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Arizona Supreme Court rejects GOP bid to void executive orders to make registration and voting easier

PHOENIX — The Arizona Supreme Court won’t consider a bid by the head of the Arizona Republican Party to void executive orders issued by Gov. Katie Hobbs designed to make registration and voting easier, at least not now — and possibly not ever.

In an order Thursday, Chief Justice Ann Scott Timmer said any complaint by GOP Chair Gina Swoboda that Hobbs acted illegally should be taken to a trial court. The justice said there is no reason to bypass the regular process for filing lawsuits and going directly to the state’s high court.

And Timmer took a swat at Swoboda for arguing she needed immediate Supreme Court intervention because of “immediate ramifications” for the upcoming general election. The chief justice pointed out that the orders being challenged as illegal actually were issued by the governor in November 2023.

“Petitioners have not addressed why neither executive order was challenged until this point in time,” Timmer wrote. “An earlier challenge would have permitted the petitioners to secure a final ruling well before the upcoming election.”

There was no immediate response from Swoboda, who filed the suit along with other individuals.

Thursday’s order leaves in place two orders by the governor, which she said are designed to make registration easier and to provide some options for counties that often find themselves looking for polling places and where to locate drop boxes.

One directs state agencies to include on their public websites a link that directs users to either the Secretary of State’s voter registration website or an online voter portal operated by the Motor Vehicle Division where people can sign up to vote.

It also says the agencies should make paper registration forms available in “conspicuous public locations.” And it says if a form is completed and turned in, the agency must return it to the Secretary of State or appropriate county officials within five days of receipt.

Attorney Andrew Gould, who represents Swoboda, charged all of that “substantively and fundamentally exceeds her constitutional and statutory authority.”

The other says that state buildings can be used as voting sites or ballot drop-off locations this year and into the future.

Gould, who ran unsuccessfully to be the Republican nominee for attorney general in 2022, said state law gives the Legislature, which happens to be controlled by Republicans, the power to decide voting and ballot drop-off locations as well as enacting laws on voter registration. And he said it is the county recorder who authorizes individuals to accept registration forms and designates where the forms can be distributed and where they can be received.

So he asked the Supreme Court to issue an order enjoining the governor from enforcing either order.

The governor, for her part, was ready with a response.

In filing on her behalf, attorney Andrew Gaona told the justices there is nothing in state law that prohibits agencies from providing Arizonans with voter registration forms. In fact, he said, the law actually requires county recorders to distribute mail-in registration forms at not just fire stations, public libraries and other locations open to the public but also at government offices.

As to voting locations, Gaona said it is each county, not the governor, which determines where to establish those. Ditto, he said, of drop boxes.

All the order does, Gaona said, is gives the counties options to use government buildings.

Nor, he said, is this idea new.

He pointed out that the state made a Motor Vehicle Division office in Avondale available as a voting location in the July primary, all in cooperation with Maricopa County. And an agreement with Coconino County will allow an MVD office to be used as a site to drop off early ballots for the upcoming general election.

And then there’s the timing of the lawsuit: less than three months before the election — with a direct plea to the state’s highest court

“Petitioners should have filed in superior court months ago, but waited until the day before the ballot printing deadline for the general election in their craven attempt to cast doubt on Arizona’s elections process and limit Arizonans’ access to the democratic process,” Gaona told the justices. And he called the claims “the very definition of frivolous, relying on nonsensical reading of the orders and relevant statutes.”

That timing, and the decision to go directly to the Supreme Court, got the attention of the justices.

Timmer pointed out there are rules that say if anyone wants to bypass the normal process of filing lawsuit they have to explain why. That, she said, is lacking here.

“The court concludes that petitions have not presented adequate justification for the action to commence in this court rather than in the superior court,” the chief justice wrote.

She also pointed out it’s not like failing to address the issue right now will deprive Swoboda of any chance to challenge Hobbs’ orders which affect not just this election but all future ones. Timmer said any questions about their legality will remain even after the November general election.

Timmer was quick to say that refusing to consider the complaint was not a finding for or against either Swoboda or the governor.

“The court expresses no view on the merits of the parties’ claims or defenses,” she wrote.

Timmer did reject requests made by both Swoboda and the governor to have their legal fees paid by the other side, saying that could be revisited later.

The filing at the Supreme Court wasn’t the only bid by Gould, on behalf of Swoboda, to have the orders rescinded.

Before filing suit, Gould actually tried to get Attorney General Kris Mayes to go to court to restrain the governor’s action. That drew a skeptical response.

“I fail to understand how increased access to voter registration forms or polling places could be harmful to anyone, including your clients,” Mayes said.

And a pre-lawsuit plea directly to the governor to rescind her orders also failed to get the response that Gould was seeking.

In a written reply, Bo Dul, the governor’s general counsel, defending the legality of the actions of her boss.

“These executive orders further the important goals of increasing Arizonans’ access to voter registration,” Dul wrote. She also said one reason for allowing state sites to be used as polling locations has been complaints by some counties they find fewer suitable locations willing to do so.

High court approves ballot measure on judicial retention

The Arizona Supreme Court has cleared the way for voters to decide whether they and most other judges in the state should be allowed to have de facto life terms.

In an order late Thursday, the justices rejected claims that Proposition 137 illegally seeks to amend two separate and unrelated provisions of the Arizona Constitution about judicial elections.

On one hand, if approved, it would eliminate the requirement for judges who are now selected by the governor to have to seek voter approval on a regular basis for new terms. Instead, it would spell out that only a sitting judge who ran into trouble, like a personal bankruptcy, a felony conviction or a sub-par evaluation from the Commission on Judicial Performance Review would have to face voters.

And anyone else could remain on the bench, untouchable by voters, until they reach the mandatory retirement age of 70.

But the measure also would, for the first time ever, allow the majority party in the Legislature to appoint two members to that performance review commission. And it would require the commission to investigate any lawmaker’s complaint of malfeasance against any judge.

Challengers said the issues should be presented to voters as separate questions versus a take-it-or-leave-it approach. But Chief Justice Ann Scott Timmer, writing for the court, said they are sufficiently related to each other to be a single question.

The ruling was unanimous – at least of the five justices who heard the arguments.

Justices Clint Bolick and Kathryn King recused themselves from participating.

But while the future of Proposition 137 would affect all sitting justices, they had what could be considered the most direct interest in the future of the measure: Both are up before voters at the Nov. 5 election seeking new six-year terms.

More significant is how the issue was crafted by Sen. David Gowan, R-Sierra Vista.

Put simply, if voters approve Prop 137 on Nov. 5, it would be effective retroactively, to Oct. 31. And that means if the measure is approved, it would negate any separate decision by voters to reject new terms for Bolick or King or both.

Thursday’s ruling sets the stage for a battle, both over the ballot measure and the future of the two justices.

Progress Arizona already has launched an effort to convince voters to turn both Bolick and King out of office as well as to defeat Prop 137. But it is not alone.

The National Democratic Redistricting Commission and Planned Parenthood Votes announced in May they intend to spend at least $5 million on supreme court races across the country, with a focus on six states, including Arizona. The reason, they said, is that those courts are crucial to determining whether abortion rights stay in place after the U.S. Supreme Court overturned Roe v. Wade in 2022.

Bolick and King, both appointed by Republican Doug Ducey when he was governor, provided two of the four votes on the court earlier this year that ruled an 1864 law outlawing abortion except to save the life of the mother trumped a 2022 law allowing the procedure until the 15th week.

State lawmakers have since voted to repeal the old law. And no changes on the court now would overturn the decision.

But if the pair were turned out of office, that would give Democratic Gov. Katie Hobbs, an abortion rights advocate, a chance to replace them with her own choices.

On the other side, conservative political activist Randy Kendrick launched the Judicial Independence Defense PAC, putting up $100,000 of her own money of the $140,000 raised to convince voters specifically to retain the sitting justices. And she had her own take on what would happen if Hobbs got to select their replacements as well as that of Robert Brutinel who, at 66, is four years away from mandatory retirement.

“It matters because the Arizona Supreme Court is our last line of defense against liberal government overreach,” she wrote in a fundraising appeal.

If approved, Prop 137 would be a major shift in what is known as the “merit selection” process for judges.

Until 1974, all judges at all levels were elected, just like politicians.

That year voters approved a system where the governor selects members of the Supreme Court, the Court of Appeals and the superior court judges in the larger counties. That list now includes Pima, Pinal, Coconino and Maricopa.

The governor’s picks, however, are limited, with the choices needing to come from a list of nominees from special screening panels.

Once on the bench, they are subject to regular voter review of four years for superior courts and six years for appellate-level court. If turned out, the process starts over again.

Proponents say the system is too cumbersome, with upwards of 50 judges appearing on ballots in some counties. And, in most cases, they all have been returned to the bench.

But there’s also the fact that judges can face opposition over unpopular decisions, pretty much what is happening now with the targeting of Bolick and King.

That has led to another group that is weighing in.

Attorney Tim Berg who chairs Arizonans for an Independent Judiciary said its goal is not specifically to keep either Bolick or King on the bench but instead to educate people about the merit selection and retention process. And that, he said, means convincing voters that their choices should not be made based on whether they are happy with one or two decisions.

But Abigail Jackson, spokeswoman for Progress Arizona, said voters should have their say on judges, even if opposition is based on a single decision like the one on abortion.

“Voters across the board are angry about this ruling,” Jackson said in launching the effort to oust the pair. “If Arizona voters want to use the power that the constitution gives them to hold them accountable, and their main concern is this ruling, then I think voters are within their rights and power to do so.”

In agreeing Thursday to put Prop 137 on the ballot, the justices did not get into any of that.

The only question was whether it meets the legal standards to go to the ballot. And Timmer said it does not violate restrictions on placing separate issues into a single all-or-nothing measure.

“(Prop 137) complies with the separate amendment rule because its provisions are topically related and sufficiently interrelated so as to form a consistent and workable proposition that, logically speaking, should stand or fall as a whole,” Timmer wrote.

 

Justice explains why she won’t recuse herself from retention case

She says she can’t speak for anyone else on the Supreme Court.

But Chief Justice Ann Scott Timmer told Capitol Media Services there’s a good reason she hasn’t recused herself from a case the court is expected to decide this week that could affect whether she and her colleagues must face voters again. She said any impact on her if the court allows Proposition 137 to go forward is “rather attenuated and speculative.”

Timmer is not alone in deciding she is capable of deciding whether what’s in the measure referred to the ballot by Republican lawmakers is legal.

Only two justices have stepped away: Clint Bolick and Kathryn King.

In their case, however, there is no question that the measure, if approved in November, would immediately shield them from being removed from the bench, even if voters decide they should be ousted.

Clint Bolick

That’s because, as crafted, it would retroactively override the public vote on their future. In fact, as written, the results of any vote to retain or reject them would not even be officially recorded.

But its effects, if allowed by the court to go to the ballot and approved by voters, would affect all the sitting justices if they decide they want to continue to serve beyond the end of their current terms.

And whether it makes the ballot in the first place will be decided by members of the high court this week, though only Timmer would comment about her decision not to step aside.

At its heart, the measure would override part of the system approved by voters in 1974 dealing with the selection and retention of Supreme Court justices  and judges on the Court of Appeals and the superior courts in Pima, Pinal, Maricopa and Coconino counties.

All are selected by the governor who must pick from lists submitted by special screening panels. Nothing in Prop 137 would change that.

But what disappears is the ability of voters to decide on a regular basis, which is every four years for trial judges and every six for appellate-level judges, whether they should keep their jobs.

Justice Kathryn King

Replacing it would be a system where only judges who get into trouble through things like a personal bankruptcy, a felony conviction or a less-than-adequate rating from the Commission on Judicial Performance Review would have their futures decided by voters. Everyone else could serve until the mandatory retirement age of 70.

Supporters argue that the change makes sense because most voters are unfamiliar with what could be dozens of judges whose names appear on the ballot.

There’s also the argument that it shields judges from being targeted simply because voters don’t like one or more of their rulings. That’s clearly the case this year with Progress Arizona leading an effort to oust Bolick and King because they provided two of the four votes earlier this year to uphold the enforceability of the state’s 1864 law outlawing abortions except to save the life of the mother.

The issue of whether the measure can go on the ballot is before the justices because another provision in Prop 137 would, for the first time ever, allow lawmakers from the majority party to make appointments to the Commission on Judicial Performance Review and require the panel to investigate any legislatively generated allegations of malfeasance.

Challengers say that is an entirely different issue that cannot legally be packaged in an all-or-nothing offering for voters.

So sensitive was this issue when the lawsuit was filed that Maricopa County Superior Court Judge Randall Warner, who first got the case, recused himself. It ended up being assigned to Yavapai County Superior Court Judge John Napper, who is directly elected, not part of the retain-reject system, and would be unaffected by Prop 137.

Napper, a Republican, rejected the challenge, concluding both provisions are sufficiently related to each other to comply with requirements that constitutional amendments like this one can deal with only one subject. That sent the case to the Supreme Court where Bolick and King immediately recused themselves.

In the interview, the chief justice acknowledged there is no bright line on the question of when someone should step aside.

“This is a gray area,” she said. “People can make different calls, as the judge in Maricopa County did.”

And it comes down, Timmer said, to whether someone who is reasonable, looking at the case and the objective fact, might conclude there is at least an appearance that a particular judge couldn’t be fair.

“I concluded ‘no,’ ” she said.

Timmer said she knows there’s a line that determines whether a justice should step away from hearing a case. In fact, she said, she found herself on the other side of the line years ago.

That’s when there was a challenge to changes made by state lawmakers to the pension system for judges.

“That was really what I consider to be a more direct conflict,” Timmer said. “If the challengers in that case had prevailed, then the justices, myself included, would have gotten refunded a bunch of money as well as not having to pay as much in future pension contributions.”

And that, she said, involved real and immediate dollars.

“At the time I needed a new roof,” Timmer said.

“My thinking was ‘That’s a lot of money to get back and would pay for that,’ ” she continued. “So for me, it really wasn’t a question of an appearance of impropriety. It was an actual direct conflict.”

Timmer said that she would like to think that she could put her own needs, and the effects of a ruling on the pension changes, aside and simply judge the issue on its merits. But she said she couldn’t guarantee to herself that it wouldn’t be in the back of her mind.

“So, to me, that was a no-brainer,” Timmer said.

She wasn’t alone. All the other justices on the court at that time also recused themselves and were replaced by other judges from lower courts who had no financial stake in the outcome. The sole sitting justice who remained was Bolick who was not part of the pension system.

The pending case, she said, is different, at least for her, because there is no direct and immediate impact on her.

“People say, oh, it has a lot of benefits for judges and justices who stand for retention,” Timmer said of Prop 137.

“And that may be so,” she said. But Timmer said there are others who say there are drawbacks for those sitting on the bench.

“That’s really one of subjective analysis and one of policy that this court is not going to weigh in on,” she said. What the court has to decide is whether there are legal reasons not to allow voters to make that choice.

Still, in making that decision, the justices would determine whether voters will be allowed to make the change that could give her and her colleagues life terms. Timmer, however, said she doesn’t see it as affecting some protected interest the justices have in their jobs.

“There’s a lot of ‘ifs’ in there on what may or may not occur,” she said.

“It may not even occur that I stand for retention,” Timmer said, whose current term is up in 2028. And she said she already has enough years on the bench to qualify for the pension.

“I think that is too attenuated in my mind to make for a conflict of interest.”

 

 

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