recommendation that didn’t happen.”

And what if the seat were to again become vacant?

“My best answer is that I’m the county attorney until I’m not,” Montgomery responded.

Bolick said he did not understand the fuss over the text.

“I don’t think this is really any different than me expressing a view about an appointment to the governor personally,” he said. “Judges remain citizens.”

Anyway, Bolick pointed out, the rules do not create an impenetrable wall between judges and politics.

“Judges are allowed to make political contributions and often do,” he noted, contributions that candidates have to report in publicly available campaign filings.

“Judges are allowed to privately express their views on candidates for office,” Bolick continued. “I don’t think the fact that a private communication is made public changes that analysis.”

And Bolick said what he did is “one big step removed from that” because Montgomery was not a “candidate” running for office.

There was no immediate response from Ducey about whether he thinks it’s proper for a sitting state Supreme Court justice to be making recommendations for appointments to political office.

Bolick said no one has ever suggested that sitting justices cannot express their opinions.

He pointed to an interview U.S. Supreme Court Justice Ruth Bader Ginsburg did in 2016 with the New York Times — before the presidential elections — where she joked that if Donald Trump became president it could be time to move to New Zealand.

“I can’t imagine what the country would be with Donald Trump as president,” she said.

And Sandra Day O’Connor, watching election returns in 2000 at a party with friends, said, ”It’s over” when the networks were saying Democrat Al Gore had won the election.

Her husband, John, offered the explanation that his wife wanted to retire and was not interested in having her seat filled by a Democratic president. But that did not stop O’Connor from becoming the fifth vote on the nine-member court to halt the recount of Florida ballots, meaning Republican George W. Bush would be elected.

Years later, O’Connor appeared to have some second thoughts, suggesting that perhaps the court should not have taken the case in the middle of the election counting.

State Supreme Court rejects GOP bid to void election

Voters deliver their ballot to a polling station, Tuesday, Nov. 3, 2020, in Tempe, Ariz. (AP Photo/Matt York)
Voters deliver their ballot to a polling station, Tuesday, Nov. 3, 2020, in Tempe, Ariz. (AP Photo/Matt York)

The state’s high court late Tuesday threw out a bid by the head of the state Republican Party to void the results of the presidential race.

In a unanimous ruling, the justices said that Kelli Ward failed to present any evidence of misconduct or illegal votes in the tally that found Joe Biden had outpolled Donald Trump in Arizona.

Chief Justice Robert Brutinel, an appointee of former Gov. Jan Brewer writing for the court, said Ward, who has the burden of proof when challenging an election, provided no evidence that the electors pledged to Trump got more votes than those pledged to Biden “let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”

Brutinel acknowledged, as did the trial judge, that there were some errors made when damaged or ballots with extra marks had to be redone by hand so they could be fed through counting machines.

But he said that a random check of 1,626 of these ballots ordered by the trial court found an error rate of as little as 0.37% or as much 0.55%. Extrapolating that out to the 27,869 ballots that had to be duplicated, Brutinel said it would have gained Trump just 103 votes or, at best, 153 votes, “neither of which is sufficient to call the election results into question.”

The justices, all Republicans and a conservative independent chosen by Republican governors,  also rejected claims that signatures on mail-in ballots did not match. They noted that a sample of 100 signatures was reviewed by forgery experts “but neither could identify any sign of forgery or simulation and neither could provide any basis to reject the signatures.”

Robert Brutinel
Robert Brutinel

“Elections will not be held invalid for mere irregularities unless it can be shown that the result has been affected by such irregularities,” Brutinel wrote. “The validity of an election is not voided by honest mistakes or omissions unless they affect the result, or at least render it uncertain.”

Tuesday’s ruling does not end the legal fight.

Separately, a federal judge hearing a different case on Tuesday questioned her legal ability to overturn the results of the election that declared Joe Biden the winner of the state’s 11 electoral votes.

“The election results were already certified,” said U.S. District Judge Diane Humetewa. “The governor has already transmitted the same to the United States Archivist.

In fact, Humetewa told attorney Julia Haller who is representing the challengers that federal courts in other states have thrown out nearly identical lawsuits seeking an order to decertify their results. She said they concluded there is no federal law being violated that would give them the ability to issue such an order.

“What makes this different?” she asked.

Haller said federal courts can review state election matters. And as to timing, she said that the 2000 U.S. Supreme Court ruling in the Florida election contest between George W. Bush and Al Gore was decided after that state certified its results.

But the heart of Haller’s arguments Tuesday came down to what she said is the weight of the evidence that something went wrong, not just here but in other states where she has gone to court.

“We have seen that a combination of individual anecdotal evidence, together with statistical proof, is the standard to show when broader remedial relief is justified,” she told the judge.

Diane Humetewa
Diane Humetewa

That argument was disputed by attorney Justin Nelson, representing the secretary of state and the governor.

He told Humetewa there are a host of legal problems with the claim that Haller filed on behalf of the 11 would-be Republican electors, issues including whether federal courts have jurisdiction over what are claimed violations of Arizona election.

The bottom line, he said, is that the challengers are not entitled to have a federal court set aside the election.

“The courts cannot turn the clock back and create a world in which the 2020 election results are not certified,” Nelson argued. More to the point, he said the lawsuit has an ulterior motive.

“This case is an attempt to undermine our confidence in the system with no basis in law or fact,” Nelson said. “They are using the federal court system in an attempt to undermine the rule of law and obtain breathtaking, startling and unprecedented relief to overturn the will of the people.”

Haller is trying to keep the case alive so she can present what she called “concrete evidence of widespread voter fraud.

Much of that is based on complaints about the Dominion Voting Systems software and equipment.

She said there is mathematical evidence of an “injection” of votes for Biden at specific times on election night. And that, said Haller, goes to how Dominion, a company challengers have said has ties to foreign countries and staffers who are hostile to Trump, uses an algorithm to tally votes rather than actual votes, all of which she claims provided artificial support for Biden.

Nelson, however, said claims about how Dominion is operated and even whether it sends data out of the country is irrelevant as there is no hard evidence showing any actual fraud occurred in Arizona. Then there’s the fact that a random hand count of ballots — the actual papers filled out by voters — meshed 100% with what the machines recorded.

President-elect Joe Biden
President-elect Joe Biden

Haller said her evidence goes beyond that, including a claim that more than 86,000 early ballots were returned by people but never recorded.

That number, however, is based on a phone survey of voters done by someone retained by the Trump campaign who asked people whether they sent in their ballot. The estimate comes from extrapolating out what that survey concluded.

But Nelson is arguing that is highly unreliable.

For example, he said it could include people who didn’t get their ballots in the mail on time. And then there’s the issue that the survey, conducted two weeks after the election, might result in people who “lied or misremembered.”

And then there’s the fact that the survey doesn’t suggest that these missing ballots — assuming there really are that many — would have favored Trump.

Haller has other allegations, including nearly 220,000 other votes she claims were fraudulently recorded for voters who, using that same telephone survey methodology, claimed they never requested mail-in ballots.

If Humetewa does not immediately dismiss the case on legal grounds she has agreed to allow Haller to present whatever evidence she has at a Thursday hearing.

President Donald Trump speaks during a ceremony to present the Presidential Medal of Freedom to former football coach Lou Holtz, in the Oval Office of the White House, Thursday, Dec. 3, 2020, in Washington. (AP Photo/Evan Vucci)
President Donald Trump speaks during a ceremony to present the Presidential Medal of Freedom to former football coach Lou Holtz, in the Oval Office of the White House, Thursday, Dec. 3, 2020, in Washington. (AP Photo/Evan Vucci)

Less clear is what the judge might do if she does conclude there is evidence of misconduct or fraud.

Most immediately she could order the governor and secretary of state to decertify the returns.

That would leave Biden without the state’s 11 electoral votes. But he may not need them to remain at at least 270 electoral votes if similar election challenges elsewhere fail.

Then there’s the question of whether that would allow the Republican-controlled legislature to shift the electoral votes to Trump.

House Speaker Rusty Bowers said that’s not a legal option, saying state law spells out that the only legal electors are the ones who were certified. Anyway, he said, there aren’t the votes to bring the legislature into special session ahead of Jan. 6, the day Congress will tally all the electoral votes.

Haller also wants a court order seizing all servers, software, voting machines, tabulators, printers, logs, ballot return envelopes and all election materials. And she ultimately wants a full manual recount of early ballots or at least a “statistically valid sampling.”

Editor’s note: This story and the headlined have been revised to include additional information about the Arizona Supreme Court’s decision.