9th Circuit upholds murder convictions linked to slain Border Patrol agent

Figure in Fast and Furious ring to be sentenced
This undated photo provided by U.S. Customs and Border Protection shows U.S. Border Patrol agent Brian A. Terry. Terry was fatally shot north of the Arizona-Mexico border while trying to catch bandits who target illegal immigrants.  (AP Photo/U.S. Customs and Border Protection, File)

A federal appeals court has rejected claims by two men that they were illegally extradited from Mexico to Arizona where they were convicted in connection with the 2010 murder of a Border Patrol agent.

Judge Sandra Ikuta of the 9th Circuit Court of Appeals acknowledged that the treaty between the United States and Mexico allows extradition only according to specific terms. And, in general, it requires that the crime for which the United States seeks someone also be a crime in Mexico.

But Ikuta, a President George W. Bush appointtee, writing for the unanimous three-judge panel, said the crimes charged against Ivan Soto-Barraza and Jesus Lionel Sanchez-Meza are “substantially analogous” to similar crimes under Mexican law.

Sandra Ikuta
Sandra Ikuta

Anyway, she said, Mexico agreed to extradite the two men on all the charges listed in the indictment. And that, Ikuta said, shows that the treaty’s principles have been satisfied.

The case involves Operation Huckleberry, a 2010 effort by the Border Patrol Tactical Unit to apprehend gangs that preyed on drug smugglers in what is known as the Arizona Mesquite Seep, an area of rough terrain west of I-19 about 11 miles north of the international border.

In December of that year, Brian Terry was among six agents deployed to the area for a 48-hour operation. Terry was hit by a bullet and later died.

FBI agents at the crime scene linked rifles, backpacks and their contents to the two men along with four others who eventually were indicated on murder charges, conspiracy to interfere with commerce by robbery, assault on four Border Patrol officers, and carrying and discharging a firearm in furtherance of a crime of violence.

About a year and a half later, Mexican authorities arrested Sanchez-Meza where he was interviewed by FBI agents. He eventually confessed.

A year later Soto-Barraza confessed after being interviewed. Both eventually were extradited to the United States where they stood trial and were convicted, with a life sentence imposed on both on the murder charge and additional time for the other charges.

On appeal, attorneys for the pair cited the “dual criminality” provision of the treaty. Ikuta said it says an accused person can be extradited “only if the conducted complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations.”

There also is a list of categories of offenses.

But the judge also said there’s another provision which says extradition shall also be granted for “willful acts,” which, even though not listed, are punishable in accordance with federal laws in both countries by prison terms of at least one year.

In seeking to void the extradition, defense attorneys focused on the “felony murder” charge. That, in essence, says that someone can be charged with murder for a killing that occurs during a felony, even if that person did not actually fire the weapon.

The defense argued that the statutes listed in he treaty criminalize only “simple homicide,” and that there is no counterpart to felony murder in Mexico. They also argued that Mexican law does not punish interference with commerce by robbery of an illegal substance — in this case, drugs being smuggled across the border — and does not recognize the crime of assault on a federal official unless that person was physically injured in fear for his life.

Finally, they said the treaty precludes the government here from imposing a true life sentence as life sentences in Mexico last no more than 70 years.

Ikuta, however, said the Mexican government, in issuing the extradition orders, said the U.S. charges conformed to the terms of the treaty. And those orders, she said, found similar provisions under Mexico’s Federal Penal Code for each of the charges in the indictment.

“The principle of dual criminality does not requires that the crimes be identical,” the judge wrote. “Rather only the ‘essential character’ of the acts criminalized by the laws of each country must be the same, and the laws substantially analogous.”

The appellate court also brushed back various other challenges to the specifics of each conviction.



9th Circuit upholds ‘ballot harvesting’ ban

Wooden gavel

Calling the lack of evidence of fraud irrelevant, a divided federal appeals court on Wednesday upheld Arizona’s ban on “ballot harvesting.”

In a 2-1 ruling, the judges acknowledged arguments by the state and national Democratic parties that the Republican-controlled Legislature adopted HB 2023, the 2016 law, without any proof that anyone who was collecting ballots had, in fact, tampered with them. And the majority noted there are other state laws which have, for years, made it illegal to tamper with ballots.

But 9th U.S. Circuit Court of Appeals Judge Sandra Ikuta, writing for the majority, said none of that is required for lawmakers to do what they did.

“A state need not show specific local evidence of fraud in order to justify preventive measures,” she wrote for herself and Judge Carlos Bea, both nominees of President George W. Bush. She said courts are entitled to uphold such laws if they serve the state’s interest in maintaining public confidence in the integrity of the electoral process, “even in the absence of any evidence that the public’s confidence has been undermined.”

Ikuta also said there was no evidence that the Republican lawmakers who approved the plan acted with the intent of discriminating against minorities.

She did say there was reason to believe that the change was approved, at least in part, by “partisan considerations.” But Ikuta said that fact does not make the law unconstitutional.

In the same ruling, the majority upheld another election practice which says that if people show up at the wrong polling place, their votes won’t be counted, even those for which a person would otherwise be entitled to vote had they been in the right place.

For example, a voter who should have been in Tempe but ended up in Glendale would not have votes counted for school board. But the Democrats argued that person’s votes for statewide and county offices should count.

Ikuta said these rules impose only minimal burdens and do not disenfranchise voters.

But the 9th Circuit’s chief judge, Sidney Thomas, a President Clinton nominee, said his colleagues are ignoring the evidence presented.

“Arizona’s policy of wholly discarding — rather than partially counting — votes cast out-of-precinct has a disproportionate effect on racial and ethnic minority groups,” he wrote, unconstitutionally burdening the right to vote. And Thomas said the data produced by Democrats on the ban on ballot harvesting, complete with penalties of a year in prison and a $150,000 fine, “serves no purpose aside from making voting more difficult, and keeping more African American, Hispanic, and Native American voters from the polls than white voters.”

He pointed to claims by Sen. Don Shooter, R-Yuma, that ballot collectors steam open envelopes and decide whether to submit them based on what was inside. Even U.S. District Court Judge Douglas Rayes, who first reviewed the complaint, found that “demonstrably false,” with the trial judge saying Shooter’s views were “implicitly informed by racial biases.”

“And if Sen. Shooter was insincere, he purposely distorted facts in order to prevent Hispanics — who generally preferred his opponent — from voting,” Thomas said.

And then there was a soundless video produced by A.J. LaFaro, who was chairman of the Maricopa County Republican Party, which Thomas said showed nothing illegal but was accompanied by a voice-over from LaFaro saying the man was acting to stuff the ballot box.

Wednesday’s ruling is unlikely to be the last word on the issue.

The split decision in this case virtually guarantees that the Democrats will ask the full 9th Circuit to look at the issue.

And early next month the same three-judge panel of the appellate court will consider a separate challenge to the ballot harvesting law by Democratic activist Rivko Knox.

She contends the state law is preempted by federal statutes which specifically allow for any individual to deliver mail as long as it is done for free. And Knox said that once early ballots are in their envelopes they are mail.

That argument was rejected by Rayes, the same judge who threw out the challenge to the law by Democrats in this case.

What’s behind “ballot harvesting” is the fact that most Arizonans receive early ballots. They can be filled out and mailed back or delivered to polling places on election day.

But the law requires mailed ballots to be delivered by election day. So anything dropped in a mailbox within a week or so may not get counted.

Political and civic groups have in recent years gone into neighborhoods, asking people if they have returned their ballots and, if not, offered to take it to polling places on their behalf.

Republicans argued that presents too many opportunities for mischief, though they could not cite a single confirmed incident where a ballot was altered or did not get delivered.

Ikuta said the U.S. Constitution gives states the authority and obligation to manage the election process. And she said courts, when considering whether a regulation is permissible, has to balance the state’s interests against the burdens placed on someone challenging it.

More to the point, Ikuta said if the regulations are reasonable, courts will generally uphold them as long as they were not enacted for discriminatory reasons.

In this case, she said, Rayes found that the evidence presented showed that voters who have taken advantage of ballot collection services in the past “have done so out of convenience or personal preference,” not because of any hurdles placed in their path by Arizona law.

Ikuta also said Arizona has options for voters who may have difficulty getting to polling places, including required time off for workers and exceptions to the ballot-harvesting law allowing collection by family members, household members and caregivers.



AG to challenge court’s order to release man convicted in child slaying

Gavel and scales

A federal appeals court has ordered the state to release a man convicted of the 1994 death of a 4-year-old in Tucson.

In a unanimous opinion the judges said there was evidence that the attorneys assigned to Barry Lee Jones did not investigate evidence which suggested that the time line in the beating, sexual assault and death of Rachel Gray did not occur as prosecutors told the jury. And Judge Richard Clifton, a President George W. Bush appointee writing for the three-judge panel of the 9th Circuit Court of Appeals, concluded that ineffective assistance of Jones’ counsel resulted in a guilty verdict and a death sentence that might not have otherwise been imposed.

In the Nov. 29 order the judges ordered Jones released unless the state intends to retry him.

Barry Jones
Barry Jones

But Ryan Anderson, a spokesman for the Attorney General’s Office, said it may not come to that. He said the state intends to seek review by the full 9th Circuit and, if necessary, take the case to the U.S. Supreme Court.

And if that fails, Anderson said prosecutors will take the case back to court for a new trial.

According to court records, Jones was sharing his trailer on East Benson Highway near South Alvernon Way with his girlfriend Angela Gray, his own daughter and his girlfriend’s three children, ages 4, 11 and 14.

Early on the morning of May 2, 1994, Jones drove Angela and Rachel, the 4-year-old, to Kino Community Hospital where she was pronounced dead on arrival.

The cause was a laceration in her bowel due to blunt abdominal trauma. She also had other injuries, including a scalp laceration and evidence of sexual assault.

Richard Clifton
Richard Clifton

Jones, 36 at the time, was arrested the same day and charged with murder, sexual assault and child abuse. The jury found him guilty of all charges.

Significantly, jurors accepted the prosecution’s argument that all the events occurred within a two-hour window, which made Jones guilty of “felony murder.” That made him eligible for the death penalty and which the judge ultimately imposed.

Clifton, however, said the evidence presented about that timeline was not that clear.

More to the point, the appellate judge said that, based on testimony from others, Jones’ attorneys should have done further investigation. And he said there was a “reasonable probability” that had the lawyers challenged the timeline that the jurors might have reached a contrary result.

For example, Clifton noted, a doctor who testified at Jones’ trial later said that the abdominal injuries most likely occurred prior to May 1 and that he would have testified to that at the trial had the defense attorney asked the right questions.

It also turned out there was conflicting evidence about when the scalp injury occurred. And a doctor said that injuries as a result of a sexual assault predated the abdominal injury and may even have predated when Jones began living with Rachel and her family.

There also was inconsistent evidence between what was told to the jury in the Jones case compared with what was told to jurors in a separate trial of the girlfriend who was convicted of child abuse by criminal negligence and sentenced to 8.75 years in prison.

“`The evidence presented at the (post-trial) hearings undermines considerably the confidence in the outcome of the trial court proceedings,” Clifton wrote.

Court, state work on new legal protections related to facial recognition

Detectives in the Arizona Department of Transportation review driver's license photos using facial recognition software to help catch fraud. (Photo by ADOT)

A new federal court ruling coupled with a provision in the state constitution could give Arizonans new legal protections against the use of software by private firms that captures and stores facial images.

On paper, the lawsuit involves claims of invasion of privacy being brought against Facebook by some Illinois residents. They claim the company’s practice of scanning uploaded photos to match against those already in its database violates that state’s laws against the collection of anyone’s biometric information by a private company without informing the person and getting a written release.

The 9th Circuit Court of Appeals earlier this month rejected a bid by Facebook to have the case thrown out.

In a sometimes strongly worded opinion, the judges said there is reason to believe that such practices are an invasion of privacy rights. More to the point, the court concluded that such an invasion can be considered a harm that victims can litigate.

Arizona does not have a similar law.

Mark Brnovich (Photo by Gage Skidmore/Flickr)
Mark Brnovich (Photo by Gage Skidmore/Flickr)

But Attorney General Mark Brnovich pointed out that Arizona does have something else: a specific right to privacy built in to the Arizona Constitution. And if that isn’t enough, Brnovich said state lawmakers should take action to enact a specific statute spelling out what private companies can and cannot do with someone’s biometric information, similar to what exists in Illinois.

“I don’t think it’s too much to ask that people respect our privacy,” he said.

House Speaker Rusty Bowers, R-Mesa, actually tried to do that earlier this year with legislation to restrict putting biometric information into a database for commercial purposes and generally prohibit that information from being sold, leased or disclosed for commercial purposes without the individual’s consent.

HB 2478 cleared the House Technology Committee without dissent. But a spokesman for Bowers said he yanked the measure from consideration before it got to the House floor “to give stakeholders more time to improve it.”

Brnovich, in an extensive interview with Capitol Media Services, said it’s important to realize what’s at stake.

“We’re talking about facial recognition, voice recognition, the way you walk, your mannerisms, maybe when it starts coming down to issues like DNA and blood information,” he said. “And that’s the kind of stuff that, if it’s compromised or stolen, you can never get back.”

For example, Brnovich said, if credit card information is stolen, the user can cancel the card and get a new one.

“But if someone steals the information on my voice or voice identity, my facial patterns and stuff, that’s something that I can’t change,” he said. “And that’s something that’s lost forever.”

That’s exactly the logic used by Judge Sandra Ikuta in writing the unanimous opinion for the 9th Circuit – the federal appeals court whose rulings govern 10 western states including Arizona – in allowing the lawsuit against Facebook to proceed.

In her example, Ikuta, a President George W. Bush appointee, talked about a social security numbers being compromised by hackers. In that case, she said, someone can get a new number.

Sandra Ikuta
Sandra Ikuta

“Biometric data are biologically unique to the individual,” Ikuta wrote. “Once compromised, the individual has no recourse, is at a heightened risk for identify theft, and is likely to withdraw from biometric-facilitated transactions.”

Brnovich said the possible harms go far beyond that, saying that once someone has digitized a person’s face, voice and mannerisms, it’s a small step to use artificial intelligence to create an image that mimics someone’s behaviors and patterns.

“There’s something really creepy about that,” he said.

According to court records, the specific issue here involves Facebook’s practice to analyze uploaded pictures to see if they contain faces.

If so, Ikuta said the technology extracts various geometric data points that make a face unique, like the distance between the eyes, nose and ears to create a face signature or map. Then the technology compares that to other faces in its database of face templates to see if there is a match, at which point Facebook may suggest “tagging” the person in the photo.

Ikuta said that process creates privacy concerns.

“Once a face template of an individual is created, Facebook can use it to identify that individual in any of the other hundreds of millions of photos uploaded to Facebook each day, as well as determine when the individual was present at a specific location,” she wrote. “Facebook can also identify the individual’s Facebook friends or acquaintances who were present in the photo.”

And it’s not just what can happen now she said, given how technology is developing.

“It seems likely that a face-mapped individual could be identified from a surveillance photo taken on the streets or in an office building,” Ikuta said.

“Or a biometric face template could be used to unlock the face recognition lock on the individual’s cell phone,” she continued. “We conclude that the development of a face template using facial-recognition technology without consent (as alleged here) invades an individuals’ private affairs and concrete interests.”

And that kind of conduct, Ikuta said, is grounds for litigation.

A spokesman for Facebook told Capitol Media Services the company plans to appeal the 9th Circuit decision allowing the lawsuit to go forward.

“We have always disclosed our use of face recognition technology and that people can turn it on or off at any time,” the spokesman said.

Brnovich said, though, that an issue in these kind of cases is how easy or hard it is to opt out.

In fact, he wrote to Facebook last year complaining that it took 21 different clicks and screens for someone to be able to opt out of the company’s data collection policies. The company subsequently agreed to make some changes.

That, however, still leaves the question of what rights Arizonans already have to sue over their images being collected, digitized and stored.

It starts with the Arizona Constitution Article 2, Section 8: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

“I have always believed that because we have that right to privacy that provides us more protection than the Fourth Amendment does,” Brnovich said, with the latter covering “unreasonable search and seizures” and requiring government agents to first obtain a warrant.

Still, he conceded, it remains unsettled law to exactly how broad is that right to privacy, especially when it is being invaded not by a government agency but by private corporations. And complicating matters, he said, is that the lines are not clear.

“One of the things that we have recently seen is government working with Big Tech and internet service providers to get information that affects individual rights,” Brnovich said. “So we’re starting to see that line blur a little bit more and more when government is using Big Tech and internet service providers to pretty much do its bidding.”

If nothing else, Brnovich said there needs to be a clear state law about how private companies can use information, particularly if they are making money selling it to others.

“Well, if that’s the case, I should have some sort of property right,” he said.

“So if companies want to buy it, collect it, trade it, sell it, whatever they’re going to do with it, then I should know about it and maybe, ultimately, be provided some sort of compensation for it,” Brnovich said.

Court: ‘Ballot harvesting’ ban not 1st Amendment violation


A federal appeals court has rebuffed yet another attempt to void the state’s 2016 ban on so called “ballot harvesting.”

In a unanimous decision, a three-judge panel of the 9th Circuit Court of Appeals rejected arguments by Democrat activist Rivko Knox that making it a felony for her to take someone else’s ballot to polling places interfered with her First Amendment rights. And the judges were no more sympathetic to her contention that the Arizona law illegally infringed on the right of the federal government to regulate who can deliver mail.

This is the second appellate court defeat for those who are opposed to the law. The judges have previously rejected arguments that the statute banning ballot harvesting is legally unjustified because there is no evidence that the practice resulted in fraud.

The fight is over what had been the practice of some political and community groups of going door-to-door ahead of elections to ask people if they already had mailed back their early ballots. If not, the volunteers would offer to deliver them, especially if the election were only a few days off and there was no guarantee that mailing them would get them to county election officials on time.

In 2016 the Republican-controlled Legislature voted to make the practice a felony, with penalties of up to a year in state prison and a $150,000 fine. Backers said they were concerned that allowing just anyone to pick up ballots could lead to fraud or mischief.

When the first challenge was rebuffed by a federal judge, Knox came back with a new legal theory.

In essence, she argued, the collection of early ballots is “expressive conduct” protected by the First Amendment. The message, Knox said, was her support of widespread voting by mail and that voting is so fundamental that she is committed to helping people exercise their right to vote no matter for whom they vote.

But appellate Judge Sandra Ikuta, writing for the court, said Knox failed to prove that the conduct of collecting ballots “would reasonably be understood by viewers as conveying any of these messages or conveying a symbolic message of any sort.”

Ikuta, a President George W. Bush appointee, was no more sympathetic to Knox’s claim that she was engaged in delivery of something newsworthy entitled to First Amendment protections. The court acknowledged that early ballots, once filled out, do constitute the speech of the voters, that does not mean that Knox, had a constitutional right to deliver that “speech.”

Federal agency takes abortion stance, says life begins at conception

The U.S. Department of Health and Human Services has changed key language in its newly released draft strategic plan that puts the department in the center of the heated debate over abortion.

In the new draft report, the HHS states the department will protect Americans, “at every stage of life, beginning at conception.” This is a change from previous plans, which instead use the phrases, “throughout the lifespan” or simply “at every stage of life.”

The word “conception” did not appear anywhere in the last five strategic plans, which span over 15 years. The phrase “every stage of life” started gaining popularity in the 2007 strategic plan and was used prominently in both the 2010 and 2014 plans.

This change has been widely interpreted from both sides of the abortion debate as a sign of the HHS position on abortion and the entry of the department into a highly politicized arena.

“I think a federal agency injecting themselves into this kind of conversation is really disappointing,” said Jodi Liggett, vice president of public affairs for Planned Parenthood Arizona. “There is so much work to do, I don’t know why they want to engage in the culture wars that have divided this country.”

However, the change was lauded by pro-choice activists, including the Center for Arizona Policy, a nonprofit advocacy group.

Cathi Herrod
Cathi Herrod

“There is no question that the beginning of life really is at conception,” said Cathi Herrod, president of the Center for Arizona Policy. She disagreed that the change was inappropriate for the HHS, saying that it is directly in line with the mission of the department to protect life at all stages.

The potential impacts of this change are less clear. There are not any direct policy implications. However, both Liggett and Herrod saw it as a reflection of the federal government’s stance on abortion.

“It’s one of those death by one thousand cuts things,” said Liggett. “You occupy government and you make it as hostile as possible for things that you’re against.”

The Arizona Health and Human Services Department strategic plan does not include similar language. But, Herrod says even so, Arizona and its HHS department have clearly established public policy that values human life, beginning at conception.

All references to the LGBTQ community have also been removed from the newest HHS plan, which is a significant change from the 2014 plan. In the past two plans, the LGBTQ community was included in the list of vulnerable communities that may face problems in seeking health care. Sections of the plan focused on how to address these issues.

However, the newest plan is in line with the last two plans that were created under a Republican, President George W. Bush, which also did not include LGBTQ individuals as a vulnerable population.

Another group that saw decreased mention in the new plan is refugees, which were addressed a number of times in the 2014 plan. In contrast, the word refugee appears once in the latest proposed plan.

John Phelps: Politically independent former Army lawyer


John Phelps is retiring. Again.

The 25-year U.S. Army veteran left the military in 2003, only to plunge right back into service with a stint at the Red Cross, the administration of former Arizona Gov. Janet Napolitano and three years under President George W. Bush in Washington, D.C., before settling in Arizona for the past 10 years as chief executive officer of the State Bar of Arizona. He plans to retire from the State Bar on February 1.

Cap Times Q&AYou describe yourself as an Army brat. Your dad served for 30 years. Did that influence your decision to serve?

I was certainly influenced by my dad. He didn’t push me at all, but I certainly admired my father and his commitment to service. My younger brother Jim was also a career Army officer, so there were two of us that went into the Army, and both of us, my brother and I both went to college on ROTC scholarships, so that was a big part of my journey – giving back to the Army what they had given to me in terms of education. And then once I got in the Army, I found that I really enjoyed that as a career. The Army sent me back to law school. They continued to educate me beyond college, so I owe an awful lot to my career in the Army.

After all those years traveling, how’d you wind up settling down in Arizona?

I started off as a military intelligence officer, and it was during the Cold War and so I spent some time over in Germany worrying about the Soviet Union. Then I was offered this opportunity by the Army to go to law school, and the Army paid for me to go to law school and then transfer into the legal corps, the judge advocate general’s corps. So I was fortunate to get that opportunity. They sent me to the University of Arizona. … My dad had retired in Arizona down in Sierra Vista, so we had some family here, and so it made sense for us to come here, but I had been in Arizona in addition to visiting family as a military intelligence officer, my basic officer training was in Fort Huachuca down in Sierra Vista as well. …Of course the Army in its infinite wisdom, after I spent three years at the University of Arizona, took the bar exam here in Arizona, got licensed to practice here in Arizona, I never set foot in Arizona again until I retired from the Army in 2003.

What kind of legal work does a lawyer for the Army do?

I had a series of assignments until 2003, and a whole host of different jobs in different locations. I was a prosecutor for a while, I did some administrative law, I did some international law in the Pacific. The Army sent me back to school a third time to get an advanced degree in constitutional law, and I taught constitutional law at West Point, the U.S. Military Academy. And my last tour in the Army, I served in Washington, D.C. as the chief of staff of the Army Legal Services Agency, which is, for a lack of a better description, the Army’s big law firm. It’s the part of the organization that handles all the litigation worldwide for the Army.

How is all that different than serving in private practice?

It’s a public lawyer position, being a judge advocate. So like other public lawyers — county attorneys, folks that work in the Attorney General’s Office, people that work for the U.S. attorney, lawyers that work for state and federal government — one of the attributes of that kind of practice is that you don’t have to worry about billable hours. You don’t have to worry about making money for the firm. And those are fine things, private law firms have to make money, have to generate revenue, and those are fine things. You come to work every day and you do the work that needs to be done to support and serve the public, and I really appreciated that. And the work in the Army, for me anyway, I think was even more rewarding because of the Army culture, the sense of camaraderie and teamwork, and just the traditions and culture of military service were something that I really grew to love. …You’re a soldier first and a lawyers second.

What’d you do after your first retirement in 2003?

I ended up working as the deputy director for Homeland Security in Governor (Janet) Napolitano’s administration. She was just starting the Office of Homeland Security kind’ve following 911, so I was part of the founding organization, the charter organization that now has since grown into a department.

Then there was a stint with the Red Cross (during Hurricane Katrina, no less), before you went back to work for the government, but this time for a Republican.

An old Army friend of mine, his wife was being appointed by (former President) George Bush to run the General Services Administration, and he called me and asked if I’d be willing to come back to Washington to serve as the chief of staff of that agency. That was an offer that was tough to refuse, so we knew there was a beginning and an end to it because it was a political appointment, so we went back to Washington for the last three years of the Bush administration. That was a great experience. … I had an opportunity to see how the sausage gets made, and after that experience I couldn’t wait to get back here to Arizona.

Was there a big difference between those two administrations?

I happen to actually be and have always been a registered independent. I’ve never been a part of any political campaign, so it’s kind of ironic that I wound up being a political appointee to two different parties in two different administrations. I think certainly working at the state level, working at the Governor’s Office, is much for tactical and local. You are working with people all over the state, and the federal government is even more dilated… People at the state level might find that hard to believe — can anything be messier? — but it’s messy when you’re trying to coordinate so many different entities and move in a common direction.

Judge skeptical law racially discriminates against Native American voters

(AP Photo/J. Scott Applewhite, File)
(AP Photo/J. Scott Applewhite, File)

The fate of a voting rights lawsuit could depend on whether a federal judge believes current practices discriminate against Native Americans or just people who live in rural areas.

Bret Healy, an expert witness for members of the Navajo Nation, testified Tuesday on how much more time it takes for an early ballot to be received at reservation addresses than in cities. On top of that, Healy said it can take up to 10 days for something mailed from certain reservation locations to make it to the county seat to be tallied.

He told Judge Murray Snow that this gives reservation residents far less time to consider their options before they have to mail them off. And in some cases, Healy said, it is physically impossible for a reservation resident to get a ballot, mark it, mail it back and have it received by the current deadline of 7 p.m. Election Day.

All that is relevant because attorney Chris McClure wants Snow to order that any ballot from a reservation address postmarked by that deadline has to be counted, even it does not arrive at county election offices for days later. He contends the current state deadline violates federal voting rights laws because it discriminates against Native Americans.

Murray Snow
Murray Snow

Snow, however, said he’s not sure it’s that clear and simple.

He said the issue of having less time to return early ballots and get them in on time applies “whether you’re Navajo, whether you’re Hopi, whether you’re Caucasian, Latinex.”

“It’s a matter of geography,” Snow said.

McClure did not dispute that point. But he said the research shows a high correlation between the reduced time to vote early and the Navajo Nation.

“And I think similar situated tribes would probably fall under the same problem,” McClure added.

The effect on Native Americans is crucial to McClure winning his case.

Federal law says that states may not take actions that have a “disparate effect” on what the law calls “suspect” classes. These are groups that have been the historic victims of discrimination.

Without that evidence of disparate effect, McClure cannot use the Voting Rights Act to demand changes to state election procedures.

Snow was clearly skeptical of the claims about this being about race, saying that non-Indians in rural areas — and even those living on reservations — would have the same burdens. McClure, however, said the issue should be seen from a different perspective.

“Just because the Native Americans live in more desolate areas, have less resources available … does not justify having it be harder for them to vote based on their geography,” he said. And McClure said it’s not like the shorter time they have to return their ballots is their fault because they chose to be further from urban areas and in places with slower mail service.

“They have done nothing to impact their opportunity other than to live on the lands that have been their tribal lands forever, essentially,” he said. “And that should not be some reason they lose the opportunity to have their votes counted.”

Attorneys for Secretary of State Katie Hobbs, who is asking Snow to dismiss the lawsuit, did not dispute that mailings to and from many reservation addresses take longer. But Marty Harper, one of her attorneys, said this has nothing to do with actions by the state — or the requirement for ballots to be in the hands of county officials by 7 p.m. on Election Day to be counted.

Harper told Snow that challengers must first show the deadline itself causes a discriminatory burden on Navajo Nation members living on the reservation. And then, he said, they have to show some connection between the deadline and any social and historical inequities that have been suffered by tribal members.

He said there is no such evidence.

And Harper said there’s another factor that Snow has to consider.

“Plaintiffs must show a discriminatory intent or purpose, or a substantial or motivating factor behind the law” which sets out the deadline for receipt of early ballots, he said. “And they don’t.”

McClure, however, argued the legal test is different. He said the key is whether members of the tribe have a way to vote in a way that gives them the same opportunity as those who are not Native Americans. And he said there is clear evidence of how non-reservation residents can mail ballots at the last minute and have them counted while those living on the reservation not only get their early ballots later but then have less time to mail them back in time to be counted.

That factor, McClure said, is further amplified by the fact that many reservation addresses have no home mail service with residents having to actually drive somewhere to pick up their ballots, bring them home, fill them out and then get them back to the post office.

State Elections Director Bo Dul told Snow that any ruling to county ballots from reservation addresses not received by Election Day would cause additional voter confusion. She said it would give voters incentive to put their ballots in the mail, even close to Election Day, “rather than taking it to a polling place where they can be sure it will be received on time.”

Snow gave no indication when he will rule.


Senate panel moves to block private funds for elections

In this Oct. 23, 2019, file photo, Facebook CEO Mark Zuckerberg testifies before a House Financial Services Committee hearing on Capitol Hill in Washington. (AP Photo/Andrew Harnik, File)
In this Oct. 23, 2019, file photo, Facebook CEO Mark Zuckerberg testifies before a House Financial Services Committee hearing on Capitol Hill in Washington. (AP Photo/Andrew Harnik, File)

Raising the specter of Mark Zuckerberg influencing who holds office in Arizona, Republican lawmakers moved Monday to block counties from taking money from any private source to help run future elections.

The party-line vote by the Senate Government Committee on HB2569 follows the disclosure that nine Arizona counties got more than $6 million last year from the Center for Tech and Civic Life. Jennifer  Marson, executive director for the Arizona Association of Counties, said the grants were to help defray some of the costs of running an election during the Covid pandemic.

Marson pointed out to legislators that the four of the nine counties had Republican majorities, four had more Democrats and voter registration is close to evenly split in Maricopa County. And in each case, she said, the grants, including how the money would be spent, were approved by county supervisors.

But Scott Walter, a former special assistant to President George W. Bush who now heads the Capital Research Center, said that doesn’t prove anything.

Walter, whose organization that says it studies unions, environmental groups and nonprofit and “activist” groups, said Republicans did better in turnout in 2020 than prior years in the six counties which didn’t get CTCL grants.

“But in funded counties, Democratic turnout rocketed upward,” he said. “Funding a county helps Democrats almost twice as much as it helps Republicans.”

More to the point, he said in those nine funded counties, Democrats beat Republicans by close to 122,000 votes, far more than the 10,457-vote edge that Joe Biden had statewide over Donald Trump.

But in the nine counties that got the money, Democrat turnout in 2020 “rocketed” to far higher levels than what they were in prior election cycles.

“And that’s not just the case here,” Walter said, saying that counties in other states where CTCL grants were given “miraculously performed enormously better for Democrats than counties that did not receive funding.”

Aimee Yentes, lobbyist for the Arizona Free Enterprise Club, which tends to support Republican causes, said that’s no accident: CTCL reported that $400 million came from Zuckerberg and his wife, Priscilla Chan.

“There’s no mystery about his political leanings,” she said. “We’ve seen these biases infiltrate his social media platform and the curation of content, in filtering of conservative messages and outright bans of individuals with opposing political opinions.”

Sen. Martin Quezada, D-Glendale, said the grants in each case were aimed at funding election administration. For example, he said, CTCL said it was financing drop bosses, drive-through voting, renting and cleaning new polling places and equipment for handling mail-in ballots.

“They aren’t saying, ‘You should vote one way or the other,’ ” Quezada said. “They aren’t saying that one group is correct, one group is not.”

Sen. J.D. Mesnard, R-Chandler, said he’s surprised that Democrats are OK with these outside grants.

“If this model of influence sort of works out in one party’s favor in one instance, the other party’s going to be right back at it the next time using the same tools,” he said. “And this will cascade into a brand new way that outside influence, particularly from extremely wealthy people, can very covertly, influence our elections.”

Quezada said the real story is more complex.

He said it starts with the lies that are told about how the election was mishandled, how the election was “stolen” and how they can’t be administered fairly.

“And then we turned around and denied that funding to our local governments,” Quezada said.

But he did say that the supporters of the legislation are right on one point: More money on voter education does influence turnout.

“When more people vote, the people with weak policy arguments lose,” Quezada said.

Sen. Kelly Townsend, R-Mesa, said there are larger issues here.

“Would we be OK if that money came from Russia or any other hostile country, or not hostile?” she asked, such as Canada. “If we wouldn’t be OK with international contributions to our elections, why should we be OK if it’s a millionaire or a billionaire?”

The measure, which already has cleared the House, now goes to the full Senate.

This isn’t the first time Republican interests have argued that Zuckerberg influenced the results of the 2020 election.

A lawsuit filed last December in Maricopa County Superior Court challenged the results of the presidential election saying the money from the Facebook billionaire deliberately skewed the vote here for Biden.

Attorney David Spilsbury, representing four Arizona residents who identified themselves as members of something called the Arizona Election Integrity Association, said Zuckerberg’s money was designed to create a “two-tiered treatment of the American voter,” putting funds into “progressive strongholds” to turn out more voters.

But Spilsbury dropped the lawsuit after the Secretary of State’s office said the lawsuit was without legal merit and threatened to pursue legal fees and sanctions against him.

Shawnna Bolick: A 2008 political awakening

Shawnna Bolick
Shawnna Bolick

Rep. Shawnna Bolick could have been a journalist. Or a lawyer. Or a doctor. Instead, she chose to pursue a career in politics, but she’s not the only one in her family in Arizona government.

There’s a Bolick in all three branches, a fact House Speaker Rusty Bowers told Bolick is “scary.” The Phoenix Republican is in the Legislature, her husband, Justice Clint Bolick, is on the Supreme Court, and their son, Ryne, is the current vice president of the Governor’s Office of Youth, Faith and Family.

Bolick said growing up she was the black sheep of her family. She was the only registered Republican of her Roman Catholic family in Pennsylvania who did not talk politics or religion in the household, something that remains true today, but maybe not by choice.

She’s also an avid traveler and a published author, but nothing competes with the challenges of politics.

You had two unsuccessful runs for the Lege, but got elected on your third try. What was different that time around?

I didn’t do much different. I focused on doors and meeting people. I set it straight for my kids that persistence pays off and if you want something you keep working for it. I got kicked twice (lost by 654 votes in the 2010 primary, and 2,585 votes in the 2014 election) and I think I won by 3,000 votes this last time. (Actual number is 1,869). I think I earned my way here and worked hard. Focused on precincts and looked at old data

What were your expectations going into your first legislative session?

With the numbers we have you couldn’t really move the needle too far on anything so I didn’t expect us to do a whole heck of a lot. We are kind of on auto pilot for the next year as a Republican.

You’ve worked for Rick Santorum and Rick Perry and have met countless other politicians, including George W. Bush. Are there any politicians that you admire?

Not one really stuck out, but I love the fact that [Rudy] Giuliani fought for school choice in New York. It’s the biggest public school system and he fought for it. I don’t agree with him on a lot of other issues, but he was a great mayor; a strong leader. I worked with two politicians who are both named Rick; I don’t know what that says about me.

Did you ever interact with W?

I met him on Election Night. I have a picture of myself, my husband and him in March of 2001 over in the old executive office building. And I had a foot surgery the day before so there’s a picture of me with a cast on … I never really interacted with him. We would chit chat, and Election Night was just celebratory.

Do you remember the exact moment where you knew you wanted to pursue a career in politics?

Well, I didn’t like [President Barack] Obama’s policies. And that’s actually when I started to get engaged. My kids were born in 2002 and 2004 and I needed to take some time away to focus on family after my kids were born. I was a stay-at-home mom, but I also had a job. I stayed up late doing research for groups I worked for. I didn’t want to turn my mind off because that would not be the best solution for myself or my kids. In 2008, watching that election I definitely got more lit up about getting involved again and now, here I am. I worked extremely hard to get here and last year on the campaign trail I probably personally went to about 18,000 houses myself, so I’m working very hard already. LD20 is purple at this point, and is trying to swing outside of the Republican realm. When it was drawn it was pretty red. Arizona is a gem and I don’t want to see it turn too far to the middle – or purple.

What are the challenges of you being in the Legislature and your husband, Justice Clint Bolick, being on the Supreme Court?

We don’t talk much, let’s just say that. Our schedules don’t match up. I can’t even ask him for advice, which stinks because some issues might go to him … I think I did pretty good this session on my own without having a pro bono attorney help me.

Do either of your kids want to get into politics?

We really hope [our son] doesn’t, but he is a great debater. He’s got great logic and facts behind him whenever he debates an issue. He’s a lot like I was as a teenager. We went to see U2 at the Rose Bowl last year, and he saw some lady with a big Bernie Sanders and Socialism sign and he went over to have a conversation and asked if she truly knew what socialism was and gave her some examples on what could happen and explained what the Libertarian Party was, so it was kind of funny. I like to engage my kids as much as possible. My daughter [Kali] is in ninth grade now, so she’s just starting to think about different issues and where she stands. Her views will evolve like my son’s have. I just hope my son stays on the engineering track; and my daughter wants to go to medical school. We are hoping they both stay local and at least one goes to ASU’s Barrett School.

So you are also a published author.

Oh yeah, I wrote a book in 2004. It took me a couple of years to write it. …I traveled all over Arizona with my kids. …And before my son was born, I started researching places I would want to go with him anything from indoor mall play areas to a museum. It was a very research, detail-oriented project and I didn’t realize I was doing a book when I started. I was creating a binder of things to do and had it organized for around the state. It was published in 2004, and I did a small book tour.

Which was more challenging – writing a book or working in politics?

Definitely being in politics. It’s more time consuming.

State Supreme Court rejects GOP bid to void election

Voters deliver their ballot to a polling station, Tuesday, Nov. 3, 2020, in Tempe, Ariz. (AP Photo/Matt York)
Voters deliver their ballot to a polling station, Tuesday, Nov. 3, 2020, in Tempe, Ariz. (AP Photo/Matt York)

The state’s high court late Tuesday threw out a bid by the head of the state Republican Party to void the results of the presidential race.

In a unanimous ruling, the justices said that Kelli Ward failed to present any evidence of misconduct or illegal votes in the tally that found Joe Biden had outpolled Donald Trump in Arizona.

Chief Justice Robert Brutinel, an appointee of former Gov. Jan Brewer writing for the court, said Ward, who has the burden of proof when challenging an election, provided no evidence that the electors pledged to Trump got more votes than those pledged to Biden “let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”

Brutinel acknowledged, as did the trial judge, that there were some errors made when damaged or ballots with extra marks had to be redone by hand so they could be fed through counting machines.

But he said that a random check of 1,626 of these ballots ordered by the trial court found an error rate of as little as 0.37% or as much 0.55%. Extrapolating that out to the 27,869 ballots that had to be duplicated, Brutinel said it would have gained Trump just 103 votes or, at best, 153 votes, “neither of which is sufficient to call the election results into question.”

The justices, all Republicans and a conservative independent chosen by Republican governors,  also rejected claims that signatures on mail-in ballots did not match. They noted that a sample of 100 signatures was reviewed by forgery experts “but neither could identify any sign of forgery or simulation and neither could provide any basis to reject the signatures.”

Robert Brutinel
Robert Brutinel

“Elections will not be held invalid for mere irregularities unless it can be shown that the result has been affected by such irregularities,” Brutinel wrote. “The validity of an election is not voided by honest mistakes or omissions unless they affect the result, or at least render it uncertain.”

Tuesday’s ruling does not end the legal fight.

Separately, a federal judge hearing a different case on Tuesday questioned her legal ability to overturn the results of the election that declared Joe Biden the winner of the state’s 11 electoral votes.

“The election results were already certified,” said U.S. District Judge Diane Humetewa. “The governor has already transmitted the same to the United States Archivist.

In fact, Humetewa told attorney Julia Haller who is representing the challengers that federal courts in other states have thrown out nearly identical lawsuits seeking an order to decertify their results. She said they concluded there is no federal law being violated that would give them the ability to issue such an order.

“What makes this different?” she asked.

Haller said federal courts can review state election matters. And as to timing, she said that the 2000 U.S. Supreme Court ruling in the Florida election contest between George W. Bush and Al Gore was decided after that state certified its results.

But the heart of Haller’s arguments Tuesday came down to what she said is the weight of the evidence that something went wrong, not just here but in other states where she has gone to court.

“We have seen that a combination of individual anecdotal evidence, together with statistical proof, is the standard to show when broader remedial relief is justified,” she told the judge.

Diane Humetewa
Diane Humetewa

That argument was disputed by attorney Justin Nelson, representing the secretary of state and the governor.

He told Humetewa there are a host of legal problems with the claim that Haller filed on behalf of the 11 would-be Republican electors, issues including whether federal courts have jurisdiction over what are claimed violations of Arizona election.

The bottom line, he said, is that the challengers are not entitled to have a federal court set aside the election.

“The courts cannot turn the clock back and create a world in which the 2020 election results are not certified,” Nelson argued. More to the point, he said the lawsuit has an ulterior motive.

“This case is an attempt to undermine our confidence in the system with no basis in law or fact,” Nelson said. “They are using the federal court system in an attempt to undermine the rule of law and obtain breathtaking, startling and unprecedented relief to overturn the will of the people.”

Haller is trying to keep the case alive so she can present what she called “concrete evidence of widespread voter fraud.

Much of that is based on complaints about the Dominion Voting Systems software and equipment.

She said there is mathematical evidence of an “injection” of votes for Biden at specific times on election night. And that, said Haller, goes to how Dominion, a company challengers have said has ties to foreign countries and staffers who are hostile to Trump, uses an algorithm to tally votes rather than actual votes, all of which she claims provided artificial support for Biden.

Nelson, however, said claims about how Dominion is operated and even whether it sends data out of the country is irrelevant as there is no hard evidence showing any actual fraud occurred in Arizona. Then there’s the fact that a random hand count of ballots — the actual papers filled out by voters — meshed 100% with what the machines recorded.

President-elect Joe Biden
President-elect Joe Biden

Haller said her evidence goes beyond that, including a claim that more than 86,000 early ballots were returned by people but never recorded.

That number, however, is based on a phone survey of voters done by someone retained by the Trump campaign who asked people whether they sent in their ballot. The estimate comes from extrapolating out what that survey concluded.

But Nelson is arguing that is highly unreliable.

For example, he said it could include people who didn’t get their ballots in the mail on time. And then there’s the issue that the survey, conducted two weeks after the election, might result in people who “lied or misremembered.”

And then there’s the fact that the survey doesn’t suggest that these missing ballots — assuming there really are that many — would have favored Trump.

Haller has other allegations, including nearly 220,000 other votes she claims were fraudulently recorded for voters who, using that same telephone survey methodology, claimed they never requested mail-in ballots.

If Humetewa does not immediately dismiss the case on legal grounds she has agreed to allow Haller to present whatever evidence she has at a Thursday hearing.

President Donald Trump speaks during a ceremony to present the Presidential Medal of Freedom to former football coach Lou Holtz, in the Oval Office of the White House, Thursday, Dec. 3, 2020, in Washington. (AP Photo/Evan Vucci)
President Donald Trump speaks during a ceremony to present the Presidential Medal of Freedom to former football coach Lou Holtz, in the Oval Office of the White House, Thursday, Dec. 3, 2020, in Washington. (AP Photo/Evan Vucci)

Less clear is what the judge might do if she does conclude there is evidence of misconduct or fraud.

Most immediately she could order the governor and secretary of state to decertify the returns.

That would leave Biden without the state’s 11 electoral votes. But he may not need them to remain at at least 270 electoral votes if similar election challenges elsewhere fail.

Then there’s the question of whether that would allow the Republican-controlled legislature to shift the electoral votes to Trump.

House Speaker Rusty Bowers said that’s not a legal option, saying state law spells out that the only legal electors are the ones who were certified. Anyway, he said, there aren’t the votes to bring the legislature into special session ahead of Jan. 6, the day Congress will tally all the electoral votes.

Haller also wants a court order seizing all servers, software, voting machines, tabulators, printers, logs, ballot return envelopes and all election materials. And she ultimately wants a full manual recount of early ballots or at least a “statistically valid sampling.”

Editor’s note: This story and the headlined have been revised to include additional information about the Arizona Supreme Court’s decision.