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Tag: Court of Appeals

AG Kris Mayes faces setback in election fraud case

Key Points:
  • Arizona Court of Appeals refuses to reinstate indictment against 11 fake electors
  • Judge Kent Cattani says grand jurors were not given all necessary information
  • Arizona Attorney General Kris Mayes has several options after court ruling

The state Court of Appeals has refused to reinstate the indictment against 11 fake electors and others who Attorney General Kris Mayes contends were part of a scheme to overturn the 2020 presidential election.

In a brief order on Sept. 22, Presiding Judge Kent Cattani said he and two of his colleagues considered the request by Mayes to overturn a trial court ruling that grand jurors were not given all the information they needed before they handed up the indictments.

The decision leaves Mayes with a handful of options.

She could start her claim all over again with a new grand jury and present her case that there is sufficient evidence to charge all of them with fraud, conspiracy and forgery in connection with signing and submitting documents to federal officials and Congress that Donald Trump had won the popular vote in Arizona. 

There’s also the option of bypassing a grand jury with “direct information,” asking a judge to determine if there’s sufficient evidence to move forward.

But Dennis Wilenchik, who represents James Lamon, who signed the certificate, said he doubts Mayes would pursue that.

“We would get to cross examine witnesses and destroy her case from the onset,” he said.

Alternatively, Mayes could appeal the case to the Supreme Court.

Finally, she could drop the case. That’s the argument being made to her by Gina Swoboda, the chair of the state GOP, who said the Democratic attorney general should “stop wasting time and taxpayer resources on partisan lawfare,” noting the charges go back to what the defendants are accused of doing in 2020.

“Five years later, Kris Mayes is still fixated on 2020 while violent crime, fentanyl trafficking, and border chaos threaten our communities every single day,” Swoboda said in a prepared statement. “This obsession is not justice — it’s politics.”

Dropping the case, however, does not appear to be an option for Mayes.

“This case has never been about anything other than preserving democracy and upholding the rule of law,” said Richie Taylor, the attorney general’s press aide. “Pretending it’s politically motivated is just a convenient way for the GOP chair to distract from the facts of the case.”

But Swoboda pointed out that similar cases filed in other states have faltered.

Earlier this month, a judge in Michigan said prosecutors there had failed to show that the 16 people who signed paperwork in 2020 declaring that Trump had won the electoral votes intended to commit fraud. And, without that intent, the judge said the case brought by Michigan Attorney General Dana Nessel falls apart.

That question of intent is critical here in Arizona. It was what led to the decision in May by Maricopa County Superior Court Judge Sam Myers to send the case back to the grand jury. He said grand jurors were not given access to the Electoral Count Act of 1887 and did not have that federal law explained to them before they found probable cause to indict those here.

What makes that significant is that federal law specifically addresses the possibility of competing presidential electors from a state and how Congress must handle them.

And that goes to the heart of the defense, both here and in Michigan: the claim by defendants that they were not trying to commit fraud but that they were preparing an “alternate slate” of electors to send to Washington if it turned out that Trump actually outpolled Joe Biden. At the time, there was pending litigation over the election results.

It is impossible to know at this point whether providing that information to the grand jurors would have made any difference in their decision to indict the electors and others involved in the plan.

But Myers said the jurors were entitled to that information. And since they did not get it, the indictment is flawed.

In seeking to overturn Myers’ decision and resurrect the indictment, prosecutors argued the state has no duty to instruct grand jurors on laws that are not part of the elements of the offense or might provide them legal justification for their acts.

They also stated that the failure to read the 1887 law to the grand jurors had legally prejudiced the defendants. 

Myers, however, wasn’t buying it.

The judge acknowledged that the law was discussed during the presentation of the case to the grand jury, and the jury did ask a state witness about the requirements of the law.

But where the prosecutors erred, he said, was failing to provide the grand jurors with the actual texts of the law before they returned indictment charges against all for conspiracy, forgery, and conducting fraudulent schemes and practices in connection with the 2020 election.

“A prosecutor has a duty to instruct the grand jury on all the law applicable to the facts of the case,” Myers wrote. And he said that includes instructing the jurors on “justification defenses” that, based on the evidence provided, are relevant to the jurors determining whether there is probable cause to believe they have committed a crime.

“Due process compels the prosecutor to make a fair and impartial presentation to the grand jury,” Myers said. And he said that is true even if the jurors do not make any specific request for additional legal instruction.

It is that order that the Court of Appeals refused to set aside.

Tyler Bowyer, an executive at Turning Point USA who was one of the 11 who signed the document, praised the Sept. 22 ruling.

“Another huge loss for the radical AG who has wasted millions of AZ taxpayer dollars,” he posted on social media.

And Kern, in his own post on X, said that Mayes was keeping the case alive only “to appease your insane Democrat base for votes.”

Even if Mayes manages to reinstate the charges, there are other legal hurdles to obtaining convictions.

For example, attorney Michael Bailey, in his own legal proceedings, said that the signing of the certificate by those declaring themselves the “duly elected electors” of the state, was immaterial.

“It could have no legal effect without a second document, the certificate of ascertainment from a competent state authority,” wrote Bailey. He represents Boris Epshteyn who was an outside counsel to Trump’s 2020 campaign. And Bailey said the electors had no influence on getting that certificate.

“Thus, respondents could not have been found guilty of fraud under any circumstances,” he wrote.

Arizona Court of Appeals rejects GOP challenge to mail-in voting signature verification

Key Points:
  • Arizona Court of Appeals tosses GOP claim on mail-in ballots
  • Judges rule GOP lacks standing to challenge signature verification process
  • Arizona has long allowed no-excuse early voting since 1991

The state Court of Appeals has tossed out a claim by the Arizona Republican Party and some of its allies that could have created a new obstacle for people trying to vote by mail.

In a unanimous ruling, the three-judge panel declined to rule on claims that Democratic Secretary of State Adrian Fontes acted illegally when he concluded that signatures on early ballot envelopes can be verified by comparing them to any other signatures on file. Attorney Kory Langhofer, who represents the challengers, said that is contrary to state law.

Instead, the judges decided that Langhofer and his clients lacked the standing to sue.

They said the law gives Fontes, “at least some discretion on the rules he enacts.” And that, they said, exempts those rules from the kind of challenge they brought.

The ruling, unless overturned, leaves in place the ability of county election officials to use multiple sources to verify ballot signatures.

In contrast, a ruling in favor of the GOP would have meant more early ballots would have been set aside for verification, especially in circumstances where the signatures had changed over the years — or decades — since people had first signed up to vote. That verification process involves reaching out to voters, whether by phone or mail, to “cure” their ballots by asking them if they had, in fact, voted by mail.

“It would be very burdensome on the curing process,” said Aaron Thacker, a spokesman for the Secretary of State’s Office. “It would increase the demand to cure signatures, which would become a strain on the timeline.”

That timeline, under state law, is five days after the election. If voters cannot be reached or if they never verify their signatures, their ballots would never be counted.

There was no immediate response from Langhofer. But Fontes himself cheered the ruling, calling the lawsuit “nothing more than a red herring.”

“We know that signatures naturally change over time due to age, health, or other personal circumstances,” he said. “Using the most current signature on file to verify mail-in ballots is not only common sense. It’s essential to maintaining election integrity.”

The ruling comes as Republicans, led by President Donald Trump, are trying to kill early voting nationwide.

“I am going to lead a movement to get rid of mail-in ballots,” Trump wrote earlier this month on his social media platform. The president also said he would sign an executive order to that effect ahead of the 2026 elections.

However, that is virtually certain to spark a legal fight from Arizona and other states that contend election rules are a state decision. Fontes himself said if Trump were to try to override state law he would “tell him to pound sand.”

Arizona has long allowed early voting. But prior to 1991, that privilege was available only to people who provided proof they needed it, like being away from their voting precinct on Election Day or a physical disability.

That year, the Republican-controlled Legislature made Arizona among the first states in the nation to adopt no-excuse early voting. It has proven extremely popular, reaching close to 90% in 2020.

The state GOP sued in 2022 to have the practice declared unconstitutional. However, that lawsuit was dismissed by the Arizona Supreme Court.

This latest action focuses on a narrower issue – how to verify signatures.

In filing the 2023 lawsuit, Langhofer argued that election officials have only one option: compare what is on the ballot envelope with a person’s “registration record.”

“It is the only means by which the county recorder can verify that a person casting an early ballot by mail is, in fact, a duly qualified elector,” the lawsuit said.

But Fontes argued that the wording of the law allows election officials to use any signatures available to them. And that includes requests for early ballots, signatures on voter rosters, as well as signatures on prior early ballot envelopes.

And it was that interpretation he put into the Elections Procedures Manual that he is required to compile to help election officials interpret Arizona law.

Langhofer called that “unreasonably permissive criteria.”

He represents not only the state GOP but also the Arizona Free Enterprise Club, which tends to align itself with GOP interests and is currently engaged in other legal battles, including an attempt to void a 2022 voter-approved law that requires the true source of political spending to be made public.

Langhofer also represents Restoring Integrity and Trust in Elections. Reuters says that RITE was formed in 2022 by former U.S. Attorney General William Barr, Karl Rove, who was a top adviser to former President George W. Bush, and casino billionaire Steve Wynn.

The challengers actually won an early round in the lawsuit when Yavapai County Superior Court Judge John Napper ruled in 2023 that state law is “clear and unambiguous” that election officials must compare the signatures on the envelopes with the voter’s actual registration record. And that, he said, consists only of the document signed when a person first registered along with subsequent changes for things like altering party affiliation.

But Napper later overruled his own decision, saying it appeared that state lawmakers actually had given Fontes sufficient legal latitude to conclude that “registration record” includes signatures on anything else in county records.

The Court of Appeals, in the new ruling, didn’t even try to go that far.

Appellate Judge Jeffrey Sklar, writing for himself and his colleagues, said what Langhofer was seeking for his clients was a court order directing the secretary of state to rewrite the Elections Procedures Manual in a way to tell local officials they could use only the original registration records for signature comparison.

The problem with that, he said, is that Fontes has “at least some discretion” in crafting the manual. Sklar said that makes sense.

“Otherwise, there would be no need for an EPM,” he wrote. “It would simply reiterate the statutory scheme.”

And that discretion, said Sklar, makes Fontes immune from having courts overrule his decisions.

Fontes chided the challengers for filing the lawsuit in the first place.

“Efforts to undermine the process aren’t about fixing anything,” he said. “They’re about sabotaging a system that has proven to work.”

Court of Appeals rejects ‘I didn’t know it was illegal’ defense in DUI cases

Key Points:
  • Two Arizona motorists claim they didn’t know driving the wrong way was illegal
  • State Court of Appeals says some offenses are strict liability, knowledge of the law is not required
  • Prosecutors must show sufficient signage for conviction in wrong-way DUI cases

Two Arizona motorists argue that they cannot be convicted of driving the wrong way in traffic because no one has proven they knew it was illegal.

But the state Court of Appeals says that claim won’t work.

In a new ruling, the three-judge panel said some offenses are those of strict liability. That includes most civil traffic violations.

So someone trying to fight a ticket for running a red light can’t escape being fined by saying they didn’t know the light was red. The same goes for exceeding the speed limit, failing to use turn signals or driving around a school bus that is loading or unloading children.

Attorneys for the two defendants, however, pointed out they were charged with something that actually is a crime: driving the wrong direction on a highway while under the influence. And that, they argued, is different.

The judges didn’t accept that theory.

But they did agree with the defense lawyers on at least one point: Prosecutors must show that the road signs were in sufficient enough quantity that a reasonable person would know which way traffic has to go to get a conviction.

In the first instance, police stopped Katherine Franz after she was observed driving west in the eastbound lanes of Interstate 10 in Maricopa County. One officer noticed she appeared to be intoxicated.

According to court records, Franz said she had been drinking and did not know how she ended up on State Route 202 — even while she was still on I-10.

A test showed a blood-alcohol reading of 0.134; 0.08 is considered presumptive evidence of being intoxicated.

The other case involves Arthur Schlemmer, who police found driving westbound on Jefferson Street in Phoenix, a one-way eastbound street. He tested at 0.250 blood alcohol content.

Attorneys for both argued that jurors should be told that prosecutors must prove that they knew or should have known they were driving in the wrong direction. The cases wound up at the Court of Appeals after the trial judges denied both requests.

Appellate Judge Paul McMurdie, writing for the court, acknowledged that in criminal cases, the presumption is that the state must “demonstrate some degree of wrongful intent.” That is defined as “mens rea,” a Latin term meaning a “guilty mind.”

By contrast, he said, the strict liability standard applies only where there is “clear legislative intent that the crime does not require any degree of mens rea.”

McMurdie noted that this particular offense has two elements that have to be established: that someone was driving while intoxicated, and that someone was driving the wrong way on a highway.

He pointed out that there is clear case law that there is no mens rea requirement for the first part: Simply being drunk while driving is sufficient to sustain a conviction, regardless of what the motorist knew about being intoxicated.

What that leaves, McMurdie said, is the other half of what’s necessary for conviction: driving the wrong way.

He said that can include driving on the wrong side of a two-way road. But what it also means is that driving the wrong way on a road designated and signed for one-way traffic.

Put simply, McMurdie said, failing to obey those signs, by itself, is sufficient to sustain a conviction — regardless of whether motorists know they are going the wrong way.

But the judge said there is a defense of sorts against such charges.

“The state must move that the highway is appropriately marked or signed,” he wrote. “A defendant may present evidence and argument that, given how he or she entered or drove on the highway, the markings or signage were inadequate.”

McMurdie said, though, that still doesn’t shift the burden to the state to prove that individuals knew they were going the wrong way.

“Such evidence pertains to the legal flow of traffic, not the defendant’s mens rea,” he said. “This is true even if the signage requirement is to give reasonable motorists notice of the legal duties of traffic flow.”

All of this sends both cases back to the trial judges, who are being told they should not be telling jurors the state has to show they knew they were going the wrong way. But they should be instructing those same jurors that it is the state’s burden to prove that, based on the evidence, there was sufficient signage to show the legal flow of traffic.

Attorney Gregory Zamora, who represents Schlemmer, said it makes sense for the state to have to show that the person was driving the wrong way.

“That’s not an intuitive thing,” he said.

“You don’t just know which direction you’re supposed to be traveling on the roads,” Zamora said. “You’re given clear indications from the government.”

And he suggested there is evidence that the signage is not clear “because it keeps happening, at least in downtown Phoenix,” that motorists are stopped for going the wrong way on city streets.

Battle to change how appeals judges are elected reaches Arizona Supreme Court

A long-fought legal battle to see state Court of Appeals judges stand for retention elections statewide, as opposed to by county of residence, is now under consideration by the state high court.

Attempts to alter the judicial retention election system for intermediate appellate judges started in the Legislature, and with insufficient success, soldiered through the courts on constitutionality grounds.

A final decision, now pending in the Arizona Supreme Court, could either add 28 judges to the statewide ballot in 2026, or send the Goldwater Institute, the chief advocate for the policy change, back to the Legislature to try again.

As it stands now, Court of Appeals judges run for election based on their county of residence.

Candidates hail from two distinct divisions, each representing a region of Arizona as a whole.

Division One comprises Maricopa, Yuma, La Paz, Mohave, Coconino, Yavapai, Navajo and Apache counties. A majority of the Division One appellate judges, 10 of 19 total, hail from Maricopa County and are elected by voters of Maricopa County.

Five are required to be from and be retained by voters in the remaining counties, and the remaining four judges can come from any county in Division One.

A similar system is set up in Division Two, consisting of Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties. Four of the nine judges come from Pima, two from the remaining counties and three judges can come from any county, with voting again based on the judge’s county of residency.

Attorneys for the Goldwater Institute, arguing on behalf of four voters, insist the state law establishing the division system runs counter to the state Constitution: “first, because of silence on the intermediate appellate court’s electorate in articles setting up elections, and second, because of a potential uneven distribution of votes among the different voting divisions, despite the Court of Appeals maintaining statewide jurisdiction.”

In front of the justices on April 8, Andrew Gould, attorney for the Goldwater Institute, argued that the uneven distribution demanded a shift to statewide retention elections for appellate judges rather than elections based on county of residence.

Gould started by pointing out that the state Constitution does not explicitly set an electorate for the Court of Appeals. He then contrasted this with the Superior Court judges, whose constituents are drawn by county, and legislators, who are delineated by district.

Justice William Montgomery noted the Legislature maintains the authority to create the jurisdiction, powers, duties and composition of any intermediate appellate court.

Gould noted, though, that the Arizona Court of Appeals is looped in with the Arizona Supreme Court in a provision covering retention elections, with an instruction for appellate judges to file retention declarations with the secretary of state. He said the Court of Appeals’ inclusion necessarily means the judges should stand for statewide election per the Constitution, which would override legislative authority.

But Montgomery called that an inference.

“I don’t see that as something that’s explicitly written that then becomes a fulcrum point for our interpretation,” Montgomery said.

Still, Gould insisted the Legislature’s statute to divvy up appellate judges by county went beyond the Constitution by dividing a statewide office and “worse yet,” creating uneven districts.

Chief Justice Ann Timmer said Gould “raised very good policy points.”

“But that’s what they strike me as, policy points. How does (the statute) violate the Arizona Constitution? What’s the violation?” Timmer asked.

Gould said there is nothing in the Arizona Constitution that supports dividing up Court of Appeals judges into districts, “and the fact that the Constitution knows when to include those terms and does so for superior courts and legislative districts is important.”

In a briefing before the oral argument, Gould and attorneys for the Goldwater Institute argued that county-based elections violate the Free and Equal Elections Clause and the Equal Privileges and Immunities Clause by granting unequal weight to each vote.

Meanwhile, the state maintains the judicial election system for the Court of Appeals was always intended to run along geographic lines.

“The system is not based on the fictional principle that the scope of judicial authority or the reach of a court’s jurisdiction defines its electorate,” Emma Mark, senior litigation counsel for the Solicitor General’s Office, said. “It was intended to give every voter a say while still balancing the diverse interests of Arizona’s urban and rural populations.”

Montgomery noted there was an “allure to the basic logic that if a judge is going to issue a ruling that affects me, I ought to have some oversight to some degree as a voter,” and asked whether the state thought the Legislature should be at all limited in determining the jurisdiction of the Court of Appeals.

Mark said the Legislature would be limited if it acted in a way that was arbitrary or capricious. She noted that the Constitution contemplates that judges will be appointed from certain geographic areas and the Legislature creates parity by putting retention elections on the same system as appointments.

“If we have a statewide retention election but maintain this geographically based merit selection process, I don’t think it’s difficult to envision a scenario where Maricopa County voters consistently overwhelm and outnumber the voters from rural counties,” Mark said. “That doesn’t really seem fair either. So this system is a way to give everybody a say in the judges that come from their geographic area.”

Mark then called on the state Supreme Court to uphold the lower court’s ruling. In July, Judge Frank Moskowitz found no violation of the Free and Equal Elections Clause nor the Equal Privileges and Immunities Clause.

His ruling held the current retention election system constitutional as it treats all similarly situated voters equally. He found the plaintiffs failed to establish a cogent argument that the court’s electorate should hinge on its statewide jurisdiction, noting that the Superior Court judges also maintain statewide jurisdiction but are voted on by the county.

The justices took the matter under advisement.

Jon Riches, vice president of litigation at the Goldwater Institute, said they were hopeful the court would strike down the geography-based retention scheme.

If the court decides to rule against the Goldwater Institute, the attempt to shift the retention scheme could be followed up in the Legislature, though a bill to achieve the same end was vetoed by Gov. Katie Hobbs in 2023.

House Bill 2757, sponsored by Rep. Ben Toma, R-Peoria, passed along party lines. But in her veto letter, Hobbs found it would “unfairly dilute the votes of those Arizonans most directly impacted by each Division’s judges.”

Riches said, “We would certainly welcome the Legislature to continue its work toward a system that is both constitutional and just for voters, and encourage the governor to recognize that the current system is neither.”

Eight applicants advance for two Arizona Court of Appeals openings

Eight applicants are advancing to compete for two vacancies on the Arizona Court of Appeals. 

According to the Commission on Appellate Court Appointments’ March 3. meeting, the candidates will now enter the interview stage to fill the two Division One vacancies left by the retirement of Judge Jennifer Campbell and the ascension of Judge Maria Elena Cruz to the Arizona Supreme Court. 

Per the Arizona Constitution, commissioners must chiefly consider merit, but weigh political affiliation and diversity when sending final nominations to the governor. No more than 60% of the nominees may hail from the same political party. 

Moreover, state law requires a representative ratio of the electorate among judges of the appellate court, meaning the candidates must come from a Division One county outside Maricopa County, such as Yuma, La Paz, Mohave, Coconino, Yavapai, Navajo and Apache counties. 

The commission met March 3 to do an initial review of applications, hear public comment and decide who to advance to an interview.

The Applicants:

  • Judge John Napper, presiding judge of the Yavapai County Superior Court. Napper, an appointee of then-Gov. Doug Ducey , took the bench in 2017 and moved to serve as presiding judge in 2020 on appointment from former Chief Justice Robert Brutinel. He has presided over cases consequential to state election law and elections. Notably, he oversaw a dispute between former Attorney General Mark Brnovich and then-Secretary of State Katie Hobbs over whether the Elections Procedures Manual should be updated in line with revisions from Brnovich. Napper ruled against Brnovich, finding it was within Hobbs’ discretion to reject Brnovich’s edits. Napper has been a registered Republican since 2017, though he was previously registered as an independent and a Democrat before then. 

 

  • Kimberly Cromwell, attorney and former deputy attorney general for the White Mountain Apache Tribe. Cromwell, a Democrat, hails from Navajo County. She currently works as an attorney with Cromwell & Reynolds, where she acts as outside legal counsel to the White Mountain Apache Tribe. Prior to her private practice, Cromwell served as in-house counsel for the tribe’s Office of the Attorney General where she drafted and negotiated contracts and leases, oversaw land disputes, handled state Indian Child Welfare Act cases, and handled other legal affairs for the tribe. 

 

  • Andrew Becke, attorney. Becke, an independent, currently works at the Becke Law Firm in Prescott. His practice is focused on real estate, commercial, probate and personal injury litigation. He also served on Arizona Supreme Court committees on Character and Fitness and Rules of Evidence.

 

  • Veronika Fabian, attorney. Fabian, an attorney with Choi and Fabian based in Flagstaff and Chandler, primarily works consumer protection law, with some parts of her practice dedicated to insurance, personal injury, special education and construction law. She has been a registered Democrat since 2022, was an independent from 2019 to 2022, a Democrat from 1990 to 2019, and a Republican from 1986 to 1990. 

 

  • Eliza Beth Johnson, Yuma County Superior Court commissioner, judge pro tem. Johnson, a Democrat, primarily oversees family law cases. Prior to taking the bench, Johnson worked with the Arizona Attorney General’s Office in the Child and Family Protection Division in both the Department of Economic Security and the Department of Child Safety. 

 

  • Michael Latham, presiding judge of the Apache County Superior Court. Latham, a Democrat, was elected presiding judge in Apache County in 2014. On the bench, he primarily oversees criminal cases. Prior to his time as a judge, Latham worked at the Apache County Attorney’s Office as a prosecutor. 

 

  • Michael Paul McGill, Yavapai County Superior Court judge. McGill, a Republican and Ducey appointee, first took the bench in 2020. He handled civil law, family law and conservatorship cases from September 2020 to November 2023. In November 2023, he moved to criminal law. Prior to his time on the bench, he worked with both the Yavapai and Mohave County attorneys offices. McGill registered as a Republican in 2016, but was previously registered as an independent, and before then, a Democrat. 

 

  • Danalyn Savage, attorney. Savage, an independent, currently works in private practice at Savage Law Office. She was appointed by Gov. Katie Hobbs to fill a vacancy in the Superior Court of Yavapai County Division 5, an elected position, where she served from January 2024 to November 2024. Savage did not win her bid for reelection and pivoted to private practice, where she works as a court-appointed attorney on guardianship and conservatorships. Prior to her time on the bench, Savage was a prosecutor at the Yavapai County Attorney’s Office, with a focus on juvenile delinquency. She registered as an independent in 2016 and was previously a registered Republican. 

Former Court of Appeals Judge Peter Swann spoke in support of Veronika Fabian, lauding her ability to “forge consensus around the narrowest legal points possible.” 

Commissioner Kathryn Townsend noted, however, that Fabian’s practice is narrowed to consumer protection, and she could lack experience — a position Swann noted could be said about any candidate given the scope of the position. 

Maricopa County Superior Court Judge Randall Warner vouched for Napper, noting he had not shied away from taking difficult election cases. 

“He applies the law fairly … he’s exactly the kind of judge I want on the Court of Appeals looking at the decisions I make and my colleagues make,” Warner said. 

“His respect for our system of justice is great. He understands that in our adversarial system, having both sides well prepared makes the system better,” Jared Keenan, legal director of the ACLU, said in support of Napper. 

Maricopa County Judge Jennfier Ryan-Touhill spoke in support of McGill, noting his efforts to advocate for rural needs and E-Qual. 

Commissioners also heard support for Latham and Savage. 

The commission will meet again to conduct interviews and submit a final list to the governor on March 20. 

Court orders release of 218,000 names of voters possibly lacking citizenship proof

A group that wants checks of whether some voters are citizens got access Monday to the names of about 218,000 Arizonans who may not have provided such proof.

The move came after the state Court of Appeals in a brief order Monday rejected a bid by Secretary of State Adrian Fontes to keep the list from being given to Strong Communities Foundation. Appellate Judge Michael Catlett, writing for the three-judge panel, said Fontes had provided no proof that Maricopa County Superior Court Judge Scott Blaney had committed any legal or factual error in ordering the secretary to surrender the information.

Fontes made it clear he still believes there could be harms from releasing the names, making the voters on the list subject to harassment and threats from “election deniers.”

“I think they’re planning on going after voters who they might politically disagree with,” he said at an afternoon press conference. “I think they’re planning on knocking on their doors and trying to intimidate them out of voting.”

Merissa Hamilton, who heads the organization which operates as EZAZ.org, said it’s not the intent to pester voters. In fact, she pointed out, the court order precludes members of her organization from directly contacting anyone on that list before Wednesday.

Instead, Hamilton said, those names are most immediately going to be turned over to the 15 county recorders.

That, she said, will allow them to do what they can to verify whether those on the list are in fact eligible to cast full ballots ahead of the next election.

But nothing in the court order precludes anyone else who gets the information from using it in an effort to prove the outcome was affected by illegal voters. And all restrictions on its use disappear Wednesday.

“These folks are shameless in their legal efforts,” said Fontes of Stronger Communities, a group that has been liked to politically conservative causes like stopping what it calls the “deep state,” removing “explicit books” from county libraries and fighting “radical goals” at the Arizona Corporation Commission. “They believe that their right to investigate and harass voters is more important than the voter’s right to cast a ballot.”

Blaney’s order also does permit Hamilton to immediately give a copy to the president of the Senate, the speaker of the House and the members of the Elections committees of both chambers. And some of the members of those panels have made it clear they still question the results of the 2020 and 2022 elections.

And the whole dispute over whether any of the 218,000 on the list might not be citizens – all of whom the Arizona Supreme Court ruled could vote in this election – could provide fresh fodder for those who lose their elections to mount legal challenges. That is especially true as the number of voters on that list could far exceed the margins of victory in some close races.

That was the case four years ago when Donald Trump lost to Joe Biden by 10,457 votes.

In 2022 Republican Kari Lake – now running for Senate – lost the gubernatorial race to Katie Hobbs by 17,117 votes. And Democrat Kris Mayes won the race for attorney general over Abe Hamadeh by just 280 votes.

But Hamilton also told Capitol Media Services there’s another side to that release of the list to the recorders. She said it actually could help prevent some legal voters from being disenfranchised.

In at least two counties, some people were told they could not cast a ballot because they lacked proof of citizenship.

Taylor Kinnerup of the Maricopa Couty Recorder’s Office said that happened when those on a version of the list tried to change their registration. She said their early ballots they cast then were put into “suspense.”

Kinnerup said, though, all that has now been cleared up, especially since the Supreme Court made it clear that everyone on that list is entitled to cast a full ballot, at least this year, while the voter registration database problems are worked out.

There were similar problems in Pinal County.

But Hamilton also said she believes there are, in fact, at least some names on that list of people who actually are not citizens. And Hamilton now wants recorders to compare those names with federal databases to cleanse the rolls before the next election.

Still, she conceded that, when all is said and done, she’s not anticipating a lot of folks will be knocked off the voter rolls.

“I expect that a supermajority of the voters on that list are citizens,” Hamilton told Capitol Media Services. “I expect it to be only a tiny amount that aren’t.”

She said, though, the new glitch that took some folks off the rolls, at least temporarily, does not provide her with confidence.

“I just don’t think that we can have faith right now in how the MVD system is being managed,” Hamilton said. And she wants an independent audit, separate from one ordered by Gov. Katie Hobbs.

The issue stems from a 2004 voter-approved law which requires proof of citizenship to register and vote.

But that statute also says that proof could be verified by the registrant providing the number on an Arizona driver’s licensed issued after Oct. 1, 1996. That is the effective date of a separate law requiring proof of legal presence to get a license.

Only thing is, what MVD reported to county election officials wasn’t always the date of that original license but instead the date someone got a duplicate license or made a change of address. And if that date was after Oct. 1, 1996, recorders presumed that there was proof of citizenship on file – and the person was entitled to register to vote – even though that did not exist.

The glitch was discovered when Maricopa County Recorder Stephen Richer discovered one person who had been registered who was not, in fact, a citizen despite the MVD certification.

That list initially was estimated at 98,000 but grew to about 218,000 when other problems were discovered in the link between MVD’s database and what was being provided to counties.

Fontes then filed a “friendly” lawsuit against Fontes, asking the Supreme Court whether those affected should be allowed to vote a full ballot this year. The alternative was permitting them to vote only in the presidential and congressional races as federal law does not require citizenship proof.

That led to the court order allowing everyone on the list to vote a full ballot.

The justices acknowledged that there may not be the legally required “documented proof of citizenship’ on file because of that glitch. But they said that given the timing – and that given everyone on the list appears to have been in Arizona since before October 1996 – they did not want to risk disenfranchising legitimate voters.

In the meantime, Stronger Communities demanded its own copy of the list.

Fontes acknowledged that is a public record. In fact, the entire voter registration file is public.

But he argued that releasing it could lead to threats and intimidation of voters – and even possible violence – something he said fits within the exception of the law that allows public records to be withheld in the “best interests of the state.”

Blaney, however, noted that Hamilton testified her organization wasn’t going to use it to contact voters but instead turn it over only to county recorders and certain state legislators.

Fontes’ then argued to the Court of Appeals that was a mistake.

“Plaintiff wants that information despite the fact it is entirely unreliable, likely to be weaponized, and may place those Arizonans in harms’ way,” wrote Craig Morgan for the secretary. He said that Blaney ignored “essentially uncontradicted evidence” from a University of Chicago professor who is an expert on political violence that release “will lead to an exponential increase in the likelihood of harm or harassment to those individuals.”

The appellate court, however, found no problem with Blaney’s conclusion.

Hamadeh ordered to pay thousands in legal fees to Mayes

Abe Hamadeh has been ordered to pay more than $42,000 in legal fees to Kris Mayes in his unsuccessful effort to convince the Arizona Supreme Court to overturn the results...

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