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Cannabis critic mellows out on initiative to eliminate recreational marijuana

Key Points:
  • Arizona voters won’t reconsider marijuana legalization this year
  • Critic scrapped plan to ask voters to reconsider legalization given new shifting federal perspective
  • New Arizona law will soon regulate marijuana advertising near schools and other child-focused areas

Arizonans who enjoy marijuana recreationally won’t have to worry about it being taken away — at least not this year.

Sean Noble told Capitol Media Services he is scrapping his plan to ask Arizona voters in November to reconsider the legality of recreational use.

Noble, the founder and president of the conservative-oriented American Encore, said he started the initiative petition drive not to oppose the medicinal use of marijuana, legalized by voters in 2010, but to address the abuses stemming from the 2020 marijuana law which allows all adults above the age of 21 to buy, grow and use the marijuana for recreational purposes.

“I’ve adjusted my viewpoints on the threat to kids,” said Noble.

But that’s not the only change of heart that has prompted Noble to abandon his initiative drive.

He also acknowledged that the political winds surrounding the issue are changing — and not exactly in favor of greater regulation.

Most recently, the Trump administration has reversed the 1970 policy set under President Nixon which classified marijuana as a Schedule 1 drug, or a substance with high potential for abuse and no currently accepted medical treatments in the United States, to Schedule 3.

Schedule 3 substances are generally considered drugs with a moderate to low risk of physical or psychological dependence.

More importantly, that new classification recognizes the currently accepted medical uses of marijuana — a change acknowledging what most states already concluded when approving the psychoactive plant for medical use years ago.

While the actions of the Trump administration largely affect only the prescription-writing ability of doctors, it signals a large-scale shift in how the U.S. sees marijuana from a legal and commercial perspective.

And there’s something else.

Proposition 207, the 2020 initiative legalizing marijuana for recreational use, was approved by a 3-2 margin. And Noble said he hasn’t seen a major change in public attitudes in the past six years that would make it worth the time — and money — to try and overturn that majority.

Initially, Noble figured it would take $5 million to gather the 255,949 valid signatures necessary by the July 2 deadline to get the issue on the ballot. And the campaign itself? Noble said it could run between $10 million and $20 million.

Central to all of this is Arizona’s two-step move to make marijuana more available.

The first change came in 2010 when voters decided to let doctors “recommend” marijuana to patients with any one of a number of specified medical “debilitating medical conditions” like cancer, glaucoma, AIDS, hepatitis C and Crohn’s disease.

But it also allows a doctor to write a recommendation for conditions that produce severe and chronic pain, severe nausea, seizures and muscle spasms. Those who qualify are entitled to possess up to 2.5 ounces of marijuana, with permission for those who live at least 25 miles from a dispensary to cultivate their own.

Six years later, proponents of recreational marijuana were ready to push for the next step.

Noble worked against that ballot measure. And he said that, with foes financing the opposition, it was defeated 51-49.

But by 2020, he said, there was no opposition left, leading to that 3-2 approval.

That law permits adults — defined as 21 and older — to have up to an ounce of marijuana and up to six plants. It also requires users to pay a significant tax on purchases that isn’t applied to those certified for medical use. 

Noble, in submitting an application in December for an initiative to repeal the 2020 law, said voters should take a second look. And key, he told Capitol Media Services at the time, was his fear that the drug was being marketed, at least indirectly, to children — despite promises to the contrary by supporters.

“I went into it with a pretty profound belief that it was happening,” he said this week, but admitted this was not based on any personal knowledge. “I was kind of relying on things that I had seen or read from other people.”

Only by doing further research, Noble said, did he come to the conclusion that his assumptions were wrong.

“They have not done some of the things that I thought they were doing,” he said of those selling the drug.

“I don’t think that they’re specifically marketing gummies and candies and that kind of thing the way that I was led to believe that they were doing,” Noble continued. “Maybe they’re doing that in other states. But it’s not happening here in Arizona.”

And, to the extent it is, that will soon disappear.

A new law approved last year makes it illegal to advertise or sell marijuana using any names that resemble or imitate food or drink brands marketed to children. Also forbidden in the law, which takes effect July 1, is the use of the images or likenesses of toys, cartoons, animated or fictional characters — a list that specifically includes Santa Claus.

Marijuana advertising will be banned on buses, trains and shuttles, with billboards prohibited within 1,000 feet of any child care center, church, substance abuse recovery facility, public park or playground, or any public or private school that teaches children through the 12th grade.

Also off limits would be using social media or on a website unless 73.6% of its audience is expected to be at least 21.

That percentage is not random.

Rep. Selina Bliss, who crafted the measure, said it is based on Census Bureau data, which indicated that the number is the percentage of the U.S. population that is at least 21. More to the point, the Prescott Republican said that’s the standard set by the Distilled Spirits Council of the United States for determining whether advertising is targeted at adults or children.

That same figure shows up elsewhere in the new law: It will bar marijuana retailers from sponsoring any sporting event unless at least 72.6% of the audience is expected to be 21 or older.

Noble’s American Encore has a history in Arizona of working largely on Republican priorities, going back to a 2014 effort to kill the Affordable Care Act. His organization also sued Secretary of State Adrian Fontes over provisions in the state’s Elections Procedures Manual.

Appeals court rules against Mayes in ‘fake electors’ case

Key Points
  • Judges says attorney general illegally withheld information in seeking indictments
  • Case targeted so-called fake electors seeking to overturn Trump loss in the 2000 election
  • Mayes claimed documents were protected by Public Records law

Attorney General Kris Mayes acted illegally when she withheld certain information about communications her office had with States United Democracy Center, a group that provided information on how she could bring charges against “fake electors,” the state Court of Appeals has ruled.

The judges said that Mayes, in seeking to keep some documents from Judicial Watch, argued that they were protected by attorney-client privilege and fell into the area of being a work product — both of which are generally exempt from the state’s Public Records Law.

But the court said that Mayes, in making that claim, was required to produce an index of the documents withheld that is sufficient to show that she did not have to surrender them. And appellate Judge Jeffrey Sklar, writing for the unanimous three-judge panel, said that Mayes failed to do this.

The new ruling does not mean that Mayes will now have to turn over the documents to Judicial Watch, which describes itself as a “conservative nonpartisan educational foundation” that uses state and national public records law to investigate government activities. Its focus in part is on what it sees as election integrity and voter registration issues.

What it does mean is that, unless overturned, Mayes now has to go back and provide a more detailed description for Judicial Watch and for the trial judge of what documents were withheld — they appear to fall into the area of communications between her lawyers and people at States United — and, more to the point, exactly why she believes they are not subject to disclosure.

And that, in turn, would allow the trial judge to rule whether Mayes has a legitimate legal reason to refuse to turn over the materials and, if not, could order the attorney general to surrender them.

A spokesman for Mayes said the office has no comment on the court ruling.

What prompted this legal fight was the discovery that States United, which describes itself as nonpartisan but has worked on Democratic issues, had prepared a memo for Mayes in July 2023 as it was investigating events leading up to 11 Republicans signing a document after the 2020 election that Donald Trump had won the presidential race. That signing occurred despite the fact that Trump had been outpolled by Joe Biden by 10,457 votes.

That document was sent to Congress, a move that the Attorney General’s Office has said was part of a national plan to throw the results of the race into doubt and have members of Congress declare that Trump had won reelection.

Judicial Watch, on learning of the work done by States United, filed a public records request for the memo as well as all communications between Mayes’ office and the organization.

Some of that eventually became public.

A copy of that memo, obtained by Capitol Media Services, shows that States United provided not just a detailed timeline of the events leading up to the signing of the fake certificate but also a list of charges that the organization said could be brought against them and others involved in the scheme.

Judicial Watch wanted more, like communications between Mayes’ office and States United. But some of the requests were answered not with documents but instead an index simply declaring they were exempt from the Public Records Law.

That, said the appeals court, was legally insufficient to allow Mayes to unilaterally reject the request.

“Index entries must contain more than generalities,” Sklar wrote.

“Rather, an index must include specific assertions explaining why the document is purportedly privileged to the greatest extent possible without revealing its content or otherwise violating the privilege,” the judge said. What that means, he said, is that any public official seeking to shield materials must “sufficiently describe the communications to allow assessment of the asserted privilege.”

What Mayes provided, Sklar said, doesn’t comply with that requirement.

“The index provided by the Attorney General’s Office supplies no context about the withheld emails that would allow a court or any other party to determine if a privilege applies,” the judge wrote. “We thus agree with Judicial Watch that the privilege log’s insufficiency prevented the trial court from adequately scrutinizing the office’s privilege assertions.”

Separately, the appellate court concluded that the Attorney General’s Office did not search for all the documents that were responsive to the request by Judicial Watch. The judges said that’s because the office imposed both date and keyword searches.

What makes all of this relevant is that everything Judicial Watch is seeking is related to the criminal charges brought against the 11 Republicans who signed the election certificate and seven other associates of Trump, all accused of multiple criminal charges including fraud, forgery, and conspiracy. Trump himself was named an unindicted co-conspirator.

Two have had charges dropped after entering into deals, a third pleaded guilty and was placed on probation.

Efforts to pursue the remaining defendants are currently on hold after a trial judge said that prosecutors withheld relevant information from the grand jury that handed up the original indictment. Mayes has appealed that ruling to the Arizona Supreme Court.

Richie Taylor, a spokesman for Mayes, has declined to say what information his office was seeking from States United when the contract was signed on May 15, 2023, nearly a full year before there was an indictment.

Taylor, however, said that the work States United did on the case was “separate from the independent investigation” by the Attorney General’s Office. He said it included “publicly compiled information.”

But the memo obtained by Capitol Media Services shows there was more involved than a historical narrative.

For example, States United listed six specific state statutes they said were violated: forgery, tampering with a public record, criminal impersonation, presenting a false instrument for filing, fraudulent schemes and artifices, and conspiracy. It also went into great detail on why each applies in this case.

The final indictment by Mayes used three of those — forgery, fraudulent schemes and artifices, and conspiracy — and added a lower-level felony of fraudulent schemes and practices.

States United also went on to describe potential defenses that those indicted could claim, including that they had no “unlawful intent” but instead were relying on the advice of counsel. But the attorneys at States United told Mayes’ office that to do that, the defendants would have to waive their attorney-client privilege which could expose both to the public and prosecutors other communications they had with their lawyers.

The memo also went into detail on why Mayes’ office could indict those involved even though the events dated back to late 2020. It said that, in general, the statute of limitations for these crimes is seven years.

And it also sought to give Mayes some cover if questions were raised about why she would be seeking indictments years after the event.

“Thorough investigations of complex cases take time,” the memo said. And there was something else: the fact that Mayes herself wasn’t elected until 2022 and took office in early 2023.

Arizona short-term rental bill likely dead for the year

Key Points:
  • Arizona House measure on short-term rentals likely dead for the year
  • Rep. Selina Bliss’s House Bill 2429 missed key deadlines in the state Senate
  • The bill aimed to allow cities to limit the number of new short-term rentals

An Arizona House measure boosting rules for short-term rentals like those offered through Airbnb and Vrbo is likely dead for the year after failing to get a hearing in the state Senate. 

Short of some legislative sleight-of-hand, Rep. Selina Bliss’s House Bill 2429 faces nearly impossible odds after missing key deadlines when the final scheduled committee hearings of the legislative session passed in both chambers without it being heard. 

She had hoped to get it on the March 31 Senate Appropriations Committee’s agenda, but it didn’t make the chairman’s cut. And it was too late to make it onto the companion House committee agenda the same day, leaving few options for her to resurrect it.

Bliss, R-Prescott, said she’s not giving up, but realizes her chances are between slim and none.

“I don’t want to walk out of here at the end of session thinking I left a stone unturned,” the Prescott Republican said in an interview with Capitol Media Services. “This is too important to too many people, too many districts.”

What that most immediately means is that, at least for this year, there will be no limits on the number of people who can stay in these short-term rentals, no easing the path for communities to shut down bad actors, and no checks to see if renters are sex offenders.

Bliss’ long odds come despite Senate President Warren Petersen’s comments that the short-term rental bill “sounded like a reasonable compromise.” The Gilbert Republican said he told his staff to convey to the House his willingness to put it to a vote.

Petersen’s comment that he didn’t oppose the measure was prompted by Bliss saying she was told he was opposed to bypassing committees by allowing “strike-everything” amendments to move bills that fail to get Senate committee hearings. 

She said she and backers of her compromise legislation, including cities, Realtors and Airbnb, worked every angle in recent weeks to get it heard in the Senate.

But by the time the final Senate committee agenda was posted, it was too late to get it on last Tuesday’s House appropriations committee agenda to add it to a previously-passed Senate measure — an act known as a strike-everything amendment. Bliss said she was getting mixed messages and was never able to speak to Petersen directly to hash out a way forward.

Bliss has been pushing for three years for new rules on short-term rentals, or STRs, including giving municipalities the ability to limit their numbers. 

The number of STR’s has exploded in Arizona since then-Gov. Doug Ducey signed legislation in 2016, which he strongly backed barring regulations of the industry. 

That led to big problems in vacation towns like Sedona, where average workers can’t find housing, and even Scottsdale, where rental properties are increasingly scarce because of the number of Airbnbs.

Despite calls from many municipalities, she was unable to win backing for proposals allowing cities and towns to limit the number of new STR’s or add new regulations because of opposition from the industry and from some lawmakers who support free-market principles.

But she was smiling earlier this year when she negotiated a deal with the industry, Realtors and cities and towns to allow at least some new rules. 

They included limiting the number of people who can stay overnight in STRs to two per bedroom, a move that should slow parking complaints. The measure also lets cities suspend a local license if there are three violations in 24 months, immediately act if there is just one serious health and safety violation, refuse a permit if there are unpaid fines, and allow cities to require that renters be checked for sex offender status.

That last item — sex offender checks — was one of the reasons the bill was late getting to the Senate. After passing the House on a 36-19 vote on March 10, some members demanded the bill be amended to make the checks mandatory.

In a rare move, Bliss pulled the bill back for a new amendment doing just that, and a second House tally. It passed for a second time on March 17 on a 37-14 count.

That week-long delay meant most Senate committees were down to their final hearing of the year, and it never made it onto the agenda for its assigned committee, or for last week’s final scheduled hearing of the Senate Committee on Appropriations, Transportation and Technology.

She said she spoke with Sen. David Farnsworth, R-Mesa, the committee’s chair, and that he was supportive and would put it on his agenda. But that didn’t happen.

“I missed the deadline because I thought Farnsworth was going to do it for me on the Senate side, and then the agendas got published at the same time, and then I lost both opportunities,” Bliss said last Tuesday. 

“That was the point when I knew it was officially dead, when Farnsworth did not have it on his approps agenda,” she said.

Arizona bill to cap corporate home ownership sidelined without committee hearing

Key Points: 
  • Arizona won’t cap corporate ownership of homes this year
  • Rep. Jeff Weninger declines to give bill a hearing
  • Rep. Nick Kupper plans to reintroduce the proposal in 2027

There won’t be any cap on corporate ownership of homes in Arizona, at least this year.

The one bill with the best chance of approval — based on its Republican sponsorship — has been sidelined after it did not get a hearing.

Rep. Jeff Weninger, chair of the House Commerce Committee, told Capitol Media Services that there should be a discussion about whether the state needs to take action to ensure that private individuals have a reasonable chance to buy a home. But the Chandler Republican who made the decision not to give it a hearing, said he’s not convinced that what’s in HB 2325 is the way to go.

And without a committee hearing, the measure never got a chance to be debated by the full House, much less make it to the Senate — or the governor.

Rep. Nick Kupper, who crafted the proposal, said he remains convinced that there is a need for some guardrails to keep institutional investors from snapping up single-family homes before Arizonans have a reasonable chance of making a purchase. 

And while the Surprise Republican himself believes corporations should be limited to 50 single-family residences, he acknowledged that there isn’t enough time in this session to craft something that will meet his goals and retain enough support to become law. So Kupper is now focusing his attention on bringing back the plan in 2027.

Still, he acknowledged there is likely to always be opposition by some Republicans to any legislation that restricts the right of people to buy and sell what they want. And Kupper said that likely will continue to exist — even with President Trump publicly supportive of such limits on the national level.

At the heart of the issue is the concern that institutional investors — corporations, partnerships, investment trusts and other legal entities — have been buying up homes as they go on the market. They generally have an advantage over families because they can make all-cash offers.

Many of these homes are turned into rental-only properties which, in turn, reduces the number of homes available for purchase, further driving up prices.

To that, Kupper proposed a two-pronged approach.

One would give other would-be homebuyers first crack, prohibiting institutional investors from making any bids for the first 60 days a property goes on the market.

The other would bar any such investor from owning more than 50 single-family homes in Arizona.

“If all the housing gets bought up over time by investment firms and they turn them into rentals, because it’s more profitable for them long term, you won’t have anything to buy,” Kupper said. And he said the four largest firms that are doing this are buying up a combined 1,000 homes a year in Arizona.

“The more that happens, the smaller your available market is to sell homes because your prices get jacked up,” Kupper said. “And the people who maybe could have afforded them are forced into rentals now.”

His bill was assigned to the House Commerce Committee — the one headed by Weninger. And that was the end of it.

“I commend Rep. Kupper for introducing HB 2325 and sparking discussion on prioritizing family homebuyers,” Weninger said. But he said it was not suitable for approval.

“The 50-home cap seemed premature without more data on effects like supply and investment,” Weninger said.

As it turns out, though, Kupper isn’t the only one who thinks 50 is a good limit.

Even before he introduced his bill, Kupper had a conversation with House Minority Leader Oscar De Los Santos who was thinking along the same lines. And the Laveen Democrat introduced his own version, HB 2705, which uses that same figure, but with a difference: He would limit institutional investors to buying no more than 50 in any calendar year, with no absolute cap.

De Los Santos, however, had no better luck getting a hearing on his measure in the House Government Committee.

That is not a surprise, given it is difficult for Democratic lawmakers to get their proposals advanced in the Republican-controlled Legislature. Still, Kupper figured that, as a member of the GOP, he had a better chance.

That did not prove the case.

“His bill is a great first step in starting the dialogue about corporate ownership of homes in Arizona,” Weninger said. “I look forward to further discussions.”

Kupper said he has talked with Weninger about what it would take to make his proposal acceptable.

“And I don’t think we were able to get where we both wanted yet,” he said.

Part of the problem, Kupper said, appears to be concern among some Republicans to do anything that would seem to interfere with private property rights.

“That’s a difficult thing,” he said. “And that’s where, when we work on it, we need to use a scalpel rather than a meat cleaver.”

But Kupper said he has a somewhat different attitude than some other members of the GOP caucus.

“Yes, conservatives, we tend to be free enterprise,” he said. “But it doesn’t mean we don’t put in certain guardrails.”

Consider, he said, the fact that there are various laws designed to regulate monopolies to prevent them from controlling a market and being able to use their size and influence to make their own rules. The key, said Kupper, is crafting something with minimal interference.

“So I think there’s a way forward,” he said.

“I’m not sure exactly what that looks like at this point,” Kupper continued. “But I think we can get to a strong bipartisan solution on it.”

All this is occurring against the backdrop of Trump’s executive order directing federal agencies to take steps to limit the purchase of single-family homes by “large institutional investors.”

That, however, has only a limited effect as it deals with actions by federal agencies exclusively under his purview who can approve and guarantee loans. And, similarly to Kupper’s bill, it directs those federal programs to promote sales to individuals by giving owner-occupants and nonprofits a 30-day window to bid on foreclosed properties.

Trump, in his State of the Union speech this past week, asked Congress to put the concept into federal law, with the administration circulating a memo asking for a statute that prohibits investors who now own more than 100 homes from purchasing more.

“We want homes for people, not for corporations,” the president said. “Corporations are doing just fine.”

Kupper said he doesn’t believe that what Trump is proposing — even if it gains congressional approval — negates the need for state legislation.

“Maybe they’re both complementary,” he said. “Maybe his needs to reach one aspect and, if I can get my bill going for Arizona, it reaches a different aspect of this concern.”

Arizona Independent Party chairman pushes favored candidate, asks rival to drop out

Key Points:
  • Two candidates are running for Arizona Independent Party’s governor nominee
  • Party leaders back Hugh Lytle, ask Teri Hourihan to drop out of the race
  • Judge Greg Como will hear arguments on the party’s legal existence in March

There are two candidates currently running for the Arizona Independent Party’s nominee for governor.

But the leaders of the state’s newest political party are openly backing only one of those. And party Chairman Paul Johnson actually asked the other one to get out of the race to provide a clear path to Hugh Lytle, the chosen contender, to be the party’s standard bearer in November.

And Johnson has said there’s absolutely nothing wrong or unfair about the decision to back Lytle.

That, however, isn’t sitting well with Glendale resident Teri Hourihan, the competition, who has submitted her own statement of intent to run as an Arizona Independent Party candidate for governor. She believes she should be given an equal chance for office — one without the influence of party officials.

And Hourihan told Capitol Media Services that Johnson, who said he was speaking on behalf of all the party leaders, tried to get her to withdraw so Hugh Lytle, the designated favorite, would have a clear, unopposed chance to ensure his name is on the Nov. 3 general election ballot.

That’s a contention that Johnson does not dispute, but in his own conversation with Capitol Media Services, he said he concluded Hourihan was not ready to run for state office — even before he recruited Lytle to run.

The intra-party dust-up comes amid uncertainty over the new party’s future.

Maricopa County Superior Court Judge Greg Como is set to hear arguments in March by the Arizona Democratic Party, the Arizona Republican Party, and the Citizens Clean Elections Commission about the future of the Arizona Independent Party. They all contend that Secretary of State Adrian Fontes acted illegally in allowing Johnson to simply rename what had been the No Labels Party and keep all of those who had been registered with it.

The essence of the lawsuit is the argument that Johnson, who took over after the national No Labels Party severed ties with the local group, has created an entirely new party. And that, their lawyers contend, means he has to start from scratch, including gathering the necessary signatures to get official status.

What makes all this important is that if Como rules, there is no Arizona Independent Party; anyone seeking to run for office — including Lytle and Hourihan — would be considered an unaffiliated candidate and would have to gather at least 44,539 valid signatures to get on the ballot. For context, it takes only 1,288 signatures to be considered a candidate for the newly formed Arizona Independent Party.

The more immediate issue, however, concerns Johnson’s public efforts to prevent Hourihan from submitting the signatures and getting on the ballot — and to force a primary with Lytle in which she, and not the party’s favorite, could come out on top.

Johnson said he and his backers never planned to create a party.

Their first choice was to require an “open primary,” where all candidates from all parties would have to get the same number of signatures and run against each other, with the top vote-getters facing off in the general election, regardless of party affiliation. Voters rejected that plan.

Option B, Johnson said, was the creation of an independent party that could provide equal access to the general election ballot for those not affiliated with existing parties.

“Now it’s my job to make certain we have a decent brand as a party because it can be considered, if you’re not careful, something that’s a little bit goofy,” he said.

And Johnson said that, with that goal in mind, the decision was made to court Lytle, a health care entrepreneur, to be the party’s standard bearer — and promise him the party’s support.

“This guy is talented,” he said. “And you don’t get somebody like this guy to run if you justify that you’re going to hang back.”

Johnson said that what he’s doing in promoting Lytle over Hourihan is no different from what happens in the major parties, where leadership quietly decides who is the favored candidate.

Sometimes, however, that bursts out into the open.

That’s what happened in 2024 when Jeff DeWit, chairman of the Arizona Republican Party, tried to talk Kari Lake out of running for U.S. Senate.

In a phone call, he told Lake that Republicans in Washington did not think she could win a race against Democrat Ruben Gallego after losing the 2022 gubernatorial race to Katie Hobbs. And DeWit, in the recorded call, offered to find some other job for her while she sat out the race.

It all backfired when the recording became public and DeWit quit.

As it turned out, Lake decided to run anyway — and was defeated by Gallego by more than 80,000 votes even though Donald Trump outpolled Kamala Harris in Arizona.

“Here’s the difference: I’m doing it openly, proudly,” Johnson said of his efforts to push Lytle over anyone else. “I think you’d have to be a coward not to stand up and say who you would support.”

Still, Johnson said, there’s nothing he can do to stop anyone else, including Hourihan, from running in the Arizona Independent Party primary. And if she — or someone else — gets the necessary signatures along with Lytle, there will be a contested primary.

But Johnson did more than simply endorse Lytle. He even spoke at a public announcement of his candidacy in front of Sun Devil Stadium.

Hourihan said — and Johnson confirmed — that his efforts to get her to drop out of the race included proposing she instead run for a lower office. Johnson said she needed more political experience.

“You’re not ready for this,” Johnson told the licensed professional counselor in a conversation she taped with him and made available to Capitol Media Services. He suggested she “put in the work” and enter politics at a lower level.

Hourihan, for her part, said she is ready. And part of that, she acknowledged, is her belief that God is calling her to run.

“You can believe whatever you want to believe because you want to believe it,” Johnson responded. “I would just tell you to pray some more because I gave you solid advice.”

That, in turn, led Hourihan to ask whether, if she wins the primary, Johnson will apologize.

“I will say ‘congratulations,’ ” he responded. “But I will never say ‘I’m sorry’ because I’m positive that you’re not ready, even if you won.”

But would Johnson support her if she wins the primary?

“Probably not,” he said. And Johnson, a former Democrat who lost his own race for governor in 1998 against incumbent Republican Jane Hull, said if Hourihan is the nominee of the Arizona Independent Party, “she would not be the best candidate of the three that are left to be governor.”

Nor does he believe that his position as party chair — or that of other party officials — requires them to back the person who wins the party’s primary.

“From our standpoint, we don’t have to follow their set of rules,” Johnson said.

Arizona officials fight DOJ demand for voter data, citing privacy concerns

Key Points:
  • Arizona Secretary of State Adrian Fontes faces lawsuit over voter registration records
  • DOJ demands access to nearly 5 million Arizonans’ voter registration records for “election protection”
  • A California judge recently dismissed a similar DOJ request as “unprecedented and illegal”

Secretary of State Adrian Fontes is going to get some legal help in his battle with U.S. Attorney General Pam Bondi over the state’s voter registration records.

Both the Arizona Alliance for Retired Americans and Common Cause have filed legal papers asking U.S. District Court Judge Susan Brnovich to allow them to intervene in the lawsuit filed by the Department of Justice demanding access to the full and unredacted records of nearly 5 million Arizonans who are signed up to vote.

Fontes has already vowed to fight the demand by the Department of Justice, contending that what it wants is illegal under federal and state privacy laws.

He even told Capitol Media Services he is “willing to go to jail” to protect the information, saying that a top official in Bondi’s office who has been pushing the demand “can pound sand.”

Attorneys for both organizations, in their filing in federal court here, acknowledge what Fontes is doing.

But they also say that they and their members have their own unique and legally protectable interests in preserving the privacy of those records. More to the point, they contend that if Fontes is ordered to surrender the records, the information could be used to try to remove people, including their members, from the voter rolls.

Central to the case — and similar ones filed in nearly two dozen other states — is the argument by the Department of Justice that it needs the information to “protect American elections.”

It also contends that Congress has empowered the attorney general to enforce various federal laws designed to ensure that voter registration lists are accurate and properly maintained.

The lawyers for the two groups that have intervened in the case have a different perspective.

“In 1993, Congress enacted the National Voter Registration Act which charges states — not the federal government — with the administration of voter registration for elections for federal offices,” wrote Sambo Dul.

She is the lawyer for the Arizona Alliance for Retired Americans, a group which has aligned itself in the past with Democratic interests. And in her legal papers she said the Department of Justice, which now has sued 24 states, has an ulterior motive.

“It reportedly seeks to use the data to create a national voter database in an attempt to substantiate unfounded accusations that millions of non-citizens have voted illegally in recent elections,” Dul wrote. “In recent public statements, moreover, Assistant Attorney General Harmeet Dhillon made clear that DOJ also intends to use the information to attempt to compel removal of hundreds of thousands of voters from the rolls.”

Victoria Lopez, an attorney for the ACLU Foundation of Arizona, which represents Common Cause in its own motion to intervene in the case, has a similar take.

She pointed out that the Department of Justice wants all information on registered voters, including their full name, date of birth, residential address, and either the driver’s license number or the last four digits of the person’s social security number. And Lopez said state law prohibits that information from being publicly released.

“(The) DOJ’s request for private, sensitive voter data appears to be in connection with never-before-seen efforts by the United States to construct a national voter database, and to otherwise use untested forms of database matching to scrutinize voter rolls,” she told the judge. And that, Lopez said, includes comparing it to records of the Department of Homeland Security.

Lopez also pointed out that a federal judge in California dismissed a nearly identical bid by the Department of Justice to access that state’s 23 million voter registration records just last week. U.S. District Court Judge David Carter called the government’s request not only “extraordinary,” but also “unprecedented and illegal.”

“The DOJ’s request for sensitive information of Californians stands to have a chilling effect on American citizens like political minority groups and working-class immigrants who may consider not registering to vote or skip casting a ballot because they are worried about how their information will be used,” he said.

“There cannot be unbridled consolidation of all election power in the Executive without action from Congress and public debate,” Carter wrote in his 34-page ruling. “This is antithetical to the promise of fair and free elections our country promises and the franchise that civil rights leaders died for.”

And the judge rejected claims by the Department of Justice that various federal laws, including the Civil Rights Act, intended to allow it to have the information it needs.

“Congress’ intent was clear — ensuring that all Americans, regardless of race, are able to vote without fear or distress,” he wrote of those statutes.

“The DOJ cannot go beyond the boundaries provided by Congress and use these legislative tools in a manner that wholly disregards the separation of powers provided for in the Constitution,” Carter said. “Should Congress want to enable the Executive to centralize the private information of all Americans within the Executive Branch, Congress will have to clearly say so.”

Finally, the judge rejected arguments that the National Voter Registration Act preempts California’s own privacy laws. That is significant because Fontes has cited Arizona’s own privacy laws in his refusal to surrender the information sought.

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