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Tag: Ben Toma

Judge sides with Legislature over election procedures dispute

Secretary of State Adrian Fontes has no legal authority to tell county supervisors they must certify election results even if they have questions, a judge has ruled.

And he can’t conduct a statewide canvass and leave out the votes of the counties when supervisors have balked.

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Senate President Warren Petersen, R-Gilbert

In a new ruling released Thursday, Maricopa County Superior Court Judge Scott Blaney said that provisions Fontes put into the Elections Procedures Manual directly conflict with state law. And the judge said when there is such a conflict, the statute prevails.

More to the point, Blaney voided a section of the manual which says that county supervisors have “a non-discretionary duty” to simply accept the returns provided to them by the county recorder. That provision also says that the board “has no authority to change vote totals, reject the election results, or delay certifying the results without express statutory authority or court order.”

“The secretary’s presumption does not exist in the statute,” the judge wrote. “And the secretary does not have the authority to read such a presumption into the statute.”

Blaney said that, in turn, undermines the other part of what Fontes was trying to do: Pressure supervisors to act promptly by threatening that if they didn’t certify their local results by the time of the state canvass, he and other state officials would proceed to conduct the state canvass without the votes from that county.

This isn’t just an academic question.

The two Republicans on the three-member Cochise County Board of Supervisors initially refused in 2022 to certify the results of the election after they argued that the ballot tabulators were not properly certified.

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House Speaker Ben Toma, R-Peoria

That led to threats from then-Secretary of State Katie Hobbs that failure would lead her to conduct the canvass without the results from 47,284 ballots cast by county residents. And that would have changed the results of elections for state schools chief and Congressional District 6.

The board – at least two of its members – eventually relented, but only after being ordered to do so by a judge. And the votes of county residents were included in the final statewide tally.

In defending the provision, Fontes pointed out that there is a strict deadline for the state to finish its canvass. And in years like this one, that means getting the results in time for Arizona’s electors to cast their votes for whoever won the presidential race.

Blaney was not impressed.

“Nothing in the statute permits the secretary to exclude a particular county’s canvass and/or, by extension, disenfranchise the entirety of the county’s voters,” the judge wrote. “The secretary does not have authority to read such a drastic course of action into the governing statute.”

Blaney said if such a situation arises, the right thing for the secretary to do is go to court at that point and have a judge decide what action to take.

The new ruling is a victory for Senate President Warren Petersen and House Speaker Ben Toma who filed suit earlier this year. They argued that county supervisors have some discretion in deciding whether to simply accept the results or have some leeway to raise questions.

Kory Langhofer, who filed the lawsuit for the Republican legislative leaders, disputed any contention that the supervisors must simply rubber stamp the results as reported by the recorder. Instead, he said, Arizona law actually requires the board, on its own, to “determine the vote,” something that might take some extra time.

“While (Arizona laws) require the board to conduct a canvass by a certain deadline, it also empowers the board to determine the vote of the county,” Langhofer argued. And that, he said, means more than simply accepting as true the numbers board members get from whoever ran the election.

“The board’s statutory duty to canvass the vote does not necessarily require the board to accept the returns in the form provided by the election official or vote in a certain way regarding the accuracy of returns,” he said. Langhofer said that means what Fontes put in the manual conflicts with state election law.

In fact, Langhofer argued that state law spells out that if Fontes hasn’t received the official results from any county by that late November deadline, the secretary actually has to postpone the formal statewide canvass “until canvasses from all counties are received.” And he said the law allows delays up to 30 days after Election Day.

Blaney also tossed out another provision of the manual which deals with what happens when a county recorder gets notified that someone has moved. Fontes argued that their registration is placed on inactive status – which can be renewed by going in person to vote – and then, at a future date, may be canceled.

The judge, however, said that conflicts with state law that requires that person’s registration be immediately canceled at that point.

Blaney acknowledged Fontes’ argument that automatic cancellation may run afoul of the National Voter Registration Act. But he said that did not empower the secretary to ignore the state statute.

“The secretary does not have the authority to overrule and rewrite state law, even in part, on his mere belief that a conflict exists between state and federal law,” the judge wrote.

 

Attorney trying to block state funds for Prescott Rodeo derides house speaker

The attorney who is trying to block $15.3 million in state funds for the Prescott Rodeo is deriding House Speaker Ben Toma for his justification of why the spending is legal.

Nicholas Ansel said the position of the Legislature is that the appropriation is legal because, strictly speaking, the money was not given directly to Prescott Frontier Days but instead to state Treasurer Kimberly Yee. And she, in turn, was instructed to provide funding for the association that operates the rodeo.

Ansel told Maricopa County Superior Court Judge Scott Blaney, originally appointed by then-Governor Doug Ducey, that the explanation makes no sense.

Consider, he said, if state lawmakers decided to put a line in the budget giving $15.3 million to a specific McDonald’s restaurant in Phoenix. That, he said, would violate a constitutional provision that says that the general appropriations bill – the annual budget enactment – can only have funding for state agencies.

What Toma is proposing, Ansel said, is a workaround.

“According to the speaker, so long as the Legislature changed the appropriation to say ‘$15.3 million is appropriate to the treasurer to distribute to the McDonalds at Seventh Avenue and McDowell,’ then it magically become an appropriation ‘for’ the state treasurer,” he said.

“The court should reject this nonsensical position,” Ansel said. “Arizona law is clear: The Legislature cannot accomplish indirectly that which it could not accomplish directly.”

Ansel, who works for the Arizona Center for Law in the Public Interest, said even if that constitutional hurdle could be overcome, there’s another: the “gift clause” which bars lawmakers from giving money to private organizations without getting something in return.

The issue traces its roots to the budget adopted by lawmakers in 2023.

Flush with cash, legislative leaders gave each lawmaker a certain amount of cash – often between $20 million to $30 million – to allocate for projects.

Some of that $2 billion went to road improvements in their districts. Several pooled their cash for a one-time family tax rebate.

But there were other priorities, including $15.3 million for “a nonprofit volunteer organization that operates a rodeo at the Yavapai County fairgrounds.” But the understanding – not stated in the legislation – was the dollars were supposed to go to a $40.7 million master plan to renovate the rodeo grounds, which Prescott Frontier Days leases from the city.

Those dollars came from allocations given to state Reps. Quang Nguyen of Prescott Valley and Selina Bliss of Prescott.

That provoked a lawsuit filed in June 2023 by the Arizona Center for the Law in the Public Interest on behalf of Prescott residents Howard Mechanic and Ralph Hess, the latter a retired Yavapai County Superior Court judge. They charged it violates the Gift Clause because it “is not supported by any consideration, let alone a promise of significant direct benefits that serves a public purpose as required by … the Arizona Constitution.”

Ansel, however, said there’s a more immediate threshold issue: Was it even legal to put the spending into the budget in the first place.

Lawmakers apparently were aware of the issue: They worded the funding not to go directly to Prescott Frontier Days but instead to the treasurer who would give the money to that nonprofit that operates a rodeo. Ansel said the treasurer, having determined that Prescott Frontier Days was the only entity that would receive the funds, had planned to forward it the cash on July 1, 2023, the first date of the new fiscal year.

All that came to a halt when the lawsuit was filed nine days earlier.

Ansel told the judge that what Toma was saying was that this appropriation was no different than when lawmakers direct the treasurer to allocate funds for certain state agencies, something that is legal.

“According to the speaker, so long as the treasurer is tasked with paying out specific sums of money, the Legislature may include it in the general appropriations bill for any purpose whatsoever,” he wrote. “A billion dollars to the King of England? No problem, so long as the treasurer writes the check.”

Ansel does acknowledge the Legislature can appropriate money to non-governmental entities – as long as that is done in a bill separate from the general state budget to allow lawmakers to vote independently on the issue.

But he said even if lawmakers were to redo the allocation as separate legislation, that still wouldn’t make what is going on here legal. And that involves the Gift Clause of the Arizona Constitution which prohibits the use of public funds for private purposes unless the state gets “consideration,” meaning something in return.

Put another way, Ansel said lawmakers lack authority to just give away public dollars.

The state is fighting back with an argument that this isn’t an outright gift but simply authorization for Yee, as the treasurer, to award a grant that could have certain conditions.

That argument is flawed, Ansel said, because that’s not what is in the legislation which simply directed Yee to give the money out with no standards or policies. Nor does the measure delegate to Yee the power to enter into a contract where she would get to unilaterally decide what constitutes a public purpose.

What is going on, Ansel said, is an effort to argue that the ongoing fight to get the dollars to Prescott Frontier Days “with no strings attached” is something it is not – and never was.

“It was only after the Legislature was caught red-handed gifting away public monies – after this lawsuit was filed – that a team of attorneys concocted a plan to create a different deal and – without any legislative guidance or authorization – attach spending conditions and parameters to the rodeo appropriation before disbursing it,” he wrote. “But even well-meaning attorneys cannot retroactively authorize the treasure to do that.”

No date has been set for a hearing.

GOP strengthens control of Legislature, wins swing districts

Republicans are set to gain ground in both chambers of the state Legislature after securing victories in several battleground districts.

Election results aren’t final yet, but all four legislative caucuses felt confident enough in results so far to hold leadership elections, with current races unlikely to change.

Republicans will have picked up two seats in the House to expand the majority to 33-27, while Senate Republicans have picked up one seat and expanded the majority to 17-13. 

“It’s just clear now that there’s been a general repudiation at what Democrat policies have been,” said House Speaker Ben Toma, R-Peoria. “I think the governor has failed on a number of her priorities, and it’s over. It’s pretty clear that Arizona has spoken pretty definitively.”

Three of the state’s swing districts that were vital in helping Democrats reduce GOP majorities completely flipped red, including Legislative Districts 4, 13 and 16. 

In LD4, Rep. Matt Gress, R-Phoenix, and Republican Pamela Carter beat Democrats Kelli Butler and Karen Gresham, taking a House seat from Democrats. Republicans also gained a Senate seat in the district after Carine Werner beat Sen. Christine Marsh, D-Phoenix. 

“It was a pretty big win,” Gress said of the district. “I think this district performed the way we understand it should be performing, which is a center-right district and when you talk about the issues that matter to Arizonans – cost of living, safe neighborhoods, great schools – that resonates with these voters in a big way.”

Gress said Marsh was a tough candidate to beat in the district, with her serving in the Senate since 2020 and having big fundraising dollars go toward her in recent elections. In this election cycle, Marsh raised almost a half million dollars, according to her most recent campaign finance report. 

In a written statement conceding to Werner, Marsh said, “My only regret is that I wanted to accomplish so much more. I had hoped that I would serve in the majority party during my tenure as your state senator.” 

Republicans took a House seat in LD13 with incumbent Rep. Julie Willoughby and former state Rep. Jeff Weninger beating both their Democrat opponents Nicholas Gonzales and Brandy Reese. In LD16, Rep. Keith Seaman, D-Casa Grande, lost to Republican Chris Lopez. 

Democratic consultant Gaelle Esposito said she believed part of the Republican gain in the House was due to an “ambitious” Democrat strategy of running multiple candidates in districts where they ran only one candidate in recent years. 

LD4 and LD13 Democrats ran two House candidates. In 2022, when they had House seats in both those districts, only one Democrat ran for the House.

Democrat Stephanie Simacek is leading her House race in GOP-leaning LD2 as a single-shot candidate, and Democrat Kevin Volk is leading his House race as a single-shot in LD17. This district isn’t considered competitive by the Arizona Independent Redistricting Commission but has seen support for Democratic candidates among voters.

“I wouldn’t feel great fundamentally if I were (Republicans). This was the best partisan environment that they could have asked for, and this is all they got,” Esposito said. 

Republicans also performed well in LD23, which has been projected by the redistricting commission as a safe blue district. Rep. Michele Pena, R-Yuma, got the most votes in the House race against Rep. Mariana Sandoval, D-Goodyear, and Matias Rosales. Republican Michelle Altherr was also about three percentage points behind Sen. Brian Fernandez, D-Yuma.

Democrats also led in other swing district House races, LD9 and LD2, and appear to have held seats by thin margins, like Rep. Seth Blattman, D-Mesa, winning by just over half a percent over Republican Kylie Barber by Nov. 13. 

“We got so close to 34, and maybe even 35,” Toma said. “It’s still a lot better than the initial results (on election night) at 30-30.”

GOP consultant Doug Cole said he believes the few seats Republicans picked up will be influential for Republican policy goals, even operating under divided government with Democrat Gov. Katie Hobbs.

“The past four years have been one vote,” Cole said. “Sometimes people will need to break away, and this will allow them to … supermajorities are sometimes harder to navigate because you get subgroups that become pretty powerful.”

Republicans may not have a supermajority but they do have a subgroup in the Arizona Freedom Caucus, which has sometimes gone against Republican leadership at the Legislature, and Cole acknowledged Freedom Caucus Republicans will have influence over the Legislature. 

“The Freedom Caucus is still as relevant as they always have been because of who the president of the United States is,” Cole said.

Prop. 140 has bipartisan support/opposition, which could deter undecideds

Of all the propositions on Arizona’s ballot this year, only one boasts both bipartisan support and bipartisan opposition – Proposition 140.

The ballot measure aimed at creating open primaries and instituting ranked choice voting has stirred up many a debate and the creation of unusual coalitions. During a time of increased political polarization, it’s rare to see Democrats and Republicans agree on much, but some Arizona politicians and groups are finding themselves aligned in their support for or opposition to Prop. 140.

The measure would eliminate partisan primaries, place all candidates on one primary ballot and allow the Legislature to determine how many candidates would move to the general election. If more than two candidates make it through the primary, general elections would then use ranked choice voting to determine the winner. 

Make Elections Fair Arizona, the campaign behind Prop. 140, counts former Democratic Attorney General Terry Goddard and former Republican state Rep. Rusty Bowers as supporters. Nonpartisan groups like the Center for the Future of Arizona and the Grand Canyon Institute are also proponents.

Opponents of Prop. 140 include state Rep. Analise Ortiz, D-Phoenix, and state Rep. Ben Toma, R-Glendale. Groups like Planned Parenthood Advocates of Arizona and Turning Point Action find themselves listed alongside one another on the No on Prop. 140 campaign website. 

Ortiz declined to comment on the measure for this story, but said in a post to X on Oct. 23 that it is a “bad deal for progressive candidates.” Proponents of Prop. 140 say its aim is to moderate candidates on both sides of the aisle to give voters options that are more aligned with the average Arizonan.

Chuck Coughlin, a political consultant who has been working with Make Elections Fair Arizona, said the opposition group is taking an approach of “the enemy of my enemy is my friend” because the measure is attempting to eliminate “extremists” in both parties.

“It’s not surprising when we’re trying to put the authority of elections back in voters’ hands, rather than in the two parties’ hands, that the acolytes of those partisan interests are vocalizing their opposition,” Coughlin said. 

Melina Iyer, co-founder of Civic Engagement Beyond Voting, said the group isn’t supporting Prop. 140 because of the power it would give to the Legislature – something she said will give more power to partisan politicians. 

“The entire reason that we have a four-page ballot this year is because the Legislature abdicated its responsibility and is shoving off their responsibility of governing onto the voting populace of Arizona,” Iyer said. “I’ve worked adjacent to them for eight years, and I would never trust them with a responsibility like this.” 

Iyer said she disagrees with Couglin and other supporters who say Prop. 140 will put an end to extremism in Arizona politics and said there are better ways to address that issue. 

“I would love for extremists to lose their chokehold on our state Legislature, but this is not the way to do that,” Iyer said.

She said her organization is supportive of certain parts of Prop. 140, like ranked choice voting, but said the current measure as written would add confusion for voters.

“When I read the plain language of this proposition, which is not very plain, it gives me pause, and it becomes something that I cannot support,” Iyer said.

Coughlin acknowledged that the measure will face an uphill battle at the polls since many of the groups voters look to for guidance are split on the issue. 

“We think a good 25 to 30% of the electorate is still undecided on this issue,” Coughlin said. “But if that’s all they’re hearing from, is those two partisan interests, then we’re not going to do well.”

Prop. 140 also faces a challenge in Prop. 133, a legislative referral that would prohibit open primaries in all elections across the state. Coughlin said he thinks Prop. 133 has no chance at passing and said he is more focused on Prop. 140’s success.

“The question is, do we pass with over 50% of the vote? Then we have a path,” Coughlin said. “If we don’t, it’s back to the drawing board.”

Defeat on Nov. 5 would not mark the end of potential changes to the state’s election system. Iyer said she has heard that proponents of ranked choice voting are already planning to get that issue on the ballot in 2026. Coughlin said the Make Elections Fair Again team would use Prop. 140’s failure as an educational opportunity for future propositions or legislation. 

“We’re hoping we’re going to succeed on Election Day and that we will have an opportunity to implement the system and put voters back in charge,” Coughlin said.

Top Republicans support Fontes on nearly 100,000 questionable voters

The state’s top two elected Republicans are siding with Democratic Secretary of State Adrian Fontes that nearly 100,000 Arizonans who haven’t provided proof of citizenship should be able to vote on all candidates – at least this year.

In new filings Sept. 18, at the Arizona Supreme Court, House Speaker Ben Toma and Senate President Warren Petersen acknowledge that a voter-approved law says those for whom there is no such evidence are not entitled to vote for candidates for state, legislative or local office, or for or against ballot measures. And they do not dispute the findings of Fontes that such proof is missing for the individuals at issue.

But attorney Thomas Basile said the error was not the fault of any of the voters at issue. In fact, he is telling the justices that they have been “affirmatively induced by government officials to believe they were qualified, full-ballot voters.”

Under normal circumstances, Basile said, the affected voters would be provided written notice of the missing documentation, instructions for resolving it, and a postage prepaid and pre-addressed envelope in which to submit it. And he said they would have 35 days to respond.

But Basile said that isn’t an option here, what with early ballots starting to go out this week.

So, on behalf of Toma and Petersen, he wants the justices to rule that all of the affected voters should be issued full ballots – with all of the races at all levels – for the upcoming election.

That position actually puts the two GOP lawmakers at odds with Stephen Richer. The Maricopa County recorder, a Republican, is asking the justices to rule that, absent the proof of citizenship, he has no legal authority to send full ballots to the affected voters.

Instead, Richer said affected voters should get a ballot with only federal races. And that’s because federal law has no such requirement to prove citizenship to vote for president and members of Congress.

Fontes, in his legal filings, urged the justices to allow everyone already registered to vote a full ballot. In fact, he told the justices that they have no authority to direct elected officials in the state’s 15 counties to re-register all these people as federal-only voters as Richer proposes.

In a prepared response, Richer press aide Taylor Kinnerup said her boss is not upset with the GOP lawmakers for weighing in, even if they do not back his legal position. He pointed out the legal fight playing out before the state’s high court is a “friendly lawsuit” designed to get the issue resolved, and soon.

“The recorder and the secretary are seeking clarity from the court and hoping for a swift, decisive resolution,” Kinnerup wrote.

Part of what makes the new filing interesting is that both Toma and Petersen have filed other lawsuits saying that those who have not provided “documented proof of citizenship” should not even be able to vote for president. They argued that it dilutes the votes of those who have shown they are citizens.

That argument was rejected by the U.S. Supreme Court.

But this situation, said Basile, is different. And it starts with the fact that all of the affected voters have assumed for years that they are entitled to vote in all races.

The issue before the court starts with a 1996 law that says anyone who wants a driver’s license must provide proof of legal presence. That includes not just citizens but also permanent legal presence.

In 2004, voters approved a requirement to prove citizenship to register and vote. But to keep enforcement simple, the law is written so that anyone who has a license issued after 1996 is presumed to meet that burden; others with older licenses would need to bring in separate proof.

The result is that after 2004, all new and updated registrations, including moving to another county, have been checked against the database of the Motor Vehicle Division.

It turns out, though, that if someone came in for a duplicate or updated license, MVD would use that date as the date of the license, even if the original license was issued before 1996 before proof of citizenship was required. That, in turn, failed to flag the registrations of 97,928 people who were not asked for and did not provide proof of citizenship.

That glitch wasn’t discovered until earlier this month. 

Fontes said the majority of affected voters are in the 45-60 year age group. And it turns out that more than 37% of them are Republicans, versus nearly 27.5% who are Democrats.

So, denying these people ballots for statewide, legislative and local elections would have a greater effect on GOP candidates. Ditto ballot measures supported or opposed by Republicans.

Basile, in his filings, makes no reference to that partisan differential. Instead, he said denying the right of those affected to vote in all elections would be unfair to people who have been registered to vote – and allowed to cast full ballots – for years.

And there’s something else.

“There is no affirmative indication that any of the affected voters actually are non-citizens,” Basile said. Yet he said that doing what Richer wants – letting them vote only on federal races – would disenfranchise them.

So given the lack of time, Basile told the justices the best alternative is to let these people who have presumed they are entitled to vote in all elections to do so. Then, after the general election, all the affected voters can be notified and given the time to produce the documents.

The justices have indicated they will consider the conflicting arguments from Fontes and Richer by the end of the week.

There is, however, no legal requirement for the court to decide who is right. And that would leave election officials no guidance on what to do.

Court rules against banning transgender girls from girls’ sports

PHOENIX — Arizona has not shown a legitimate reason to categorically ban transgender girls from participating in girls’ sports, the 9th Circuit Court of Appeals ruled Monday.

In a 55-page decision, the three-judge panel rejected claims by state schools chief Tom Horne that there are legitimate reasons for the 2022 law that spells out that teams designated for women or girls “may not be open to students of the male sex.” And by “sex,” the law means the one assigned at birth based on a baby’s sex organs.

Strictly speaking, Monday’s ruling affects only two transgender girls in Arizona who want to participate in sports, one a student at Kyrene Aprende Middle School and another attending the Gregory School, a private school in Tucson. The judges said they have been medicated to block hormones, and there is no evidence presented that either had a physical advantage over those born female.

And, even at that, it simply orders that they be allowed to participate in girls’ sports while the litigation progresses through the court system, litigation that just this past week that a justice of the U.S. Supreme Court concluded will require House Speaker Ben Toma and Senate President Warren Petersen to testify about their motives and turn over documents about the approval of the law.

But Rachel Berg, an attorney with the National Center for Lesbian Rights, which represents the pair, said the effect and the precedent set is crucial for others in the same situation.

“The 9th Circuit recognized that the law is unconstitutional because it’s a categorical ban on all transgender girls from playing on school sports teams,” she said.

“It does so regardless of their individual circumstances,” Berg continued. “The 9th Circuit recognized that just because somebody is transgender tells you nothing about whether they have an athletic advantage.”

Horne said the ruling is not a surprise

“The 9th Circuit is very left wing,” he told Capitol Media Services.

“They’re the most reversed circuit in the country,” Horne said, saying if he’s going to win this he’s going to have to go to the Supreme Court.

The schools chief also accused the court of ignoring evidence he presented about the biological advantage of transgender girls, at any age.

But appellate Judge Morgan Christen, writing for the court, said the evidence presented when the case first went to trial does not back that contention.

She also noted the ban does not consider individual circumstances, affecting everyone from kindergarten through graduate school. And it also covers all sports, including intramural games, regardless of whether physical contact is involved.

“Significantly, the ban turns entirely on a student’s transgender or cisgender (ITALICS) status (ROMAN), and not at all on other factors like levels of circulating testosterone,” Christen wrote.

What it also does is override the policies of the Arizona Interscholastic Association which, until the law was passed, made decisions on a case-by-case basis. Those rules allow transgender girls to play on girls’ teams when a committee of experts found “that the student’s request is appropriate and is not motivated by an improper purpose and there are no adverse health risks to the athlete.”

Christen said this has hardly created a flood.

“In the dozen or so years before adoption of the act, the AIA approved just seven transgender students to play on teams consistent with their gender identities — a tiny number when compared to the roughly 170,000 students playing sports in Arizona each year,” the appellate judge wrote.

The judge also noted that the state law overrules regulations of the National Collegiate Athletic Association. That organization has a sport-by-sport approach, which also requires transgender students to document sport-specific testosterone levels at the beginning of the season and then six months in.

What the Arizona law does, Christen wrote, is replace that with its one-size-fits-all approach. So the law applies, she said, to children who are too young to have gone through puberty, transgender women and girls who have received puberty-blocking medication and hormone therapy and have never gone through male puberty, and transgender girls who have experienced male puberty but have received sustained hormone therapy to suppress circulating testosterone levels.

Horne, for his part, said there is justification for a blanket rule versus a case-by-case basis.

“If you watch kids on the playground, the third graders, the boys are going to do better at athletics than the girls,” he said.

“What the data show is that even prepubescent boys have an advantage over girls,” Horne said. “In fact, any elementary school gym teacher will tell you that.”

He also took a shot at an expert witness called on behalf of the transgender girls.

“He’s a doctor who’s performed hundreds of operations on these people,” Horne said.

“So he’s defending his business,” the schools chief said. “It’s a pretty tawdry business in my opinion.”

Christen acknowledged that Horne cited “a handful of studies” suggesting that prepubescent boys may be taller, have more muscle mass, less body fat or have greater shoulder internal rotator strength than prepubescent girls.

“These students, however, neither attributed these differences to biological rather than sociological factors nor concluded that these differences translated into competitive academic advantages,” Christen wrote. That, the court concluded, includes greater societal encouragement of athleticism in boys, greater opportunities for boys to play sports, or differences in the preferences of boys and girls surveyed.

The judge also said other studies cited by Horne have their own flaws.

One of those says that transgender females who receive puberty blockers have advantages over cisgender females in lean body mass, grip strength and height,

“But appellants overlook that in these studies, male puberty was only (ITALICS) partially (ROMAN) blocked,” Christen wrote.

“In the lean body mass study, for example, the transgender women participants had much more testosterone exposure than transgender girls treated with modern protocols because they started puberty blockers at an average age of 14.5 years,” she said. And one study about height, the judge said, the girls had received puberty blockers from around age 13 and cross-sex hormones at 16, far later than the girls who are challenging the Arizona law.

And there’s something else.

Christen said the way the law is worded, it actually allows other students — women, girls, cisgender men and boys, and transgender men and boys — to participate in sports that correspond with their gender identities.

“Only transgender women and girls are barred from doing so,” she wrote. “The act discriminates on its face based on transgender status.”

Nor was the appellate court swayed by the fact that the law would allow transgender girls to play on boys’ teams.

Christen cited the findings of U.S. District Court Judge Jennifer Zipps, who issued the initial ruling allowing the two transgender girls to play girls’ sports. Zipps said the two have “athletic capabilities like other girls their age” and would find playing on a boys’ team “humiliating and embarrassing.”

“In fact, the (trial) court found that participating in sports on teams that contradict one’s gender is equivalent to gender identity conversion efforts, which every major medical association has found to be dangerous and unethical.”

Gov. Hobbs touts NCAA Final Four economic haul

Arizona generated $429 million in economic impact from hosting the Men’s Final Four in April according to a new report released Tuesday.

But Gov. Katie Hobbs said she is “really concerned” that it will be the last time Arizona gets to host a national sporting event of this caliber if voters approve what Republicans put on the ballot as the “Border Security Act.”

Proposition 314 would allow state and local police to arrest those who enter the country at other than a port of entry. It also would create criminal penalties for using false documents to seek public benefits or apply for a job.

Gov. Katie Hobbs addresses state lawmakers Jan. 8, 2024, in her second State of the State address. Behind her are House Speaker Ben Toma and Senate President Warren Petersen. (Capitol Media Services photo by Howard Fischer)

And it would provide for a presumptive 10-year prison term on those who sell fentanyl if it results in the death of another person.

Hobbs said Tuesday she does not believe that the proposal would deal with the problem of people crossing the border illegally. She said at least part of the solution needs to come from Congress where Republicans refused to support what had been crafted as bipartisan border legislation.

But the new report also highlights another side of the issue: what economic effect Prop 314 could have on the state.

“This will put Arizona in the worst negative spotlight nationally that we can imagine,” the governor said.

There is some reason for her concern.

Arizona lost several national conventions and conferences after lawmakers here approved SB 1070 in 2010, a measure designed to give police more power to detain and question those they believed were not in the country legally. Parts of that were overturned by the U.S. Supreme Court though at least one provision remains: the so-called “papers, please” language that permits officers, if they have stopped someone for another reason, to inquire if there is “reasonable suspicion” that person is in the country illegally.

There also was a call to have Major League Baseball move its 2011 All-Star Game from Phoenix, though that did not materialize.

More recently, the NCAA, which puts on the Final Four, stripped North Carolina of its ability to hold championship games there in protests over state legislation restricting which bathrooms transgender individuals could use. That decision was reversed after the state repealed the law in 2017.

Looking forward, Prop 314 comes as Arizona is in the pipeline for future NCAA events, That includes plans for the Women’s Final Four in 2026.

Hobbs said that the $429 million economic impact figure for this year’s event is more than $100 million more than the last time the state hosted the event in 2017.

The report prepared by the Seidman Research Institute at Arizona State University estimated that nearly 115,000 out-of-state visitors came to Arizona over the three days of the tournament primarily for the event.

It also says more than 68,000 of these visitors had tickets to at least the Saturday semifinal games. They stayed an average of 3.9 nights and spent an average of $482 per person per day.

Hobbs said these kinds of events “put Arizona in the best possible national spotlight.”

And Prop 314?

“It’s a contrast to the harm that this proposition will cause if it’s passed,” the governor said.

Her comments about fallout from the measure drew an angry reaction from House Speaker Ben Toma who is the sponsor of what became Proposition 314.

“That suggestion is both absurd and indefensible,” the Peoria Republican told Capitol Media Services, saying it is a response to Arizonans being “fed up with the open-door policies” of the current Democratic administration in Washington.

“Proposition 314 presents voters with meaningful, commonsense reforms that will help protect our communities,” Toma continued. “Instead of resorting to fear-mongering, the governor should be supporting these efforts.”

The upcoming campaign is anticipated to be both high profile and divisive.

Lawmakers actually approved part of what is in the measure earlier this year: giving police the power to arrest border crossers. That bill, sponsored by Sen. Janae Shamp, R-Surprise, was modeled after Texas’ controversial SB 4.

That was vetoed by Hobbs.

“I absolutely understand Arizonans’ frustration and put me on the top of that list of the federal government’s failure to secure our southern border and the feeling of wanting to take it into your own hands,” the governor said at the time, saying that bill is “not the answer to that problem.”

Undeterred, Toma recrafted it as a ballot measure, one that is not subject to a gubernatorial veto.

Lawmakers added in the provisions on public benefits and employment. They also tacked on a variant on another Hobbs-vetoed measure on harsher penalties for fentanyl sales.

It squeaked out of both the Republican controlled House and Senate with the bare minimum of votes needed to refer it to the ballot, all of them coming from Republicans.

The new plan is opposed by some business interests.

James O’Neill, political director of the American Business Immigration Coalition, said during the debate over the measure that its concerns reflect what happened in 2010.

“Everybody still remembers the reputational damage that 1070 did,” he said. “Everybody remembers the damage that it caused and so I think that’s why folks are ready, willing and poised to defeat this initiative.”

Other groups, including the Greater Phoenix Chamber of Commerce, the West Valley Chamber of Commerce Alliance and the Chandler Chamber of Commerce signed in opposing the measure.

The Arizona Chamber of Commerce, however, has taken a more nuanced stance.

Prior to a vote on sending the plan to the ballot, chamber President Danny Seiden issued a statement saying his group shares with lawmakers the “frustration with the lack of federal action on immigration and border enforcement.”

“We also recognize that lawmakers at the ballot box is fraught with the potential for unintended consequences,” he said. And Seiden pointed out that a constitutional amendment leaves lawmakers pretty much powerless to make changes if the measure is approved.

But the organization is going to sit out this fight.

“The chamber has not taken a position on 314 and does not plan to,” organization spokeswoman Annie Dockendorf said Tuesday.

She acknowledged Seiden had made some comments about the proposal. But Dockendorf also said it “morphed throughout the process.”

“This is a ballot measure we’re staying out of though,” she said.

 

U.S. Supreme Court to weigh 2022 Arizona election law

The Biden administration is urging the U.S. Supreme Court to spurn requests by Republican legislative leaders and their allies to block anyone who hasn’t provided proof of citizenship from casting a ballot in this year’s race between Kamala Harris and Donald Trump.

In a new filing Friday, Solicitor General Elizabeth Prelogar told the justices that lower courts got it right when they concluded that the National Voter Registration Act overrides a 2022 state law that restricts who can cast a ballot in the presidential race. She said while states are free to regulate who can vote in their own elections – including what documentation they need to provide – Congress has made it clear that only it has the authority to decide eligibility for federal elections.

House, Senate, freedom, monument, lawsuit, BidenLegislature, Republicans, school choice, Hobbs, businesses
House Speaker Ben Toma, R-Peoria

Strictly speaking, the latest legal filings by House Speaker Ben Toma and Senate President Warren Petersen along with the Republican National Committee do not ask for a final ruling on whether the state can restrict who can vote for president. Instead, they ask that the state be allowed to enforce the 2022 law while its legality is litigated.

But what they want would have a real and immediate impact.

There are currently more than 41,000 Arizonans who registered to vote using a form authorized by the National Voter Registration Act. And that form does not require proof of citizenship but only an avowal, under penalty of perjury, that the individual is qualified to cast a ballot.

A ruling in favor of what the two GOP leaders and the national party want would bar them from voting for president this year.

What makes that particularly significant is that Biden beat Trump four years ago by just 10,457 votes. And attorneys for those seeking to bar presidential voting this year in Arizona suggest the votes of those federal-only voters are unlikely to swing the way of the GOP contender.

Petersen, Toma, monument, lawsuit, Biden
Senate President Warren Petersen, R-Gilbert

They point out in legal filings that Republicans make up about 34% of the state’s registered voters. But the latest figures from the Secretary of State’s Office show just 14.3% of these federal-only voters signed up as Republicans.

Another 27.4% are Democrats, with 53.6% listed as “party not designated” and the balance among minor parties.

Central to all this is the interplay between the National Voter Registration Act and the 2022 law.

The former allows people to register using the federal form. And the Supreme Court itself, in a 2013 ruling involving Arizona, said the state must “accept the federal form as a complete and sufficient registration.”

In 2022 state lawmakers said when someone registers using the federal form, county recorders must use certain databases to verify the person’s citizenship access. If the recorder cannot verify citizenship, even for a reason like not having access to necessary databases, the person then is told he or she must provide “documentary proof of citizenship.”

More to the point, the law says anyone who fails to provide that proof is ineligible to vote in presidential elections.

The state already has conceded they cannot bar these people from casting ballots in congressional elections. That’s because the Constitution allows Congress to dictate the “time, place and manner” of such races.

But Toma, Petersen and the Republican National Committee, in their own filings this week, argue that doesn’t apply to presidential races, allowing lawmakers to impose the restriction.

Not true, Prelogar told the justices.

“This court has repeatedly recognized that Congress has power to regulate presidential elections and primaries,” she wrote. Consider, Prelogar said, a federal law that prohibits the use of force and threats in presidential elections, citing an 1884 case.

“The court also has upheld federal campaign finance laws that apply to presidential elections,” she continued, saying that the justices concluded that constitutional provisions allow Congress “to protect the election of the president and vice president from corruption.”

And then there’s the difference between state and federal elections.

“The president represents all the voters in the nation, and presidential elections implicate a uniquely important national interest,” Prelogar said. “Congressional regulation of presidential elections thus in no sense invades any exclusive state power.”

If nothing else, she said the amendments to the Constitution adopted after the Civil War empowered Congress to enact the National Voter Registration Act to prohibit racial discrimination in voting.

That issue came up last year when U.S. District Court Judge Susan Bolton first blocked the state from enforcing the law.

“Congress found that discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for federal office and disproportionately harm voter participation by various groups, including racial minorities,” the judge wrote. “It is the duty of federal, state and local governments to promote the exercise of the fundamental right to vote.”

Multiple other filings Friday with the Supreme Court underline the partisan nature of the legal dispute.

The Arizona Republican Party, in its own legal brief, said what makes it a state issue is that, strictly speaking, Arizonans are not voting for president. Instead, attorney Harmeet Dhillon said they are choosing the electors who, in turn, will vote in the Electoral College for who should be president and vice president.

“Under settled Supreme Court precedent and a historical record dating back to the Constitutional Convention, a state’s presidential electors are state officials,” she said. And Dhillon said the Constitution gives states complete power to decide how they will appoint presidential electors.

A similar argument was made to the high court by Kris Kobach, the attorney general of Kansas on behalf of himself and 23 other Republican attorneys general. And he told the justices that barring Arizona from enforcing the 2022 law would result in “irreparable harms to Arizona’s sovereign interests.”

On the other side of the equation, Arizona Attorney General Kris Mayes, a Democrat, filed her own arguments urging the justices to leave intact the lower court rulings barring the state from enforcing the 2022 law, arguing that changing the system now, three months before the general election, “would be destabilizing.”

Anyway, she told the justices, it is her office and not Toma and Petersen who represent the state’s interests in federal court.

And a separate legal filing by the state and national Democratic parties says there’s no basis for the justices to intercede now, saying those who want the justices to step in have failed to show they would suffer “irreparable harm,” one of the legal standards to stay the lower court rulings.

The case before the court is about more than who can cast a ballot for president.

A separate provision of the 2022 law says these federal-only registrants must cast a ballot in person and cannot vote by mail, even for the congressional races in which they are entitled to vote.

Prelogar acknowledged that federal law leaves it to each state to decide whether, and to what extent, to allow mail voting.

“Having made mail voting generally available, however, Arizona may not discriminatorily withhold that option from voters who submit the federal form without accompanying documentary proof of citizenship,” she wrote.

There is no date for the justices to decide whether they want to consider the requests by the Republicans and, if so, whether they will allow the state to enforce the 2022 law this year.

 

Justices OK ‘unborn human being’ in abortion measure

The phrase “unborn human being” can stay in the Legislative Council’s analysis of Proposition 139,  the Arizona Supreme Court ruled Aug. 14. 

The court found the language “substantially complies” with a state law requiring analyses included in the state’s publicity pamphlet to be impartial, reversing an earlier ruling from Maricopa County Superior Court. 

Following the ruling, Dawn Penich, a spokesperson for Arizona for Abortion Access, said the ruling “means that Arizona voters won’t get to learn about the questions on their ballot in a fair, neutral, and accurate way but will instead be subjected to biased, politically-charged words developed not by experts but by anti-abortion special interests to manipulate voters and spread misinformation.” 

She added the group was “deeply disappointed in the ruling, but will not be deterred from doing everything in our power to communicate to voters the truth of the Arizona Abortion Access Act and why it’s critical to vote YES to restore and protect access to abortion care this fall.”

House Speaker Ben Toma, chairman of the Legislative Council, said in a written statement to Arizona Capitol Times the court’s ruling was “correct.” 

“The ballot analysis prepared by the Legislative Council is intended to help voters understand current law.  Arizona’s 15-week law protects unborn children, while the abortion initiative essentially allows unrestricted abortions up until birth,” Toma said. “It’s really that simple.” 

Senate President Warren Petersen added, “Common sense and good judgment prevailed.” 

In July, the council presented a draft analysis of the Arizona Abortion Access Act, which states that current law prohibits abortion if the gestational age of the “unborn human being” is more than 15 weeks. 

In describing the measure in later paragraphs, the analysis instead uses the word “fetus.” 

Despite pushback, the Republican members of the Legislative Council adopted the draft analysis. 

Arizona for Abortion Access then sued the Legislative Council for violation of a state law requiring analyses of ballot measures to be “impartial” and claimed terms like “unborn human being” are politically and emotionally charged. 

Republican members of the Legislative Council pointed to the cited state law, which uses “unborn human being” and contended the phrase must be neutral due to its inclusion in statute. 

Though Maricopa County Superior Court Judge Christopher Whitten noted the statute does use “unborn human being,” he was “not persuaded that every word chosen by the Legislature in every statute it enacts is intended to be neutral in character. There is no requirement that the Legislature chose its words in such a way, and plenty of evidence that they sometimes do not.”

Whitten, an appointee of the former Gov. Janet Napolitano, wrote, “The term ‘unborn human being’ is packed with emotional and partisan meaning, both for those who oppose abortion and for those who endorse a woman’s right to choose whether to have an abortion,” and entered an order requiring the Legislative Council to strike “unborn human being” from the description. 

The Legislative Council then appealed to the Arizona Supreme Court, again noting the phrase’s presence in existing state law. 

Arizona for Abortion Access argued the language, both in state statute and in the analysis, were still partial. 

In a 5-2 ruling, the state high court sided with the legislative council majority and issued an order allowing “unborn human being” to remain in the ballot analysis. 

Justice Clint Bolick recused himself from the matter, given his spouse, Shawnna Bolick, is one of the legislative council members. Former Justice John Pelander took Bolick’s place on the bench. 

Arizona for Abortion Access asked Justice William Montgomery to recuse himself, given past anti-abortion comments, but he declined. 

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