Court dismisses Ward election suit

Cork, Ireland

A federal judge has tossed out a bid by Kelli Ward and other Arizona would-be Republican electors to force Vice President Mike Pence to use a different procedure when counting electoral votes this coming Wednesday.

In a 13-page order, Judge Jeremy Kernodle said that Ward, who is chair of the Arizona Republican Party, and her fellow plaintiffs lack standing to even sue Pence in the first place.

He said what they want is for him to order the vice president to ignore the procedures set forward in the federal Electoral Count Act, one that should result in a finding that Democrat Joe Biden won the race with 306 electoral votes versus 232 for President Trump. That would set the set the stage for Pence, as presiding officer of the U.S. Senate, to reject the election results, certified by Gov. Doug Ducey, which found that Biden had outpolled Trump in Arizona by 10,457 votes.

Kernodle said that, in the minds of the Arizona challengers, that would open the door for Pence to decline to give the state’s 11 electoral votes to Biden — and possibly do the same in other states where Biden won. At that point, the way Ward and the other GOP “electors” see it, Pence could either count their votes for Trump despite the fact they’re not the electors certified by the governor, or refuse to count either slate, setting the stage for the House, with one vote per state, to choose the president.

But the judge said their lawsuit is based on the premise that Ducey unlawfully certified and transmitted the votes of the Biden electors. And even if that were true, Kernodle said is not the fault of Pence who is named as the sole defendant in the lawsuit.

“Plaintiffs do not allege that the vice president had any involvement in the certification and transmission of a competing slate of electors,” he said.

“That act is performed solely by the Arizona governor, who is a third party not before the court, the judge continued. “The vice president’s anticipated actions on Jan. 6 will not affect the decision of Gov. Ducey regarding the certification of presidential electors — which occurred more than two weeks ago on Dec. 14.

And Kernodle said there’s something else.

He pointed out that what Ward and the other electors want him to do is order Pence to follow a certain procedure when opening the votes, one they contend gives the vice president the “exclusive authority and sole discretion in determining which electoral votes to count for a given state.”

But Kernodle pointed out that even if he were to do that, that still doesn’t guarantee they will get the result they want: rejection of the 11 Democratic votes, whether by Pence or the full Congress. And that, he said, means they lack legal standing to bring the lawsuit.

The judge reached a similar conclusion that Republican Congressman Louie Gohmert of Texas, who also is part of the lawsuit, lacks standing to sue.

He said Gohmert intends to raise an objection on Wednesday when the electoral votes are counted for Arizona and several other states where voters chose Biden over Trump.

The Electoral Count Act then requires each member of the House and Senate to vote to resolve the objections. But Gohmert contends that violates the Twelfth Amendment which he said requires state-by-state voting, with each state having one vote, for which slate to accept, a process that likely would favor Trump.

“Members of Congress lack standing to bring a claim for an injury suffered solely because they are members of Congress,” Kernodle wrote. “And that is all Congressman Gohmert is alleging here.”

He said Gohmert is not alleging that he was denied the right to vote in the 2020 presidential election.

“Rather, he asserts that under the Electoral Count Act, he will not be able to vote as a congressional representative in accordance with the Twelfth Amendment,” the judge wrote, something Kernodle said he is legally powerless to address.

The judge also said that Gohmert’s claim suffers from the same flaw as does the one by Kelly and the other would-be GOP electors: It is based on what Gohmert believes would happen in “a series of hypothetical — but by no means certain — events.”

That ranges from what Pence will do on Wednesday in opening and counting the votes, whether any member of Congress would object, how members of Congress would vote individually if that were the process and how a one-vote-per-state result might be different.

There was no immediate response from Ward to the ruling. But the attorneys representing her, the other would-be Arizona GOP electors and Gohmert already have filed notice they intend to seek review by the Fifth Circuit Court of Appeals.

This is the second federal court defeat for Ward and that Republican “slate.”

Last month Judge Diane Humetewa tossed out claims of fraud and irregularities based on theories that Secretary of State Katie Hobbs conspired with various foreign and domestic individuals and companies to manipulate the results and allow Biden to win.

“The allegations they put forth to support their claim of fraud fail in their particularity and plausability,” the judge wrote. “The various affidavits and expert reports are largely based on anonymous witnesses, hearsay and irrelevant analysis of unrelated elections.”

That is among more than four dozen lawsuits filed by Trump or his supporters that have been rejected by state and federal courts. The U.S. Supreme Court also has turned away several appeals, though Ward is involved with two more which technically remain on the court’s docket.

Judge keeps order in place for Ward’s phone records

Kelli Ward at a campaign rally in August 2018. (Photo by Gage Skidmore/Flickr)

A federal judge won’t delay her order giving the phone records of the chair of the Arizona Republican Party to the Jan. 6 committee.

Judge Diane Humetewa said Friday that Kelli Ward failed to show there would be “irreparable harm” from the release of the information about who was calling and texting her, and who she was calling and texting. And the judge, who last month ordered disclosure, rejected claims that release of the information would “chill” the interest of party faithful in communicating with her.

But Humetewa, an appointee of former President Barack Obama, said there’s an even more basic reason she wants the records turned over – and soon.

Diane Humetewa

The judge pointed out that Ward wanted her to stay her order while she seeks review of the decision by the 9th Circuit Court of Appeals. That court has set a briefing schedule which runs into January.

Only thing is, the panel charged with investigating the events in and around the Jan. 6 riot at the Capitol is authorized only through the end of the current congressional session. That occurs Jan. 3.

“An injunction would thus make it impossible for the Select Committee to obtain the subpoenaed records,” Humetewa wrote. And the judge said that tips the legal balance in favor of Congress – and against Ward.

“There is a strong public interest in Congress carrying out its lawful investigations,” Humetewa wrote. “The public interest is heightened when, as here, the legislature is proceeding with urgency to prevent violent attacks on the federal government and disruptions to the peaceful transfer of power.”

Attorney Alexander Kolodin who represents Ward said he cannot comment on what will be the next legal move. But he said if the issue is timing, he would consider an expedited briefing schedule to ensure the case got before the appellate judges before the congressional session ends.

And Kolodin said the fact remains that the new Congress could continue the committee if it wanted.

The realistic possibility of that happening, though, is minimal given the chances Republicans will take over the House.

Panel members want T-Mobile to turn over her phone records from November 2020 through January 2021.

That includes the period where Ward prepared a slate of electors, herself included, who were pledged to vote for Donald Trump even though Joe Biden won the popular vote in Arizona and the state’s 11 electoral votes. Documents backing that up were sent to Washington.

Douglas Letter, legal counsel to the House, said the committee, studying the events leading up to the Jan. 6 riot, needs to know how Ward’s activities played into all that. That would include with whom she was in contact at the time.

“Dr. Kelli Ward participated in multiple aspects of these attempts to interfere with the electoral count in Jan. 6,” he told the court. “She told officials in Maricopa County to stop counting ballots and promoted inaccurate allegations of election interference by Dominion Voting Systems.”

In sending the set of unauthorized set of electoral votes to Congress, Letter said Ward “mischaracterized (them) as representing the legal votes of Arizona.”

And that’s not all.

“While Congress was recessed due to the mob’s violence and attack on the Capitol, Dr. Ward continued to advocate for overturning the results of the election,” Letter said, citing a Jan. 6 Twitter post. And even after the riot and congressional certification of Biden’s win, he said, Ward continued to maintain that the slate of fake electors contained “the rightful and true presidential electors for 2020.”

The subpoena seeks only the phone numbers of those who were in contact with Ward, not the actual content of the texts or conversations. Despite that, Ward argued that just the disclosure of her political contacts will “chill” the interest of members of the party in communicating with her.

Humetewa called that not just “speculative” but also “dubious,” particularly in light of what Ward already had made public about her activities.

“Ms. Ward had written a book about how she participated in sending an alternate slate of electors to Washington,” the judge noted, citing “Justified: The Story of America’s Audit,” about not just the Senate review of the 2020 vote in Maricopa County but also other legal developments.

“You will have the opportunity to see many of Kelli’s internal and external communications,” according to promotional material for the book.

And Humetewa said Ward filmed videos of the activities around this alternate slate and posted them to YouTube.

“These activities belie Ms. Ward’s concern that her communications with her constituents or colleagues will be chilled by T-Mobile’s possible disclosure of a record showing Ms. Ward called or received calls from persons during this time,” the judge wrote.

An attorney from the committee revealed at an earlier hearing that Ward invoked her Fifth Amendment privilege against self-incrimination when she was questioned by the panel’s staff. The lawyer did not say when that interview took place.