Karen Fann | Arizona Capitol Times

100 days of session and no end in sight

Senate President Karen Fann is pursuing what a fellow Republican lawmaker calls “the impossible dream” – a truly bipartisan budget with spending priorities that reflect Republican and Democratic priorities.

Senate Minority Leader David Bradley is still waiting for an invitation to the negotiating table.

Meanwhile, Gov. Doug Ducey wishes everybody would just shut up.

Such is the state of budget negotiations as Arizona lawmakers near the 100th day of session. They will meet that milestone on April 23, a benchmark that historically signals that their work is coming to a close. It can also serve as a reminder to hustle up and pass a budget, the only responsibility that’s constitutionally required of senators and representatives.

But with big-ticket items dealing with taxes and controversial fees still up for debate, leadership in both chambers say they have yet to settle on an agreed estimate of state revenues – meaning they don’t yet know how much they’ll have to spend in Fiscal Year 2020.

Some lawmakers close to the budget negotiations predict a long summer spent at the Capitol.

Gov. Doug Ducey gives his 2019 State of the State address on January 14, with Senate President Karen Fann and House Speaker Rusty Bowers looking on. Ducey faces fierce opposition from Republican leaders over his budget proposal. PHOTO BY ROSS D. FRANKLIN/ASSOCIATED PRESS — Gov. Doug Ducey gives his 2019 State of the State address on January 14, with Senate President Karen Fann and House Speaker Rusty Bowers looking on. Ducey faces fierce opposition from Republican leaders over his budget proposal.
PHOTO BY ROSS D. FRANKLIN/ASSOCIATED PRESS

So does Ducey, if that’s what it takes.

“From our standpoint, we in the governor’s office don’t sine die. We always say that we’re here all year round, and we think that members understand the budget is the most important thing we do all year,” said Ducey spokesman Patrick Ptak.

For now, Ducey would at least be satisfied if lawmakers stopped chatting with reporters. Their airing of budget grievances in the Yellow Sheet Report, a sister publication of the Arizona Capitol Times, has drawn the governor’s ire.

“Reading the Yellow Sheet every day, it sure does seem like there are some who are wanting to negotiate the budget through the media, and we prefer not to do that,” Ptak said. “We want to be respectful of the process, and of members and of legislative leadership.”

That didn’t stop Ptak from disputing claims by some legislative Republicans that the governor has backtracked from apparent consensus in negotiations. Rep. Regina Cobb, the House appropriations chairwoman, said negotiations took “one step forward, two steps back” thanks to the governor’s shifting positions.

Ptak said that’s not accurate, and that both the Legislature and the governor have provided wiggle room in negotiations.

But Cobb’s comments echo complaints from Senate Republicans, who have bemoaned since January that Ducey’s budget proposal found ways to spend or save all of a roughly $1 billion surplus in state revenues. Fann, a Prescott Republican, said that’s part of the reason why she’s pushing for the Senate to propose its own spending plan.

“If you look at the governor’s budget, most of that money was all eaten up, and both the House and Senate members are saying, ‘What about us?’” Fann said. “So we’re just taking this opportunity — all of the senators, Rs and Ds over here — that we’re going to say, ‘We’re just going to start putting together our own budget here, so we can start plugging in some of our priorities.’”

Fann’s effort at bipartisanship drew praise from colleagues on both sides of the aisle. Sen. David Farnsworth, a Mesa Republican, said he is excited at the prospect of the Senate working on its own proposal with Democratic input.

“It’s a lot of hard work, but I think the best legislation that goes out of here is bipartisan legislation,” he said. “It’s challenging, but we certainly should be working in that direction.”

As an eight-year veteran at the Legislature, Sen. Martin Quezada knows that budgets are typically Republican-only affairs, and the Glendale Democrat noted that Fann has spent more time on outreach to Democrats than previous Senate presidents.

Quezada remains open-minded, but skeptical of the new approach.

“A lot of it really could just be posturing to spur the discussions amongst the Republican caucuses and the governor’s office. I think that would be a good way to get those conversations moving – is to threaten that ‘I’m going to put out a budget with Democrats,’ especially if it’s something that could possibly get done,” he said.

Bradley, D-Tucson, said he, too, is encouraged by Fann’s remarks, but is waiting for meaningful follow through. Fann promised that’s coming soon.

“Although we are not yet at the table, we welcomed President Fann’s recent comments about her desire to work with Democrats to craft a budget and we are ready to work with Gov. Ducey and Republican leadership if asked,” Bradley said.

But Rep. John Kavanagh said that’s politically impossible.

Even when Republicans promise individual Democrats to include some of their big wishes, they rarely vote for the budget or for more than one portion of the spending plan, said Kavanagh, R-Fountain Hills.

“Chances are you will lose more Republicans by granting that one or two rogue Dems their wish,” Kavanagh said. “And in the end, they’re not there to help you anyway. Philosophically, we’re too divided to have that kind of agreement.”

The increased budget chatter is a sign of the times in more ways than one.

Lawmakers aren’t just racing against the clock, feeling the pressure of hitting the 100-day mark. They’re also dealing with the makeup of the House and Senate. Republicans still hold majorities in both chambers by one and two votes, respectively.

That’s enough to pass a budget without help from Democrats, as is usually the case, but with no room for error in the House.

Ptak acknowledged that the narrower-than-usual partisan divide plays a role in how Ducey is approaching this year’s budget, and why the governor has been in contact with everyone.

“(Given that) this is a new Legislature and makeup and a very different fiscal situation that the governor has had for a budget, we have worked to involve members of both parties really from the beginning,” Ptak said.

That approach doesn’t mean the governor’s priorities are dictated by the narrow party divide, Ptak added: “I wouldn’t characterize it as putting forward priorities for the sake of them being bipartisan … We want to make sure we’re making the right decisions and being fiscally conservative and responsible, and we feel that that represents bipartisan priorities that everyone can get behind.”

For Ducey, that may mean sticking to his January proposal to boost the state’s rainy-day fund to $1 billion, which would mean saving more than $500 million in funds this year. In principle, Republicans and Democrats alike support saving, but they have balked at saving that much.

Ptak indicated the governor is willing to wait them out.

That would be bad news for lawmakers with other plans in May or June. Some, like Rep. Travis Grantham, have unavoidable obligations. The Gilbert Republican, a major in the Arizona National Guard, is scheduled to deploy this summer. His absence during session would spell doom for any House budget bills that doesn’t have bipartisan support.

Would Ducey wait that long?

“If it means getting it right, then yes,” Ptak said. “We want to make sure we get this right, and we’re willing to be here as long as it takes to do that.”

3 health care reforms that Republicans oppose

One year into the coronavirus pandemic, Arizona has suffered greatly, but the chance for vaccination gives us some hope. The sheer scale of the sickness – over 800,000 cases in our state, resulting in over 56,000 people hospitalized, and more than 15,000 dead – has revealed some shortcomings in our public health system, in and many cases it has made those shortcomings worse.

As a state senator, I worked with my fellow legislators and with Healthcare Rising Arizona to address those shortcomings. We offered three bills to chart out improvements in our health care system, addressing both access to care and the cost of care, as well as taking steps to safeguard the health and safety of the healthcare professionals who have worked hard for a solid year of stress and struggle.

I am sorry to report that even with the coronavirus pandemic raging, Arizona’s Legislature failed to hold a single hearing on one of the three urgent bills we championed. Even more worrisome, neither health committee passed a bill related to the pandemic. Last week, the deadline for holding hearings on bills passed.

The three bills that we introduced in Arizona’s Legislature can make a real difference in people’s lives.

First off, over this past year, Arizona health care workers have been heroes. They need protective equipment, and shouldn’t have to pay for it out of their own pockets. They deserve paid sick time if they get infected. They deserve hazard pay for what they’ve been through and the tremendous sacrifices they’ve made.

The Healthcare Heroes Bill of Rights (HB2842), sponsored by Rep. Melody Hernandez, D-Tempe, myself and 17 others, would have done just that. Melody is an emergency medical technician and knows what health care workers have been through over the past year. Her bill would protect health care workers who perform Covid essential functions by providing them with personal protective equipment, hazard pay, whistleblower protections, and paid sick leave for any worker who cannot work due to a Covid diagnosis. Nineteen legislators have already signed on in support of the bill.

Medical debt is also a huge issue for hundreds of thousands of Arizona families. The bill that I offered, the Reduce Medical Debt Act (SB1796), would protect consumers who are struggling with medical debt. The legislation shields homes and most vehicles from seizure by debt collectors, and increases the amount of time before a medical debt can show up on a consumer’s credit report.

The third bill we offered would ensure that no one is denied care because of a pre-existing condition or an annual or lifetime cap on the cost of care. People with employer-provided health insurance do not have this worry, but Arizonans who have bought the “short-term limited duration” plans that are legal in this state do. Imagine paying your health insurance premium every month, and then learning only after you get sick that your plan doesn’t cover the care you need.

That’s why the Healthcare Bill of Rights (HB2739), sponsored by Rep. Andrea Dalessandro, D-Green Valley, ensures that health insurance plans cannot reject patients with so-called pre-existing conditions, or charge them unaffordable rates for that coverage. These protections extend to the so-called “short-term limited duration,” requires all plans sold in Arizona to offer essential medical benefits, and bans annual or lifetime caps on coverage.

We offered these bills in the spirit of advancing public health and looking out for Arizona families. Sadly, Republicans refused to even hold a hearing on even one of these bills. But there’s still hope, because Speaker Rusty Bowers, R-Mesa, or Senate President Karen Fann, R-Prescott, could bring any of these bills to the floor of the House or Senate.

I hope they do.

Sen. Juan Mendez of Tempe, a Democrat, represents Legislative District 26.

A majority under pressure reveals legislative fissures

Rep. Kelly Townsend, R-Mesa, addresses those protesting the closure of businesses April 22 at the state Capitol. With her is Sen. David Farnsworth, R-Mesa. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES

Early the morning of May 7, a Thursday, a motley crew of senior Senate Republicans and their Democratic counterparts, disregarding a chorus of conflicting desires from the membership as a whole, pulled the plug on the 2020 legislative session.

It appeared to be a practical decision. More than a month of quarantine has exposed deep fault lines within the majority party, schisms so vast that further legislating would likely devolve into an attritious slog. Those divisions haven’t gone away – a sizable chunk of legislative Republicans want to get back to business, and many of those same lawmakers have repeatedly threatened to raise hell at figureheads in their own party for putting the state under a quasi-lockdown for the past several weeks.

The saga began on March 30, when Arizona Gov. Doug Ducey, himself a Republican, followed other states in announcing a stay-at-home order that discouraged Arizonans from going out into public except to participate in a broad list of “essential” activities. Nonetheless, frustration with Ducey from his own party quickly developed.

The executive orders have highlighted three distinct factions in the House and Senate Republican caucuses: those who trust that the governor made the right decision, those rankled by some orders but not willing to roll their party leader and those who are ready to burn it all down.

Leading the charge in the House, the incubation chamber for this most recent strain of intra-party dissent, is Rep. Kelly Townsend, R-Mesa. She’s been vocal – on social media, in the press and at protests in front of the Capitol – in her insistence that the stay-at-home order amounts to a tyrannical overreach by the governor.

“I have to be a voice for my community,” Townsend said. “And they are screaming. I don’t know who [Ducey] is talking to, but it’s not LD16.”

Townsend has gone as far as to write a letter to U.S. Attorney General Bill Barr, asking him to issue an opinion on the constitutionality of the stay-at-home order.

And, in a move that is perhaps even more significant now that legislative adjournment is imminent, she drafted a concurrent resolution that would effectively end the governor’s declaration of emergency, terminating the stay-at-home order with it. Ending the session early, she said, would amount to a failure of leadership.

A declaration of emergency can be terminated in two ways – by the governor’s decree or by a concurrent resolution of the Legislature. Although Townsend was the first to raise the possibility, a growing number of her colleagues in the House, including Majority Leader Warren Petersen, have joined her in calls for legislative action. In the Senate, Michelle Ugenti-Rita hoped to carry a companion resolution, but she said on Facebook May 7 that Senate Prsident Karen Fann will not allow her to introduce it.

“I wish Warren Petersen was our speaker,” Townsend said. “He would be able to take care of this without giving up. I hope [Bowers] does the right thing.”

Townsend’s seatmate, Sen. David Farnsworth of Mesa, said he strongly supported both proposed resolutions. Farnsworth, who has attended two protests at the Capitol calling on the governor to immediately reopen the state, said there are always crises to provide excuses for the government to grow its authority, but lawmakers and the people of Arizona must remind the governor that his first duty is to protect the individual liberties of Arizonans.

“If I were king of Arizona, I would open it up,” Farnsworth said. “If people want to stay home, let them stay home and cower under the covers.”

Frustration with the governor’s handling of the virus has spilled over into frustration with leadership within the Legislature. Whispers abound about a ploy to instate more outwardly conservative leaders, those who might be more ideologically sympathetic with the Liberty Caucus – a group of Tea Party-style Republicans who came to power in the state more than a decade ago under the guidance of then-Rep. David Gowan, who would go on to be House speaker and then join the Senate.

One grievance is a lack of communication. This was on full display when Bowers and Fann announced in April that they planned to convene the Legislature and adjourn shortly thereafter on May 1, without first securing buy-in from many members.

One such lawmaker, Rep. Mark Finchem of Oro Valley, said at the time that leadership’s decision to go ahead with a plan that hadn’t been shopped around was “disturbing,” and that he only found out about the May 1 date from an attorney friend who happened to have business before the Legislature.

The Senate’s new plans to adjourn sine die on May 8 also came as a surprise to many members, said Sen. J.D. Mesnard, R-Chandler. Mesnard, who favors continuing the legislative session indefinitely so lawmakers can easily come back to pass legislation or serve as a check on the governor, said Republicans received individual follow-up messages after a closed caucus meeting on the morning of May 7 asking if they would support sine die or a bill proposed by Sen. Eddie Farnsworth, R-Gilbert, to protect people and businesses that disobey Ducey’s executive orders from punishment or civil liability.

After that, Mesnard said he learned about sine die plans from reporters who called following Fann’s early morning press release.

“When leadership wants to do something, unless there’s enough folks pushing back, it will happen,” he said. “The Senate leadership has made clear that it wants to sine die. I don’t think that there are enough folks pushing back.”

Mesnard said he’s counting on Republicans in the House to push back, something Rep. Walt Blackman, R-Snowflake, said he and his fellow colleagues in the Liberty Caucus are doing.

“We’re in a situation where we need to speak up,” Blackman said, adding that he’s counting on that group to fight to “get back to work,” presaging the likely pushback that a motion to adjourn will get from some in the GOP.

While Blackman’s not outwardly critical of the job that leadership has done, he acknowledged that others are – and said that the House majority position that Petersen will vacate if he goes to the Senate may present an opportunity.

In fact, Blackman said he has been approached by other members to make a bid for leadership – a job he doesn’t doubt his ability to do, but nonetheless is not interested in for now.

“When you have this much pressure in a situation, the idea that we are somehow showing stress cracks should not be all that surprising,” said Rep. John Allen, R-Scottsdale.

Interestingly, similar factors were at play when the Liberty Caucus was born. In 2009, Gowan, then a freshman member of the House, led a cadre of lawmakers who were frustrated with House Speaker Kirk Adams, who drafted a recession-era budget proposal that didn’t make the aggressive cuts that the new class of conservatives wanted since they were rid of Democratic Gov. Janet Napolitano. She resigned to join the Obama administration.

Gowan had promised on the campaign trail to read every budget before voting on it, and now was being robbed of the opportunity to review the bill, which was written without input from the freshmen. He and the fledgling Liberty Caucus refused to vote for the bill, and strong-armed Adams into making deeper budget cuts.

Whether this new iteration of staunch conservatives will be as effective this time is unclear – though they’ve got a growing track record, having cajoled Bowers into backing down from a plan to adjourn on May 1, and raising their concerns to the level of the governor, who has expedited the end of the stay-at-home order.

“The governor has moved quite a bit toward the Legislature’s worldview,” said Allen.

Democrats see the winds changing too, especially with the about-face the governor pulled in extending and then quickly dialing back his executive order.

“From one day to the next, things changed,” said House Minority Leader Charlene Fernandez, of Yuma.

Still, moving the needle any further may be difficult. Even though GOP membership has made it quite clear that top-down decision-making causes heartburn, many were once again surprised to hear about the May 7 decision to adjourn the next day. And a concurrent resolution to overturn the emergency declaration would require dozens of puzzle pieces to fall into place in a very specific order, largely because lawmakers have blown by deadlines for the introduction of legislation. Democrats, of course, wouldn’t vote on such a measure, and the same can likely be said for a small handful of moderate Republicans in the Senate.

Sen. Kate Brophy McGee, R-Phoenix, is among the group of moderate Republicans who believe Ducey made the right decisions with the information he had available. Members of her caucus were understandably alarmed by Ducey’s comments about potentially jailing, fining or revoking business licenses for people who flouted his executive orders, she said, but she wouldn’t support their “reactionary” resolutions to end the state of emergency.

The state had 9,945 COVID-19 cases and 450 deaths as of the morning of May 7, and those numbers continue to rise. Ducey now plans for his stay-at-home order to expire May 15, with retail and salons fully reopening May 8 and restaurants allowed to resume dine-in seating on May 11.

The primary response of both the Legislature and the governor needed to be protecting public health, Brophy McGee said. But she said it may be necessary to clarify how much authority lawmakers ceded to the executive in the name of public safety, she said.

“When the house is on fire, or there is a threat of fire, you don’t necessarily have the time to check off all the boxes,” she said. “This whole set of circumstances was so unprecedented, and it came upon us so fast.”

Fellow moderate Sen. Frank Pratt, a Republican from Casa Grande, described the resolutions aiming to overthrow the governor’s order as a “bad idea.” Those questioning Ducey’s actions should consider that the governor made decisions based on communicating with public health experts, Pratt said.

“I believe it’s kind of a slap at the governor,” Pratt said of Townsend’s resolution. “I support what the governor is trying to do. He’s charged with a real tough decision.”

About face – Republicans back jobless benefit hike

Arizona legislative Republicans who have resisted increasing the state’s second-lowest-in-the-nation unemployment benefits since 2004 are now spearheading bipartisan efforts to hike the rate.

On February 24, the House voted 50-9 to approve a bill that would increase the maximum weekly unemployment benefit to $300 from $240, starting in 2022. Meanwhile, Senate President Karen Fann, R-Prescott, this week introduced her own bill to increase the maximum benefit to $320, starting on the general effective date – usually in August – which is 91 days after this year’s legislative session ends.

At the start of the session, Fann said any talks about increasing unemployment benefits would have to wait until at least next year. For this year, the state needed to focus on replenishing the unemployment fund, which plummeted to roughly $90 million from a high of $1.1 billion over the course of 2020.

Fann said February 24 that uncertainty about when and how Congress will act and a growing bipartisan desire to act pushed her to introduce her late bill. Along with increasing benefits, her bill would reduce the number of weeks per year that a worker can receive benefits to 20 from 26, unless the unemployment rate is higher than 6% or a governor-declared state of emergency that could close businesses, like the one for the ongoing Covid pandemic, is in effect.

“If the federal government monies do expire in August like we believe now, it could still put some people in a bad situation until we can get all the other businesses open, so I decided to go ahead and move forward with it this year and try to get it in place to help everybody out,” she said.

She landed on $320 by adjusting the current $240 based on inflation in the 17 years since it took effect. Once the state has replenished its unemployment fund and qualifies for an interest-free federal loan to cover benefits, Fann’s plan would further increase that amount to $400 per week.

Under the most recent Covid legislation, unemployed Arizonans are eligible for an extra $300 per week in federal assistance, bringing the total to $540 at least until March 31. Congress has not yet reached an agreement on subsequent aid packages.

Both Fann’s proposal and the House bill, sponsored by Rep. David Cook, R-Globe, would increase the income disregard amount – the amount an underemployed worker can make per week without seeing their unemployment benefits drop – to $160 from $30. That’s about 13 hours of work at the state’s current $12.15 minimum wage.

Fann described that component as enabling employees and employers to stay connected in tough economic times, so the workers can eventually transition back to full-time work at the same company if they choose or move on to a new job without significant gaps in their work history.

“If you drop out of school, it’s very hard to get those kids back to school,” she said. “Same thing happens in the workforce.”

Both bills would also increase unemployment taxes paid by businesses, which now pay taxes on the first $7,000 of each worker’s salary. Fann’s bill would increase that to the first $8,000 beginning in 2022 and the first $9,000 in 2023. Cook’s bill leaves it at $8,000.

Fann acknowledged that employers won’t like the increase, but they’ve been paying based on $7,000 for almost four decades. As the owner of a construction business founded in 1984, she has only ever paid unemployment taxes on the first $7,000 of her employees’ salaries.

“Yes, it’s going to be a little bit more for them, but they also have to realize that they’ve been paid on that $7,000 base wage rate for 36 years. “The day I started my business, it was at $7,000, so obviously we have not kept up with the times.”

Both bills have their skeptics – nine conservative Republicans voted against Cook’s version, and Sen. Michelle Ugenti-Rita, R-Scottsdale, voted against Fann’s measure in the Senate Appropriations Committee.

Senate Democrats, who have long pushed to increase unemployment benefits, aren’t happy with Fann’s proposed reduction in the number of eligible weeks. But they’re willing to support the measure anyway.

Cook said after the February 24 vote that his bill won’t be the last word and he expects the Senate to change it. He said to the nine Republicans who voted against it that, if they think his proposal isn’t conservative enough, they really won’t like the Senate’s proposal.

“This is common sense,” Cook said. “It pays for itself. It’s just something that needs to be done for the people and small businesses.”

AG election audit review points to vulnerabilities, no widespread fraud alleged

Arizona Senate Election Audit — A contractor working for Florida-based company, Cyber Ninjas, yawns as Maricopa County ballots cast in the 2020 general election are examined and recounted on May 6, 2021, at Veterans Memorial Coliseum in Phoenix. PHOTO BY MATT YORK/ASSOCIATED PRESS

Attorney General Mark Brnovich says an ongoing review of the Arizona Senate’s audit report and related election investigations has “revealed serious vulnerabilities” and “raises questions about the 2020 election in Arizona.”

But an April 6 letter to Senate President Karen Fann, R-Prescott, which Brnovich described as an “interim report,” mainly served to emphasize that the AG’s office is still investigating election allegations, has some policy suggestions and thinks things likely won’t wrap up any time soon.

“Investigations (civil and criminal) of this magnitude and complexity take many months if not years to complete,” the letter states.

That timeframe goes far beyond a short-term concern for Brnovich: the August 2 primary election in which he’s facing a crowded field of GOP candidates vying for the Republican nomination for U.S. Senate.

Arizona Attorney General Mark Brnovich speaks to reporters during a news conference at his office in Phoenix on Monday, Nov. 22, 2021. (AP Photo/Jonathan J. Cooper)

So far, audits of the 2020 election and reviews of election processes have failed to turn up evidence of fraud on the scale that would have impacted the outcome of the race. The April 6 letter did point to individual cases of election fraud, which have been previously reported.

The move follows months of pressure from Arizona Republicans and former President Donald Trump, who’ve called on the AG to take legal action against what they say was widespread fraud in Arizona’s 2020 election that served to steal a win from Trump. And though the letter doesn’t offer any new evidence that fraud changed the results of the 2020 election, it did have a message for those questioning Brnovich’s commitment to the cause of election security and investigating the 2020 race.

“By any objective measure the (Attorney General’s) Office) is fully engaged in successfully defending Arizona’s election integrity laws,” the letter states at one point, adding later that the AG “has left no stone unturned in the aftermath of the 2020 election.”

Still, it was quickly clear that the interim update wouldn’t satisfy the most ardent supporters of the partisan Senate audit, like Sen. Wendy Rogers, R-Flagstaff. “I don’t like letters. I like arrests and prosecutions. Criminals don’t respect legal gobbly-gook that just fills pages when really we can use handcuffs, jail cells and jump suits,” she tweeted on Wednesday afternoon, shortly after the letter was published.

Secretary of State Katie Hobbs criticized the report for failing to answer the questions dangled in the letter. “Instead of simply following the evidence, he speculates. Instead of clarity, he provides conjecture,” she said in a statement provided by a spokeswoman.

Hobbs also accused Brnovich of being “more focused on his Senate campaign than on the job he was elected to do.

Maricopa County Recorder Stephen Richer, a Republican who’s been critical of the Senate’s election review and defended former Recorder Adrian Fontes’ administration of the 2020 election, said the big takeaway from Brnovich’s letter is that there’s still no evidence of fraud.

He responded to the letter in a thread on Twitter, saying he spent “many, many hours” working with investigators to answer questions regarding internet connectivity and data deletion, as well as the county’s duplication and adjudication processes.

“I guess the answers to those don’t fit the narrative,” Richer wrote, calling that an “amazing omission.” He said documents the Attorney General’s Office received yesterday weren’t delayed but were in response to a March 9 request. However, he said while he felt the letter mischaracterized the county’s cooperation with the investigators, he was “fine with” the suggestions made in the report.

“Most importantly, it rightfully doesn’t say anything about a stolen election or unlawful acts by election workers,” Richer tweeted.

Fann, who referred the audit report to Brnovich for further action

Senate Majority Leader Karen Fann in January 2021. Photo by Kyra Haas/Arizona Capitol Times.

in September, said she’s happy with the letter, calling it “a great start.” “I’m pleased with what he’s been able to produce so far and I’m looking forward to all of his subsequent reports as he keeps digging further into all of these problems that were uncovered in the audit,” she said on Wednesday. Fann would not say whether she believes there was fraud in the 2020 Maricopa County election and she would not say whether the Senate will take further action.

“The Senate can do whatever we want,” she said

The letter provides some information about the shape of the investigation that the AG is carrying out, saying AG staff has spent “thousands of hours reviewing the Senate’s audit reports and other complaints, conducting interviews, and analyzing Maricopa County’s election system and processes.”

(A spreadsheet kept by the AG’s Office cataloguing complaints received in the wake of the 2020 election and provided to the Arizona Capitol Times in response to a public records request shows around 1,000 separate complaints. One of the largest categories, with 268 unique complaints, was labelled “Sharpie,” presumably in reference to the debunked “Sharpiegate” conspiracy theory.)

Among the issues Brnovich mentions in the April 6 letter are ballot chain-of-custody, mail-in ballot signature verification, ballot drop boxes and nonprofit donations to election administrators, though he stops short of alleging fraud and instead makes some policy suggestions. For example, he says the current way early ballot signatures are verified “may be insufficient to guard against abuse” and suggests requiring early voters to have some additional form of government ID and making other changes to the law.

Camryn Sanchez contributed reporting.

AG sides with lawmakers in bid for election materials

In this Nov. 4, 2020, file photo, Maricopa County elections officials count ballots in Phoenix. (AP Photo/Matt York, File)

The state’s top prosecutor is siding with Republican legislators in their legal bid to demand access to election materials from Maricopa County.

In legal papers filed Wednesday, a top aide to Attorney General Mark Brnovich is urging Maricopa County Superior Court Judge Timothy Thomason to enforce the subpoena issued by Senate President Karen Fann and Sen. Eddie Farnsworth. Michael Catlett, a deputy solicitor general, told the judge that he “should recognize the Arizona Legislature’s broad authority to issue and enforce legislative subpoenas.”

But even with Brnovich’s backing, that may not be enough to convince Thomason that he should — or has the authority to — order Maricopa County to turn over a host of materials related to the election, from information on voters and duplicates of ballots to access to the counting equipment.

Attorneys for the county are not necessarily denying that the legislature has subpoena power.

Only thing is, the subpoena was not issued by a vote of the full legislature, something that is covered and specifically authorized in a specific section of Arizona laws. Instead, it was issued by Fann and Farnsworth as part of the latter’s effort to have the Senate Judiciary Committee, which he chairs, look into what happened in the last election.

Farnsworth said what the committee discovers could form the basis for changes in state law designed to tighten up procedures.

But he also acknowledged that if there is evidence of fraud or misconduct, those findings could be used by others who are trying to get the courts — or Congress — to void the election results in Arizona and hand the state’s 11 electoral votes to Donald Trump despite the already certified popular vote.

Catlett, in his legal papers, is hoping to convince Thomason that he should recognize the broad powers of the legislature and order the county to provide Farnsworth what he wants.

“The legislature is presumed to have all power not granted to another branch of government or expressly prohibited in the constitution,” he wrote. And in this case, Catlett said, no other branch of government can issue legislative subpoenas “and legislative subpoenas are not expressly prohibited.”

More specifically, Catlett said that Thomason should not closely examine why Farnsworth wants the information but instead should give the legislature wide berth in determining what lawmakers believe they need.

“A legislative subpoena is valid even if one of the several objectives for the subpoena is alleged to be unlawful,” he wrote.

“In other words, so long as the subpoena can be construed to be related to a subject upon which legislation might be had, the subpoena is valid,” Catlett continued. “The legislature need not include an express avowal about the purpose for the subpoena and it need not point to actual legislation that it plans to enact.”

Beyond that, he said that lawmakers can issue subpoenas for any “authorized investigation.”

Catlett also pointed out to Thomason that the powers of the county to run elections exist only because they were delegated to it by the legislature.

“The Arizona Legislature should be permitted to issue subpoenas to determine whether government officials who have been delegated authority to administer elections have faithfully discharged those duties and to determine whether current law regarding election administration should remain the same or be amended,” he wrote. “The Arizona Legislature has the power to keep election laws the same or to change those laws, and the court should recognize that the Arizona Legislature has the authority to issue subpoenas to obtain information to help it choose the best path forward for Arizona.”

An earlier bid by the Senate to get an order to enforce its subpoenas was rejected by a different judge.

Judge Randall Warner said he finds nothing in the Arizona Constitution that specifically allows him to enforce such a subpoena. And Warner rejected arguments that lawmakers have “implicit” power to ask a court to enforce their demand.

Thomason has not yet scheduled a hearing on the latest bid.

Allen weathers criticism of racially-charged comments

Josselyn Berry, executive director of ProgressNow Arizona (Photo by Kendra Penningroth, Arizona Capitol Times)

The Democratic senator and liberal activists who delivered more than 1,000 petitions calling for Sen. Sylvia Allen to lose her position as leader of the Senate Education Committee Wednesday morning acknowledged that Allen isn’t likely to go anywhere.

Allen, R-Snowflake, has faced harsh criticism from Democrats and one primary opponent since the Phoenix New Times published audio of her decrying immigration and feminism, but most of her Republican colleagues have defended her or stayed mute.

Sen. Martín Quezada, D-Glendale, delivered a stack of petitions to Senate President Karen Fann’s empty office Wednesday morning. He said he doubted the petitions would result in Allen losing her influential committee chairmanship.

“For them to take a bold step like removing her as the chair of the committee, it would take a political backbone,” Quezada said. “They simply don’t have that. Politically, it is more beneficial for them to accept and excuse her racially insensitive and discriminatory comments.”

Allen ended a 25-minute speech about Christianity during a July 15 event at Arizona Republican Party headquarters by warning that the U.S. would “look like South American countries very quickly.”

She cited research by University of North Carolina demographer James Johnson, who has done extensive work on phenomena he calls the “browning” and “graying” of America, or the concept that the country has an aging white population and a younger population of color.

“The median age of a white woman is 43,” Allen said in her speech. “The median age of a Hispanic woman is 27. We are not reproducing ourselves with birth rates.”

Johnson, who is frequently cited as an expert source on demographics and the need for workforce diversity, describes the “browning of America” as a good thing. But Allen warned in her speech that increased immigration will lead to the country embracing socialist values.

“People are just flooding us and flooding us and flooding us and overwhelming us so we don’t have time to teach them the principles of our country any more than we’re teaching our children today,” she said.

Allen also called out Quezada, who has criticized exhortations for immigrants to assimilate. He said the better approach is acculturation, which encourages immigrants to become a part of American society while simultaneously preserving aspects of their own culture.

And Allen bemoaned feminism as destroying families and society, saying boys are struggling to know how to be men and “this feminist movement is not doing favors for us at all.”

Josselyn Berry, co-director of the Democratic advocacy group ProgressNow Arizona, said Allen’s remarks made it clear she should not be in charge of the committee that hears bills on education policy because Berry questioned whether Allen could be fair and unbiased.

Allen’s speech drew swift comparisons to those made by former GOP Rep. David Stringer a year ago. Stringer in 2018 told a group at a Yavapai Republican Men’s Forum that “there aren’t enough white kids to go around” in Arizona’s public schools, that immigration was “politically destabilizing” and it “presents an existential threat.”

Stringer’s comments sparked calls to resign from then-Arizona Republican Party Chairman Jonathan Lines, as well as Gov. Doug Ducey.

Ducey said this week that he vouched for Allen, and he bristled at comparisons between Allen and Stringer.

“Sylvia Allen is not David Stringer,” he said. “Come on … She disavowed her comments and said she has love in her heart for every person.”

Ducey pointed to an apology Allen made in a statement Friday evening. She effectively walked back that apology during a 40-minute radio interview Monday with former Republican Flagstaff City Councilor Jeff Oravits, saying she apologized to people who were offended by media interpretations of what she said.

“The apology is geared to people who have been misled about what I talked about, and they need to listen to the whole thing,” Allen said.

She called the criticism of her remarks “leftist attacks,” and “propaganda” being used by Democrats and Republican primary opponent Wendy Rogers for political gain.

“This is verbal lynching that is taking place in our country, and it’s a political weapon that is being used to silence political leaders like myself,” Allen said. “By not changing a single word in our constitution, we have put an effective muzzle on the First Amendment freedom of speech by dissecting every word that someone puts out and then interpreting what you think they’re saying with those words.”

Rogers, who is in a three-way race with Allen and Rep. Bob Thorpe, R-Flagstaff, for the Republican nomination in Legislative District 6, is the only Republican to publicly condemn Allen’s remarks. She tweeted that some of the country’s greatest heroes, including Navajo Code Talkers, the Tuskegee Airmen and Hispanic Medal of Honor recipients, don’t look like Allen but served the country with honor, adding “Sylvia needs to retire like she said she was going to do and let those who love all of America hold elected office instead.”

Rep. Walter Blackman, Allen’s seatmate in LD6, joined her on Oravits’ radio show to denounce what he described as the left throwing a “monkey wrench of racial issues” into debates that should be about policy. He said his biracial children know Allen as “Aunt Sylvia,” and that as a black man he would have noticed and taken offense to Allen saying anything discriminatory.

Blackman, Allen and Oravits said they see liberals labeling narratives and politicians they disagree with as racist to shut them down.

“That’s going to cripple us,” Blackman said. “That’s going to handicap some policymakers to the point to where they won’t say anything or actually do anything.”

Fann was not at her Phoenix office to receive the petitions. Quezada said he didn’t expect any response, adding that he thought Republicans were closing ranks around Allen because she faces a tough re-election bid.

The likely Democratic Senate candidate in LD6, retired Army Col. Felicia French, came within 600 votes of beating Thorpe for a House seat in 2018. The district is a top priority for legislative Democrats, and Republicans persuaded Allen to run again instead of retiring as she originally planned.

“Representative Stringer was an expendable piece in their puzzle,” Quezada said. “Senator Allen is not. This is a critical seat they’re in danger of losing during the next election and they need to empower her as much as they can. They are only willing to call out racist and discriminatory comments and behavior when it is expedient for them.”

Ben Giles contributed to this report

Arizona House to resume work despite Senate vote to adjourn

The Arizona House plans to return to work this week after a two-month recess triggered by the coronavirus pandemic and despite the Senate’s decision to try to adjourn for the year.
A top priority is enacting a measure that would shield businesses that reopen from lawsuits, protecting them from being financially responsible if workers or members of the public are infected, unless they are grossly negligent. Majority Republicans who control the Legislature and GOP Gov. Doug Ducey have sought such protections, saying they’re needed to prevent frivolous litigation that could damage businesses.
But a draft of the bill circulated by backers also removes criminal penalties for businesses that ignore emergency virus orders Ducey has issued. And it bars the state from suspending or revoking business licenses for violations.
It’s unclear if the governor would agree to such provisions. “We don’t comment on draft legislation,” Ducey spokesman Patrick Ptak said Sunday.
Violations of the orders, most of which have been allowed to expire, are a misdemeanor and carry a potential six-month jail term and a $5,000 fine. Bars are the only major businesses still under shut-down orders.
“I think the penalties that are in the emergency declarations are just a little harsh,” Republican Sen. David Livingston said Saturday. “It still leaves a (civil) penalty in there, it just takes it down to $100.
Livingston was among a handful of Republican senators who opposed ending the session.
House lawmakers plan to introduce a bill that would authorize spending $88 million in emergency federal coronavirus cash for child care providers.
But Republicans who control the House also expect to start moving a host of Senate legislation that has been stalled since the Legislature recessed after passing an emergency budget on March 23. Senators returned on May 8 for a brief session where they voted overwhelmingly to end the session, but the House must agree.
Passing additional legislation will test the Senate’s resolve to adjourn.
The Rules Committee meets Monday, and floor sessions could start Tuesday or Wednesday,
House Majority Leader Warren Petersen said Saturday that the plan is to take up more than 60 Senate bills in the coming days. That includes holding committee hearings, floor debate and votes.
“Most people at least want to get work done — I think there’s even some of the Democrats that think it’s important to get the liability bill done,” Petersen said. “The stay-at-home order was lifted on the 15th, and we want to be safe and use best practices, but we want to finish the people’s work as best we can.
“But we’ll see — you never know what’s going to happen,” he said.
Democrats are mainly united in wanting to end the session, and — with 29 members — they only need two Republicans to vote for adjournment to upend the plan to resume regular work.
Some Republicans, including Rep. Anthony Kern, prefer to join the Senate in ending the session now.
Kern, who chairs the powerful Rules Committee and can stop all legislation from making it to the floor, said other than the liability proposal and potentially a couple other virus related bills he believes the House should close up shop for the year.
“Other than that, I don’t see a reason to stay in session,” he said.
But Kern wouldn’t commit to voting to adjourn.
Senate President Karen Fann said she would wait to see what the House actually does before taking any action.
“I can’t have people sitting around for three or four days, or three or four weeks,” she said.
Republican House Speaker Rusty Bowers isn’t sure what will transpire, although he advised against holding committee hearings that some chairs insist should resume. And he said plans to send legislation to the Senate when Fann’s chamber has voted to adjourn may not end well.
“I have no shortage of people that dream big and have great plans, and I will see how many work,” Bowers said. “The point is to send over some bills; if they pass them great, if not we’ll know what the pitch of the roof is. And I hope that will temper some of the zeal of some of my members.”

Arizona lawmakers debate cap on children’s health program

Advocates for a health insurance program for children from low-income families are pushing lawmakers not to let Arizona once-again become the only state to freeze enrollment in the program.

Facing a daunting budget challenge during the Great Recession, Arizona capped enrollment in 2010. Lawmakers didn’t re-open it until 2016 and only with a strict limit — nobody new could sign up if the federal government stopped paying the entire cost.

The moment of reckoning is approaching on Oct. 1, when the federal government is scheduled to dial back its contribution to 90.5 percent of the program’s cost, requiring the state to pick up the other 10 percent. Lawmakers last year considered lifting the cap on the program that serves 33,000 children but did not act.

KidsCare covers children whose parents earn too much to qualify for Medicaid, between 138 and 200 percent of the federal poverty line. For a family of four, that’s between about $34,000 and $51,000 a year. Parents pay monthly premiums between $10 and $70 depending on their income and the number of children.

Sen. Kate Brophy McGee, a KidsCare program supporter who is co-sponsoring legislation to lift the enrollment freeze, said there was “enormous” resistance to re-opening the program two years ago. At the time, program supporters used procedural maneuvers to get around opponents who held senior positions in legislative leadership.

“As the program has unfolded and kids have benefited, I hope people are realizing the world hasn’t come to an end and that conditions are actually better,” Brophy McGee said. “I think we need to understand that we are investing in wellness for our children, which tees them up for success.”

During the debate over re-opening the KidsCare program, some Republican lawmakers said low-income families would become dependent on handouts if the program was restored. They rejected arguments that the federal government is covering the vast majority of the costs, noting the large federal deficit.

The last time Arizona froze enrollment in KidsCare, the number of children served dropped 60 percent and the waiting list swelled to 108,000 children in the first 18 months, though the state did not determine whether kids on the list were eligible for coverage, according to a report by the Kaiser Family Foundation.

Gov. Doug Ducey’s administration forecasts that 6,000 children who are eligible for KidsCare would not be able to sign up during the next fiscal year if the enrollment freeze takes effect, a number that would rise to 26,000 through 2022.

Ducey’s budget proposal includes $1.6 million to lift the freeze and cover the state’s share during the first year.

Hospitals are required by federal law to evaluate and stabilize anyone who shows up with an emergency. But supporters of the KidsCare program say that’s no way to treat chronic conditions like diabetes or asthma.

“When children are uninsured their families are unable to bring them in when they’re sick, so minor illnesses like colds can get exacerbated and ultimately they end up in the emergency department or even hospitalized for complications like pneumonia,” Dr. Jason Vargas, vice president of the Arizona chapter of the American Academy of Pediatrics, told lawmakers earlier this month.

Senate President Karen Fann, R-Prescott, said she’s personally supportive of lifting the enrollment freeze but added the state needs to be cautious about taking on the ongoing commitment.

“If we’ve got the money that we can do a little extra to help with important things like that, then absolutely,” Fann said.

Arizona lawmakers mull shutting down session to prevent coronavirus spread

Arizona Capitol Building (Photo by Gage Skidmore/Flickr)

A House Democrat has announced he’ll be stepping back from most lawmaking duties for the remainder of the session amid calls from some legislators to temporarily suspend the session to stem the spread of the novel coronavirus, known as COVID-19.

Rep. Amish Shah, D-Phoenix, announced on Facebook Friday that he will “no longer be able to attend the Arizona House of Representatives in person in 2020” so that he can work scheduled shifts in the emergency room. Shah is an emergency physician with Dignity Health.

“For me, it’s a duty to work in the emergency department and take care of patients,” Shah, who has notified legislative leaders of his decision, said. “It’s important to be here. It would be irresponsible to go down to the legislature and be around all of those people.”

Shah’s decision comes as legislative leaders debate next steps for the Capitol, which has sat in the shadow of uncertainty since Gov. Doug Ducey declared a public health emergency last week.

Legislative leaders plan to meet Monday morning to discuss how to proceed with the session. Lawmakers already decided yesterday to shut down the Senate and House galleries and limit public testimony on bills as safety measures. And state Sens. Heather Carter and Paul Boyer pledged to stay away from the Capitol for the foreseeable future to promote “social distancing,” taking with them two votes needed to pass any partisan legislation.

Shah’s hiatus changes the legislative math for House Democrats, who began the session on the losing end one-vote Rebublican majority — nonetheless a slim enough margin to kill the occasional GOP proposal. Now, the seat split sits at 31-28.

Shah said that he will still participate in meetings so long as he can attend remotely, but he won’t be returning to the Capitol in person. House rules require a lawmaker to be present to participate in committee meetings or action on the floor.

Senate President Karen Fann texted the 16 members of her Republican caucus on Friday afternoon to tell them she would meet with House and Senate leaders, according to a copy of the message shared with the Arizona Capitol Times. Neither Fann nor Senate Minority Leader David Bradley immediately returned phone calls.

House Speaker Pro Tem T.J. Shope, R-Coolidge, told the Yellow Sheet Report, a sister publication of the Capitol Times, that he thinks the Legislature should take a break until April 6.

Waiting until April also means lawmakers will see March revenue numbers and revise budget requests accordingly, he said. While revenues have been higher than expected throughout the year, the COVID-19 outbreak and related closures are expected to slow the economy.

“With spring training canceled, those revenue numbers will have to come down,” he said.

Both chambers on Thursday unanimously authorized the state health department to spend up to $55 million to combat the spread of COVID-19. Moving quickly on the funding was necessary “on the slim chance that if we had to suspend session and would not be here, we would have the funds to handle it,” Fann said.

Legislatures in Colorado, Georgia and Vermont already announced temporary shutdowns. Several other states, which pass budgets every two years instead of annually as Arizona does, already ended their short sessions.

Boyer, R-Glendale, and Carter, R-Cave Creek, said they would be working from home for the foreseeable future. Boyer, a high school teacher, and Carter, a university professor, are already doing their day jobs from home as universities and schools shuttered or moved online, but they can’t vote on legislation unless they’re physically in the Senate.

Lawmakers shouldn’t be voting on anything if they’re not allowing public input, Boyer said. House Education Committee Chair Michelle Udall, R-Mesa, and House Regulatory Affairs Chairman Travis Grantham, R-Gilbert, announced they would run their committees on Monday without an audience or public testimony, and other committee chairs are weighing their options.

“My two cents is it’s just not fair to the public,” Boyer said. “If we’re not allowing public input on bills and then voting on them, it’s not right.”

Editor’s note: This story has been revised to include information on Rep. Amish Shah deciding not to return to the Capitol.

Arizona Senate, House pass bill for survivors of child abuse

Arizona Senate President Karen Fann, right, confers with fellow Republican Sen. Sylvia Allen in the Senate building in Phoenix, Saturday, May 25, 2019. The Arizona Senate returned to work late Saturday morning with no sign that an impasse that has held up the budget for days is close to a resolution. Still, Fann vowed to forge ahead with parts of the $11.8 billion budget package that she said are "non-controversial." (AP Photo/Bob Christie) — Arizona Senate President Karen Fann, right, confers with fellow Republican Sen. Sylvia Allen in the Senate building in Phoenix, Saturday, May 25, 2019. The Arizona Senate and House passed a bill to expand the statute of limitations for sexual assault survivors to sue, possibly breaking an impasse that has held up the budget for days. (AP Photo/Bob Christie)

Survivors of childhood sexual abuse will soon have more opportunities to sue their abusers, after the Arizona Senate and House unanimously passed a bill that Gov. Doug Ducey has vowed to sign.

HB2466, a compromise struck between advocates for survivors of sexual abuse and Republican senators who argued that expanding the statute of limitations would expose innocent people to false allegations, will raise the age by which survivors must file civil lawsuits from 20 to 30.

Older, time-barred survivors can file civil lawsuits until Dec. 31, 2020, but they’ll face a higher burden of proof and won’t be eligible to receive punitive damages.

Sen. Heather Carter, who joined fellow Republican Sen. Paul Boyer in vowing not to vote for a budget until the Legislature voted on the issue, called the bill a “critical first step.”

“Arizona is no longer the dark corner where you can hide a pedophile,” Carter said. “With this bill, we are bringing victims out of the shadows and giving them a voice.”

Carter, R-Cave Creek, said she’s been threatened personally and professionally for her pledge not to vote for a budget. Fellow Republican lawmakers have said that every bill she’ll sponsor next year is dead and claimed that her political career is over, she said.

But the issue of protecting children transcends everything else the Legislature does, Carter said.

“Nothing that we have experienced the last two weeks comes even remotely close to what a child who has experienced sexual abuse experiences,” Carter said. “Nothing. And that’s why I held out.”

Carter, Boyer and Senate Democrats have insisted that the Senate address the issue of childhood sexual abuse, denying Senate President Karen Fann the support necessary to pass a budget until HB2466 had at least received a vote.

They faced opposition from conservative Republican senators including Sylvia Allen, R-Snowflake, who said she felt “blackmailed.” She said extending the statute of limitations won’t stop child abuse.

“I guess I don’t see things exactly how you’re all seeing it on the floor today,” Allen said. “I see a lot of politics happening, and deals that were made to hold the majority caucus hostage over the budget.”

Debate about the issue has been especially heated. Republicans in the House caught on a hot mic talking about retaliating against Carter and Boyer by killing their bills and beginning an ethics investigation. And the national Victim Policy Institute paid for social media ads targeting Republicans who blocked the bill as protecting child predators.

Sen. Eddie Farnsworth, R-Gilbert, blocked one earlier version of the bill from being heard in his Senate Judiciary committee and testified against another version in the House. He said the bill approved Monday, which has a limited window for older victims to sue, is an acceptable compromise.

“I want to make it perfectly clear,” Farnsworth said. “There is nobody that wanted to protect perpetrators. What we wanted to do is have a bill that was careful in our zeal to go after child molesters that we didn’t victimize those who are innocent but may be accused 50 years later.”

Even after 50 years, survivors remember what happened to them, said Sen. Victoria Steele, D-Tucson. She’s talked on the floor about how she was raped by her grandfather as a child and how it took her decades to speak out about what happened to her.

“People who have been abused, we remember every single day of our lives,” Steele said. “We know. We remember.”

Minutes after the bill was approved in the Senate, representatives also approved the measure, 59-0. Some GOP representatives also lamented the stalemate between Boyer, Carter and their Republican colleagues.

Rep. Regina Cobb, who earlier this year heard Boyer’s original proposal in a hearing but refused to give it a vote, said while Boyer’s motives were pure, the lawyers pushing for him to support it had ulterior motives — particularly by pushing for a window for time-barred plaintiffs to sue.

“The window opened it up to where it was a legal paradise for every ambulance-chasing lawyer in the state,” Cobb said.

Rep. Anthony Kern added that while “everybody” at the Arizona Legislature wanted to protect victims of sexual abuse, “in a rush to doing so, we could’ve hurt innocent people.”

Meanwhile, Democrats praised HB2466 as a good first step. Rep. Diego Rodriguez said lawmakers should consider further expansions of the statute of limitations in the future.

The Phoenix Democrat added that he was certain the stipulation that bars courts from awarding punitive damages to plaintiffs filing lawsuits by the Dec. 31, 2020 deadline would likely be tossed as unconstitutional in court.

Ducey said on Twitter that he looked forward to signing the bill, adding: “This session we heard from many people passionate about pursuing justice, accountability for abusers & protecting children. My sincere thanks to @PaulDBoyer.”

Arizona stymied in taking ‘next logical step’ toward equality

Legislators hold a special session February 4, 2010, at the Capitol in Phoenix. Although Arizona has been a trailblazer in the women’s suffrage movement in the last decade and recently in electing women to high public office, the Republican-dominated Arizona Legislature has refused to pass the Equal Rights Amendment. (AP Photo/Matt York, File)

After beating the rest of the country in giving women the right to vote, Arizona has trailed the pack in passing the Equal Rights Amendment.

Arizona women led the charge for the right to vote in 1912, the year the territory became a state — and a full eight years before the rest of the nation granted women the vote. In 1923, it would seem an easy victory for Arizona women when the first effort to get the Equal Rights Amendment into the U.S. Constitution was introduced.

Ninety-seven years later the fight goes on.

“We have made great progress, but that progress could be overturned and reversed and is being overturned and reversed constantly, and so the only way to assure this is to put it into the Constitution,” Sen. Victoria Steele, D-Tucson, said.

Nationwide interest in the ERA was re-kindled during the 1970s and 1980s, a byproduct of the “second wave” of the women’s right movement.

“We were going great gangbusters at first to get the ERA ratified,” Steele said. “It was state after state after state and then all of a sudden it just got stopped. And it was because a group of very conservative women led by Phyllis Schlafly just wanted women to be home, barefoot and pregnant and making apple pie for their husbands in the kitchen. And they thought that if women had equal rights, that the family would be destroyed.”

In Arizona, the ERA was supported by the first female majority leader of a state Senate, Republican Sen. Sandra Day O’Connor. She helped introduce it to state Legislature where it failed to be ratified. She then joined efforts to get the amendment passed in a statewide referendum. That too failed. Even O’Connor, who of course went on to become the first woman on the U.S. Supreme Court, couldn’t shake the boogeymen with which Schlafly and her group had so artfully surrounded the ERA.

“It seems to just be really emotional and not based, in my opinion, on any sort of rational or logic,” Steele said. “And once the counter-arguments start again by Republicans, often Republican women, it digresses into if Arizona passes it, it is going to lead to unisex bathrooms … that it’s going to lead into more abortions. I mean, it’s really crazy but I think what happened is they go for and believe in these emotionally laden arguments that I don’t think there’s any rational evidence to support.”

That reaction to the ERA surprised even one member from across the aisle – Sen. Kate Brophy McGee, a Phoenix Republican.

“They somehow or another tied it into abortion and I could never get that squared away as to why that was,” Brophy McGee said. “And that they were insistent upon it, which was just so surprising. That’s why I think it hasn’t progressed and I do think there is some resistance to it from very, very conservative members of my caucus.”

The latest battle

Steele discovered that the hard way last year, when she was hoping to make Arizona the 38^th state needed to ratify the ERA.

“I was just sweating blood to try to get this to happen, so that Arizona could be the 38th state,” Steele said. “We could not bring it to a vote, but we finally brought it to a debate on the floor. And with every Republican that spoke out against it, it showed exactly why we need the ERA in our Constitution. I mean, they just proved the point every time they spoke, and it was just ridiculous to see such pushback against having men and women equal under the law. Let’s move forward and let’s give women the same rights under the law that men have, period end of question, end of story.”

So, Steele attempted a procedural move on the Senate floor to force a vote on it.

“We had advocates with our ERA banners in the gallery and (President of the Senate) Karen Fann came up to me and said, ‘What are you up to? I know you’re up to something,’” Steele said.

Steele claims Fann censored her floor speech, an accusation the president denied on the floor.

“It was heartbreaking, because everybody up in the gallery was ready for me to make this motion and I didn’t do it and I was dying inside because they didn’t understand why I didn’t do it,” Steele said.

This year, the hope that Arizona would be the 38^th and deciding vote on the ERA’s ratification became moot when the Virginia Legislature ratified the amendment.

“They were able to flip their entire Legislature to a Democratic-controlled Legislature and the first thing that they did in January of this year was to ratify the ERA,” Steele said. “And meanwhile, we were stuck with the same Republicans that would not allow us to even bring it up to a vote. There was no way that we could get it through.”

Ruth Bader Ginsburg speaks

Brophy McGee, the Republican colleague who supported Steele’s move, admitted she “ran into a buzz saw when I signed onto that.”

“I was thinking it was kind of the next logical step and the buzz saw was from members of my caucus that did not view it as benign or the next logical step,” she added.

Like Brophy McGee, Sen. Michelle Ugenti-Rita also co-sponsored the resolution in favor of the ERA, but voted against suspending the rules to bring the matter to a vote.

FIn this Feb. 10, 2020, file photo U.S. Supreme Court Associate Justice Ruth Bader Ginsburg speaks during a discussion on the 100th anniversary of the ratification of the 19th Amendment at Georgetown University Law Center in Washington. (AP Photo/Patrick Semansky, File)

Besides having a Legislature dead-set against approving the ERA, Brophy McGee said there was now another obstacle from on-high hindering any further attempts to get a vote on the floor. The obstacle was thrown up by none other the U.S. Supreme Court Justice Ruth Bader Ginsburg.

In February, during a public discussion at Georgetown University in Washington, D.C., Ginsburg said Virginia’s vote came too late. The U.S. Congress had set a 1982 deadline for the states to ratify the amendment.

“I would like to see a new beginning,” Ginsburg told the audience. “I’d like it to start over.”

Her remarks seem to support the U.S. Department of Justice argument that not only had the deadline to ratify the amendment expired decades ago, but also that some states had since rescinded their support.

“There’s too much controversy about late comers, Virginia, long after the deadline passed,” Ginsburg said.

On February 13, the U.S. House of Representatives voted to remove the 1982 deadline. With Sen. Majority Leader Mitch McConnell saying he is not a supporter of the ERA, it’s uncertain where the bill goes from there.

Meanwhile, Virginia, Illinois and Nevada, the three states to put the ERA over the goal line, have filed a lawsuit against the National Archivist, ordering it to ratify the amendment. The National Archives and Records Administration said it would abide by the Justice Department’s opinion that the deadline for ratification has long passed.

Moving Forward

Steele said she will continue the work to keep the ERA fight alive in Arizona and is looking at younger members of the Legislature to change the current status quo. It’s a sentiment echoed by her colleague Sen. Rebecca Rios, D-Phoenix.

“Arizona is now within the top three states of female representation, and when I would speak to female groups, I would mention that, to which there’d be applause and people would be excited,” Rios said. “And I’d quickly follow up with the fact that it’s not about just electing women — that you need to elect the right women.

“This issue, like many others, does not change until you change the players. I mean, we’ve got a lot of old dogs at the Legislature and I will include myself in that pack, but along with that comes old mindsets and unfortunately, I don’t see those mindsets on this issue changing. What I find most promising is the younger, more open-minded legislators that are coming into the fold now. That’s the hope down the road that they’ll be able to carry the ball on these pieces of legislation that we haven’t gotten.”

Arizona texting ban inches closer to passage

Arizona may finally be ready to join the 47 other states who find the practice of texting while driving so dangerous that they have made it illegal.

But supporters of the ban, who have come up pretty much empty-handed for decades, are having to agree to some limits to try to push the bill to the finish line and get it signed into law.

SB 1261 as approved Tuesday by the Senate Committee on Transportation and Technology, would create a fine of no more than $99 for a first offense and $200 for repeat violations.

Only if the person using the cell phone or similar device is involved in a mishap that causes death or serious injury would the offense rise to the level of a misdemeanor. But even then, the maximum penalty would be four months in county jail and a $4,000 fine.

Sen. Steve Farley, D-Tucson, who has made passage of some sort of restriction a multi-year effort, also had to agree to language which says that citations can be issued only if the texting was witnessed by a police officer or “established by other evidence.” But motorists would not have to surrender a phone to an officer who wants to determine if that person was, in fact, texting.

And the legislation spells out that a conviction for a driving-while-texting offense could not be used by the Motor Vehicle Division to take away someone’s license, nor be an excuse for an insurance company to raise a motorist’s premiums.

The unanimous committee vote sends the measure to the full Senate. But the real challenge could be in the House where lawmakers repeatedly take a harder stand against what some see as “nanny state” regulations.

That logic drew a slap of sorts from Sen Bob Worsley, R-Mesa, who chairs the Senate panel.

“Sometimes it just seems like our political ideology gets in the way of common sense,” he said, saying that lawmakers, in discussing this issue “have had a hard time … to see through a common-sense lens.” And Worsley had a message for the parade of people who testified, some holding pictures of loved ones who were killed by distracted drivers.

“I’m sorry it’s taken so long,” he said.

If it does get approved, that would leave just Montana as a state with no laws on driving while texting. Missouri law governs only motorists younger than 21.

SB1261 was crafted by Sen. Steve Farley, D-Tucson, who has waged a multi-year battle to outlaw the practice statewide. In the interim, some cities and counties have enacted their own bans. But that leaves vast areas of the state with no regulation — and where motorists are free to tap away at messages while driving down the highway.

But even the local laws may not be truly effective.

Michael Infanzon who lobbies for American Brotherhood Aimed Toward Education, said he has been told that the Department of Public Safety, which patrols all numbered roads, does not issue citations to those who violate local no-texting bans. That leaves broad stretches of highways where those ordinances are virtually ineffective.

Infanzon also took a swat at the penalty provision.

“A misdemeanor for killing somebody is not enough,” he said.

Farley, however, said the legislation does not preclude a motorist from also being charged with other offenses from the same accident, including reckless driving or even manslaughter. And Sen. Lisa Otondo, D-Yuma, said those who find the penalties inadequate need to recognize the political reality of the multiple failed attempts to enact any law.

“If this is the answer for now, we’ll take it,” she said.

The measure has something else going for it: Farley modeled it after legislation approved last year in Texas, which finally decided to ban the practice and become No. 47 among states with such a law. That occurred after the Texas Department of Transportation said 455 people died in the state due to distracted driving, with more than 3,000 serious injuries.

Aside from the limits on penalties, SB 1261 has a variety of exceptions.

For example, texting using a hands-free device would remain legal, even to the point of motorists being able to use their hands to activate or deactivate a function. So would using the device to play music as well as use the GPS and mapping functions.

This year’s bill came a year after Sen. Karen Fann, R-Prescott, engineered approval of Arizona’s first-ever driving-while-texting ban, a limited law that applies only to teens for the first six months they are driving. That was a political decision, with Fann conceding at the time that anything more would not get approved.

To get her 2017 measure heard in the House, Fann also promised that it was not a precursor for more far-reaching restrictions. And she specifically vowed she would not be sponsoring an across-the-board ban on texting while driving in subsequent years.

Fann told Capitol Media Services she has kept that promise even though she is signed on the bill as the lone co-sponsor with Farley. She said that SB 1261 is officially Farley’s measure.

Arizona’s drought plan offers key lessons for the road ahead

By now most have heard the news: Arizona, the other six Colorado River Basin states, and the federal Bureau of Reclamation secured a major victory for the health of the Colorado River by completing the Drought Contingency Plan (“DCP”) agreements this spring, and getting Congress to enact implementing legislation within weeks. It had become clear that we needed to take action to plan for a drier future in the region.

Even with an extended drought that added urgency to negotiations, it was not easy to achieve this success. Each of the seven states had to develop a plan to implement the DCP agreements. And Arizona, which was facing the biggest potential reductions in Colorado River water deliveries, faced a major political and practical challenge. Political victories like the adoption of Arizona’s DCP Implementation Plan should be well understood because we will need to ensure similar successes on other water issues in the near future.

So what did Arizona do right, and what can we learn from this process as we take on other water issues going forward?

Generally, the politics of scarcity can bring out the worst kind of political behavior. However, in this case, it brought out Arizona’s best. There were at least five key ingredients that led to agreement on how Arizona would implement the drought plan agreements.

First, leaders demonstrated selflessness and prioritized the best interest of the entire state. The “Arizona Lower Basin DCP Steering Committee” process was co-chaired by policy experts who were directly responsible for the plan’s implementation – Arizona Department of Water Resources (ADWR) Director Tom Buschatzke and Central Arizona Project (CAP) General Manager Ted Cooke. At the outset of this process, Buschatzke and Cooke (reflecting the perspectives of their agencies) differed on important issues, but they also understood that reaching an agreement on the DCP was of paramount importance and required creativity, compromise, and extraordinary persistence.

Second, the Steering Committee process met the test of ensuring robust involvement by diverse stakeholders. Virtually every stakeholder group was represented. Agendas were published, timelines were adopted, information was shared about the risk to Arizona’s water supplies, and small group discussions were encouraged to work through difficult issues. At times the meetings were contentious. Yet the process also produced creative solutions, good faith negotiations, and broad consensus on the essential aspects of the plan.

Third, key government leaders like Gov. Doug Ducey, Senate President Karen Fann, Speaker of the House Rusty Bowers, and the CAP Board each made funding commitments that sent powerful signals to the stakeholders and facilitated agreement on the plan’s conservation and water sharing components.

Fourth, it helps to have a deadline – and this came in the form of stern, timely leadership from federal Bureau of Reclamation Commissioner Brenda Burman. Last December Burman announced that the seven Colorado River basin states had to complete the multi-state DCP agreements by January 31, 2019 or one would be imposed by the federal government. Arizona’s leadership in enacting its statute by that deadline set the stage for California to complete its own plan.

Finally, the entire process was defined by bipartisanship. A water crisis would impact all of us, regardless of party affiliation, something leaders from both parties at the Legislature recognized as they participated in the Steering Committee. State Sen. Lisa Otondo (D-Yuma), for example, met the sometimes steep learning curve of a complex subject head-on, emerging as a trusted educator for her fellow legislators. Her hard work earned her special recognition by the Arizona Chamber of Commerce and Industry at its end-of-session awards ceremony. On Capitol Hill, Sen. Martha McSally and Rep. Raul Grijalva, lawmakers who typically occupy opposite ends of the political spectrum, shepherded the federal implementation of the DCP through to passage. The success of the DCP could and should prove to be a model for how to find solutions to other difficult public policy challenges.

Arizona will need to bring the same quality of leadership and creative problem-solving that produced the DCP success story when water stakeholders resume work on the other pillars of a sustainable water future: protecting groundwater in both urban and rural areas, starting the regional process of re-negotiating the 2007 Interim Guidelines, and finding collaborative ways of conserving water while benefitting Arizona’s rivers and streams. The passage of DCP was historic for Arizona. Now, we have an opportunity to develop solutions for the long-term conservation of our state’s precious water resources.

Kevin Moran is the Senior Director of the Environmental Defense Fund’s Western Water Program. He served as a member of the Steering Committee that developed the Arizona DCP Implementation Plan. Glenn Hamer is the president and CEO of the Arizona Chamber of Commerce and Industry and also served on the Steering Committee.

Athlete who was victim of sex assault supports bill to aid victims

Bridie Farrell, a former world-class speed skater, explains how she was a victim of sexual abuse at 15 and why she supports a proposal by Sen. Paul Boyer to give victims more time to sue assailants and organizations that covered up incidents. (Capitol Media Services photo by Howard Fischer)

A former national speed skating champion lent her voice Tuesday to those who want to give victims of child sexual assault and abuse more time to sue their assailants – and specifically those who permitted it to happen.

Bridie Farrell said that at age 15 she was an “up and coming speed skater” when she was molested repeatedly by a 33-year-old Olympic silver medalist.

“Whenever I went to training, he was there, whenever I competed, he was there,” she said.

What is of particular concern, Farrell said, is this man was investigated in 1990 – seven years before she was molested.

“And our paths should have never crossed,” she said. “He should have left the sport when I was entering the sport.”

Farrell, now 37, finally told her story 15 years later.

She said she is supporting the proposal by Sen. Paul Boyer, R-Glendale, to give victims more time to sue because it is important for survivors to be able to tell their stories “and then to hold the institutions accountable that are facilitating this abuse.” Otherwise, Farrell said, things will not change.

That idea of not just providing more time to sue those who committed the assault but also those who were in charge and may have hidden what they know is one of the sticking points that has so far led to the failure of the bill to advance.

Sen. Eddie Farnsworth, R-Gilbert, refused to give a hearing in the Senate Judiciary Committee to the version of the bill Boyer wants. And so far Senate President Karen Fann, R-Prescott, who has the power to yank the bill from Farnsworth and bring it to the floor – where Boyer said there are the votes for approval – has refused to do so.

Existing law gives those who were victimized as children just two years after they turn 18 to file suit.

Boyer wants to extend that to seven years. More significant, he wants that clock to start running only when someone is aware they have been victimized, defined in his legislation as disclosing the assault to a licensed medical or mental health care provider.

And there’s something else. He proposes allowing these lawsuits, whenever they are filed, not just against the person who committed the abuse but any public or private corporation, association, firm, estate or “any other legal entity.”

Fann has told Capitol Media Services she is concerned that could result in a lawsuit against someone who employed another long-gone person years before, leaving the organization unable to defend itself.

Farrell, however, sees it from a different perspective, what with having been abused by someone who she contends the U.S. Olympic Committee knew was abusing children and should have been kept away from them.

“The issue is when you have an organization that knows there’s a problem with this individual, yet the organization keeps moving them from place to place,” she said. “If you have an organization that’s supposed to be helping keep kids safe and be productive members of our society, yet those organizations are harboring it, that’s what needs to be addressed.”

And that, she said, will force organizations to create safeguards to prevent future victims.

For the moment there is a stalemate.

Boyer and Sen. Heather Carter, R-Cave Creek, have said they won’t vote for a budget plan until Fann allows a vote on the measure, leaving Fann without the votes needed among her 17-member GOP caucus.

Fann, however, shows no sign of backing down. And even if Boyer gets the bill out of the Senate he still needs to have it clear the House.

That still leaves the option of taking his case directly to voters, asking them to enact the statutory changes that he wants. That, however, means gathering at least 237,645 valid signatures by July 2, 2020.

Boyer acknowledged he could get a partial victory: Farnsworth said he would support a much narrower expansion of the time to sue, giving victims until they turn 25. But Boyer said that is unacceptable, as most victims don’t come forward until they are in their 40s.

“As you can imagine, the emotional, the psychological trauma of survivors, it just doesn’t give them enough time,” he said. “And I can’t look them in the face and say, ‘Sorry, I didn’t do anything that actually helps you but maybe we’ll get something next year.’ ”

Sen. Victoria Steele, D-Tucson, who disclosed on the Senate floor last week her own multiple incidents of rape by her grandfather, added her voice to urging that a vote on the issue be allowed.

“This is an opportunity for them to do something amazing,” she said. “They can either protect the abused children or protect the monsters that do this and those who enable them.”

Attorneys clash in court over Cyber Ninja records

FILE - In this May 6, 2021 file photo Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas, at Veterans Memorial Coliseum in Phoenix. (AP Photo/Matt York, Pool,File) — In this May 6, 2021 file photo Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas, at Veterans Memorial Coliseum in Phoenix. (AP Photo/Matt York, Pool,File)

The attorney for the firm conducting the audit of the 2020 election for the Senate told a judge on Monday he has no right to order the firm to cough up the records of the audit in its possession.

“Cyber Ninjas Inc. is not a public officer of a public body,” Jack Wilenchik argued to Maricopa County Superior Court Judge John Hannah. “That is the only person who is subject to a public records request under the law.”

In fact, he said, the fact that most of the money for the audit is coming from sources outside the Senate from private donations “is even more an indication that my client is not subject to the public records law.”

And Wilenchik warned Hannah that there would be far-reaching implications if he concludes his client’s contract with the Senate somehow makes its records public.

“It may sound a little hokey to say it, but it very much opens the floodgates,” he said. “Who’s next?”

For example, Wilenchik suggested, such a ruling could make the records of Dominion Voting Systems subject to public disclosure because that firms, under contract with Maricopa County, provides the equipment to perform a governmental function, specifically the counting of ballots. Ditto, he said, of Runbeck Election Services which prints the ballots.

But David Bodney, representing the Arizona Republic, told Hannah there is a risk in agreeing with Cyber Ninjas — and with the Senate which also contends that those records are not subject to disclosure.

“I can say that if their view of the law is correct, that a public body could launder public funds through a private entity for ill purposes and the public would have no way of knowing about it.”

This is actually the second lawsuit seeking access to the records held by Cyber Ninjas about its activities in conducting the audit.

The state Court of Appeals already has ordered the Senate to surrender all records related to the audit. And the appellate judges have said that includes records held by Cyber Ninjas which they said is the custodian of the Senate’s public records.

But Cyber Ninjas is not a party to that case. And that raises the question of whether the Supreme Court will — or can — order the Senate to take possession of those records and then release them publicly.

“We have not had a request from the Senate for these records,” Wilenchik acknowledged to Hannah on Monday.

In this case, however, Cyber Ninjas is a defendant. And that gives Hannah the option to directly order the firm to surrender those documents itself to the public rather than relying on Senate production.

Bodney said there are reasons for him to do that.

“First, to end the shell game, to stop the runaround, and to hold the Senate and its authorized agent Cyber Ninjas accountable to the public for how it spends public dollars,” he said, noting the $150,000 contract. “The public has a right to this basic information about the performance, the funding and the staffing of this audit.”

And, apparently, there’s a lot that may interest the public. Attorney Kory Langhofer told the court there are about 60,000 records that may fit within the definition of what is being sought.

That issue of what Cyber Ninjas has been up to, how it conducted the audit and even with whom the company and its subcontractors had contact could be crucial for the public to determine the weight to give the final report when it is finally released.

The process has been questioned even before a contract was issued, with Logan previously having made statements questioning the election returns. Then there were issues about exactly how the 2.1 million ballots were being reviewed and the election equipment from Maricopa County were being examined.

And it only became more complicated when it was revealed that Cyber Ninjas had taken $5.6 million from outside sources — above and beyond the $150,000 paid by the Senate — much of this linked to individuals or organizations that have publicly said the election results declaring Joe Biden the winner were fraudulent.

Bodney contends the records of Cyber Ninjas, including all internal and external communications, are as public as if they were sent or received by senators themselves. And that, he told Hannah, should end the discussion.

“The Senate defendants have admitted the legislature’s a public body under the public records law,” Bodney said.

“The Senate defendants have admitted that Cyber Ninjas, a Florida corporation, is its authorized agent,” he continued. “And they’ve also admitted that the Senate has paid, or committed to pay, $150,000 in public funds to Cyber Ninjas to oversee a full and complete election audit to ‘ensure the integrity of the vote.’ ”

Senate President Karen Fann said she got a “portion” of the draft report Monday from Cyber Ninjas. She said delivery of the balance has been delayed because CEO Doug Logan and two other members of the audit team have tested positive for COVID-19 “and are quite sick.” One of the unnamed members is in the hospital.

Fann also said that the Senate did not get images from Maricopa County of the envelopes used to send in early ballots until Aug. 19 and wants to analyze them.

The Senate president said she and her team, including staff and Sen. Warren Petersen, R-Gilbert, who chairs the Judiciary Committee, will meet Wednesday to start reviewing the draft behind closed doors.

“When the remainder of the draft is submitted, the Senate team will hold another meeting to continue checking for accuracy, clarity, and proof of documentation of findings,” Fann said. Only then will it be presented to the full Senate Judiciary Committee and made public.

Audit leaders stricken with Covid

Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)

The Arizona Senate received only a portion of the report on its review of Maricopa County’s 2020 general election today because Cyber Ninjas CEO Doug Logan and two others on his five-person team tested positive for Covid and are “quite sick,” according to Senate President Karen Fann.

Fann, R-Prescott, said that one team member, not Logan, was in the hospital with pneumonia.

She said the Senate legal team would meet Wednesday to review the partial report and that Logan would be present via Zoom at that meeting. When the rest of the draft report is submitted, the Senate team plans to hold another meeting to review it. Then the final report will be shared with the Senate Judiciary Committee and the findings will be released to the public.

It’s possible some information from the report will be made public sooner than that, perhaps even after the meeting on Wednesday, Fann said.

“We don’t want to just put out just arbitrarily information, but if there’s something that the team is comfortable with that is hard solid facts — we know that everybody’s anxious to see these reports and would like some information — so I would love to have the ability to share it as soon as we know that it’s confirmed,” Fann said.

Besides Covid, Fann blamed the county for the delay, saying that the Senate received requested images of ballot envelopes on Aug. 19 and that they still need to be analyzed.

But the county maintains that it already gave images of the ballot envelopes to the Senate on April 22, according to Megan Gilbertson, Maricopa County Elections Department spokeswoman. The county also said as much in an Aug. 2 letter in response to the Senate’s July 26 subpoena.

“Maricopa County already provided digital images of ballot envelopes used in the November 3, 2020 General Election,” the Aug. 2 letter stated, directing Cyber Ninjas to where it said the files could be found. “…If Cyber Ninjas are unable to find them there, the County can produce them again.”

Gilbertson said the county gave the images to the Senate a second time Aug. 19.

Fann said that wasn’t true and that the auditors received the images for the first time on that day.

“I had three separate IT experts look, and it was not there,” Fann said. “I think they thought that they had sent it to us, but I don’t know. I’m not the IT tech, but I can guarantee you it was not there.”

Fann’s plans for the audit release have changed several times over the past few months. In June, the Legislature included language in its budget saying the Senate Government Committee, led by Secretary of State candidate and audit skeptic Michelle Ugenti-Rita, would receive and review the report. Members of the Senate Judiciary Committee later insisted they would have jurisdiction over it instead. And in recent weeks, Fann has instead referred to a “Senate team,” though she has yet to identify the people on that team.

Audit stirs dissension among GOP senators

Doug Logan, CEO of Cyber Ninjas, tells GOP lawmakers about irregularities he said have been found so far in the review of Maricopa County ballots and equipment. With him is Ken Bennett who is the Senate's liaison with the audit. (Capitol Media Services photo from video feed) — Doug Logan, CEO of Cyber Ninjas, tells GOP lawmakers about irregularities he said have been found so far in the review of Maricopa County ballots and equipment. With him is Ken Bennett who is the Senate’s liaison with the audit. (Capitol Media Services photo from video feed)

In letting the Senate’s audit drag on as auditors demand more subpoenaed materials, Senate President Karen Fann has managed to delay a fight within her caucus over how to handle the eventual results.

The July 15 impromptu broadcast meeting with Fann, Senate Judiciary Committee chair Warren Petersen and the audit team they hired laid bare ongoing rifts in the Senate Republican caucus, as some responded with calls to overturn election results and others stepped up criticism.

Sen. Wendy Rogers, a Flagstaff Republican who has been among the most vocal to question the 2020 presidential election results, tweeted partway through the meeting that she had heard enough and it was time to remove President Joe Biden’s Arizona electoral votes – something the Senate cannot do, and that wouldn’t affect Biden’s national victory.

On the other end of the spectrum, Sen. Paul Boyer, R-Glendale, has renewed his criticism of the audit. Boyer, like all Senate Republicans, supported the concept of a Senate-led audit last winter, but quickly soured on the idea after Fann attempted to hold Maricopa County’s supervisors in contempt and selected the Cyber Ninjas, a firm that lacks election auditing experience and has a CEO who promoted election conspiracies on since-deleted social media accounts.

“You told us in closed caucus the ‘audit’ would not cost taxpayers more than 150k and you wouldn’t divulge who you were hiring,” he tweeted at Fann. “Had you told us it was an inexperienced, partisan firm, I wouldn’t have been the only one to object.”

Boyer did not return a call Wednesday. Sen. T.J. Shope, a Coolidge Republican who with Boyer is widely viewed as the closest thing to a moderate left in the Senate Republican caucus, said he wants to get a second opinion on any audit results before the Legislature tries to pass new laws.

He worked closely with election officials across the state this year to introduce a rare noncontroversial election law bill, with adjustments to filing deadlines and a ban on using slogans as part of a nickname on a ballot.

“I’ve been at this thing for nine years,” Shope said. “I’ve made relationships with different county recorders across the state and elections department officials, obviously good enough to run a bill that was written the way that they wanted it earlier this year, so there are people that I trust that I would go to with any of these findings.”

Fann said during an interview last week that she stood behind the audit and would repeat the whole process over again.

“I think that it’s going to open up a lot of eyes about some improvements that we can make in our system,” she said.

But her insistence that the Senate is only looking forward at how to pass laws affecting the next election, not changing the results of the prior one, is an unpopular opinion among some in her caucus.

Along with Rogers, Sen. Kelly Townsend, R-Mesa, has said the Legislature should consider reconvening to attempt to overturn the 9-month-old election results. Townsend is also seeking an Attorney General investigation into Maricopa County based on last week’s hearing, though she said she has yet to hear back about whether Attorney General Mark Brnovich will take up her request.

Townsend said she wants to change a state law requiring the House or Senate to vote on a resolution to hold anyone who refuses to comply with a legislative subpoena in contempt, thus enabling Fann or House Speaker Rusty Bowers to send the sergeant at arms to fetch recalcitrant witnesses without needing the support of a majority of a legislative body.

Instead, she said, it should be a class one misdemeanor – punishable by up to six months in jail – for anyone to ignore a Senate subpoena.

“We’re not going to give up,” Townsend said. “I’m not giving up, and I will do what’s necessary to complete the people’s audit. And if they can’t do it on their own, we will find a way to force them to do it, either now or next year, and if laws were broken, people need to go to jail.”

Sen. J.D. Mesnard, R-Chandler, said the auditing team came across as professional and competent to him during last week’s hearing, and he blames Maricopa County for delays in completing the Senate’s review. While he hoped the investigation would have been completed a long time ago, he said the Senate can’t stop now.

“If folks know that they can obstruct and delay, and that if they do that long enough and persist in it that you will just walk away, then everybody will do it,” he said.

Mesnard, who represents a district won by Biden and Democratic U.S. Sens. Mark Kelly and Kyrsten Sinema, said he isn’t concerned about the audit’s political effect in swing districts like his. The 2022 election should favor Republicans because Democrats hold the White House, House and Senate, and voters don’t usually make their decisions based on a single issue, he said.

The Senate’s audit has thus far been an entirely partisan affair, and Senate Democrats are waiting to see if they’ll get the chance to review the final results and question the auditors. Ahead of last week’s meeting, Sen. Martín Quezada, D-Glendale, said he received no notice that it was a hearing or he was invited until a Senate staff member sent him a picture of a seat in the audience with a sign saying it was reserved for him.

Quezada watched the meeting from afar and marveled at why anyone thought it was a good idea. He can only see one way out of the ongoing investigation: for Fann to announce that it’s gotten ridiculous, she’s ending the audit and she’ll accept the consequences.

“I think that would be a good way, and a good reason to be dethroned as Senate president,” he said. “That’s what I would do if I was her. I would say, ‘Look, guys, this is stupid. We’re ending this.’”

Audit Twitter accounts suspended, Bennett frozen out

Former Arizona Secretary of State Ken Bennett talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin) — Former Arizona Secretary of State Ken Bennett talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

When the Arizona audit of the 2020 election began, the public had two avenues to receive information – former Arizona Secretary of State Ken Bennett and the Arizona Audit Twitter account. Three months later, it has neither.

Tuesday’s suspension of the account comes a day after Bennett, Senate audit liaison, said he is considering resigning his post after being permanently barred from the building where the audit of Maricopa County 2020 ballots is taking place.

Senate President Karen Fann, R-Prescott, said in a statement Tuesday that Bennett would still “be involved and a vital part of the draft and final reports to ensure their accuracy with his knowledge and contributions throughout the audit process.”

However, Fann said Bennett’s disclosure of “unconfirmed information” led to his removal from the hands-on part of the process.

“It is irresponsible to disclose partial information to the media since they are not ‘confirmed’ facts until the audit is final,” Fann stated. “This only leads to confusion and misinformation with the public.”

Bennett, who has been involved with the Senate’s review of the Maricopa County 2020 ballots since April, was considering calling it quits entirely after a few incidents he discussed in radio interviews Monday.

The latest was on July 23, when he arrived at the Wesely Bolin Building – where the ballots are currently housed after leaving Veterans Memorial Coliseum – and was not permitted inside.

The election review is now entering its fourth month. Workers are wrapping up an additional count of ballots and vacating the Wesley Bolin Building at the Arizona State Fairgrounds by the end of this week, said Randy Pullen, audit liaison and former Arizona Republican Party chairman.

Pullen said that Bennett was told Friday he would not be allowed back in the building while counting continued, though that was unclear in Bennett’s public remarks Monday.

The Arizona Senate also issued new subpoenas Monday for more election information from the county, including mail-in ballot envelopes or images of them, voter registration records with change histories, information about security breaches of elections systems, passwords and information for administrator access to tabulation machines, network logs and router information.

Fann and Bennett attributed his barring to sharing information about ballot counts in some of the ballot boxes with Larry Moore, the retired founder of Clear Ballot, who, along with Republican analyst Benny White, has conducted his own analyses of the 2020 election.

“I shared some box counts of how many ballots were in each box, and that got leaked to the press,” Bennett said. “I apologized to the Senate, to President (Karen) Fann. I had promised that information would not be leaked to the press, but it indirectly got done. So, that’s how I got barred from the audit.”

Pullen said it was one of many incidents where Bennett “violated his commitment not to release information” and that Bennett, the spokesman, had declined to sign a nondisclosure agreement earlier on in the review.

“Frankly, he was asked to sign an NDA that week they had the hearing, and he refused to sign the NDA,” Pullen said. “Again, it’s unfortunate that that he chose to do that.”

Pullen notably is also the treasurer for the 501(c)(4) nonprofit Guardian Defense Fund, created by Rep. Mark Finchem, R-Oro Valley, to raise money and pay for audit security. The lead security officer known only as “Cowboy Hat Andy” told Bennett he could not speak to a 12 News reporter last week because he was no longer spokesman. Bennett said it was a “power play.”

Pullen said he spoke to Fann Thursday evening after becoming aware that Bennett had shared the data with Moore. Pullen said it was the Senate’s decision to bar Bennett.

“Once it became clear that he was the source of the problem, on Thursday, Karen Fann and I agreed that he wouldn’t be let back into the building while counting was going on,” Pullen said, adding that Fann tried to “relay that information” to Bennett Thursday night but was unable to reach him.

Fann wouldn’t confirm or deny that detail Monday evening. She instead sent a general statement.

“Ken is a valuable asset to the senate audit and will continue to be so,” Fann said via text. “The physical work is expected to finish up in the next few days and the auditors will take all the data back to their labs for analysis.”

She would not specify if one of those labs was in Montana where audit subcontractor CyFir founder Ben Cotton took data recently.

Fann also did not address the conversation in her Tuesday comments, but took several shots at Maricopa County for “withhold[ing] vital information from the public and the auditors which has created additional costs, months of delays and a lack of transparency on their part.”

She did maintain that Bennett was still part of the team.

“When the draft report is ready for review, it is planned for Ken, Senator (Warren) Petersen, myself and our legal team will be reviewing the report with the auditors to ensure all information is clearly explained and documented correctly,” Fann continued.

“Regarding access to information: our senate members nor I have access to the numbers of the ongoing audit except for the information we were provided at the public hearing on July 15th,” she said, adding that the media has as much info as the Senate does.

She added that she hired the auditors to do a job and nobody should “be looking over their shoulder telling them how to do their job or asking for premature information.”

That seemed like a swipe at Bennett who was asking questions to which Cyber Ninjas and Pullen would not provide answers.

“I cannot be a part of a process that I am kept out of critical aspects along the way that make the audit legitimate and have integrity when we produce the final report,” Bennett told James T Harris of “The Conservative Circus” on 550 KFYI. “And unfortunately, there have been too many of those situations.”

Bennett was one of the only signs of transparency coming out of the Senate’s audit, helping walk through details for the press corps and answering questions as best he could. He was never willing to admit he was intentionally being left out of the audit’s inner circle.

Fann would not comment on whether she was concerned over Cyber Ninjas and Pullen withholding information from Bennett — the one person involved with extensive election oversight knowledge — or whether she could trust that information since Bennett was hired as her liaison to transmit information between the parties involved. If he wasn’t getting all the information, it’s unclear if she was.

“When the audit is complete then they will need to provide us with all their proof and documentation of their results,” Fann said.

Bennett said via text he has no comment at this time.

Bennett was there to operate as the messenger between the contractors and Fann, so his banning raises more questions than before.

On the radio Monday, Bennett said he’s still fully committed to the audit but called being denied entry “the tip of the iceberg.”

He gave a couple examples of what’s underneath the surface.

Early on, Cyber Ninjas were not forthcoming with how they were counting boxes of duplicate ballots, Bennett told Harris, and he heard the auditors were telling workers, “Don’t share anything with Secretary Bennett.”

Bennett said that when he learned the Senate wanted a third recount of the ballots, he went to Pullen and asked for the procedures because he was concerned about the independence of the count.

“He refused to tell me,” Bennett said.

Bennett said he was concerned there would be “force balancing” to make it match the Cyber Ninja’s count. Harris pointed out that Bennett does not know the Cyber Ninjas’ count because it has not been shared with him.

Now with Bennett’s access kneecapped and the suspension of the “official” Arizona Audit Twitter account, it’s unclear how much information the press and public will receive moving forward — or where that information will come from.

Twitter also banned the Audit War Room account, which was created after the official account was criticized for being inflammatory. (All other state war room accounts were also suspended likely due to one person running them, something Twitter tries to avoid.)

The Audit War Room account has attacked elected officials and the media. In one instance, it mocked an Arizonan whose dog died.

It is still unclear who was posting to the accounts.

Editor’s note: This story has been revised to include a statement from Senate President Karen Fann on Ken Bennett being involved in the final report of the audit.

Auditors hide donors, look for secret watermarks on ballots

Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin) — Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

What the Senate election audit lacks in transparency, it makes up for in QAnon conspiracy theories.

From the Arizona Senate to the cybersecurity company overseeing the audit of nearly 2.1 million ballots from the November election, everyone involved has said one way or another that they want and hope to be transparent about the process, but to date, there is little evidence to support those claims.

While media outlets across the state had to fight and threaten legal action to receive limited access to the Madhouse on McDowell – dubbed so decades ago for raucous Phoenix Suns games – unanswered, important questions still hang in the air.

TRANSPARENCY

Former Arizona Secretary of State Ken Bennett, the Senate liaison for the audit, hasn’t disclosed any private contributors helping to fund the audit. The Senate and Cyber Ninjas, the firm overseeing the process, agreed on a $150,000 contract that will come from taxpayers, but it is known that there is a lot of money pouring in from outside sources, including One America News Network, which pushes the far-right agenda.

Bennett has stated his intention for transparency on the private funding, but has yet to accomplish that.

Bennett said April 27 he will try to have the money go through the state Senate so it can be tracked as a public record. Currently, the private money is going directly to Cyber Ninjas, whose CEO Doug Logan has repeatedly refused to disclose any information.

“I am going to fight with every ounce of breath I have to make sure that all of that money goes through the Arizona Senate, and is publicly disclosed,” Bennett said.

If any money does go to the Senate, it would go through the Legislative Council, not directly to senators.

However, according to Legislative Council, the body that would actually accept any “gifts” the Senate receives, no one has asked about the possibility of setting up a mechanism to receive these donations.

Mike Braun, Legislative Council executive director, said Arizona Capitol Times reporters were the only ones who have even broached the topic to him.

He said that this isn’t one of those times where “the answer is no, but the check will be here by two o’clock.”

“Nobody’s ever talked to us about setting it up or doing it, or what the requirements would be,” Braun said.

Bennett declined to say whether former President Trump was sending money to back the audit, but he said MyPillow CEO Mike Lindell has not donated money.

While simultaneously claiming the money would become public, Bennett plugged the Trump-friendly One America New Network-backed 501(c)(4) organizations fundraising for the audit, directing people to its website to donate during the brief press conference.

He said the source of those nonprofits’ funding will “get disclosed … when all the 501(c)(4) contributors get disclosed.” That might be a while, considering 501(c)(4) organizations are “dark money” nonprofits that aren’t required to disclose donors.

Bennett also urged people to visit a website if they wanted to give money to the audit. The site – also a 501(c)(4) nonprofit organization – is hoping to raise $2.8 million. The nonprofit, The America Project, is run by former Overstock CEO Patrick Byrne, who has close ties to Trump, Lindell and others in that inner circle.

Meanwhile, a Maricopa County Superior Court judge ruled on April 28 that policies and procedures for the audit conducted by Cyber Ninjas and its subcontractors is considered a public record, but the ruling is likely pending appeal to the Arizona Supreme Court.

To date, a coalition of media publications had to fight with the Senate, Bennett and Cyber Ninjas over allowing members of the press to be in the room as the audit is being conducted. It took until the fourth day of counting ballots before media got inside Veterans Memorial Coliseum to report. From day one of the auditing process, media outlets could only gain access to the venue if they volunteered to participate as an observer without being able to report, but attorneys for media organizations struck a deal to allow one pool reporter at a time in.

Before that, only one reporter, Jen Fifield from The Arizona Republic, was granted access (a Capitol Times reporter was denied after signing up) and became a key part of the story when she noticed blue pens were about to be used and urged Logan to remedy it.

Now, there’s a rotation of media outlets who can observe from the bleachers inside the coliseum during several shifts in a day.

CONSPIRACY

While Arizona media fights for access, journalists and election officials are also fighting to debunk persisting conspiracy theories Bennett and others involved with the audit are pushing.

The 2020 election gave rise to many conspiracy theories of a stolen election, and some are still alive as auditors count the ballots.

The most prevalent conspiracy theory is that the auditors are using ultraviolet light to scan ballots to look for secret watermarks the Trump administration placed on “official ballots.”

That repeatedly-debunked theory began from the QAnon community.

QAnon emerged after Trump’s election, claiming that Trump is fighting an elite cabal of business leaders, celebrities, media professionals and politicians engaged in Satanic worship and child sex trafficking.

One of its rumored leaders, who might be “Q” himself, according to a recent HBO documentary series is Ron Watkins, who does not live in the United States. He has gotten heavily involved with the Maricopa County audit through the instant-messaging app Telegram. Watkins, on the social media channels he has not been banned from, goes by the moniker CodeMonkeyZ. He has posted more than a dozen times about the audit, claiming he has seen wrongdoing on the livestream cameras.

Bennett would not answer questions about Watkins’ possible involvement.

It’s unclear how involved Watkins is in the audit, but there is a host of connections between him and the auditors, including that Watkins and Cyber Ninja CEO Doug Logan retweeted each other after the election.

Watkins claimed Trump actually received 200,000 more votes in Arizona than he did, which Logan shared on his now-deleted account.

On the message board, Watkins commented that he has been talking with Bobby Piton, a mathematician and investment manager who has theorized that the election was stolen. Piton attended the unofficial legislative hearing in November at the Hyatt in Phoenix as an expert witness and posted on social media that he spent “12 hours working on AZ Data” over the weekend.

The two agree that UV light will expose all the fake votes.

“Called [Piton] earlier and had a chat about the potential use of the UV light station,” Watkins wrote. “Since UV is able to detect oil from fingerprints, if there are no fingerprints on the ballot then the likelihood of the ballot being marked through a non-human process is high.”

Watkins also complained that volunteers weren’t doing the UV process properly.

In an interview with Newsmax, another right-wing channel, Bennett confirmed they were looking for watermarks.

Maricopa County Elections Department recently said their ballots do not have watermarks on them.

Bennett said auditors “are looking for a lot of things” with the UV light.

AZ lawmakers subpoenaed regarding Jan. 6 riot

At least two Arizona lawmakers say they were subpoenaed by the FBI for communications regarding the January 6 riot at the U.S. Capitol.

Senate President Karen Fann, R-Prescott, and Sen. Kelly Townsend, R-Apache Junction, say they were subpoenaed recently by the FBI for communications regarding the insurrection at the nation’s Capitol last year.

Fann said there is a list of lawmakers who received subpoenas, but did not disclose the other names.

Several lawmakers, including Sen. Wendy Rogers, R-Flagstaff, Sen. Sonny Borrelli, R-Lake Havasu City, and Rep. Mark Finchem, R-Oro Valley, have stated that the 2020 presidential election was stolen from President Donald Trump.

Borrelli said he did not receive a subpoena and Rogers did not immediately respond to a request for comment. “I’ve been asked by the FBI not to comment,” Finchem said.

Townsend and Fann will cooperate with the request.

“They are looking to see if I had any correspondence with a list of attorneys for Donald Trump. Staff is going through all of my emails and will submit it soon,” Townsend said in a text on June 29.

Fann called the request a FOIA (Freedom of Information Act) in the form of a subpoena, “asking for my … emails, texts, whatever we have between me and a list of people.” After the 2020 election, Fann led an audit of Maricopa County ballots to search for fraud, but never stated the election was stolen.

“I was not part of January 6, didn’t even know it was going on until after it happened. I saw it on the news like everybody else. This whole alternative slate of electors, I didn’t have anything to do with that either,” she said on June 28.

Kim Quintero, Senate majority communications director, said that Senate attorneys don’t think Fann will be called to testify in Washington, D.C.

House Speaker Rusty Bowers, R-Mesa, testified in front of the January 6 committee on June 21 that Trump and his aides tried to convince him to investigate their claims of fraud in Arizona after the election, but they would not provide evidence. Without substantiation for their ideas, Bowers refused. “I said, ‘Look, you are asking me to do something that is counter to my oath,’” he told the committee.

Bowers received a John F Kennedy “Profiles in Courage” award on April 21 for refusing to decertify the election despite pressure from several other Republican officials. Congressman Andy Biggs also tried to convince Bowers to go along with the theories of fraud, but was unsuccessful. Protestors picketed and yelled outside of Bowers’ home in Mesa for days.

Rep. Jake Hoffman, R-Queen Creek, Arizona Republican Party Chair Kelli Ward, and former lawmaker Anthony Kern are among a group of 84 self-proclaimed “electors” across the country who signed onto a document that said the 2020 election was stolen from Trump. Hoffman did not immediately respond to a request for comment. Kern and Hoffman are both running for seats in the Arizona Senate this year.

Finchem and Kern were both present at the U.S. Capitol on January 6, 2021. Finchem and Ward were previously subpoenaed by the committee investigating January 6 in February.

Big bucks, negative ads besiege LD17 Senate race

close up of Benjamin Franklin on a hundred dollar bill

Four years after Democrat Jennifer Pawlik was told she wasn’t a viable candidate in the Chandler-based Legislative District 17, and two years after she won a House seat, the road to control of the state Senate runs through the Southeast Valley.

And at this point, that road might as well be paved with gold.

With just over two weeks to go before the election, incumbent Republican Sen. J.D. Mesnard, Democratic challenger Ajlan Kurdoglu and outside groups have already spent a combined $1.7 million, most of that from deep-pocketed national Democratic organizations intent on flipping the Arizona Legislature.

In LD17, registered Republicans still outnumber Democrats by about 9,500. But Democrats have made significant gains in the district in the past four years – about 10,000 new Democrats registered between 2016 and 2020, compared to just under 4,000 new Republicans.

Independent voters who supported Mesnard and Republican Rep. Jeff Weninger when they defeated Pawlik in 2016 clearly broke for her in 2018. A general suburban shift from the Republican Party caused by distaste for President Donald Trump, and an influx of transplants drawn to the Southeast Valley by a booming tech sector have made the district a reachable goal for Democrats.

“LD17, just like our state is changing,” Kurdoglu said. “Our priorities are changing. Frankly, the only thing that is not changing is the stale approach of our current state senator.”

In Kurdoglu, who party leaders recruited to run against Mesnard, Democrats found a fresh-faced, enthusiastic candidate who draws on his own experience as a Turkish immigrant to describe the American dream he found in Arizona and how he wants to make that dream a reality for would-be constituents.

This is Kurdoglu’s first campaign, against a formidable incumbent who has spent almost his entire adult life drafting state policy. Mesnard is counting on his decade of experience in state office to be a selling point for voters during an unprecedented health and economic crisis.

“You have someone in office now, whether you agree with him on every issue or not, who knows the stuff, who has the experience,” Mesnard said. “We can’t afford the learning curve of someone brand new, who’s never served in any capacity in public service, and is now going to step into one of the biggest challenges of our lifetime.”

Mesnard, 40, showed up at the Senate almost two decades ago for a research internship and has basically never left the Capitol since, going on to spend eight years as a Senate Republican policy adviser before he resigned to run for an open seat in the House in 2010.

He served eight years in the House, the final two as speaker, before winning a Senate seat in 2018. His roots in the Senate basement showed in the 27-page blueprint he drew up as his campaign for speaker, and in the way he spent last summer drawing up an intricate property tax cut plan that looked like it would move forward before COVID-19 wrecked the state’s budget plans.

Mesnard’s tenure as House speaker was marked by a #MeToo-era reckoning that led him to launch an investigation into several representatives and ultimately lead the call to expel then-Rep. Don Shooter, R-Yuma — a historic vote Mesnard now features in some campaign ads. He also presided over the chamber during 2018’s massive “Red for Ed” protests, and ended up carrying legislation to raise teacher salaries by 20% over three years.

The main story of his two years in the Senate, meanwhile, has been perpetual conflict with Senate President Karen Fann, R-Prescott. Fann narrowly beat Mesnard for the Senate presidency in 2018. Relations between the two have remained frosty, as Mesnard and other conservative lawmakers were stymied in their attempts to pass a different tax cut package in 2019 and prevent the Legislature from adjourning this year. In 2019, he was the sole Republican to vote against the state’s budget because he disliked the tax cut package it contained.

This year, Mesnard also sponsored and passed the bill that has become one of the biggest triggers of attack ads against Republican incumbents – a bill supported by 89 of Arizona’s 90 lawmakers that states that insurance companies in the state cannot deny coverage to people with pre-existing conditions if the Supreme Court rules the Affordable Care Act is unconstitutional.

The new state law lacks the interlocking protections of the Affordable Care Act that were designed to prevent insurance companies from charging patients with pre-existing conditions more or refusing to pay for medical care they need, leading Democratic PACs to use the bill to hammer vulnerable Republican incumbents as bad for health care.

Independent liberal organizations have spent nearly $1 million to attack Mesnard, while GOP organizations have spent just about $400,000 to help him. More than $500,000 of the anti-Mesnard spending appeared in the past week, on top of about $160,000 spent the previous week.

“Pouring in $160,000 in a single week into a legislative race, even a state Senate race, that is a lot of money,” Mesnard said. “You’ve never seen anything like that before. So that can make a difference, mostly by bringing up my negatives and tearing me down. It’s not really helping the other guy so much as it’s just hurting me.”

Even hardcore Republicans in the district have been targeted by push polls suggesting Mesnard is part of a crime syndicate and wants to forcibly sterilize transgender people. (The sterilization charge stems from the involvement of one of his employers, the conservative legal outfit Alliance Defending Freedom, in a European human rights case over whether countries could require transgender people who wished to change the sex designations on their birth certificates to first undergo sexual reassignment surgery; Mesnard said he still doesn’t know what crime syndicate he allegedly belongs to and that charge has not been repeated in other attacks.)

A million dollars goes a long way in a district with about 150,000 voters, and voters and candidates have been inundated with internet ads. Mesnard, a self-described Trekkie who keeps a Star Trek channel on streaming in the background while he works from home, said nearly every commercial break now brings at least one ad bashing him.

He said he remains optimistic about his chances of returning to the Senate.

“I think it could go either way, but I feel like on the whole, I have more working in my favor than against me,” Mesnard said. “I feel like I’m gonna win and we’re working hard, but I also acknowledge that I don’t know how much they’re gonna spend to get through this race. I mean, they seem to have unlimited funds.”

Kurdoglu, likewise, said he is confident that he’ll be sworn into the Senate in January.

Republican independent expenditure groups, led by a political action committee affiliated with Gov. Doug Ducey, have worked to paint Kurdoglu and other Democrats running this cycle as too far-left for Arizona.

“I brush it off,” he said. “My life story is out there. What I want to do is out there. I explain everything as much as I can.”

Around the same time Mesnard was starting a legislative internship, Kurdoglu arrived in Glendale to begin master’s courses at the Thunderbird School of Global Management. He fell in love with the state and decided to stay, eventually starting retail furniture stores and becoming a naturalized citizen.

Those early years as an immigrant building a life and business from scratch left Kurdoglu with an unfailing sense of optimism, leaving him confident that he and fellow Democrats will be able to pass legislation to improve health care and education in the state with bipartisan support and a signature from Republican Gov. Doug Ducey.

“I’m sure if we really put partisan politics, gamesmanship as they call it, aside, and we put our heads together, we can find a way to make that happen,” he said. “Come on, this is the United States of America, the biggest country on Earth, so we should be able to solve these problems.”

Big fights loom over few differences in GOP spending proposals

Cage fighting has begun at the state Capitol.

And while physical violence has been avoided, the stakes are high all the same. Somewhere in the ballpark of $12 billion in state revenues is up for grabs as lawmakers forge ahead on this session’s appropriation process, having bucked tradition by drafting separate legislative budget proposals in each chamber that need to be reconciled before negotiations can begin with the Governor’s Office.

Those proposals became public earlier in January, and Republican leadership and Appropriations Committee members from both the House and Senate have already held several meetings in the Joint Legislative Budget Committee offices, dubbed “the cage,” to hash out their differences on where the state should spend its money in the next fiscal year. Meetings with the governor, who released his budget proposal January 17, are on the horizon.

In broad strokes, the three Republican budgets are fairly similar. All call for increased funding for K-12 education, roads and public safety, and include some form of tax cut.

But there are key differences, mostly between the governor’s budget and the two legislative budgets.

Gov. Doug Ducey wants to close a prison, launch a new program to fund low-achieving schools and stash more money in the state’s rainy day fund. Republicans in both legislative chambers are agitating for more aggressive tax cuts than the governor proposed.

The Senate framework has detailed requests from individual members, including overhauling a special education funding formula that has gone unchanged since 1980, building a veterans’ home in Mohave County and providing state aid to cities covering the costs of firefighters’ cancer treatment. The House, meanwhile, has set aside around $51 million ongoing for member requests – an amount that would all but disappear if lawmakers acquiesced to some of Ducey’s spending requests.

Senate President Karen Fann, R-Prescott, said discussions with House leaders are going well, but both chambers still have many questions for Ducey.

“Some of the things they have in their budget, we don’t understand what they’re doing or how they’re doing it or why they’re doing it,” she said of the governor’s budget plan.

Unknown Priorities

Chief among those questions is just how to handle the closure of Florence Prison, a move Ducey announced in his State of the State Address to the apparent surprise of Florence town officials. The governor’s budget staff estimated that moving prisoners to county jails or private prisons and reassigning correctional officers to the nearby Eyman Prison would save the state $270 million over three years.

But in the next budget year, closing the prison entails spending about $33 million to buy bed space for inmates in county jails and private prisons, according to the Governor’s Office, though neither the House nor Senate budget makes a similar appropriation. Legislative budget staff say questions over how much money is needed and where prisoners will go could remain unanswered until after the Legislature adjourns for the year.

“We’d like to have more details about that, as to how we’re going to go about transferring those prisoners and how those costs will be transferred to either the Eyman Prison or over to the county jails,” Fann said.

And legislative Republicans don’t know what to do with Ducey’s school-funding initiative, dubbed “Project Rocket,” which would spend $44 million to increase per-pupil funding at low-performing, low-income schools over three years. Neither legislative budget proposal carves out any funding for the new program, which Fann said most lawmakers didn’t know about prior to the governor’s State of the State Address.

While Project Rocket has support from Republicans, including House Education Chair Rep. Michelle Udall, R-Mesa, legislative leaders as a whole are skeptical of the program, which would eat up the bulk of the ongoing discretionary spending set aside for member requests if passed as written.

“Obviously we’re all for funding education, particularly schools that need the extra help to bring them up, but it’s a new program and so we have some questions,” Fann said. “How does it work? Who exactly is going to get the funds, and under what conditions?”

The program is modeled after a pilot that offered “results-based funding” in Avondale, Wickenburg and Deer Valley school districts, in effect increasing per-pupil spending. House Appropriations Chair Regina Cobb, R-Kingman, said she’s not sold on the initiative, and that she thinks it could be cheaper and just as effective if lawmakers narrow its scope.

“It includes D schools, F schools and it also includes C schools with 60% [free or reduced lunch] – that’s where that $44 million comes from,” Cobb said. “If you just did D and F schools, you could probably just drop it to $12 million.”

‘Bothersome’ Tax Cuts

And then there are differences on what to do with the state’s overflowing surplus. House Republicans want $350 million in tax cuts over the next three fiscal years, while the Senate calls for $275 million of cuts in the same time period, just about covering a wide-reaching plan introduced by Sen. J.D. Mesnard, R-Chandler, that would cut about $300 million over three years.

The governor, on the other hand, only calls for a reduction of $45 million, the result of a proposal to eliminate income taxes on veterans’ pensions. Ducey also wants to add $25 million to the rainy day fund, while appropriators have yet to propose an amount they’d like to see added to the fund.

Cobb called Ducey’s proposed tax cut a “carve-out of a carve-out,” not the kind of broad-based cuts sought by many conservatives.

She’d like to tinker with personal exemptions and charitable tax credits – perhaps in concert with the governor’s cut – to reach $100 million a year in ongoing cuts, plus a $50 million one-time cut in fiscal year 2021, which starts this coming July 1.

“I think that when you’ve got $1 billion in surplus, $100 million is not a lot of a tax cut to be given back to the taxpayers, especially since we’ve got … an increase in income,” Cobb said. “We don’t want to live off of a nine or 10% growth rate. That’s unsustainable. So what we wanna’ do is live off of the lower growth rate.”

But the Legislature’s ambitious tax cut plans risk alienating moderates like Sen. Kate Brophy McGee, a north Phoenix Republican who faces stiff odds as she runs for re-election this year. Brophy McGee’s opposition to a tax cut plan Mesnard pitched last year that would have given more income tax breaks to wealthier Arizonans and increased taxes for the state’s poorest residents was one of the key reasons it didn’t pass.

Brophy McGee called the tax cut figures in the Senate and House budgets “bothersome,” but said she’s “somewhat interested” in Ducey’s narrowly targeted tax cut plan for veterans. The state still has $1.1 billion in K-12 rollovers and debt that has yet to be paid back, and should wait to go through another robust economic cycle before discussing cuts, she said.

“Let’s get back to where we were before the wheels fell off, and then we can talk about tax cuts,” she said.

The Dem Factor

Tax cuts also mean losing support from Democrats in either chamber who might otherwise be willing to support pieces of the budget, Senate Minority Leader David Bradley said. Sweeping tax cuts are a “poison pill” that will contaminate every budget bill, he said.

Democrats in the House and Senate plan to introduce their own spending proposals by next week, publicly laying out their starting point in negotiations as Republican leaders barrel toward a planned late-February budget passage.

The House and Senate budgets do more closely align with Democratic priorities in one sense – they both call for more funding to help homeless Arizonans.

Both legislative proposals would give $10 million to the state Housing Trust Fund, while Ducey’s budget allocates no money to the oft-neglected fund. State support for subsidized housing plummeted during the recession, but last year’s budget reversed course by providing a one-time influx of $15 million to the fund.

While the $10 million proposed in this year’s budget is a start, Fann said she and other Republican senators would like to spend more. Democrats in both chambers have made increased funding for housing a key part of their platform.

Bucking Tradition

Settling these differences and getting a budget passed will be something of a novel process. In the past, budget negotiations took place much later in the session, and the governor tended to set the terms of debate, whereas now the dual budgets from the Legislature give lawmakers a bit more bargaining power.

“It wasn’t necessarily contentious, but it was extremely slow,” said Rep. John Kavanagh, R-Fountain Hills, who for years served as House Appropriations chair. “We would make a proposal and it would take days to come back – then the change was minor.”

Now, Kavanagh, who still serves on the Appropriations Committee, senses a “spirit of greater collaboration,” partly because lawmakers want to finish the budget and hit the campaign trail as soon as possible.

And even once there’s a unified Republican spending plan, leaders have to fend off holdouts from rank-and-file lawmakers who have specific requests or who feel jilted by a lack of transparency in the negotiations process, a perennial complaint that has persisted this session. This is especially crucial in the House, where one Republican defection means that leaders have to seek Democratic votes to get a budget passed.

“Our votes are never secure,” said Rep. Noel Campbell, R-Prescott. “We all want what we want for our districts and our constituents.”

As with any fight, cage or otherwise, everybody has a plan until they get punched in the mouth.

“The fun has yet to begin,” Kavanagh said.

Bill allows 10 Navajo Nation students to use Arizona vouchers across state lines

The Arizona Department of Education and state legislators came to a compromise that would no longer punish students and parents on the Navajo reservation who use school vouchers to attend out-of-state schools.

And despite concerns that the bill would be a “Trojan Horse” to expand the state’s Empowerment Scholarship Account program, it holds the line on the controversial vouchers.

SB1545 holds harmless eight families from the Window Rock area on the Navajo Nation. They received letters from the Department of Education demanding they refund the state money they had received in school vouchers after the families used the funds to pay for a private school just across the border in New Mexico.

In a prepared statement, Superintendent of Public Instruction Kathy Hoffman said her administration has worked diligently to find a resolution to the situation affecting these Native American families and were able to do so with a bipartisan effort.

“[It] does not punish the families and provides adequate time for them to determine the best next step for their children’s education,” Hoffman said in the statement.

The bill would allow the students to remain in the New Mexico school through July 1, 2020, after which they would have to change schools to one in-state if they want to continue using their vouchers, formerly known as Empowerment Scholarship Accounts.

The bill only applies to those ESA-approved students on the reservation who attend an out-of-state school within two miles of the border, and would not expand to any other students. State law still prohibits the vouchers, which are used like debit cards, from being used for out-of-state tuition in other circumstances.

Hoffman said the bill respects the will of Arizona voters who overwhelmingly voted against a measure to expand the state’s ESA program in 2018.

“This is an example of what we can do when we work together to find solutions to our problems,” Hoffman said, and she also thanked the legislators from Legislative District 7 for their help on the issue.

Richie Taylor, Hoffman’s communications director, said there were 10 total students who received letters from ADE requesting a repayment for the funds that were not approved.

Taylor said the students were approved for the vouchers, but not to spend them out-of-state, which is why they received letters suspending the account until repayment was made.

Bipartisan ‘political science experiment’ plays in Legislature

Arizona House Speaker Rusty Bowers, R-Mesa, left, speaks with Minority Leader Reginald Bolding, D-Laveen, during the opening of the Arizona Legislature at the state Capitol Monday, Jan. 11, 2021, in Phoenix. This year’s Legislature has seen an uptick in bipartisanship. PHOTO BY ROSS D. FRANKLIN/ASSOCIATED PRESS

On March 3, something very unusual happened in the Arizona House.

Usually, the Committee of the Whole, or full floor debate, follows a set script in both the House and Senate. Republicans move their bills and amendments. Democrats sometimes argue against them. A Republican chair declares that Republicans have the votes to pass or fail whatever they choose to pass or fail, even when there are clearly more Democrats in the room yelling “aye” or “nay.”

But on March 3, the roles were partially reversed. House Minority Leader Reginald Bolding, D-Laveen, took the speaker’s dais as COW chair to oversee a calendar full of Democratic bills. Rank-and-file Democratic lawmakers stumbled over a bill script that they hear hundreds of times each year but rarely get to say themselves.

It was a symbol of an unexpected bipartisanship that has emerged in the state House and Senate, even as high-profile partisan fights over elections, abortion and Covid draw most attention. Of the roughly 730 bills that had passed either the House or Senate at the beginning of this week, at least 67 — slightly less than 10%t — were sponsored by Democrats.

Usually, legislative Democrats are lucky if it takes two hands to count the number of bills they get signed into law.

Former lawmaker and longtime GOP political consultant Stan Barnes said he hasn’t seen anything like this number of Democratic bills survive since he was first elected in 1988. It’s like watching a political science experiment play out in real time, he said.

Historically, GOP leaders would be more likely to be punished than rewarded by their caucus for working with Democrats, Barnes said. But after the 2020 election, which ended in one-vote Republican majorities in both chambers, demonstrating bipartisanship might help.

“In past years, rank-and-file Republicans might say ‘What the heck, Mr. Speaker, why is a Democratic bill moving? We’re in the majority, they’re not,’” he said. “But I think in 2021, on the heels of a very divided partisan election, there’s room for extending an olive branch.”

Advancing Democratic bills could also help Republican leaders down the line, when they have to pass the state’s budget. Both House Speaker Rusty Bowers and Senate President Karen Fann understand that their Republican majorities are thin and potentially fragile, and they may need Democratic help to fulfill the Legislature’s sole constitutional obligation of passing a budget.

Sen. Lela Alston, D-Phoenix, agreed that Republicans might be looking for Democratic support on a budget proposal. Four of Alston’s bills having to do with aging and foster care passed the Senate.

“The majority might be thinking they will need Democratic votes to pass the budget, and they need some carrots,” she said. “It only takes one guy or one gal to hold out and say they’re not going to vote on the budget.”

Any budget that would get Democratic support would lack the massive tax cuts Republican lawmakers and Gov. Doug Ducey want to pass this year. Multiple plans would result in tax cuts of more than $1 billion over the next few years, which Alston described as a “no-starter.”

As far as her bills, Alston said she thinks her years of persistence finally paid off. One, which would double the $75 monthly stipend provided to relatives who take in children when their parents can’t care for them, passed the Senate 29-0 after years of effort.

“I’ve just been offering them for so many years that they finally caught on about what it is that I’m trying to do and the need,” Alston said.

Other Democrats are used to seeing their bills pass — but only if they have a Republican sponsor. After Democrats pushed for years to allow consular IDs and repeal a 2006 voter-approved law that barred undocumented immigrants from receiving state aid and in-state tuition, that legislation finally passed the Senate this year — once Republican Paul Boyer of Glendale became the sponsor.

Sen. Victoria Steele, D-Tucson, spent much of last year working on a bill to prevent fertility doctors from using their own sperm to impregnate women after learning from local media that a Tucson doctor had done that. Her bill passed the Senate, but under Republican Nancy Barto’s name after Barto copied the language.

Another Steele bill, which would repeal rapists’ parental rights to their victims’ children, passed the Senate and is awaiting action in the House. She estimates that she manages to pass about one bill each year, but in many cases she ends up finding a Republican who will take on the bill, thinking of a Harry Truman quote about how a person can accomplish a lot without caring who gets the credit.

“In the past, I have gotten a lot done by doing a lot of work on a bill, wrapping it up with a nice little bow and handing it to a Republican,” Steele said.

Steele said it’s possible legislative Democrats have gotten better at figuring out how to appeal to Republicans to get their bills heard. But it’s still demoralizing to be a Democrat in the Arizona Legislature.

“Maybe we’re getting better at trying to figure out what might make it across the finish line, what might get some Republicans to work for us,” she said. “The reality is day after day, hour after hour, we lose. We lose the vote because we have one less person.”

Rep. Ben Toma, R-Peoria, speaks at a Feb. 19, 2020, in Scottsdale. Toma, the House Majority Leader, said Republican and Democratic leaders made a conscious decision to try to work together and avoid the rancorous fights that characterized recent years. PHOTO BY GAGE SKIDMORE/FLICKR

Across the mall, House Minority Leader Reginald Bolding, D-Laveen, said Arizona’s purpling political hue has helped to foster more bipartisanship.

“One of the things we saw this past cycle was that voters, they sent legislators down here to the Capitol that … created a more purple state Legislature in the House and the Senate,” Bolding said. “We know that it’s been closer than it has been in a century. And my view is the bills that Democrats have been running are good policy for Arizona, and you have some chairmen looking at the policy and not the people that have been running the bills.”

But Bolding said it was too early to say whether there are any particular areas of public policy Democrats have been able to affect this session.

“Right now it’s a little too early to celebrate the passage of bills,” he said. “What we want to see is legislation that will ultimately be able to have to have a great impact for the people of Arizona.”

House Majority Leader Ben Toma said Republican and Democratic leaders made a conscious decision to try to work together and avoid the rancorous fights that characterized recent years. Asking Democratic lawmakers to serve as chairs of COW debates is a part of that, he said.

So far, it seems to be working. While the House could barely make it a week in the past couple of years without at least one lawmaker accusing another of uncivil conduct — including one heated argument over whether Bowers impugned the full chamber by referring to himself as a “neanderthal” — the House has largely avoided those distractions this year.

“There’s been a recognition in general that we are trying to be accommodating and respectful,” he said. “It’s a question of can this last to me, and I think it can, especially if the other side recognizes that we are acting in good faith.”

As far as Toma can tell, committee chairs have chosen to hear bills based on policy, not the name or party attached to a measure. That organically results in more Democratic bills making it to the floor.

“There hasn’t been any arm-twisting on our side to force chairs to hear bills or anything of that sort,” he said. “I think people are making decisions based on policy first and foremost.”

–Staff writer Nathan Brown contributed reporting.

Blackman prisoner release bill fails – again

This June 24, 2021, file photo shows, Rep. Walter Blackman, R-Snowflake, right, and Rep. Diego Espinoza, D-Tolleson, talking during a vote on the Arizona budget at the Arizona Capitol. The Arizona House voted June 28 to allow some people convicted of certain crimes to earn time off their sentences for participating in work training, substance-abuse treatment or other prison programs, as Blackman worked for years on the legislation, but the Senate never put the measure to a vote.(AP Photo/Ross D. Franklin, File)

There were plenty of issues taken up during the 171-day legislative session that ended June 30 that everyone knew would be contentious, even in January. However, leaders from both parties did see one major area of potential bipartisan cooperation – revamping the criminal code.

“Criminal justice has always been a hot thing,” House Speaker Rusty Bowers, R-Mesa, said. “I shouldn’t say always, it has been growing over time among many of our members. … It seems to resonate in our district meetings and elsewhere. It’s not just a one-party issue. We need to look at it that way.”

House Minority Leader Reginald Bolding, D-Laveen, agreed.

And it did work out this way – kind of. The House Criminal Justice Reform Committee created this year, headed by Rep. Walt Blackman, R-Snowflake, perhaps the Legislature’s most vocal Republican advocate on the issue, took up a plethora of bills, many of which passed the House. Some became law. But others either stalled in that committee or passed the House only to die in the Senate.

“We did do some good things this year,” said House Majority Leader Ben Toma, R-Peoria. “Blackman’s earned release credits (bill) – I truthfully kind of had hoped we would find a way to get that across the finish line as well, or some version of that.”

The session ended on something of a high note and a low note for advocates. Gov. Doug Ducey did sign a long-sought measure to improve the treatment of pregnant inmates and ensure female prisoners are provided with enough feminine hygiene products.

Ducey also signed SB1294 July 9. The bill allows people to petition for certain criminal records to be sealed and their rights restored – a “groundbreaking” move, according to criminal defense attorney Steven Scharboneau Jr., who has advocated for Arizona to move toward more options for expungement. Arizona did not allow any criminal records to be expunged before Proposition 207, which legalized recreational-use marijuana and took effect this year, instead offering a more symbolic “set-aside” option. The voter-approved initiative allows people to petition for expungement of certain marijuana-related offenses.

The broader record-sealing legislation takes effect January 2023.

“The idea that people deserve a second chance is becoming more and more universally accepted as true,” Scharboneau said.

However, earned release credit expansion, which passed the House 50-8 two days before sine die, never got a Senate vote. Senate President Karen Fann, R-Prescott, said in a tweet the bill failed because a majority of Republicans there opposed it.

“Defunding the police, lack of probation officers and the list of horrible offenses that allowed criminals back on the street was a bridge too far,” Fann wrote.

Blackman said the claims in Fann’s tweet weren’t true, and that the bill not only had nothing to do with “defunding the police” but, by reducing the prison population, would have saved an estimated $680 million over 10 years that could have gone back into funding probation and job placement and drug training programs.

“Every statement she made was inaccurate, because she got bad information, or she knew it was inaccurate and she said it anyway,” he said.

Blackman said he reached out to Fann, who didn’t return a call from the Arizona Capitol Times, to discuss why the bill didn’t move forward, but she never got back to him – after a week. He asked her in a Facebook post to explain to him how the bill would have defunded the police. In an interview with the Capitol Times, Blackman criticized both her and Ducey, who he said has never met with him to discuss the issue over the three-and-a-half years he has been working on it. Blackman said Bowers is the only person in top leadership who has met with him about it.

“He is the only one out of the three who has been truly supportive of criminal justice reform, not just through words but through action also,” Blackman said.

Currently, certain drug offenders are eligible for earned release credits but others generally need to serve at least 85% of their sentences, due to a truth-in-sentencing law passed in 1993. An initial version of earned release credit expansion passed the House 47-11 in February, but it stalled in the Senate. In late March, Sen. J.D. Mesnard, R-Chandler, revived it as a strike-everything amendment to another bill and subsequently engaged in months of negotiations with law enforcement and other stakeholders to try to craft something that addressed their concerns.

The year was a mixed bag for Middle Ground Prison Reform Director Donna Leone Hamm. She applauded the passage of a civil asset forfeiture law that requires a conviction before someone’s property can be seized. The end of sentencing people for prior convictions when they are convicted of multiple charges stemming from a singular incident was also a win.

“That is going to make a major difference in sentencing and in plea negotiations, so that will have an impact,” Hamm said.

Hamm was surprised that the Legislature didn’t pass the earned released credits expansion, especially after seeing the language from the Second Chances, Rehabilitation and Public Safety Act, an initiative that missed the 2020 ballot after failing to clear signature review.

“I thought that legislators would be anxious to try and pass a bill on their own rather than allowing the general public to decide what the criminal code would be because the citizens’ initiative proposed a much more liberal package of reforms,” Hamm said. “If that comes up again in 2024 and they still haven’t done anything in the Legislature, then I think they’re going to be very, very sorry.”

Rebecca Fealk, policy program coordinator for the American Friends Service Committee, said it was confusing and concerning that earned release credits measure didn’t move at the end of session.

“I do wonder if perhaps this more incremental approach is part of the reason that some of these things are stalling,” she said. “Arizona is so far behind that we really need to play catch up.”

Fealk did say she was heartened by the passage of a bill to decriminalize fentanyl testing strips, sponsored by Sen. Christine Marsh, D-Paradise Valley. Marsh ran the bill in honor of her son, who died of an overdose last year.

“Just being able to have a harm reduction approach to people who are struggling with substance use disorder is so important to actually addressing the root causes and issues,” Fealk said.

Another positive, Fealk said, was HB2162, which will let some Class 6 felons have their offenses recorded as misdemeanors either upon sentencing or if they successfully completed probation.

Blackman takes Fann to task over comments on criminal justice bill

The House sponsor of a now-dead bill to expand Arizona’s system of earned release credits said Friday that Senate President Karen Fann has mischaracterized what the bill would have done.

Rep. Walt Blackman, R-Snowflake, told The Capitol Times that, contrary to a tweet from Fann, R-Prescott, the bill would not have “defunded the police” or let dangerous criminals out of prison early.

“Categorically, that’s either a lie or she’s been misinformed,” he said.

SB1064 would have increased the rate at which some nonviolent offenders could accumulate earned release credits by taking part in programs such as drug treatment or job training. After an initial version, HB2713, passed that chamber 47-11 in February but stalled in the Senate after Sen. J.D. Mesnard, R-Chandler, revived it as a strike-everything amendment to another bill. This was followed by months of negotiations with law enforcement and other stakeholders to try to craft something that addressed their concerns by making the bill’s terms less generous to inmates.

SB1064 passed the House 50-8 June 28, two days before sine die but was never taken up in the Senate. In response to an Arizona Mirror story about the bill’s failure, Fann tweeted on June 30: “Incorrect. The majority of our caucus was not supportive. Defunding the police, lack of probation officers and the list of horrible offenses that allowed criminals back on the street was a bridge too far.”

Except, Blackman said, none of that is true.

“Every statement she made was inaccurate, because she got bad information, or she knew it was inaccurate and she said it anyway,” he said.

Fann didn’t return a phone call from The Capitol Times on Friday. Mesnard told the Mirror that GOP senators discussed the bill in caucus (unlike the House, the Senate did not livestream its caucus meetings this year so there is no independent publicly available record of the discussion) and that while there was support for reducing drug offenders’ sentences, there was opposition to expanding earned release credits for even nonviolent offenders whose crimes had a victim, and concerns about rising crime in general.

“The bill just got decimated,” Mesnard told the Mirror. “I’m not sure that I had a single other Republican vote in the caucus, and leadership was strongly opposed. The governor’s office had also expressed some reservations.”

Blackman, who for the past few years has been perhaps the most vocal Republican advocate in the Legislature for overhauling Arizona’s criminal justice system and is chairman of the House Criminal Justice Reform Committee, which was created this year, said he first reached out to Fann about a week ago asking her to show him how the bill would have defunded the police or had the other effects she claimed, but has not heard back from her. He posted a screenshot of a Capitol Times article containing Fann’s quote on his campaign Facebook page on Friday, calling Fann out and asking her to explain what she said.

“She had her chance to respond to me and she didn’t, so I feel it’s a lack of respect,” Blackman said.

Blackman said the bill, by reducing the prison population, would have saved an estimated $680 million over 10 years that could have gone back into funding probation and job placement and drug training programs.

The bill would have let certain drug offenders who completed the bill’s programming requirements earn five days of earned release credits for every six days served, and others would have been able to earn two days for every six days served. A long list of violent and other serious offenders, including murderers, rapists, armed robbers, human traffickers and people who sell drugs to children, would have been excluded from the opportunity to get earned release credits. Currently, certain drug offenders are eligible for earned release credits but others generally need to serve at least 85% of their sentences, due to a truth-in-sentencing law passed in 1993.

As well as Fann, who he said never reached out or got back to him to talk about why SB1064 was held, Blackman also criticized Gov. Doug Ducey, who has generally been more skeptical of measures to relax sentencing laws or make major changes to the criminal justice system, for not meeting with him to discuss the issue over the three-and-a-half years he has been working on it. He said House Speaker Rusty Bowers, R-Mesa, is the only person in top leadership who has met with him about it.

“He is the only one out of the three who has been truly supportive of criminal justice reform, not just through words but through action also,” Blackman said.

Bowers, Fann retain leadership posts; Dems choose Bolding, Rios

From left are Senate President Karen Fann, R-Prescott, and House Speaker Rusty Bowers, R-Mesa. Republican lawmakers re-elected them to lead the legislative chambers in 2021.

Legislative Republican and Democratic caucuses met separately this and last week to select leadership following a topsy-turvy election that saw statewide Democrats succeed but the party’s legislative candidates flounder under the weight of expectation.

The GOP kept its top lawmakers in each chamber, with House Speaker Rusty Bowers, R-Mesa, and Senate President Karen Fann, R-Prescott, retaining their positions. Bowers put down a challenge in the form of Rep. Mark Finchem, R-Oro Valley, the loudest in a cadre of Republicans who felt the current leadership to be aloof and too hesitant to push back against Gov. Doug Ducey, while Fann had no opponent.

Joining Bowers at the helm is Rep. Ben Toma, R-Peoria, who took the majority leader job over Rep. John Kavanagh, R-Fountain Hills. Rep. Leo Biasiucci, R-Lake Havasu, emerged as majority whip, taking the position from Rep. Becky Nutt, R-Clifton. Rep. Travis Grantham, a Republican from Gilbert who often presided over contentious debates last session, will serve as speaker pro tempore.

“It is a humbling privilege to be asked by my colleagues to continue in their service as speaker of the House of Representatives,” Bowers said.

Nearly one-third of the caucus went for Finchem. But, as one Republican consultant pointed out on Twitter, Bowers’ pitch to lawmakers was likely helped by the election results, proving his ability to keep the fractious caucus together.

FILE - In this Jan. 13, 2020, file photo, Rep. Reginald Bolding, D-Laveen, speaks on the opening day of the legislative session at the Arizona Capitol in Phoenix. Bolding was named to lead House Democrats as minority leader, Tuesday, Nov. 10, 2020. (AP Photo/Ross D. Franklin, File) — In this Jan. 13, 2020, file photo, Rep. Reginald Bolding, D-Laveen, speaks on the opening day of the legislative session at the Arizona Capitol in Phoenix. Bolding was named to lead House Democrats as minority leader, Tuesday, Nov. 10, 2020. (AP Photo/Ross D. Franklin, File)

On the Democratic side, only Rep. Reginald Bolding, D-Laveen, remains from last session’s team, replacing Rep. Charlene Fernandez, D-Yuma, as minority leader.

“I am honored to be chosen to lead this caucus and to work with this incredible team,” said Bolding. “What we’ve seen over this election cycle is that this state is more purple than red or blue, and we look forward to working together to put forth policies to benefit all Arizonans. We will continue to be champions for working families, for equality, for a strong economy and a strong Democracy.”

Fernandez announced November 7 that she would not seek re-election as House minority leader, a decision that came only a few days before the caucus meeting that she had once hoped would propel her to the speakership.

Even prior to her caucus’ failure to take over the House, and the defeat of her seatmate, Rep. Gerae Peten, D-Buckeye, some in the Democratic caucus had lost their confidence in Fernandez. Rep. Diego Espinoza, D-Tolleson, assembled an opposition leadership team and a slick website under the “Unity Caucus” name, but lost to Bolding, the whip under Fernandez, for the minority leader job by just one vote – the third time the margin has been that thin in as many years.

Rep. Jennifer Longdon, D-Phoenix, who ran as an assistant minority leader under the opposition leadership slate of Rep. Diego Espinoza, D-Tolleson, will instead serve as Bolding’s assistant leader. Rep. Domingo Degrazia, D-Tucson, will serve as whip. The caucus voted not to elect two co-whips this year, as they did last session.

“We had a spirited debate and vote, but our caucus has come together unified from this moment to protect working families of this state,” Longdon said in a statement.

Fann will keep almost her entire leadership team next year, as Sen. Rick Gray, R-Sun City, and Sen. Sonny Borrelli, R-Lake Havasu, will continue as majority leader and whip, respectively.

She also appointed Sen. Vince Leach, R-Saddlebrooke, as president pro tempore, replacing retiring Sen. Eddie Farnsworth of Gilbert. As the vice chairman of the Senate Appropriations Committee, Leach has spent the past two years in a de facto leadership role and is included in most meetings with Fann’s inner circle.

In this May 26, 2020, file photo, Sen. Rebecca Rios, D-Phoenix, speaks during a state Senate legislative session at the Arizona Capitol in Phoenix. Democrats unanimously picked Rios to lead members of the minority party in the Senate on Tuesday, Nov. 10, 2020. (AP Photo/Ross D. Franklin, File)

Senate Democrats, meanwhile, elected a potentially historic slate consisting entirely of people of color. Sen. Rebecca Rios, D-Phoenix, was unopposed in her bid for minority leader, after potential challengers in Phoenix Democrats Sean Bowie and Lela Alston bowed out of contention.

Rios was the House minority leader in 2017-18, and has served in other leadership roles over the three decades she has spent on and off in the Legislature.

Sen. Lupe Contreras, D-Avondale, will reprise his role as assistant minority leader. Sens. Martín Quezada, D-Glendale, and Victoria Steele, D-Tucson, will serve as co-whips.

“I’m so excited to be working with Martín as co-whip,” Steele said. “We make a great team, we work really well together and we complement each other.”

Steele, who is of Seneca/Mingo descent, said she was amazed after the vote by the racial demographics of the new Democratic leadership team — especially considering that next year’s Republican leaders are seven white men and one white woman. Rios, Contreras and Quezada are all Latino. And assuming Democrat Christine Marsh’s lead over Republican Sen. Kate Brophy McGee holds, four of the 14 members of the Senate Democratic caucus will be white while the remaining 10 are Latino or Native American.

The Senate Democratic team balances two of the chamber’s most outspoken progressive members, Steele and Quezada, with a duo in Rios and Contreras, who have shown a willingness to work with Republicans. In a tweet sharing the leadership announcement, Rios wrote that she was “honored and ready to work with Arizona Senate Democrats and Republicans.

“People will either try to peg me as too progressive if they’re trying to oppose me from the right,” Rios said before the vote. “People will try to peg me as too conservative if they’re trying to oppose me from the left. At the end of the day, I have represented districts ranging from south Phoenix, which is very blue, to Pinal County, which was a very conservative district, and I have a voting record that is often dead center right in the middle.”

Boyer kills Senate bid to force supervisors to comply with subpoenas

A Republican senator single-handedly killed a resolution that could have sent Maricopa county supervisors to jail, arguing that the Senate and the county need more time to reach a compromise over a proposed election audit.

Sen. Paul Boyer, R-Glendale, joined all 14 Senate Democrats to vote against the contempt resolution, killing it with a 15-15 vote. If it had passed, the resolution would have authorized Senate President Karen Fann to send the chamber’s sergeant at arms to arrest the five members of the GOP-controlled county board.

Supervisors have been in the county’s crosshairs since shortly after the election, when they certified election results that many legislative Republicans refused to accept. Boyer was the first Republican lawmaker to publicly state that the election was over and call for his peers to accept President Biden’s victory.

Boyer said he had made up his mind last week to vote for the resolution, but he changed it after thinking about the contempt vote all weekend. His vote will buy more time for the two parties to work out an agreement, he said.

“Today’s ‘no’ vote merely provides a little bit more time for us to work together charitably and as friends for the sole purpose of gaining more clarity,” Boyer said. “This is not a final determination, nor is this the end of the process.”

It took his fellow Republicans by surprise, and clearly irritated Senate President Karen Fann, R-Prescott, who summoned Boyer to her desk to privately lecture him and then used part of her own speaking time to plead with him to change his vote.

“I am hoping someone might change their vote and let this pass so we can move forward,” Fann said.

Boyer looked up from his cell phone and shook his head near the end of the debate as a failed Republican legislative candidate tweeted his personal cell number and urged her followers to inundate him with calls .

Fann’s plea followed more than an hour of debate, during which Democrats stayed silent while Republicans tried to alternately cajole and coerce Boyer into changing his vote. Republican Sens. Rick Gray, Vince Leach, J.D. Mesnard, Michelle Ugenti-Rita and Warren Petersen each spent several minutes kneeling beside Boyer’s desk or bending over to talk to him.

Petersen said the county has no interest in working with the Senate and accused the board members of lying. As Senate Judiciary committee chairman, he has been most involved in the months-long court battle with the board of supervisors.

“When it comes to obstruction, lies and deception, the Maricopa County Board gets an A-plus,” he said.

Petersen also spoke directly to Boyer, asking him whether the supervisors fulfilled the subpoena the Senate issued. The supervisors maintain that they cannot legally turn over ballots because of an Arizona law that states that ballots must be kept private. Absent a court order, the supervisors have declared they will not share the materials.

“They thought they could peel off one of our Republican Senators. It sounds like they may have. I hope that’s not the case,” Petersen said.

Sen. Kelly Townsend, participating by Zoom because she refuses to wear a mask in the chamber, chimed in “They did.” She berated Boyer during her own comments as well.

“If you say you’re going to vote with your caucus and you don’t, your word is never going to be trusted again,” she said.

And in a statement several senators took as an incitement to political violence, Townsend ended her speech by saying the public would take care of what the Senate wouldn’t.

“This shouldn’t fall into the hands of the public… when they’re so lathered up. So public, do what you gotta do,” she said.

Her on-mic comments followed an offhand utterance from Sen. David Gowan that the county supervisors should “vote right” after Boyer said no elected officials should face harassment at their homes or receive death threats.

While the contempt resolution is dead — at least for now — the battle over legislative subpoenas and audits continues. Supervisors have asked the Maricopa County Superior Court to weigh in on whether the Senate’s subpoena is lawful, and the two parties are expected to return to court in the coming weeks.

Meanwhile, the county’s own audits into election equipment, which began last week, continued today.

Boyer, with help, nixes six election bills

Sen. Paul Boyer, R-Glendale, speaks at an event hosted by Arizona Talks at Greenwood Brewing in Phoenix on March 1, 2022. (Photo by Gage Skidmore)

Senate President Karen Fann pleaded with her chamber on March 9.

“I am hoping that a couple more people might change their votes,” the Prescott Republican said as the chamber voted to kill Senate Bill 1629. “I believe that this is a good bill, and it’s a good bill for all the right reasons.”

Senate Bill 1629 is one of the most wide-ranging election bills that the Senate voted on earlier this week. But it turned out to be a frustrating few days for the Republican Senators who’ve talked for months about using the 2022 legislative session to make substantial changes to Arizona election laws in the wake of the 2020 election audit.

Several of the bills that failed this week were opposed by the Senate Democrats plus Sen. Paul Boyer, R-Glendale. The GOP’s 16-14 Senate majority means Boyer’s willingness to play spoiler is enough to kill legislation on its own.

But Boyer was also joined by, at different moments, Sen. Michelle Ugenti-Rita, R-Scottsdale, and Sen. Wendy Rogers, R-Flagstaff, in nixing election laws supported by most of their caucus. Rogers declined to comment on her vote. (Sen. Kelly Townsend, R-Mesa, voted against one of her own election bills but said she did it so she can bring the bill back for reconsideration.)

On March 7, Fann couldn’t muster the votes for three bills that would have added rules about the pens used by voters, the way hand audits are conducted and the Attorney General’s election enforcement powers.

Boyer alone blocked Senate Bill 1475, which sought to give the AG enforcement authority over federal elections. (For now, the office is tasked with enforcing the law just for state elections.) Ugenti-Rita and Boyer voted down Senate Bill 1478, which would have prohibited counties from handing out pens that could bleed through ballot paper, and Senate Bill 1358, which would have added some additional leg work on hand-count audits in counties that use voting centers.

On March 9 the Senate considered another slate of election laws including Senate Bill 1629.

The bill was introduced in late January, on the same day that House Speaker Rusty Bowers, R-Mesa, killed another piece of election legislation in dramatic fashion. House Bill 2596 would have all but eliminated early voting, required a hand count of ballots, and given the legislature power to accept or reject election results. Bowers assigned the bill to all 12 House committees, effectively ensuring the full chamber would never even get the chance to vote on it.

Senate Bill 1629 was received as a potentially more moderate approach to election legislation that still would have pleased fans of last year’s partisan election audit like Sen. Sonny Borrelli, R-Lake Havasu City, who was the prime sponsor of the bill. Another 12 Senate Republicans co-sponsored the bill, which would require more frequent election audits, add regulations on ballot drop boxes and change how election officers are trained. In Maricopa and Pima counties, it would require biannual audits by the Auditor General’s Office – and the bill includes a $4.6 million appropriation to the office for election audits.

Boyer said he supported provisions of the bill relating to ballot images and voter roll maintenance but couldn’t stomach the time and resource costs of the additional audits. “I would like to see the other two pieces move forward if that’s possible, but as far as it stands, because of the auditor general piece, I can’t support this, so I vote no.” he said.

In total, nine election bills came to the Senate floor and died there this week, but that doesn’t mean we’ve seen that last of them. Borrelli and Townsend are both committed to bringing back their election bills this session. It’s possible they can get Ugenti-Rita on board.

Ugenti-Rita said after the vote that her objection to the election bills is that the language in some seem to overlap or contradict one another. “You don’t just throw a bunch of stuff on the board haphazardly,” Ugenti-Rita said. “How these things are drafted, the unintended consequences, how they’re going to be implemented matters, and I care very much about the quality of the policy.”

She confirmed that if the language is cleared up to her satisfaction, she could swing to a ‘yes’ vote, but Boyer is seemingly set on his ‘no’ votes and can continue to kill these bills without other Republicans in his corner.

On March 9, Fann waited about 10 seconds after her plea for Senators who’d voted ‘no’ to switch to ‘yes’ on Senate Bill 1629. Then she decided that it wasn’t going to happen. “It appears I have no one changing their vote,” she said with a resigned chuckle. “It’s a sad day. I’m sorry that we could not make these changes for the benefit of the voters.”

Boyer’s vote triggers threats of violence, retribution

In this April 16, 2016, photo, Rep. Paul Boyer, R-Glendale, attends a panel discussion hosted by the Center for Political Thought and Leadership at Arizona State University. PHOTO BY GAGE SKIDMORE/Flickr

The screen behind Senate President Karen Fann spelled defeat before she even started talking on February 8.

Fifteen names in red. Fourteen in green. And her own in yellow, waiting for her to cast a vote that wouldn’t make a difference unless she could convince the Republican senator sitting in front of her to change his vote.

Sen. Paul Boyer, R-Glendale, had surprised Fann and the rest of the Republican caucus about an hour prior, when he announced his “no” vote on a resolution that would empower Fann to send the Senate’s sergeant at arms to arrest Maricopa County’s five supervisors for refusing to comply with a subpoena the supervisors said was unlawful.

For the past hour, Senate Republicans had tried to cajole, coerce, threaten and persuade Boyer, through pointed on-mic speeches directed his way and fervent whispers from a rotating cast of lawmakers kneeled by his desk. Nothing had changed by the time Fann started speaking.

“Needless to say, I would not have put this on the board had I not been under the impression and was told that we had 16 solid votes,” Fann began in clipped tones, looking pointedly at Boyer. “Had I been told that there wasn’t, perhaps we would have talked about this before it went up on the board.”

For the next several minutes, Fann ran through her litany of reasons for taking the unprecedented step of holding Maricopa County’s elected supervisors in contempt, a vote that could lead to the Senate incarcerating the five men for the duration of this year’s legislative session.

Boyer stared at his cell phone, which was buzzing uncontrollably with texts and phone calls from unknown numbers. Within hours, he would be packing to move with his wife and toddler to an undisclosed safe location after some of the texters escalated to overt threats.

Arguments exhausted, Fann looked at Boyer.

“So I am hoping someone might change their vote and let this pass so that we can move forward,” she said.

Silence lingered as everyone in the room watched Boyer, then scanning through text messages to save the most overt threats for police.

Boyer looked up and shook his head. The vote was over. His hellish week was just beginning.

Time to think

The path that eventually led to half the Arizona Senate barreling ahead with a Wild West plan to lock up other officials started in November, when 1,672,143 Arizonans voted for Joe Biden and 1,661,686 voted for Donald Trump.

It was the first time a Democrat won the state’s electoral votes since Bill Clinton’s 1996 re-election. Prior to that, the last Democrat to win Arizona was Harry Truman in 1948.

State Republicans, and their representatives in Congress and the Legislature, couldn’t believe it really happened. As ballots were still being counted, they began weaving complicated theories involving Sharpies, manipulated voting machines, undead voters, the deceased Venezuelan dictator Hugo Chavez and a vast conspiracy that somehow implicated Democratic Secretary of State Katie Hobbs, Democratic Maricopa County Recorder Adrian Fontes and his Republican successor Stephen Richer, the four Republicans and one Democrat on the county Board of Supervisors, and hundreds of election officials of all political backgrounds.

Republican lawmakers, in particular, developed a new interest in constitutional law and a belief that they had plenary, or absolute, power to appoint electors – something previous Legislatures had delegated to voters with multiple laws requiring that presidential electors vote to reflect the state’s popular vote.

Three days after the November 3 election, Fann asked legislative attorneys for a memo on the Legislature’s ability to change how electors are appointed. Even after attorneys told her it was impossible to retroactively change the state’s electors, the Arizona Republican Party convened its would-be electors and Sen. Kelly Townsend, R-Mesa, first sent a letter to Congress asking that the Republican electors be appointed and then filed legislation to do the same.

Townsend used Boyer’s signature on her December letter to Congress, assuming he would support it because he had agreed to support a previous version of the message that simply asked to delay certifying electors until multiple lawsuits over election results were settled.

In this Wednesday, Jan. 6, 2021 file photo, supporters of President Donald Trump gather outside the U.S. Capitol in Washington. (AP Photo/Shafkat Anowar)

Distancing himself from Townsend’s letter resulted in Boyer being the first — and still one of a few — legislative Republicans to publicly acknowledge Biden’s victory. Doing so resulted in angry emailers from other states threatening his political career, he said, but his own Republican constituents didn’t seem to care.

In the House, Speaker Rusty Bowers shut down attempts to engage the Legislature in overturning election results.

“Given the outcome of the presidential race in Arizona, an enormous amount of pressure is being directed at my office and my colleagues,” Bowers wrote in a November letter to House members. “I wish to respond by simply saying – I took an oath to support the Constitution of the United States and the Constitution and laws of the State of Arizona.”

Bowers refused requests from Townsend, then in the House, to hold special hearings on election integrity. In the Senate, Fann set up a voter fraud hotline that was quickly flooded with jokes, crude photos and complaints about Republicans trying to undermine faith in the election system. She approved a hearing in front of the Senate Judiciary Committee and signed subpoenas demanding Maricopa County turn over access to ballots and election equipment for a still-unidentified Senate-hired auditor to analyze.

Maricopa County supervisors, who already planned to run another forensic audit, balked at the Senate’s demands. As far as they were concerned, handing over ballots would violate state law that requires ballots to be kept secret, so they went to court to block the legislative subpoenas.

As court arguments continued, and under mounting pressure from constituents and members of her caucus, Fann last week introduced a resolution to hold the county supervisors in contempt. All 16 Senate Republicans co-sponsored it and voted to waive their own rules, and it looked like a done deal. Then, lawmakers went home for the weekend and Boyer had time to think.

Handcuffs

Boyer told the Arizona Capitol Times he was comfortable with the initial information he received, but the longer he thought about it and the more he learned, the worse the measure seemed. He couldn’t imagine the thought of any of the county supervisors going to jail for striving to follow the law, he said.

He called supervisors Bill Gates and Jack Sellers on February 7 and asked for a meeting with the two of them and Fann before the next day’s scheduled vote, with no attorneys or staff. During a February 10 board meeting, Gates said he promised Boyer he would try to bring the dispute to an end as quickly as possible.

“He took the time to meet with us and he took the time to find it in his heart to trust us,” Gates said. “It’s something that is a rare commodity these days, but he trusted what we said to him.”

Boyer said he told Fann during that meeting that she needed to take contempt off the table, but she made it clear she would bring the resolution to the floor regardless.

“I heard from the board directly, and it was meaningful because it was without filter or interpretation from anyone else,” Boyer said. “It became extremely clear to me that the severity of the resolution was actually halting progress toward obtaining what the Senate ultimately desires — an additional independent audit of election results.”

Even if Republicans succeeded in passing their contempt resolution, Fann’s caucus was torn on what to do about it. She has largely avoided questions about whether she would actually send the sergeant at arms to arrest supervisors.

“Statute tells us we must pass the resolution to move forward,” she said. “We have a number of options once we do that.”

Some, like Sen. T.J. Shope, R-Coolidge, voted for the contempt resolution out of a conviction that legislative subpoenas must be respected, even though he doesn’t agree with the underlying reasons for these particular subpoenas.

“I think we all know we’re not going to arrest anybody,” he said. “That’s over the top.”

But others are eager to see the county supervisors in cuffs.

“The Maricopa Board of Supervisors need to be arrested for violating our subpoena. It is outrageous how they are behaving,” Sen. Wendy Rogers, R-Flagstaff, tweeted.

Retribution

The threats that forced Boyer and his family from their home are new, but he’s familiar with political retribution.

Sen. Paul Boyer, R-Glendale, hands a copy of John F. Kennedy’s “Profiles in Courage” to Sen. Heather Carter, R-Cave Creek, during a May 28 ceremonial signing of a bill that expands the statute of limitations for sexual abuse survivors to sue their assailants. Looking on are Bridie Farrell, a former competitive speed skater and sexual abuse survivor, and Gov. Doug Ducey. The senators leveraged their votes on the state budget to pass the bill and add spending to the budget. PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES

Two years ago, Boyer and then-Sen. Heather Carter, R-Cave Creek, stood together to block the passage of the state’s budget until the Legislature passed a law giving sexual abuse survivors more time to sue their abusers. In retribution, House Republicans blocked hearings on many of Boyer’s and Carter’s bills the following session, and Carter lost her seat to a primary challenge from the more conservative Nancy Barto.

Boyer avoided a primary last year, though he has had them in most prior election cycles and said he welcomes the challenge. After his vote on the contempt resolution, a former GOP spokesman predicted he would lose in 2022 to former Rep. Anthony Kern, who participated in the January 6 U.S. Capitol protest and breached at least one set of barriers.

And as Boyer and his wife packed their bags on the evening of February 8, precinct committeemen in his district voted on a resolution to censure him, claiming he “hides behind sanctimoniousness and the Democrat Party Media instead of representing ‘We the people’ who elected him in good faith.” Trump won the Glendale-based district by just 300 votes.

Some of the messages Boyer received, and comments one lawmaker made on the floor, blurred lines between politics and violence. Townsend later sought to clarify that she was speaking only about ongoing legal challenges and recall efforts, but several of her colleagues understood her speech on the Senate floor as an incitement of violence.

“Right now the last place this needs to be is in a place where the public is so lathered up over all of this,” Townsend said. “We need to do this in a way that’s professional, legal and proper — not that the public’s not — but they shouldn’t have to do this on our behalf. So public, do what you gotta do.”

Former Sen. Kate Brophy McGee, a moderate Republican who spent most of her 10 years in office as a favorite target of both conservatives and Democrats, said she would urge Boyer and the county supervisors who are dealing with threats of their own to seek prosecution for the threats wherever possible. And lawmakers from both parties need to unequivocally reject the violent threats, she said.

“We shouldn’t put it all on public safety to keep our elected officials safe,” she said. “We need to unite Democrats and Republicans and say this has all got to stop.”

It may not be possible to avoid political consequences for unpopular stances, she said, but lawmakers can choose to set appropriate boundaries and hold onto their convictions.

“Changing your mind or backing off doesn’t change the objectionable behavior of people who cannot appropriately express anger,” Brophy McGee said. “What I’m seeing across the political spectrum is people afraid to stand up for what you believe in. You need to set boundaries, you need to be consistent and you need to not feed into it.”

Boyer publicly addressed his vote on Twitter February 10, writing that he believed the Senate should have access to ballots and perform its own audit, and that he looks forward to the Senate making that argument in court.

He received 41 replies, from Democrats and Republicans, moderates and party loyalists. Every one was negative.

-Yellow Sheet editor Hank Stephenson contributed reporting

Brnovich asks Ducey to call special session

Attorney General Mark Brnovich speaks at the 2020 Converge Tech Summit at the Waste Management Phoenix Open. (Photo by Gage Skidmore/Flickr)

With his legal challenges to vaccine and mask mandates rejected by a federal judge, Attorney General and U.S. Senate candidate Mark Brnovich now wants Gov. Doug Ducey to order lawmakers back to the Capitol in hopes of a legislative fix.

The attorney general wants a special legislative session to restore four statutes restricting the powers of local governments, public schools and universities to mandate that employees, staff and students be vaccinated against Covid or wear face coverings. In a letter to the governor, he called the situation “most pressing,” saying he has received complaints in particular from government workers who face the prospect of either submitting to a vaccine or being fired.

All those provisions had been approved earlier this year. But all were voided by a trial judge because they were packed into various unrelated “budget reconciliation” bills, a ruling ratified by the Arizona Supreme Court.

Brnovich, engaged in what could be a tight race in his bid to be the Republican nominee for U.S. Senate, also is pressuring Ducey to use what the attorney general contends are his powers to block what the schools and local governments are doing, even if the legislature cannot or will not.

“It is my opinion that your office has clear authority to stop such government mandates immediately by instructing the Department of Health Services to exercise its primary jurisdiction under (state health laws) and issue an emergency rule that implements the directives articulated in the struck-down laws, thereby preempting contrary requirements from political subdivisions,” Brnovich wrote to the governor in a letter he made public.

“Our constituents are expecting — and deserve — immediate attention to these substantial issues facing our state,” the attorney general told Ducey.

Gov. Doug Ducey( AP Photo/Ross D. Franklin, Pool, File)

But the governor, just back from a European vacation, is not ready to be pushed into action by Brnovich on either front.

“We are reviewing the letter,” press aide C.J. Karamargin said Monday.

And Brnovich, despite his very public effort to force the governor’s hand, refused to answer questions from Capitol Media Services about the scope of the governor’s powers or even the possibility of a special session. Publicist Katie Conner said Monday he is “not available for an interview” despite the fact he has appeared on Fox News at least four times in the past seven days to criticize the Biden administration on the issue of vaccine mandates.

Brnovich, in writing the letter, may also need a political win.

Just last week U.S. District Court Judge Michael Liburdi refused Brnovich’s highly publicized bid to block the Biden administration from requiring federal employees and workers for entities with federal contracts to be vaccinated. The judge said Brnovich failed to show a legal basis for an injunction.

Meanwhile, the Supreme Court ruling has left the state without legal authority to enforce any of the prohibitions on vaccine and mask requirements that Republicans had previously approved.

The justices have yet to explain their decision. To this point, however, nothing in that court ruling bars lawmakers from dealing with these issues individually — and in a legal fashion.

But a special session before the legislature is set to reconvene in January could prove elusive.

Rounding up lawmakers during the holiday season has often proven difficult. And then there’s the fact that the resignation of Rep. Becky Nutt, R-Pearce, has left the House GOP short of the 31 votes it needs to approve anything.

And then there’s the fact that Ducey previously has indicated he will call lawmakers back to the Capitol early only if there already are the votes lined up for whatever is on the agenda.

“I’m pretty sure the governor will not call a special session unless he’s confident we have 16 (Senate

votes) and 31 (House votes) regardless of what the topic might be,” added Senate President Karen Fann, R-Prescott.

But not everyone believes the governor should wait that long.

“The people of this state deserve a chance to address this issue,” Sen. Michelle Ugenti-Rita, R-Scottsdale, told Capitol Media Services.

“Put it on the (voting) board and let the chips fall where they may,” she continued. “At least people will see we tried rather than bury our head in the sand.”

And Ugenti-Rita said the job that Ducey ran for and was elected is to act, “not to wait for laundry lists to be brought to him,” referring to the practice of bill sponsors to check off the names of those who have committed to vote for a particular issue.

What also remains in doubt are claims that the governor, who gave himself emergency powers in March 2020, actually has the power to preempt local decisions on masks and vaccines.

The issues have become Republican talking points. And Ducey and Brnovich, both Republicans, have previously tried to use that claim to get the city of Tucson to scrap its policy that employees be vaccinated unless they qualify for a medical or religious exemption.

So far, though, the city has refused to relent.

“The city’s mayor and council have express authority to adopt and implement measures that are necessary or convenient to prevent the spread of infectious disease in our community,” City Attorney Mike Rankin wrote late last month to Brnovich, citing the city’s charter. “In adopting the ordinance, the mayor and council made legislative finding citing to this authority, as well as to the city’s legal obligation as an employer to provide and maintain a safe and healthy workplace for its employees.”

And Rankin said that Ducey is without power, even with the emergency declaration still in place, to preclude or preempt local jurisdictions from adopting health and safety measures.

Brnovich’s latest letter to Ducey calling on him to act is separate from — but related to — a complaint filed with the attorney general’s office last month by Sen. Vince Leach, R-Tucson.

Leach contends the Tucson vaccine requirement is illegal, not because of the mandate itself but because the city does not grant exemptions to anyone who claims a “sincerely held religious belief” against being inoculated. The senator said such automatic approval is required under a provision of a law approved earlier this year.

That inquiry allows Brnovich, if he concludes the city is breaking the law, to order the state treasurer to withhold more than $100 million in state revenue sharing. And Rankin, while making legal arguments why Tucson is acting legally, also is preparing for that possibility.

“Attorney General Brnovich has made it very clear that he will oppose any attempt by any governmental agency to impose a COVID-19 vaccine ‘mandate,’ ” the city attorney wrote. “Given this, I believe that the result of this investigation may be influenced as much by politics as the law.”

Brnovich has to issue a finding before the end of the month.

Brnovich to probe Maricopa County’s 2020 election

Attorney General Mark Brnovich is taking up Senate President Karen Fann on her request for an investigation into the findings of the Cyber Ninjas’ audit report.

On Monday, his office’s Election Integrity Unit sent a letter to the Senate asking for supporting documents from the Cyber Ninjas’ audit report released on Friday, according to a news release from Brnovich’s office. Assistant Attorney General Jennifer Wright also sent a letter to Maricopa County officials asking them to preserve all documents and data related to the 2020 election, saying she expects to need them as part of the investigation.

“The Arizona Senate’s report that was released on Friday raises some serious questions regarding the 2020 election,” Brnovich said. “Arizonans can be assured our office will conduct a thorough review of the information we receive.”

Wright is asking the Senate to turn over unredacted copies of all reports; evidence supporting some of the findings, including subcontractor Ben Cotton’s claims about files being deleted and county elections devices connecting to the internet and Dr. Shiva Ayyadurai’s allegations about inadequate signature verification; and an opportunity to meet individually with the contractors and subcontractors who prepared the audit report.

Wright is also asking the county to preserve a long list of election-related records, including ballots, election equipment, electronic data related to election systems, security camera footage and building access records.

Fann, R-Prescott, wrote to Brnovich on Friday, sending him a copy of the report and asking for an investigation. Much of her letter was focused on criticizing Maricopa County officials for not cooperating with the audit and listed changes to election administration she would like to see in response to the audit’s findings, such as a more stringent signature verification process, “constant, unrelenting maintenance” of voter rolls and state oversight of cybersecurity for elections.

Brnovich has come in for criticism from Trump supporters and from former President Trump himself for acknowledging President Biden’s win in Arizona. However, he has backed the Senate’s authority to conduct the audit and its legal positions, such as siding with the Senate a month ago in a subpoena dispute with Maricopa County. On Friday, he put out a two-sentence statement saying he would “take all necessary actions that are supported by the evidence and where I have legal authority.”

In addition to the investigation announced Tuesday, Sen. Kelly Townsend, R-Mesa, submitted a request for Brnovich to investigate some questions raised by the audit, but he quickly put an end to it. Commonly known as a “1487 request” after the law that gives legislators the power to ask the AG to investigate government entities for possible violations of state law, Townsend asked Brnovich to look into a wide range of issues. Among them are questions about the paper used for ballots, the signature verification process and the voting machines.

“I am not satisfied with unanswered questions and unreported issues,” Townsend said. “I want to know what laws were broken, who broke them, and who will be held accountable.”

Brnovich told her in a letter, however, that he was already investigating and a 1487 request is an inappropriate vehicle to thoroughly investigate the issues in the report.

Editor’s note: This story has been revised to include Brnovich’s response to Townsend’s request.

Budget stalls as number of GOP holdouts grows

Senate President Karen Fann (Photo by Katie Campbell/Arizona Capitol Times)

After Republican leaders boasted that they would introduce a budget Monday and finish it this week, the Arizona Senate adjourned Thursday evening with no budget vote and a warning from Senate President Karen Fann that lawmakers should be prepared to work Saturday and Memorial Day.

Fann, a Prescott Republican, said she hoped a compromise is near: “With fingers crossed in a prayer, hopefully we can get something resolved and we can wrap up business tomorrow.”

But given that at least three GOP senators and one representative publicly vowed to vote against a budget deal unless specific demands are met, while several others are still trying to win concessions in private negotiations, Fann warned her colleagues via email to prepare to remain at the Capitol over the weekend, with a break on Sunday for “church and family time.”

It’s unclear if the House, which was still at work early Thursday evening, would follow suit. There’s discussions among representatives about voting on some, or possibly all, the budget bills late Thursday night, according to Rep. TJ Shope.

Working through the weekend is also “possible,” the Coolidge Republican said.

“Hell, if it were up to me we would be coming back Sunday, too,” Shope said. “Mass only lasts 45 minutes.”

In a year in which the legislative session has dragged on well past the 100-day mark, it’s no surprise that a budget vote itself would elude Fann and House Speaker Rusty Bowers, R-Mesa. All week, GOP leaders have failed to corral the necessary 31 votes in the House and 16 votes in the Senate to approve an $11.8 billion spending negotiated with Gov. Doug Ducey.

Fann blames Sen. Heather Carter, R-Cave Creek, for the budget “mess.” The Senate president expressed her frustration with budget negotiations in a conversation with a senator and two lobbyists Thursday morning, telling them “Carter has messed this thing up so badly. You have no idea.”

Carter, like Republican Sen. Paul Boyer of Glendale, pledged to oppose the budget unless and until the Legislature votes to expand opportunities for survivors of child sexual abuse to sue their abusers. Boyer is working with Shope on legislation to address that issue.

But Carter has other issues with the budget, including a lack of funding for graduate medical education and gifted education and less money than she wanted in additional assistance for school districts and homelessness.

Carter broke from the Republican majority and joined Senate Democrats to vote against every budget bill that came before the Senate Appropriations Committee on Wednesday. And Boyer said he’ll stand by Carter because she stuck her neck out for him.

Both senators left the Capitol by early Thursday afternoon, further frustrating Fann.

“I understand Carter left for the day, so we can’t even negotiate with her,” Fann said before starting a meeting with the remaining 15 Senate Republicans. “She and Boyer left so they’re not even here to negotiate.”

Boyer told the Arizona Capitol Times via text that he was away from the Capitol grading papers for his high school literature class, but that he was always willing to negotiate. Carter told the Capitol Times she was in “constant negotiations.”

“Modern technology is wonderful!” she wrote in a text. “It’s my daughter’s graduation day and my phone is plugged in and working so hard it’s steaming!”

Fann’s troubles don’t end there.

A small contingent of Republican lawmakers have objected to budget language that would conform state tax law to changes in the federal tax code.

Sen. J.D. Mesnard, R-Chandler, has demanded the tax code be changed to three brackets, a solution Fann said could be agreeable since it “won’t blow up the budget.” Fann told the Arizona Capitol Times on Wednesday night she’s open to allowing senators to vote on Mesnard’s conformity proposal, as opposed to the four tax brackets she agreed to with Ducey.

But as of Thursday evening, Mesnard said he still didn’t know if his colleagues would get to vote on a plan despite his belief that they would support it.

Mesnard said he’s standing firm on not voting for a budget unless his plan, or something like it, is adopted. Failure to do so “will mean that people are paying hundreds or thousands more, and I don’t think that’s what we’re about in this party,” he said.

Republican Sens. David Farnsworth, Tyler Pace and Sylvia Allen have also told the Arizona Capitol Times they’d rather vote for Mesnard’s tax conformity plan.

Allen said she’d still vote for the budget without it, but Pace said he’s not yet comfortable voting for the budget and Farnsworth wants to know where other lawmakers stand before he commits either way.

In the House, Rep. Tony Rivero has threatened to vote against the budget for the same reason as Mesnard. The Peoria Republican also opposes Ducey’s signature budget proposal, a plan to save more than $1 billion in the state’s rainy-day fund.

Padding the state’s savings account is akin to stashing the public’s money in “a bureaucratic slush fund,” Rivero said.

As for Democrats, who’ve been sidelined in budget negotiations as they often are in the Republican-controlled Arizona Legislature, the minority party is holding out hope that if enough GOP representatives and senators oppose the budget, Fann, Bowers and Ducey will be forced to negotiate with them to get a majority vote for the spending plan.

Lawmakers are constitutionally required to adopt a budget before July 1, the start of the next fiscal year.

Budget talks stall, lawmakers consider scaled-down option

Legislative leadership is considering a “skinny budget” this year after struggling to get consensus on big projects.

This would be a continuation of the baseline budget that the Legislature passed last year, meaning no funding would go into expensive new items that have been discussed like the border wall and an education package.

“There are members that don’t want it. There are members that do want it. There are members that are hoping that we can get a regular budget done and they’re willing to continue a few conversations, but they’ve also expressed that if we can’t get it together, they don’t want to be here for another 171 days like last year,” Senate President Karen Fann, R-Prescott, said on Thursday.

The Senate GOP needs 16 votes to get a partisan budget through, but Sen. Paul Boyer, R-Glendale, is making that process difficult. He is not communicating with Fann and wants large investments into several projects. Rather than working with Boyer or the Democrats, Fann and Sen. David Livingston, R-Peoria, suggested that the chamber pass a condensed budget and go home early.

Livingston addressed the Senate floor on Tuesday asking his colleagues to consider the idea in the name of mitigating inflation. Inflation isn’t the only driving factor behind this, however.

For one thing, several lawmakers are in competitive races and want to get out to campaign for their upcoming primaries.

Republicans seem to be doing very well in the early stages of campaigning, where Democrats couldn’t produce as many candidates as they did in 2020’s legislative races. This likely means a larger Republican majority next year. If the Senate passes a skinny budget now, a larger Republican body will have more money to play with next year. Fann said that’s another factor that has come up.

Livingston said that because of the one person majorities in the House and Senate, each member thinks they can make demands, “Nobody is on the same page.” Livingston wants members to respect the will of party leadership but says there’s no such consensus. “If you have consensus, you can do more things and more funding – that works too – but you have to have consensus.”

Livingston commented on Boyer’s plan to create a new $900 million school funding project.

“He doesn’t have 16 votes,” he said. “There’s no Senator that does, and that’s why you don’t do this by individuals.”

Democrats including Sen. Sean Bowie, D-Phoenix, and Sen. Lela Alston, D-Phoenix, predicted that the session will last into July. Bowie said that a holdup Republicans might have about an early sine die is that it gives the governor the power to call legislators back into a special session against their will. Another is that they might not have the votes to do it. Bowie for his part, doesn’t want to throw in the towel and pass a skinny budget. He is one of the only Democrats Republicans are willing to negotiate with and is willing to compromise on a big budget.

“Let’s all hold hands and go out on a high note,” he said.

Some of the bills that Republicans still need to move out of the Legislature are the Prop 400 transportation tax extension, homelessness mitigation bills and legislation authorizing the expansion of I-10.

For the past two weeks the Senate has not been able to vote on any partisan bills because various members have been absent. Boyer left the Senate floor on Monday and hasn’t been seen since, blocking the legislature from getting through their bill agendas or passing a Republican budget anytime soon.

Gov. Doug Ducey’s spokesman CJ Karamargin suggested that a skinny budget wouldn’t be the governor’s favorite option, asking, “Do you think it’s likely that a skinny budget is even going to happen?” In January, Ducey spoke about investing $1 billion for a new water authority agency and other smaller items.

Senate President Karen Fann brought up the possibility of a special session two weeks ago, but since then only Livingston has advocated for it in the Senate. Republican Senators Michelle Ugenti-Rita, R-Scottsdale, Paul Boyer R-Glendale and T.J. Shope, R-Coolidge are some of the members who have said they don’t want to end early.

Democrats are also wary of passing a skinny budget in a year with such narrow margins where they could potentially get some small projects approved. Sen. Martín Quezada, D-Tempe, said that it would be a failure of Fann’s leadership.

Ugenti-Rita argued that the “skinny budget” under consideration is a misrepresentation of what is a bloated baseline budget from last year.

“There’s no way I’m going to vote that budget out without dealing with the $5 billion carry forward balance we have,” she said on Wednesday. “It’s our job to provide significant tax relief. … It would be irresponsible to leave that money on the table.”

Senators aren’t the only legislators who feel this way, Rep. David Cook, R-Globe, also said he opposes passing a “skinny budget.”

“We don’t need to push our work off,” Cook said. “We don’t need to jump through hoops or try to out-maneuver during the budget cycle. What we need to do is sit down and get the work done and have what I call clean, open, honest conversations,” about the budget.

Cook said his budget priorities include paying down the state’s pension debt and a six-month suspension of the state’s 18-cents per gallon gas tax, which he said would give immediate relief to Arizonans struggling with rising prices. This idea has support in Arizona from both some federal and state lawmakers; U.S. Sen. Mark Kelly has introduced a bill to suspend the federal tax, and a few Arizona lawmakers, including Sens. Warren Petersen, R-Gilbert, and Wendy Rogers, R-Flagstaff, have, like Cook, said they want to suspend the state’s. However, Ducey has said he opposes it.

“There are a lot of things to address in the state’s budget this year that can be addressed and should be addressed, and I have faith in leadership at the Legislature and the governor to put together a comprehensive overall budget,” Cook said. “I am looking forward to reviewing whatever proposal they come up with. My personal priorities are in current legislative bills. My funding priorities are well known, and the continued reduction of state debt remains one of my top issues. And the idea of suspending the gas tax, under what I’ve suggested, would put $800 million into the people, small businesses and our economy over the next six months.”

Some of the potential budget items that are too controversial for other Senators to get on board with include appropriating millions of dollars for a border wall, a flat tax cut, and a universal expansion of empowerment scholarship accounts, or ESAs.

Bowie said he is willing to support a budget that includes ESA expansion, but not the border wall appropriation. Other than that, his demands have bipartisan support including a bill for earned income tax credits, which he is sponsoring, and the governor supports.

The House Rules Committee voted on April 11 to allow for the introduction of budget bills whenever they are ready, but House Majority Leader Ben Toma, R-Peoria, and Speaker Rusty Bowers, R-Mesa, didn’t say when they expect a budget to be introduced. It didn’t happen this week – the House adjourned for the week after its floor session Tuesday. House Republican spokesman Andrew Wilder said he doesn’t know what will happen when the House reconvenes on Monday; only a few mostly noncontroversial floor votes and a conference committee meeting have been scheduled so far.

Toma didn’t return a call from the Capitol Times on Thursday, but he told the Arizona Republic earlier this week that there have been talks there of passing a baseline budget and addressing other issues such as tax cuts, empowerment scholarship accounts and water later. He also said any deal to increase public school funding would include ESA expansion for all students, with more for poorer students and the amounts students would get staggered based on family income.

Fann said on Thursday that although Arizona has a relatively large pool of money to draw from, only a small amount of that is “ongoing funding” which many lawmakers want to use for their projects.

“Our dilemma right now is we have a couple of our members that are asking for a lot of ongoing money that pretty well, between them and the governor, pretty well eats up all of the ongoing money, which leaves nothing left for anybody else,” she said. One time funding can be used for one-time fixes like highway infrastructure projects, but ongoing funding is needed to give raises to people like public safety officers, which some members want. Fann said there is about $1.3 billion in ongoing funding to parcel out and with everyone making demands, that’s relatively little. “We’ve got to be able to sit down and talk through this because everybody is going to want something,” she said.

Capitol Times Reporters Nathan Brown and Nick Phillips contributed.

Committee chairs seek balance between gatekeeper and ‘God’

The first major hurdle every piece of legislation faces in the House or Senate is a committee leader with the ability to unilaterally kill bills, and some chairs are more willing to do it than others.

While the vast majority of Democratic bills languish in committees, chairs typically let their Republican colleagues’ bills be heard. An Arizona Capitol Times review of data from Legislation On Line Arizona shows that a handful of committee chairs are difficult gatekeepers even for their GOP peers.

To some extent, that’s the job of a committee chair, Senate President Karen Fann said. As the Senate president and chairwoman of the Rules Committee, the Prescott Republican also has great leeway in keeping bills from getting votes on the Senate floor.

“This has gone on since day one and will go on for a long time as long as the system is the way it is,” Fann said. “As chairpersons of our committees, one of their responsibilities is in fact to not hear bad bills if they’re just plain bad bills.”

The risk, though, comes in making sure committee chairs don’t “play God” by deciding to kill bills because of their personal preferences, Fann said.

“There might be a perfectly good bill out there that 60, 70 percent of all the members think that it’s a really, really good bill and we’re all OK with it,” Fann said. “But when it comes to a committee where there’s a person who says, ‘Well no, I just personally don’t like it, I don’t care what the majority of the other people do,’ that’s wrong. That’s just totally wrong.”

The committee chairman who came under the most fire for holding bills that had support from a majority of lawmakers also proved to be the one with the third-highest kill rate for Republican bills. Sen. Eddie Farnsworth, R-Gilbert, killed 24 percent of the Republican bills referred to his Senate Judiciary Committee.

Farnsworth’s refusal to hear a bill written by Sen. Paul Boyer, R-Glendale, to expand opportunities for survivors of childhood sexual abuse to sue their abusers contributed to a bitter showdown at the end of session as Boyer and Sen. Heather Carter, R-Cave Creek, refused to vote for the GOP budget until they got a vote on their bills.

This year, Farnsworth also prevented a resolution to ratify the Equal Rights Amendment, supported by at least three Republican senators along with the entire Democratic caucus, from being heard in his committee. And he refused to hear a bill from Rep. Ben Toma, R-Peoria, that would have prevented criminal defendants who have never before been sentenced from being charged as repeat offenders.

Toma and Sen. J.D. Mesnard, R-Chandler, succeeded in getting around Farnsworth by replacing one of Mesnard’s bills that had already cleared the Senate with the repeat offender legislation. An attempt to bring the ERA ratification to the floor failed.

Farnsworth did not return a message left with his assistant, and several phone numbers he has provided in response to Capitol Times questionnaires and on candidate filing forms with the Secretary of State’s Office have been disconnected. But earlier this year, he said he tried to kill Boyer’s statute of limitation bill because the founding fathers intended committee chairs to serve as gatekeepers.

“We are gatekeepers,” he said. “There are chairmen that hold bills.”

And in a 2011 interview with the Capitol Times upon his return to the House after two years away, Farnsworth said too many lawmakers were proud of the number of bills they got passed.

“The question for me is how many bills did I kill as a chairman? In four years, I probably killed 500 bills,” he said. “I’m far prouder of being a gatekeeper of freedom than voting for a bill that tells people what to do. I’m very proud of my reputation.”

Boyer said he found Farnsworth’s refusal to hear his statute of limitations bill “frustrating,” though he acknowledged he probably frustrated plenty of members during his four years as chairman of the House Education Committee.

As a chairman, Boyer said he’d count votes on his committee ahead of time to avoid scheduling bills that wouldn’t pass, particularly if they were bills that would garner a lot of testimony or debate. And he said committee leaders’ personal opinions about bills shouldn’t determine whether they get heard.

For instance, Boyer had a bill this session to allow graduating high school students who have achieved a high level of proficiency in the fine arts to have a fine arts seal added to their diplomas. Rep. Michelle Udall, a Mesa Republican who chairs the House Education Committee, was not a fan of the bill, but the rest of her committee supported it so she heard it anyway.

“I think she was the only ‘no’ vote, to her credit,” Boyer said. “That was just a great illustration of a chairman doing their job.”

Rep. Anthony Kern, R-Glendale, came under fire more than once this session for his role as the gatekeeper of the House Rules Committee. Bill after bill went there to die without explanation, and his colleagues noticed.

House Minority Leader Charlene Fernandez made a point of calling attention to Democratic bills being held “hostage” in Rules on more than one occasion this year. She accused Kern of being vindictive toward her caucus’ bills, a charge Kern said impugned his motives and that prompted a defense from House Speaker Rusty Bowers who argued each chair was an extension of himself as speaker.

Nonetheless, after even some of Kern’s own Republican colleagues complained that he was negating some of their work on committees and overstepping, Kern began freeing dozens of bills in early March.

Kern did not immediately respond to a request for comment, but he has gone on social media in the interim to note some of the casualties of Rules.

On June 14, he tweeted, “As Rules Chairman, I joined fellow House Republicans in making sure HB 2414 was held in committee. It would have made AZ part of an interstate agreement to decide presidential elections by popular vote alone. Founding Fathers had it right, every state matters!”

HB 2414 was sponsored by Tucson Democrat Rep. Pamela Powers Hannley and assigned only to House Rules in late April, when many bills were assigned to Rules strictly to comply with a requirement that all bills be assigned to at least one committee.

And Rep. John Allen, R-Scottsdale, got more than he likely bargained for as chair of the House Judiciary Committee. Before session kicked off, criminal justice reform measures were expected to go before the Sentencing and Recidivism Reform Committee Bowers had created for Prescott Republican David Stringer. As scandal unfolded around the now former representative, though, that committee was dissolved, leaving the Judiciary Committee to pick up where Stringer had left off.

Allen’s views then fell in line largely with Farnsworth’s, and bills aimed at restructuring aspects of the criminal justice system from fellow Republicans like Toma and Rep. Walt Blackman of Snowflake weren’t heard. In sum, 29 percent of the Republican-sponsored bills assigned to Allen’s committee never rated a hearing.

Like Udall, he did hear one bill despite his opposition and the impossibility of its adoption: freshman Democrat Rep. Raquel Terán’s HB2696, a bill she admitted had gone far beyond her original intent to repeal a law requiring a physician performing an abortion to use any means necessary to keep alive a fetus that is delivered alive.

Allen did not return a request for comment, but he explained his reasoning for doing at the time.

Realizing her mistake, Terán repeatedly asked Allen not to hear the bill after all. But he did not relent, and in the hearing held on the bill, he said this: “What we’ve talked about today shows the true nature of what some of the political conversations are,” he said, adding that the inclusion of House Democratic leaders as co-sponsors on the bill demonstrated how the issue is a core value of the Democratic party.

Sen. Sylvia Allen, R-Snowflake, did not grant hearings to nearly one-third of the Republican-sponsored bills assigned to her Senate Education Committee.

“If I’m not going to vote for it on the floor, I’m likely not going to hear it,” she said. “I’ve had plenty of my bills held by chairmen, and I understand the process.”

Among the bills held in Senate Education were several of Allen’s own bills, which she said she realized needed more work. And in many cases, she said she talks with members ahead of time about issues with their bills and they agree that it’s not ready for a hearing.

“If I’m holding something, usually the member is not too upset that I’m doing it,” she said.

Members, particularly Democratic members, find that success often depends on what committee their bills are assigned to, said Sen. Sean Bowie, D-Phoenix, one of only eight Democrats who sponsored a bill that was signed into law this year. That bill, which deals with suicide prevention training in schools, was assigned to Allen’s committee and Bowie said she worked with him to get it out.

On the other hand, a bill he sponsored with Republican co-sponsors to ban conversion therapy landed in Farnsworth’s Judiciary Committee.

“Like a lot of bills that were introduced to that committee, it didn’t get a hearing,” Bowie said.

Construction liability bill was policymaking done right

Every legislative session, there are a handful of bills that don’t make headlines, but are every bit as important as those that do. This happens for a variety of reasons – maybe these bills are a little too wonky for the average reader, or perhaps they don’t qualify as “click bait.” Either way, SB1271 was one of these bills.

Sponsored by Senate President Karen Fann, SB1271 is the successful result of a 3-year legislative effort. This issue – how we apportion liability on a construction project – has been the subject of hard-fought battles at the Arizona Capitol since before I was even born, and now that problem is fixed.

Before SB1271, state law allowed liability to be shifted to subcontractors for the mistakes of others. The expression “you break it, you bought it” didn’t apply in Arizona residential contracting.

There are actually minutes from a committee hearing in the early 1980s in which a much younger version of a well-known Arizona lobbyist argues against these “cram-down provisions.” Arizona subcontractors have struggled under this scheme for years.

And then an Arizona Superior Court case, commonly referred to as “Hicks,” highlighted the abuse in this area. In that case, a group of homeowners sued a prominent developer, and the developer argued that any liability from the litigation should fall to the subcontractors on the project.

The developer’s attorney explained that the indemnity clause in their contracts requires the subcontractors to accept fault, even if the homeowner’s allegations are not true or the subcontractor was actually negligent. The attorney argued that their contract “takes the question of innocence out of it.” The attorney went on to say, “You put in the drywall, there’s an allegation of a ceiling crack, yes, I think my contract allows me to recover against you, even if you didn’t cause the … ceiling crack.”

This unfair risk-shifting practice was already prohibited in public projects, and Fann – along with a group of motivated subcontractors known as Arizonans for Fair Contracting – decided it was time to put a stop to this abuse.

Well aware of the difficult legislative history associated with the issue, Fann first authored a bill that established the Construction Liability Apportionment Study Committee – or the CLASC.

At the Arizona Capitol, it’s often said that study committees are “where issues go to die,” but the CLASC served as the perfect forum for stakeholders to work hand-in-hand to identify the statutory changes necessary to put an end to these risk-shifting practices.

The CLASC’s consensus-driven approach produced a thoughtful solution to the problem driving the legislative effort, and fostered a dialogue among key stakeholders that even produced additional legislative changes that will boost Arizona’s already booming construction industry.

The final product – SB1271 – was the result of policymaking done right. This legislation not only ensures that responsible parties pay for their own mistakes, and that each party pays its respective share of any loss, but also ensures that homeowners with construction defects get the repairs they need.

The “art” of the policymaking process is to achieve the client’s objective (i.e. get a bill passed and signed into law) having made more friends than enemies. Almost anyone can cram a bill through the process, but the level of difficulty goes up – way up – when you work to satisfy those who will be impacted by the new law in a respectful, collaborative manner.

It’s safe to say that Fann, along with Arizonans for Fair Contracting, accomplished what they set out to achieve. Along the way, Arizona subcontractors made more friends than enemies, and Arizona’s construction industry is the better for it. This was policymaking done right.

Ryan DeMenna is a partner with DeMenna Public Affairs.

County election equipment deemed free of tampering

An audit of the Maricopa County voting equipment came up absolutely clean according to county officials.

But it’s not going to deter the demands by Republican senators to conduct their own review and get a court order to enforce their own subpoena. In fact, the lawmakers are going back to court Feb. 25 in their bid to get access to the equipment, the software — and the actual ballots.

The county report, released Tuesday, concluded that there was no evidence that:

– Votes were switched from one candidate to another;

– Equipment was using modified software;

– Voting machines were connected to the internet;

– Malicious software or hardware had been installed on tabulators or the system.

“These audits are an affirmation for everyone’s hard work and prove what my colleagues and I have been saying all along: Our elections were run with integrity and the results we canvassed were accurate,” said Supervisor Clint Hickman, one of four Republicans on the board.

Steve Gallardo, the lone Democrat supervisor, agreed.

“The audits clearly dispel the notion that somehow the November election was rigged,” he said.

The results of the audits — three of the four areas were reviewed separately by two different companies — come just days before the supervisors face off in court again with the Senate.

Attorneys for lawmakers contend they are entitled to have their own auditors have access not only to the equipment but also the 2.1 million ballots actually cast.

So far, though, their efforts have failed. And on Feb. 25, attorneys for the county will ask Maricopa County Superior Court Judge Timothy Thomasson to quash the legislative subpoenas and permanently bar Senate President Karen Fann and Sen. Warren Petersen, who chairs the Senate Judiciary Committee, from taking any further action to enforce their subpoena.

All this is part of the leftovers from allegations that the returns reported from the Nov. 3 election were inaccurate and that Donald Trump actually won Arizona and should have received the state’s 11 electoral votes.

A series of lawsuit complaining of everything from improper procedures and the use of wrong marking pens to outright fraud all have so far been rejected by courts. And at this point the issue is legally moot as Joe Biden has been sworn in as president.

But Fann told Capitol Media Services more needs to be done.

“When there are this many questions that people are questioning our electoral system, I think we owe it to them to say ‘We’re going to get those answers for you, and we’re going to show that our system is good and secure,’ ” she said. “And if we find any irregularities, we are going to prove to you that we’re going to fix those irregularities.”

More to the point, Fann said, what the county performed doesn’t get to those questions.

Some of it, she said, is because the companies they hired are not certified forensic auditors.

Beyond that, Fann said there are other questions that the audit never addressed.

“I do know that they did not do an in-depth forensic audit enough to help us figure out how many mail-out ballots went out to people that do not live in Arizona any more,” she said. Then there are allegations about ballots that went to dead people or a large number of ballots showing up at a house where only two people live.

All that, Fann said, leads to questions about what happened to all those ballots.

But a key point in what Fann and her colleagues want is access to the actual ballots to determine if the count reported actually matches the votes counted.

The audit done for the county does look at some of that — but only indirectly.

Auditors from Pro V & V looked at the question of whether the Dominion Voting Systems equipment or software was switching votes from one candidate to another, one of the charges leveled by Trump supporters, using what a “test deck” of ballots pre-marked with known results. All totaled, they said the tally of more than 1.5 million specific ballot positions came out 100% accurate.

Only thing is, these were not the actual ballots voted in November, in keeping with the county’s position that they have to be locked up.

The audit produced other results.

Pro V & V and SLI Compliance, the other firm hired by the county, also said they looked for evidence that the tabulation system was transmitting information outside what they said was an “air-gapped system” within the county. They said they found no issues.

Both also conducted what they called a “full forensic clone” of the hard drive on the equipment which allowed them to examine not just what was there but also look for evidence of deleted files or hidden data. Here, too, they said they found no issues.

All that, however, is not good enough as far as the Senate is concerned. And Fann said the only way the questions of constituents will be answered is if there is an actual examination of the equipment and the ballots by someone chosen by the Senate.

Whether lawmakers are entitled to that is exactly what Thomasson is being asked to decide.

The county’s refusal to turn over access is based on several arguments.

“The (Arizona) Constitution commands that ballots be kept secret,” attorney Steve Tully who represents the county told Thomasson in his legal filings. And he said Arizona law spells out that after the formal canvass of votes, the ballots are put into an envelope and kept unopened for up to 24 months, after which they must be destroyed.

None of this has stopped the Senate from issuing a subpoena for access to them.

But Tully said subpoenas are permissible only when there has been a vote of the full Senate to investigate the 2020 general election. That, he said, did not occur.

Instead, he said, the subpoenas all result from “months of conspiracy theories rejected by the courts and debunked by the press.”

There are provisions for a judge to decide whether to enforce a subpoena. But he said that first requires a vote of the Senate to hold the supervisors in contempt.

But that failed when Sen. Paul Boyer, R-Glendale, refused to go along with his GOP colleagues.

County OKs access to ballot copies, equipment

Facing a contempt vote in the Senate and a possible adverse court ruling, Senate President Karen Fann said Maricopa County supervisors agreed Wednesday to give lawmakers pretty much everything they are demanding in election materials and access to voting equipment.

Fann said the deal guarantees that the Senate Judiciary Committee will get copies of every ballot cast in the Nov. 3 general election. While the subpoena had asked for the original ballots, Fann told Capitol Media Services this will suffice.

“We don’t want to break any rules,” she said. Fann said the duplicates will allow for a full audit of the returns, comparing the duplicate paper ballots with the official machine tally.

Potentially more significant, the deal as outlined by Fann gives the Senate access to the equipment used by Maricopa County to perform a “logic and accuracy” test on a random sample of tabulation machines as well as a review of the “source codes.” And there will be access to desktop servers and routers as needed by an auditor.

In a prepared statement, Jack Sellers who chairs the supervisors, did not dispute any of the points made by Fann. But he said that the county and the Senate are “working toward an agreement which delivers some of the requested documents and information while protecting voter privacy and the integrity of election equipment.”

All that paves the way for a deep dive into what happened in the state’s largest county and whether the vote tallies reported were accurate. Democrat Joe Biden beat incumbent Donald Trump by 10,457 votes statewide, with a 45,109 edge for Biden in Maricopa County offsetting results elsewhere where Trump outpolled the Democrat.

Most significant, it also provides an opportunity to have an independent check into various allegations fueled by Trump and his allies that the Dominion Voting Systems software and equipment were deliberately rigged to give more votes to Biden than were actually cast for him.

In turn, however, the Senate has agreed to have all the examinations performed by an auditor who is certified by the U.S. Election Assistance Commission. And the documents and equipment produced will be accessible only to those authorized.

That is a crucial point as county officials had been concerned that at least one purpose behind the subpoenas issued last month, before the election results were certified by Congress, was to turn information over to Trump attorney Rudy Giuliani or others associated with the Trump re-election campaign.

There was a basis for that conclusion.

In a Dec. 29 court filing on behalf of the Senate, attorney Kory Langhofer wrote that one of the desires of his client was “to potentially transmit its findings to the United States Congress in advance of its consideration of the Electoral College returns on Jan. 6.” And that could have provided fuel to convince federal lawmakers not to accept the results giving the state’s 11 electoral votes to Biden.

All that is purely academic, with the deal coming just hours before Biden was formally sworn in as president.

Fann said there were two main goals of the subpoenas.

“This was all about reinstilling the confidence in the electoral system with the voters to ensure there wasn’t any problem with the machines,” she said. And if there are irregularities, intended or not, Fann said the review will enable lawmakers to decide whether changes are needed in state election laws to prevent future problems.

With the compliance, Fann said she hopes an auditor can be selected within days. And the Senate president said she wants the examination completed within a matter of days or weeks, and not months.

Any findings by the Judiciary Committee are expected to be publicly reported. More to the point, Fann said she wants to see what, if anything, went wrong.

“I am hoping there were no errors,” she said. But Fann said there might be some “minor” ones, like someone who cast a ballot who was not entitled to vote.

“If we find those irregularities, how do we fix that,” she said. All that, Fann said, goes to having the legislature make whatever changes are necessary in state laws to make elections more secure.

Still, Fann said, it is possible that the audit will come up with something more serious.

“If, for some reason, we actually did uncover some major problems that would have affected the outcome of the election, it’s our duty to send that information on to the Congress or whomever,” she said.

“We can’t just stay silent on that,” Fann continued. “We have to provide that information to the federal authorities” who are in a position to deal with it, “whether it’s criminal action, whether it’s cartel, whatever.”

None of this, she said, will affect the fact that Joe Biden was sworn in on Wednesday.

“He is the president,” she said.

The deal is about more than Senate access to the equipment and materials. As part of the pact, county officials have agreed to acknowledge the legislature’s authority to issue investigatory subpoenas, something they had fought in court.

Maricopa County Superior Court Judge Timothy Thomason had scheduled a hearing for Wednesday on the legal dispute. The judge suggested he was ready to rule in favor of the Senate, saying at a previous hearing he believes the subpoena served a legitimate legislative purpose.

And there was something else hanging over the supervisors.

Fann conceded her staff already had prepared a resolution to hold the county officials in contempt. Such a vote would have allowed the Senate president to send the sergeant-at-arms to actually arrest someone — presumably supervisors Chairman Jack Sellers — for refusing to comply.

This, Fann said, is a much better solution. And she thanked the supervisors for agreeing to the deal.

Legal authority aside, Fann said concerns of the county about the security of the equipment had no basis.

“We’ve said from Day One we certainly did not expect them to bring the machines down to the state Capitol or to hand over any information to anyone who is not authorized to do it,” she said. And Fann said the deal ensures future cooperation as the auditor begins a review.

Editor’s note: This story has been revised to include comment from Jack Sellers.

County starts process for lawsuit against Senate

Maricopa County is taking the first steps to what could be a lawsuit against the Senate.

In a letter Friday, County Attorney Allister Adel demanded that Senate President Karen Fann preserve all communications related to the audit. These range from internal memos within the Senate all the way to social media posts.

All that, she said, is part of a legal maneuver known as a “litigation hold notice and document preservation request.” That allows attorneys contemplating a lawsuit to demand that a prospective defendant does not destroy materials that could help prove their case.

More to the point, it puts prospective defendants on notice they have a duty to preserve evidence that they know or should know is relevant or face court sanctions.

Strictly speaking, Adel does not explain her legal theory.

But her letter suggests, at the very least, a libel suit against senators and those involved in the audit who put out what Adel said were false statements that the county had deleted an entire database directory from the election equipment. That even included a post on the Senate audit’s official Twitter account saying the directory was deleted days before the election equipment was delivered.

“This is spoliation of evidence!” the post reads.

And there’s something else.

“We have reason to believe that this audit is not being done in accordance with Arizona law,” Adel wrote.

She did not spell out exactly what the county believes is illegal. But such a claim would lead to yet another lawsuit between the county and the state.

Earlier litigation concerned whether the Senate had a right to subpoena the ballots and voting equipment. A judge eventually concluded that the legislature has broad powers to demand pretty much whatever it wants.

But a claim of impropriety or illegality in how all this is being conducted would require a judge to take a closer look at exactly how the Senate — and its hired contractors — have been handling everything they have.

There also could be a financial component to any litigation. That follows a statement earlier in the week by Secretary of State Katie Hobbs that the decision by the Senate to turn the county’s voting equipment over to the outside contractors it hired makes those machines unusable for future elections.

Fann had only a brief comment on the letter.

“Boy, they really don’t want us to finish this audit,” she told Capitol Media Services.

Adel, in her demand letter, was quite comprehensive.

For example, she wants “all communications and correspondence, whether paper or electronic, including but not limited to written correspondence, voice mails, emails, calendar invites, text messages, instant messages, third-party message systems/applications, messages and data chat/chat strings, video files, audio files, and social media posts and messages, whether designated as public or private.”

Adel also is telling Fann to have the Senate and its contractors preserve all cell phones, tablets and computers used by her, agents, clients and contractors for the audit. And she wants these devices “preserved in their entirety for forensic imaging and electronically stored information.”

And if Fann did not get the significance of the message, Adel cited case law which she said empowers judges “to impose significant sanctions against parties who fail to preserve evidence.”

County supervisors defy Senate subpoenas

Maricopa County Supervisor Bill Gates answers questions Monday about the board's decision not to respond to the latest Senate subpoena. With him is Chairman Jack Sellers (Capitol Media Services photo by Howard Fischer) — Maricopa County Supervisor Bill Gates answers questions Monday about the board’s decision not to respond to the latest Senate subpoena. With him is Chairman Jack Sellers (Capitol Media Services photo by Howard Fischer)

Maricopa County won’t surrender the latest batch of documents and equipment the Senate demands.

At least, not most of what was subpoenaed.

County officials did not show up at the Senate at 1 p.m. on Monday as commanded by President Karen Fann with the items in tow. In fact, they didn’t show up at all.

Instead, board Chairman Jack Sellers sent a letter to Fann and the other senators blasting the “audit” — the quotes are as he stated it — and telling them to get on with it.

“The board has real work to do and little time to entertain this adventure in never-never land,” he wrote, saying that the 2020 election was run as required by state and federal law.

“There was no fraud, there wasn’t an injection of ballots from Asia nor was there a satellite that beamed votes into our election equipment,” Sellers said. “It’s time for all elected officials to tell the truth and stop encouraging conspiracies.”

And Sellers told the senators to release whatever report they’re going to produce “and be prepared to defend any accusations of misdeeds in court.”

At a separate press conference explaining the board’s decision, Sellers took a slap at the Senate — and Cyber Ninjas, the firm that Fann hired.

“A lot of the questions that have been raised in the current subpoena are because the unqualified, inexperienced people they hired to do this audit don’t know what they’re looking at,” he said. “So they keep asking us to verify things or explain things that if they knew what they were doing they would already know the answers.”

Senate President Karen Fann (Photo by Kyra Haas/Arizona Capitol Times)

The Senate had no better luck with a separate subpoena — and that 1 p.m. Monday deadline — for Dominion Voting Systems to produce various passwords, tokens and other ways to get into the programming of the equipment it leased to the county for the election.

Attorney Eric Spencer, in a written response to the Senate, said the demand violates his client’s constitutional rights against unreasonable search and seizure. And he said while the Senate has the power to conduct investigations, there is no “valid legislative purpose” to what Fann wants.

Both denials now shift the burden to the Senate which has to decide whether to pursue the matter.

“We are weighing our options,” said Fann in a prepared statement. But she said that it is the fault of both that the audit of the November election is not yet complete.

“It is unfortunate the noncompliance by the county and Dominion continues to delay the results and breeds distrust,” Fann said. And she accused the county of doing a “slow walk” of a separate public records request for documents about a possible breach of the voter registration database.

Supervisor Bill Gates, a Republican like Sellers, said that a vote by the Republican-controlled Senate to hold board members or officials from Dominion in contempt and potentially jail them is unlikely.

“We all know from public statements now that they have even fewer than 15 senators who are in support of this operation,” he said, noting the earlier objection from Sen. Paul Boyer, R-Glendale and the more recent conclusion by Sen. Michelle Ugenti-Rita, R-Scottsdale, that “the audit has been botched.” Anyway, Gates said, the Senate would have to be in session to even consider a contempt resolution.

Doug Logan, CEO of Cyber Ninjas, answers questions Tuesday at a hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns. — Doug Logan, CEO of Cyber Ninjas, answers questions May 18, 2021, at a hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns.

But it does not preclude Fann from seeking a court order as she did after the supervisors balked at earlier subpoenas.

In that case, Maricopa County Superior Court Judge Timothy Thomasson said the lawmakers have a “valid legislative purpose” in seeking the 2.1 million ballots and the election equipment.

He pointed out that the Arizona Constitution gives legislators the power to enact “laws to secure the purity of elections and guard against abuses of the elective franchise.” And Thomasson accepted the Senate’s explanation that it needed the ballots and equipment to determine if changes are needed in state election laws.

County officials ended up complying at that time. In fact, the ballots and equipment that were produced now have all been returned to the county.

But it now appears the supervisors are ready for a new fight over what more the Senate and Cyber Ninjas insist they need.

In a separate letter to Fann, County Attorney Allister Adel ticked off objections she has to what the Senate requested.

For example, she said there is no need for the actual envelopes in which early ballots were mailed since the county provided images. Anyway, Adel said, the Senate has provided no assurance it could actually protect those items.

But beyond that, the county attorney said the latest subpoena is “an abuse of process or designed merely to harass.”

Still, Adel said the county might provide some information — and on its own schedule.

For example, she said that the county might provide details about a breach of a voter registration web site last year operated by the County Recorder’s Office even though she said it was never connected to election tabulation equipment and is irrelevant to the audit. But Adel said that county officials are busy and they will respond to a parallel public records request for the same information when they have the time.

But the supervisors called the whole investigation little more than “political theater.”

“They’re not acting seriously,” said Gates, saying that the Senate is not doing anything to make voters confident about the electoral system.

“They’re focused on tearing it down, he continued. “They’re focused on raising all sorts of doubts that are going to do nothing but erode at our democracy.”

And then there’s the timing of this, the third subpoena issued by the Senate in its self-proclaimed inquiry into whether the results of the 2020 election — the one that saw Joe Biden outpoll Donald Trump in both the county and the state — were accurate.

All that goes to Gates’ conclusion that this is a political versus a legal issue.

Exhibit No. 1 is the demand in that third subpoena for the county’s routers, essentially equipment that directs computer traffic between the county’s own computers as well as the internet.

Auditors have claimed, without any proof, that election computers were somehow hacked and the results altered. And they have not been convinced by two separate investigations conducted for the county which found the election system is air-gapped and was never connected to the internet.

Yet he said the conspiracy theories remain.

More to the point, Gates said, is the timing of this new subpoena and the demand for those routers.

“They waited for former President Trump to come to town, talk about routers 10 times, and then issue a third subpoena,” he said. “This isn’t serious.”

And Gates said the people behind the audit are “more interested in scoring political points and driving the conspiracy theories held by many of the members of the state Senate.”

Editor’s note: This story has been revised to include comment from Senate President Karen Fann.

County supervisors to approve audits of election equipment

Maricopa County elections officials count ballots behind boxes of counted ballots, Wednesday, Nov. 4, 2020, at the Maricopa County Recorders Office in Phoenix. (AP Photo/Matt York)

Maricopa County supervisors are set to approve two separate audits of election equipment Wednesday in a bid to satisfy questions about security and the 2020 results — and avoid further litigation with the state Senate.

Chairman Jack Sellers said Tuesday he still believes that the tally showing more votes for Joe Biden than Donald Trump correct. He said that was shown through a series of court rulings and a statutorily required hand count of a sample.

“However, a significant number of voters want the additional assurance that a full forensic audit of election tabulation equipment might bring, especially given all the misinformation that spread following the Nov. 3 general election,” Sellers said. So the board will vote on Wednesday to authorize two audits.

“It is my belief these audits will prove our machines were not vulnerable to hacking or vote switching,” he said.

But Senate President Karen Fann acknowledged that may not be enough to satisfy legislators who believe the November election was rigged.

Several senators told Capitol Media Services they’re not convinced that an audit supervised by the county will be adequate.

“The Senate is moving forward with our own audit,” said Sen. Kelly Townsend, R-Mesa, one of the Arizona legislators who has expressed doubt about the reported election returns. And Sen. Warren Petersen, R-Gilbert, said the Senate still intends to do its own examination.

In both cases, they said that was being done with Fann’s approval.

Fann, however, said it’s yet to be determined whether the Senate will do its own review. She wants to see exactly what the supervisors approve and the extent of the proposed audit.

“I’m waiting for a copy of that so I can see if that scope is everything that we were looking for,” she told Capitol Media Services.

“And if it is, great,” she said. “And if it’s not, we’ll have to have a conversation about what do we need to do to make sure we can truly put this thing to bed and answer all of these questions that so many of our constituents have.”

Some Republicans have raised questions about the results of the presidential race where Democrat Joe Biden got Arizona’s 11 electoral votes by beating incumbent Republican Donald Trump by 10,457 votes statewide.

The focus has been primarily on Maricopa County where Biden beat Trump by 45,109 votes, with many of the attacks based on unproven allegations that the Dominion Voting Systems hardware and software used there was either programmed or hacked in a way to move Trump votes into Biden’s column.

Several lawsuits challenging the results were thrown out.

One challenge filed in federal court resulted in a ruling by U.S. District Court Judge Diane Humetewa that “the allegations they put forth to support their claims of fraud fail in their particularity and plausibility.” And a different state court judge tossed out a separate claim of irregularities after a random review of early ballots found the error rate was so small that it would not have changed the outcome of the vote.

That did not satisfy some lawmakers, with the Senate issuing a pair of subpoenas demanding access to everything from the raw ballots to access to the voting equipment. That landed the parties in court as the Senate sought to enforce those subpoenas and attorneys for the county argued that it would violate the law to give legislators access to everything they want.

Both sides agreed last week to shelve the litigation and see what they can work out.

What the supervisors are supposed to vote on Wednesday is designed to address that, but without losing control of the documents and the machinery.
“We are going to send an invite to the Senate and ask them to participate and give us feedback,” said County Supervisor Steve Gallardo.

“We’re doing one audit,” he said. “But in terms of us turning over ballots and turning over machines, it ain’t happening.”

Fann said that, for the moment, she’s satisfied with what the county is proposing without the need for the Senate to do its own audit.

“The whole reason we’re doing this is to reinstill voter integrity and confidence,” she said. “And so we have to make sure we do it right, do it independently, so that voters — hopefully 95% of them — will say, ‘Yes, you have proven to us that it was done correctly and you have answered our questions.’ ”

A draft of the proposal before the supervisors shows a multi-pronged approach.

First, it would determine that the county’s tabulation equipment is state and federally certified. There also would be a check for malware on the system and a verification that the tabulation equipment was not connected to the internet during the general election.

Second is a “logic and accuracy” test to verify that the results being reported by the machinery match the votes on the submitted paper ballots. There were similar tests already performed before and after the November election.

Finally, auditors would verify that the Dominion software was leased according to state and county procurement regulations.

Fann said she has been doing extensive research on what it takes to verify accuracy of election equipment, even reaching out to her counterpart in Georgia, another state where the results for Biden were questioned, to determine how they verified the results there.

The Senate president acknowledged that goal of satisfying 95% of voters is probably the best that can be hoped for.

“You know, in this world not 100% of people agree on everything,” she said.

“If it comes back that there are no problems, I’m going to have 5% that said, ‘I don’t believe that,’ ” Fann explained. “And if it comes back and there are problems, I’m going to have at least 5% that come back and say, ‘I don’t believe that.’ ”

Gallardo said he and his colleagues are willing to contract with outsiders for the audit if it will reinforce voter confidence and blunt the criticism of GOP legislators who have made repeat allegations of fraud and misconduct.

“I think it’s upon us to really push back to show that, no, our system is secure, it’s accurate, it’s safe,” he said.

“We had a good system, we had a great election,” Gallardo continued. “I’m sorry they don’t like the results of it but, nonetheless, the results are what the results are.”

County wants Senate to pay $2.8M for voting machines

Some of the 2.1 million ballots cast during the 2020 election, are brought in for recounting at a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin) — Some of the 2.1 million ballots cast during the 2020 election, are brought in for recounting at a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden’s victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)

Maricopa County officials are sending a bill for $2.8 million to the state Senate to cover the cost of having to acquire new voting machines.

But don’t look for Senate President Karen Fann to pull out her checkbook any time soon.

In his letter to Fann, Tom Liddy, chief of the civil division of the county, reminded her that she signed a formal “Covenant of Indemnification” to cover any expenses that the county incurred as a result of the subpoenaed election equipment being damaged.

More to the point, Liddy said that agreement said the Senate would cover the costs of the equipment being “otherwise compromised.” And he said the pact makes the Senate liable for “without limitation expenses associated with procuring new equipment.”

What makes that necessary, Liddy said, is a conclusion by Secretary of State Katie Hobbs, who is the state’s chief election officer, that the county can no longer use the equipment it had been leasing from Dominion Voting Systems once it was turned over to Cyber Ninjas, the private firm Fann hired to conduct an audit of the 2020 election.

Hobbs said security experts told her that once the county lost custody and control of the voting systems, “these devices should not be reused in future elections.”

“Rather, decommissioning and replacing those devices is the safest option as no methods exist to adequately ensure those machines are safe to use in future elections,” Hobbs wrote to the Board of Supervisors. “Instead, the county should acquire new machines to ensure secure and accurate elections in Maricopa County going forward.”

And that, Liddy told Fann, is what the county intends to do – with the Senate picking up the cost.

“It would be inequitable to allow the Senate to escape the requirements of the Covenant of Indemnification – especially when the Senate should have reasonably foreseen that placing the county’s equipment in the hands of unqualified and unaccredited ‘auditors’ would threaten the equipment’s certification for use in elections,” Liddy wrote.

Fann isn’t buying it.

“This is yet another publicity stunt by Maricopa County,” she told Capitol Media Services. And Fann said there is no money owed to anyone.

“Machines were not damaged or tampered with,” she said. “And they know that.”

Anyway, Fann said this is just a continuation of what she sees as the county’s reticence to actually answer questions about the accuracy of the election results, the ones that saw Joe Biden outpoll Donald Trump for president, not only in Maricopa County but statewide.

“This shows they prefer to shower taxpayer dollars on Dominion and lawyers, rather than having an honest conversation about the audit,” she said.

Fann also rejected the county’s contention that the Senate also is liable for the costs incurred in sending the equipment and the 2.1 million ballots to the Veterans Memorial Coliseum where Cyber Ninjas conducted its review. Those range from renting delivery trucks and overtime pay for staff to training a firm to clone the hard drives of the tabulation equipment before turning them over.

“We asked Maricopa County to do the audit with us and not move the ballots and equipment,” she said. But the county balked at having Cyber Ninjas employees and volunteers inside its election offices.

In a prepared statement, supervisors Chairman Jack Sellers said the bill is justified.

“Imagine leasing a car and then loaning it to someone who totals it,” he said.

“You’re still on the hook to pay off the wrecked car,” Seller continued. “Plus, you need a new car.”

He said the county is doing the equivalent of getting a car to get it through the next year and a half.

“I’m just glad we had the Senate sign that indemnification contract,” he said.

Strictly speaking, what the county sent Fann is a “notice of claim.” State law requires anyone who says they are owed money from the state to first file a notice of how much they would be willing to settle it for.

If there is no response within 60 days, the claim is deemed denied and the person or entity making the claim is entitled to file suit.

All this comes as the Senate continues to fight legal efforts to produce some of the documents related to the audit.

On August 18, attorneys for the Senate asked the state Court of Appeals to delay the order of Maricopa County Superior Court Judge Michael Kemp that it immediately produce all records related to the audit. That includes not just those in possession of the Senate but also those held by Cyber Ninjas.

Kemp rejected arguments that the materials held by the private firm are not subject to the state’s public records law. And he said the fact that the Senate itself does not have possession of the documents that have been produced by Cyber Ninjas is irrelevant.

“Nothing in the statute absolves the Senate defendants’ responsibilities to keep and maintain records for authorities supported by public monies by merely retaining a third-party contractor who in turn hires subvendors,” Kemp wrote. Allowing that to happen, the judge said, “would be an absurd result and undermine Arizona’s strong public policy in favor of permitting access to records reflecting governmental activity.”

The appeals judges did not say when they will rule.

County: Senate making ‘mockery’ of audit

Maricopa County Supervisor Bill Gates, surrounded by other county elected officials, explains why he believes the results of the 2020 election were correct and everything else pushes "the Big Lie." (Photo by Howard Fischer/Capitol Media Services) — Maricopa County Supervisor Bill Gates, surrounded by other county elected officials, explains why he believes the results of the 2020 election were correct and everything else pushes “the Big Lie.” (Photo by Howard Fischer/Capitol Media Services)

Maricopa County supervisors on Monday accused Senate President Karen Fann, of allowing a “mockery” to be made of the election process with her audit.

On one hand, the board and County Recorder Stephen Richer prepared a 14-page letter responding to specific questions — they called them accusations — about everything from handling of the ballots to whether a database had been deleted after the election but before files were delivered to Senate-hired auditors. In each case, they said either that the information is false or that they cannot or will not provide what she wants.

But, one by one, each official lashed out at Fann and the Senate for perpetuating what several said amounts to a hoax on the public. And they said she has effectively given over the Senate’s powers to Cyber Ninjas, an outside group that not only has no election audit experience but is now using it to raise money.

And if the message of Monday’s meeting is lost on Fann and other senators, board Chairman Jack Sellers put it succinctly.

“As chairman of this board, I want to make it clear: I will not be responding to any more requests from this sham process,” he said.

“Finish what you’re calling an ‘audit,’ ” Sellers continued. “Be ready to defend your report in a court of law.”

In doing so, Sellers and the Republican-dominated board confirmed what had pretty much been clear since last week; Board members will not show up at the Senate Tuesday, as requested by Fann, for a televised question-and-answer session with her, Sen. Warren Petersen, R-Gilbert, who chairs the Senate Judiciary Committee, and Ken Bennett, a former secretary of state who Fann tapped to be her liaison with the outside contractors.

In fact, Supervisor Bill Gates said there’s good reason to stay away.

“This board was going to be part of a political theater broadcast on livestream on OAN,” he said, a reference to One America News Network, a pro-Trump cable news outlet which not only has fueled the theories that somehow the former president did not lose the election but also is helping to raise money to fund what is supposed to be an official, government-conducted audit.

Monday’s response now leaves it up to Fann on how to respond.

The Senate has gone to court before to force the supervisors to surrender the 2.1 million ballots and the election equipment. But a maneuver to actually hold the supervisors in contempt — a move that could have allowed the Senate sergeant-at-arms to take supervisors into custody — failed when Sen. Paul Boyer, R-Glendale, refused to go along with his other 15 GOP colleagues.

Boyer in recent days has indicated even more hesitancy about pursuing the issue. And Richer, a Republican like Fann and the majority of the Senate, said he thinks the tide is turning.

“I guarantee you, there are Republicans in the state Senate … that do not believe a word of it,” he said.

And with Democrats firmly against the whole process, that could leave Fann with few options to force further compliance.

There was no immediate response from the Senate president as to what, if anything, she intends to do now.

Political charges aside, there was a response to what Fann asked.

For example, Fann — working with questions provided to her by Cyber Ninjas — said there are “a significant number of instances in which there is a disparity between the actual number of ballots contained in a batch and the total denoted on the pink report slip accompanying the batch.”

“They don’t know how to read transmission slips,” Richer said of the auditors.

For example, he said some ballots out of any batch of 200 might be pulled out because they can’t be read by the tabulators. And that, said Richer, creates a duplicate ballot.

As to claims of deleted databases, he said “that’s just fundamentally not true.”

“If they were professional, certified auditors they wouldn’t be asking those questions,” Sellers said.

Ditto, Richer said, about the demand for the county’s routers, the computer equipment that acts like traffic directors for data between computers.

“We do not know why Cyber Ninjas would need the routers, as they have no election information,” Richer said. Aside from the $6 million cost of pulling them out and putting in temporary replacements, he said Sheriff Paul Penzone is concerned that what is on them could provide a “blueprint” of computers used by law enforcement that could allow someone to compromise the system.

Richer also said that Cyber Ninjas has no need for internal passwords to get at the source code for the tallying machines. Anyway, he said, that information belongs to Dominion Voting Systems. And he said Dominion gave them directly to the two certified auditors the county hired — again, Cyber Ninjas is not — and does not share them with election officials.

Sellers said he sees a pattern in the requests.

“It’s become clear that some of these people are only going to be happy when they get the results they want,” he said — meaning a finding that somehow Trump won the election, regardless of whether there is actual evidence to back that up.

Gates said it is possible that the Senate at one time had a legitimate reason to review the ballots and equipment. He noted that Fann said the whole purpose was to review the process and determine whether changes are needed in state laws on how elections are run.

But Gates said that stopped being the driving force long ago now that “outside forces” have taken control. That, he said, has become obvious because everyone admits the audit can’t be completed for the $150,000 the Senate allocated.

“Tell us where the money is coming from,” Gates said. So far, though, neither Cyber Ninjas nor Bennett has provided details. And Fann, who is supposed to be in charge, said she doesn’t know.

Gates acknowledged that he and his GOP colleagues are in some ways bucking the partisan tide.

“We recognize … that a large percentage of Republicans believe that the election was stolen in 2020 and that Donald Trump actually won,” he said. But Gates said he does not share that belief.

“And the reason that I feel confident in saying that, particularly in Maricopa County, is that we overturned every stone,” he said. “We asked the difficult questions.”

Now, said Gates, is the time to say that enough is enough.

“It is time to push back on the Big Lie,” he said. “Otherwise we are not going to be able to move forward and have an election in 2022 that we can all believe the results, whatever they may be.”

Richer said there’s another reason people should believe his assurances that the 2020 results are accurate.

He pointed out that he wasn’t even running the office at that time. Richer took over in January after defeating Democrat Adrian Fontes who did run the election.

“Why would I stand here beside these gentlemen to say, ‘It was a good election’ if it wasn’t?” he asked.

“Why wouldn’t I just throw the guy that I spent the past 12 months criticizing, Adrian Fontes, under the bus and say, ‘Don’t worry, there’s a new sheriff in town’ ”? Richer continued. “So it’s just facially asinine.”

Court considers Senate records dispute

Arizona Senate Republicans hold a hearing review of the 2020 presidential election results in Maricopa County at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

An attorney for the Senate warned the Court of Appeals Wednesday that if the judges force public disclosure of records related to the audit of the 2020 election it will undermine the ability of lawmakers to do their jobs.

Kory Langhofer told the court it should void a ruling by Maricopa County Superior Court Judge Michael Kemp who rejected broad claims that “legislative privilege” shields communications between and among Republican lawmakers and others involved in what was billed as a “forensic audit” of the election results.

Langhofer argued that it would open up to public scrutiny the discussions that lawmakers had about the audit. And that, he said, would undermine what he said is a constitutional recognition that legislators are entitled to have private conversations and communications because that is part of their job.

But attorney Keith Beauchamp said the flaw in Langhofer’s argument is that the records he is seeking on behalf of American Oversight — the ones that the Senate has refused to disclose — have nothing to do with the role of legislators in crafting laws.

He said the record shows that Senate President Karen Fann, R-Prescott, said she ordered the audit and contracted with Cyber Ninjas not to consider proposed new laws.

Instead, Beauchamp said, Fann said she was responding to concerns of Arizona residents about the accuracy of the tally where Democrat Joe Biden outpolled incumbent Donald Trump in Maricopa County. That margin of victory in the state’s largest county was enough to give the state’s popular vote — and its 11 electors — to Biden.

More to the point, Beauchamp said, is that the audit was not part of some investigation launched by lawmakers to review the adequacy of state election laws or craft new ones.

Even after it was produced, Fann turned it over to Attorney General Mark Brnovich to see if any existing laws had been broken. And it was only at that point, Beauchamp said — after the audit was produced and after all of the communications sought by American Oversight — that there was a discussion of whether existing statutes need to be amended.

Beauchamp told the judges there is a role for legislative privilege. For example, he said if Fann now wants to communicate with colleagues about changes to state law based on audit findings, that would be protected.

But what’s at issue here, he said, are the communications that Fann and others had with Cyber Ninjas and others both in deciding to conduct the audit and then on how the review was being done. None of that, Beauchamp said, is related to the business of legislators, which is crafting laws.

“They can’t make a showing that there was any deliberative or communicative process underway, much less of any impairment of that process,” he said.

Hanging in the balance are perhaps tens of thousands of emails, texts and other documents possessed not only by the Senate itself but also those in the possession of Cyber Ninjas, the private firm Fann retained to conduct the review.

In his earlier ruling, Kemp acknowledged that lawmakers are entitled to certain constitutional protections. He said that is part of ensuring that the “deliberative and communicative process” about proposed laws or other matters within the jurisdiction of lawmakers is not impaired by public disclosure of their deliberations.

The problem, said Kemp, is the Senate wants to extend that to all the communications involving Fann, Sen. Warren Petersen who chairs the Judiciary Committee, the liaisons Fann chose to interact with Cyber Ninjas and even communications with that company and its own sub vendors. And none of that, he said was “an integral part of deliberations or communications regarding proposed legislation.”

“Under such an expansive view there are few activities in which a legislator engages that could not be somehow related to the legislative process,” the judge said. “And the privilege does not extend to all things in any way related to the legislative process.”

Langhofer told the appellate court Wednesday that Kemp was off base in saying that only communications related directly to proposed legislation are exempt from the state’s public records law. The key, he said, is whether public disclosure would impair the ability of the legislature to do its job. That, Langhofer said, includes “the chilling effect that would have on the body.”

And he told the judges that upholding what Kemp ruled and accepting his narrow definition of what lawmakers can keep secret would not be fair.

“That dismissive approach to privilege is not consistent with the way the judiciary has treated its own privilege or executive privilege,” he said. “And these exist for a reason: to encourage candor and, frankly, improved results in what is supposed to be a deliberative body.”

Beauchamp, for his part, said any effort to shield all those documents the Senate does not want to disclose ignores the fact that they are public records.

“There’s no dispute about it,” he said. “There’s a strong public policy favoring disclosure of records.

And when there’s a dispute about whether something can be withheld, Beauchamp said the burden is on the agency holding the records to prove that they are exempt from being made public, not on the person seeking the documents to prove they are public.

“And here, the public’s right to know under the public records law to know what their legislators are up to would be restricted by a broad application of legislative privilege,” Beauchamp said.

More to the point, he said if there is a dispute the court has to weigh the interests of the public against claims of privilege.

Beauchamp told the appellate judges there’s another reason they should reject the Senate’s bid to shield the documents from public view. He said that the Senate, having not only conducted the audit but having a public hearing on the results, waived any claims of privilege.

Whatever the court rules is likely to affect not just the bid by American Oversight for the records but parallel litigation being pursued by Phoenix Newspapers Inc., the owners of the Arizona Republic.

In that case, Maricopa County Superior Court Judge John Hannah also rejected Langhofer’s claim that the documents are subject to disclosure.

“The legislative privilege does not apply to everything a legislator says or does that is somehow related to the legislative process,” Hannah wrote. “The shield extends only as far as necessary to preserve the integrity of the legislative process.”

And Hannah, like Kemp, said it isn’t up to lawmakers to determine which of their own records are public and which they can withhold.

“The courts, not current members of the legislature, are responsible for defining the scope of legislative privilege by balancing the public interest in legislator confidentiality against the robust disclosure policy of the public records law,” Hannah wrote. And he said that in close or doubtful situations, “the public records law prioritizes public access over legislative secrecy.”

The judges gave no indication when they will rule.

Court makes statement, rules against lawmakers

Rep. Andrés Cano, D-Tucson, right, speaks with Arizona House Speaker Rusty Bowers, R-Mesa, during a vote on the Arizona budget Thursday, June 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

The Arizona Supreme Court on Thursday issued a broad ruling that will change forever how state budgets are adopted.

In a 17-page ruling, the justices said the way lawmakers have been piling unrelated issues into last-minute “budget reconciliation” bills is unconstitutional.

They voided provisions of four budget-related bills because their legally required titles did not reflect what actually was in the measures. And they separately concluded that one of the bills, with 52 sections and 30 distinct subjects, also violated a separate constitutional ban on legislation dealing with more than one topic.

In doing so, the court reasserted its authority as the ultimate arbiter of what the other branches of government can and cannot do.

The justices said that they — and not the legislature — determine whether an act is constitutional. And in an often strongly-worded decision, they rejected various arguments that lawmakers are entitled to wide latitude in deciding how to craft statutes and the budget.

But the real effect of the ruling is that it finally will end how legislative leaders corral the votes for certain controversial items. And that, in turn, could empower whichever party is in the minority.

What has happened until now is that individual lawmakers in the majority party threaten to withhold their votes for the entire budget unless they get some particular provision inserted. And often these are bills that could not get approved on their own.

This year’s budget package is no exception. It is filled with items that either failed on their own or never even got a hearing but became must-have items for some lawmakers.

Among the examples is a ban on the teaching of so-called “critical race theory” in public schools, a bill that never was voted on separately by either the House or Senate. But it wound up in legislation labeled

“K-12 education; budget reconciliation.”

That meant anyone who wanted what else was in that bill, which included changes in state aid to public schools, had to go along.

The justices said the situation was even more pronounced in SB 1819, labeled as “Appropriating monies; relating to state budget procedures.”

“SB 1819 contains 52 sections and spans approximately thirty distinct subjects, including matters ranging from dog racing, the lottery, voter registration, election integrity, the governor’s emergency powers, the Board of Trustees’ (of the Public Safety Personnel Retirement System) duties and powers, the definition of ‘newspaper,’ political contributions, management of the state capitol museum, and COVID-19,” wrote Justice John Lopez for the unanimous court. And that in turn forced lawmakers into an all-or-nothing situation.

That need to “buy” votes for the budget by including policy issues package is enhanced in situations like now where Republicans have just a one-vote majority in both the House and Senate, meaning a single lawmaker can thwart desires of GOP colleagues.

“There were a lot of things put into those budget reconciliation bills because we had so many members that said, ‘I’m not on the budget unless I get X,’ ” said Senate President Karen Fann, R-Prescott. More to the point, she said, they had leverage.

“After 171 days and no budget passed, and we’re getting close to July 1 and the new fiscal year where departments need to be funded and everything else, yeah, we did put stuff in there,” she told Capitol Media Services.

House Speaker Rusty Bowers, R-Mesa, said the ruling now gives him and Fann some backing for their refusal to do that.

“It kind of helps us hopefully make the point that there are certain things you can’t do,” he told Capitol Media Services. “So, if that’s what that decision says, it’s good for me.”

The flip side, however, is it removes a bargaining chip that leadership has had until now to get the needed majority among Republicans for the budget.

“It’s just going to cost me more,” Bowers said. “I’m just going to have to go deal with somebody else.”

And that could mean getting the necessary votes from Democrats who have argued repeatedly that they have not been consulted on budget items because, until now, the Republicans have not needed their votes.

House Minority Leader Reginald Bolding, D-Laveen, said he welcomes the idea of greater Democratic influence on the annual spending package.

“My hope is this really is an opportunity to get back to what Arizona is trying to do,” he told Capitol Media Services, pointing out that the partisan split in both the House and Senate is nearly 50-50.

“We’ve always taken a position as a caucus that we’re 100% in favor of a bipartisan budget, a budget that includes both Democratic and Republican priorities,” he said. “We just have not seen that the governor, the speaker or the president really operate that way.”

Fann, however, said it will still require some flexibility on the part of Democrats.

She said GOP lawmakers made it clear last year that the budget had to include some tax cuts for them to support the spending plan. But Fann said not a single Democrat was willing to even consider the issue.

“So that shut down those conversations,” she said, leaving GOP leadership little choice but to agree to some of the demands to put non-budget items into the package.

“Had I had a few Democrats that would have come onboard with the budget, or even some of the budget items, when we wouldn’t have had to play Whac-A-Mole, if you will, with the other members of putting things in there that really didn’t belong in the budget,” Fann said.

Bolding said the ruling also could curb some more radical ideas from becoming law — or at least bring them to light.

Right now, he said, individual lawmakers are shielded from being held accountable for voting for a specific measure because it is buried in a more comprehensive budget bill.

“Republican members who don’t support bad policy will now be forced to vote on the board for those bad policies,” Bolding said. “And we’ll see if they have the courage to vote against them — or not.”

Thursday’s decision is also consequential for the court’s broad rejection of claims by lawmakers that they — and not the justices — get to decide whether what they do is constitutional.

“We reject this untenable proposition,” wrote Lopez.

“This case implicates our court’s core constitutional authority and duty to ensure that the Arizona Constitution is given full force and effect,” he said. “The responsibility of determining whether the legislature has followed constitutional mandates that expressly govern its activities is given to the courts — not the legislature.”

Lopez said it would be one thing if a dispute is over a political issue that is beyond the ability of the court to resolve.

Court orders Senate to turn over audit records, appeal likely to come

Maricopa County ballots cast in the 2020 general election are being examined and recounted by contractors working for Florida-based company, Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum in Phoenix, Thursday, April 29, 2021. (Rob Schumacher/The Arizona Republic via AP, Pool)

A judge has ordered the Senate to immediately produce the records it has related to the audit of the 2020 election — even those in the hands of Cyber Ninjas Inc., the private firm hired to conduct the review.

Maricopa County Superior Court Judge Michael Kemp on Tuesday rejected last-ditch arguments by the Senate and Karen Fann, its president, that he should hold off issuing a final order. The judge said there is no need for further litigation, saying that the question involves “undisputed issue of fact.”

And the fact is, he said, the records are public.

More significant, Kemp rejected arguments by the Senate that it is immune to being sued over the records.

Despite the order, however, it could be some time before American Oversight, the self-described nonpartisan watchdog group which is seeking the records, actually gets them. Attorney Kory Langhofer, who represents the Senate, said he will seek an immediate stay of Kemp’s order from the state Court of Appeals.

And even if that fails, the fact remains that some of the documents that Kemp ordered the Senate to produce are in the hands of Cyber Ninjas.

“I can’t produce something I don’t have,” Fann told Capitol Media Services.

Kemp, however, was not impressed.

“Defendants’ claim that they have not even seen the documents of Cyber Ninjas Inc. and its subvendors does nothing to advance their position,” he wrote. “Willful blindness does not relieve Senate defendants from their duties and obligations under the public records law.”

Less clear is whether records produced will give Arizonans a better look at who really is funding the audit.

Cyber Ninjas CEO Doug Logan released a report last week listing what he says are groups that contributed more than $5.6 million, above and beyond the $150,000 spent by the Senate. But those groups, mostly tied to Trump or organizations that allege conspiracies in the 2020 election, are not required under federal law to list their individual donors.

A spokesman for Logan said there would be no further details released. There is no indication whether Cyber Ninjas has that information and whether it would be provided through the public records.

The court order comes as Sen. Sonny Borrelli, R-Lake Havasu City, has asked Attorney General Mark Brnovich to investigate the refusal of Maricopa County to comply with the latest subpoena, including production of the county’s routers that direct computer traffic.

A spokesman for Brnovich confirmed the request. But it remains unclear, however, whether the attorney general has any power to get involved.

It is true that Maricopa County Superior Court Judge Timothy Thomasson ruled earlier this year that the Senate is legally entitled to the information it is seeking. And Thomasson brushed aside a series of contentions by the county that the subpoena was not valid.

Thomasson said, however, the remedy for enforcing that subpoena rests with the Senate itself which has the power to hold anyone who does not comply in contempt. That same statute also says that someone who refuses to comply can be arrested by the Senate sergeant-at-arms.

But, at least for the moment, Fann lacks the necessary 16 votes to get that contempt citation.

Fann is undeterred, saying Tuesday she believes the Senate has other legal methods of getting what it wants. She declined, however, to spell them out just now.

“When it’s all ready to be tied up in a little bow we will do that,” Fann said.

In the meantime Fann now faces the new court order which, unless stayed or overturned by the appellate court, appears to give her little wiggle room.

Fann said the Senate has responded to public records requests with everything it has. But she has argued that materials held by Cyber Ninjas are not subject to those disclosure laws.

Kemp disagreed, saying that the audit is “an important public function” being conducted by the Senate, making Cyber Ninjas and the firms it hired “clearly agents of the Senate.”

That didn’t stop the Senate’s lawyers from saying that there needs to be more evidence presented — and more legal arguments — before Kemp could issue a final order requiring disclosure. But the judge, in his newest order, made it clear that this was a simple matter and he had heard all he needs.

“The courts, rather than government officials, are the final arbiter of what qualifies as a public record,” Kemp wrote.

“Whether a document is a public record under Arizona’s public records law presents a question of law,” he continued. “Further discovery or more legal briefing will not alter, enhance or diminish the court’s findings on this narrow legal issue.”

Nor was Kemp impressed by the claim that the Senate is immune from claims under the public records law.

“Legislators are protected from liability for their ‘words spoken in debate,’ ” the judge said, quoting from state constitutional provisions. And he acknowledged that lawmakers also are immune from being sued personally for their legislative acts.

But what’s at issue here, Kemp said, is a request by American Oversight for a court order compelling the Senate to comply with its duties and obligations under the public records law.

“The verified complaint is in no way a tort claim against any member of the Senate for personal liability in their individual capacities,” he wrote.

“The proposed order and the court’s findings do not, in any way, interfere with or dictate how the legislature conducts its business or its deliberative process,” Kemp continued. “The court is not dictating how the audit is conducted nor interfering in the audit process in any way.”

The judge also pointed out that Fann herself, in earlier court hearings, said the audit is a legislative function within its role under the Arizona Constitution. That means the records involved in conducting it are clearly public and do not fall within the immunity of state lawmakers.

“Such a broad interpretation would render the public records law meaningless as to any legislator at any time under any circumstances,” Kemp said. “This is surely not within the legislative intent of the public records law.”

Court reluctant to enforce Senate subpoenas

Jack Sellers, left, chairman of the Maricopa County Board of Supervisors, and Deputy County Attorney Tom Liddy show up at the Senate Wednesday morning after getting less than 24 hours to respond to a new subpoena which Liddy is holding demanding a trove of documents and access to voting equipment. They brought none of that along as litigation continues. (Capitol Media Services photo by Howard Fischer)

State senators won’t get the trove of election materials they are demanding, at least not yet – if ever.

Maricopa County Superior Court Judge Timothy Thomason said January 13 that it appears the original subpoenas issued by Senate President Karen Fann and then-Sen. Eddie Farnsworth, R-Gilbert, are probably moot. That’s because they were issued in December as part of the 54th legislative session which technically ceased to exist on January 11.

In fact, Farnsworth is no longer a state senator.

But Thomason noted that Fann and Sen. Warren Petersen, who succeeded Farnsworth as chair of the Judiciary Committee in the new 55th legislative session, issued a new subpoena on January 12 demanding not just the same documents but even more, including access to “all original paper ballots.” And the subpoena wants access to the county’s voting equipment and software.

Jack Sellers, the new chairman of the Maricopa County Board of Supervisors, did show up at 9 a.m. January 13, at the Senate, as the new subpoena ordered. So did newly elected County Recorder Stephen Richer and new County Treasurer John Allen.

But they brought none of the materials with them.

Thomason said that new subpoena likely requires the county to file new legal briefs. And he set a hearing for January 20 to consider the matter, saying he hopes the two sides can work things out.

But the prospects of that happening are unclear.

The big problem for the Senate could be convincing the judge he actually has the authority – and should – order the county to comply.

“If timing is an issue, why can’t the senators simply enforce their own subpoenas?” Thomason asked. “They have the statutory power to do that.”

“They can,” conceded Kory Langhofer who is representing the Senate. “And I will tell you, there’s a real possibility of that.”

That, however, raises different legal and practical issues.

State law empowers either the House or Senate to hold someone in contempt. But that requires a vote of the full chamber, meaning that it would take all 16 Republican senators to go along if Democrats refuse to support the move.

If they can get a contempt vote, the law allows the Senate president to send out the sergeant-at-arms to physically arrest the person who has refused to comply.

In fact, disobeying a subpoena is as crime.

But even with that, it still doesn’t guarantee the Senate actually would get what it wants, even if someone is jailed. That’s why Langhofer wants Thomason to order the county to comply.

Thomason, however, notes that Langhofer is relying on a section of Arizona law that allows a public officer “authorized by law” to issue subpoenas and demand production of evidence. That same law allows the official to then ask a judge to intercede to compel compliance.

Only thing is, Thomason said he’s not necessarily convinced that applies to legislative subpoenas or that he has the power to enforce them.

Legal authority aside, Steve Tully, who represents the county supervisors, told Thomason they still believe there is no “valid legislative purpose” behind the subpoenas and the whole Senate inquiry.

Langhofer acknowledged that one reason for the original subpoenas – there were two at the time – was to audit the equipment to send information to Congress ahead of its January 6 vote on whether to certify the results from Arizona giving the state’s 11 electoral votes to Joe Biden.

“That’s water under the bridge,” Langhofer said, given that Congress did accept the Arizona results and Biden will be sworn in January 20.

But Langhofer said that’s not the end of the discussion.

“Always, separate from that, was an independent reason of performing their oversight function to see how elections in the state were run and whether additional legislation is necessary,” he told Thomason.

Langhofer said lawmakers want to see what happened to determine if there are changes needed in state election laws, something that is strictly the purview of the Legislature.

For example, he said lawmakers want to know if there were tabulation errors, unlawful ballots cast or security vulnerabilities in voting devices.

“Could legislative reforms decrease the risk of mistakes or anomalies in future elections?” Langhofer asked in a separate legal filing. “Is the Maricopa County Board of Supervisors a competent administrator of elections in Arizona’s most populous county, or should the Legislature consider assigning these vital responsibilities to a more qualified regulatory authority?”

Tully, however, said the Legislature tipped its hand when it admitted it wanted the materials and access to the equipment to see if it could affect the outcome of the vote.

“He issued those subpoenas to audit the election,” Tully said of Farnsworth. “And that is not a legal power that is granted to the chairman.”

Beyond that, there are legal questions.

Deputy County Attorney Tom Liddy said one of these involves the security of those 2.1 million actual original paper ballots. He told the judge they can’t simply be turned over to senators as there are legal constraints on who has access to them.

There also is the issue of who will be doing the examination of the voting equipment.

The new subpoena, served on the supervisors, the county recorder and the county treasurer at 4:10 p.m. on January 12, “commanded” that they appear at the Senate by 9 a.m. January 13, and provide the materials sought as well as provide testimony to the Judiciary Committee.

That 9 a.m. deadline also was the time that the hearing before Thomason began two miles away.

“That’s bush league,” said Liddy.

Only thing is, there was no meeting of the committee on January 13.

“Either they don’t know what they’re doing or somebody’s playing games,” said Liddy. But he said the officials showed up because “we respect the power of the Senate.”

What resulted, Liddy said, was a brief meeting with Senate staffers – and no questions.

Court says 2016 school funding measure illegal

Gov. Doug Ducey acted illegally in pushing his 2016 plan to take $2.2 billion over a decade for K-12 education out of a trust account without first getting congressional approval, a federal judge has ruled.

But Neil Wake won’t order the funding halted, at least not now.

In a sharply worded decision unveiled Tuesday, Wake said Ducey crafted the plan to make up for the fact that the state had ignored voter-mandated requirements to properly fund schools. That solution became Proposition 123, which voters approved in 2016.

But Wake said that the state did not first obtain congressional approval for the shift. He said that is necessary because the federal Enabling Act that made Arizona (and New Mexico) into a state in 1912 gave it lands to hold in trust for schools.

“The state and its officers took those monies illegally and spent them,” Wake, a 2004 appointee of President George W. Bush, wrote.

More to the point, that federal law that Wake said Ducey and lawmakers ignored allows the state to use only the interest off the money earned. The idea was to preserve the body of the trust — and the interest that would earn for future generations.

By contrast, Prop 123 actually withdraws more than the earned interest, meaning the size of the trust, designed by Congress to be a permanent, reliable source of education dollars, actually is worth less now than it would have been without the ballot measure.

Current figures obtained by Capitol Media Services from the treasurer’s office show the current value of the trust at nearly $6.1 billion; without the extra withdrawals it would be worth about $1 billion more. That, in turn, will mean less in interest earnings for K-12 education once the extra distribution ends as scheduled in 2025.

The ruling has no immediate effect on school funding. It allows the state to continue to draw more than $200 million a year out of the trust to fund education through 2025.

Doug Ducey

But Wake barred the state from making additional diversions after that. And he said such a maneuver likely will be necessary given what he said has been the failure of lawmakers for years to properly fund education.

The ruling should come as no real surprise.

Wake had issued a similar ruling last year. But attorneys for Ducey effectively sought to have it set aside because, while the lawsuit was pending, the governor got a provision inserted into a 2,400-page federal appropriations bill giving the required congressional approval.

But the judge said that didn’t retroactively legalize what was an illegal act in the first place, especially as Ducey was still arguing that congressional approval wasn’t necessary in the first place and that Congress was acting on its own.

“Congress did not act in a vacuum,” Wake said, saying Ducey stepped in when the case was not going his way.

“The governor’s assertion that he somehow was not involved is disingenuous,” the judge wrote. “The court is not fooled.”

The ruling drew derision from gubernatorial press aide Patrick Ptak who called it “incoherent,” “poorly reasoned” and “an example of massive judicial overreach and activism.”

“Rarely before have we seen such a blatant disregard of facts, precedent and common sense to push forward an agenda of one biased, activist judge,” he wrote, vowing an appeal.

The record, however, shows that Ducey was on notice of legal problems even before he had Prop 123 put to voters in 2016: Jeff DeWit who at the time was state treasurer, told lawmakers they could not do what the governor was proposing.

At the root of the issue is a 2013 Arizona Supreme Court ruling that the state had ignored a 2000 voter-approved mandate to increase state aid to schools annually to keep pace with inflation.

Ducey, who took office in 2015, declined to increase taxes to comply with that ruling. Instead he and legislative leaders came up with a plan to tap into the special trust fund that consists of money the state earns from the sale and lease of about 10 million acres of land Arizona was given by the federal government when it became a state.

As originally enacted in 1912, schools were to get the interest earned, leaving the “corpus” of the fund untouched.

Proposition 123, however, set the distribution at 6.9 percent, regardless of how much the fund actually was earning in interest, to generate $2.2 billion over a decade. That meant actually taking more out than interest earned, cutting into the trust fund itself.

The plan had broad support in the education community. But the judge said, no one bothered to first seek congressional OK.

That led to the lawsuit by Michael Pierce and Wake’s first 2018 ruling.

Now, unless overturned, this new decision precludes a similar change in trust distributions in the future without first going to Congress. And Wake, in his ruling, said that the history of education funding in Arizona strongly suggests that there will be a new effort to raid the trust in 2025 when Prop 123 dollars run out.

“Arizona has followed a long-term policy of cutting funding for public education,” the judge wrote, rather than raise taxes.

By 2025, Wake said, “the state will be habituated to the generous distributions from the School Land Trust to make up for decades of tax cuts and other refusal to fund current education from taxes.”

And Wake said a future bid to tap the trust is even more likely because of the difficulty in raising the revenues from taxes that state courts have said are necessary to properly fund K-12 education.

The judge suggested some of that is due to a provision in the Arizona Constitution.

He said lawmakers can, and have cut taxes with a simple majority vote. Yet it takes a two-thirds vote to raise them. That, said Wake, means a minority of lawmakers can effectively block raising new revenues, forcing the full Legislature to look to alternatives like taking extra dollars out of the trust.

That question of what happens after 2025 was on the mind of state schools chief Kathy Hoffman.

“The next step our state must take is finding a sustainable revenue source that will fully restore education funding to pre-recession levels,” she said in a statement.

“We do need a sustainable funding source,” agreed Senate President Karen Fann. But the Prescott Republican said she supports an appeal of Wake’s ruling, saying lawmakers need the flexibility to be able to use trust dollars as needed

Sen. Martin Quezada, D-Glendale, said the ruling is not really a surprise.

“This is what happens when politicians refuse to raise needed revenues and have to come up with legally questionable ways of funding Arizonans’ needs and values,” he wrote in a Twitter post. “We need leaders who will make tough decisions and do what is needed to fund our schools.”

Aside from arguing the judge’s decision is legally flawed, Ptak also alleged some impropriety, saying Wake personally recruited an attorney to represent the plaintiff even after he failed to appear in court.

“The judge indicated a personal agenda against the will of the people.” Ptak said.

Andrew Jacob acknowledged he took the case after going into partial retirement, having told Wake previously that he’d been willing to work for free on any case where a self-represented plaintiff needed help in a case of some significance.

This case, said Jacob, fit that description, with Pierce having no legal counsel. But Jacob said Wake never discussed the specifics of the case with him.

Editor’s note: This story has been revised to include information on the recent history of education funding and include comments from Kathy Hoffman, Karen Fann, Martin Quezada, and Andrew Jacob.

Court says Cyber Ninjas must provide records

In this file photo, Doug Logan, CEO of Cyber Ninjas, answers questions at a previous hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns. (Screenshot courtesy of Capitol Media Services)

A judge has rejected the latest claim by Cyber Ninjas that it doesn’t have to respond to demands for public records — at least not from the public.

Maricopa County Superior Court Judge John Hannah rebuffed a claim by the private firm that it cannot be sued under the state’s public records law. Attorneys for the company argued that such demands can be made only of what are traditionally considered public officials and agencies.

But Hannah, in a sometimes strongly worded decision, said that’s just not how the law works in Arizona.

Cyber Ninjas, the private firm hired by Senate President Karen Fann to review the 2020 election results in Maricopa County, has the opportunity to seek an appeal. Hannah, however, said a prior ruling from the Court of Appeals support his ruling.

Potentially more significant, the ruling could pave the way for individuals to file demands for production of documents from other private companies on the premise that they are holding public records.

That point did not go unnoticed by Jack Wilenchik, the attorney for Cyber Ninjas.

“If Cyber Ninjas is compelled to respond directly to records requests by any member of the public, on penalty of being sued if it does not do so promptly, then it will create an unforeseen and legally groundless administrative burden on every state contractor and employee,” he argued.

Hanging in the balance in this are tens of thousands of documents, emails, texts and other communications that Cyber Ninjas has not yet produced in response to a public records request by Phoenix Newspapers, parent company of the Arizona Republic. That is even after Hannah told the company that the records it has related to the audit are public, ordered it to preserve the records, and then, after the Supreme Court ruled in the parallel case, disclose them within three days.

That three days was up this past week.

Instead, Wilenchik filed pleadings saying there is “zero legal authority” to order his client to respond directly to a public records request. And, if nothing else, he argued that forcing Cyber Ninjas to respond to the public denies the Senate, to which he said the records really belong, the ability to decide “the timing, manner, and form of the production of its own public records.”

Hannah, however, said that ignores a couple of facts.

“Under the unique circumstances of this case the Ninjas are a “public officer” within the plain meaning of the public records law,” he wrote.

He said “officer” means any person appointed to hold any office of a public body along with chief administrative officer, head, director, superintendent of chairman of any public body. And “public body” means any public organization or agency supported with state funds or spending state dollars.

“The Ninjas have been ‘appointed’ by the Senate as the “head” of the “public organization” conducting what the Ninjas describe as an “ongoing investigation of how Maricopa County conducted the 2020 election,” the judge wrote. Then there’s the fact the Senate is at least partly funding the audit with public monies “which makes the organization a ‘public body’ for purposes of the statute.”

And since Arizona law defines “corporations” as “persons,” that makes the company and “officer” — along with the Senate — to maintain and disclose public records.

“It follows that Phoenix Newspapers may file an action against the Ninjas … appealing the denial of PNI’s request for audit-related public records,” Hannah said.

And that’s not all.

The judge pointed out that Cyber Ninjas is a “custodian” of public records.

“The relevant provision (of the public records law) expressly commands persons seeking public records to direct their request to the ‘custodian’ of the records,” Hannah said.

That custodian is allowed to collect the required fees. And a request is deemed denied if the custodian fails to respond promptly.

“In the event of a denial, the requesting party has a judicial remedy through a special action like this one,” Hannah said.

The judge also rejected a bid by Cyber Ninjas to be dismissed entirely from the case.

That would leave the Republic suing only the Senate for records that the Senate’s own attorney says it does not have because they are in the hands of Cyber Ninjas. And Hannah noted that the Senate’s right to demand those records from its contractor “has been a subject of debate throughout this case.”

Then there’s the question of what happens if the Senate and Cyber Ninjas disagree with whether the documents the company is holding have a “substantial nexus” to the audit and are therefore part of the public records.

“If the Ninjas are not a party to the litigation, Phoenix Newspapers will have no reliable way to even know about issues like those, let alone bring them to court for resolution in a way that complies with the public records law, unless the Senate chooses to take a position adverse to the Ninjas and ask for judicial intervention,” Hannah said. “This will not do.”

The judge said it is settled law that the public records law makes the courts and not the legislature, the final arbiters of this public records dispute.

“If the Ninjas are beyond the courts’ authority, the Senate will effectively remain in a position to decide which of the records in the Ninjas’ possession are public records — precisely where (the Court of Appeals) says the Senate should not be,” Hannah wrote. And he said that so far “the Senate has not been inclined to disclose audit-related records to the public on any terms other than its own.”

Hannah stressed that his order still allows the Senate to seek to withhold specific records based on exceptions to the public records law like attorney-client privilege.

“But procedural problems created by multiple record holders are not a reason to compromise the public’s right to know what its government is up to,” he said.

Court: Ninjas ‘playing with fire’

The Court of Appeals has rejected the latest bid by Cyber Ninjas to keep secret the records it has related to the audit of the 2020 election.

In an 8-page ruling Tuesday, the judges rebuffed claims by the company that the documents, emails and other items it has are beyond the reach of Arizona’s public records law. The court said once the company started doing the Senate’s work, it became the custodian of any documents related to the audit which, by definition, was a public function.

What that means, the judges said, is that anyone seeking those documents is entitled to request them directly from Cyber Ninjas rather than have to go through the Senate. More to the point, it also means Cyber Ninjas can be sued — and presumably, sanctioned — for refusing to comply.

Tuesday’s ruling drew a sharp response from Jack Wilenchik, the attorney who represents the company.

“The government cannot force private contractors to produce things the government does not own,” he told Capitol Media Services. He said that’s equivalent to a violation of the Fourth Amendment protections against search and seizure.

But the three-judge panel, with its unsigned opinion, rejected the argument that it was opening the files of all government contractors to public inspection.

“Our ruling does not mean that construction companies and office-supply vendors will have to rush to establish new ‘public records’ department,” the judges wrote. “Only documents with a substantial nexus to governmental activities qualify as public records.”

And that, the court said, is clearly the situation here.

In this May 6, 2021 file photo Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas, at Veterans Memorial Coliseum in Phoenix. (AP Photo/Matt York, Pool,File)

“Here, the Senate’s decision to undertake the audit was premised on its oversight authority, an important legislative function,” the judges said.

The senate then “entirely outsourced” that function to Cyber Ninjas and its subcontractors. And that, the court said, makes those audit-related records as public — and subject to being demanded — as if they were held by the Senate itself.

Wilenchik, however, said that the appellate judges are legally off base in trying to draw a legal distinction between the records of companies that provide “ordinary goods and services” to the government, which are not public, and those that perform other functions, in this case, like the audit.

“The court’s claim that Cyber Ninjas is not an ‘ordinary’ contractor is legally indefensible and without any genuine basis in law,” he said. And Wilenchik said he will seek Supreme Court review.

Tuesday’s order is the latest in a pair of bids to get access to what are believed to be tens of thousands of various audit related documents, emails, texts and other communications that Cyber Ninjas has not yet produced.

In one case, American Oversight sued the Senate for all of the records.

Maricopa County Superior Court Judge Michael Kemp already has ordered the Senate to surrender not only the documents it has but also to make every effort to get the ones in the hands of Cyber Ninjas.

Senate President Karen Fann, R-Prescott, wrote to the firm. But Senate attorney Kory Langhofer told Kemp that has not produced the requested items.

That, in turn, has led American Oversight to seek a contempt citation against Fann and the Senate for failing to do more. That case is on hold.

This second case was filed by Phoenix Newspapers Inc. which publishes the Arizona Republic.

In this case, attorneys sued not just Fann and the Senate but also Cyber Ninjas.

That allowed Maricopa County Superior Court Judge John Hannah to directly order the company to surrender the documents. And that order, in turn, led to Tuesday’s Court of Appeals ruling.

The judges said it is the company’s own fault it has wound up in court.

“Cyber Ninjas would not be a necessary party (to the lawsuit) if it had turned over the public records to the Senate,” they wrote. “It is a necessary party by its own actions.”

And the judges also made clear that they believe there was only one way for them to rule in this dispute: order the production of the records.

“To hold otherwise would circumvent the public records law’s purpose, which exists to allow citizens to be informed about what their government is up to,” they wrote.

Tuesday’s ruling, even if affirmed by the Supreme Court, does not mean Phoenix Newspapers will get everything that Cyber Ninjas has.

The judges said any orders to disclose records are subject to claims that they are protected by legislative or other privilege. That, however, would first require Cyber Ninjas or the Senate to provide a list of those documents they seek to withhold and the reasons why, setting the stage for the trial judge to review them and decide which are public and which are protected.

But if the order is upheld, Hannah has made it clear he is running out of patience with the company, its repeated arguments that the judge has rejected, and what he said he believes has been “the defiance of the courts’ authority” in ordering records produced.

“The Ninjas are playing with fire,” he wrote in an Oct. 28 order. “If and when the appellate courts dissolve the stay of this court’s orders, the court is going to enforce them.”

And Hannah said that new arguments for blanket exemptions from the public records law “will not be entertained” unless the appellate court orders otherwise.

“Pleas for more time will fall on deaf ears,” the judge wrote.

Covid, unrest affect look, feel of legislative session

Supporters of President Donald Trump gather to protest at the Arizona Capitol, Wednesday, Jan. 6, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

The 2021 legislative session will begin January 11 in an exceedingly unusual fashion, with sharp limits on public access and increased security left over from post-election unrest.

Double rows of chain-link fencing now surround the Capitol complex, following massive protests on January 6 that resulted in a cracked window at the old Capitol Building. New security measures have already been put in place for the Executive Tower, which houses the offices of the governor and secretary of state, to limit access into the building for everyone. An Arizona Department of Public Safety spokesman said they monitored the “stop the steal” protest rally at the Capitol.

The Department of Administration, however, has already been leading an effort to beef up security measures – mostly for the protection of Gov. Doug Ducey and Secretary of State Katie Hobbs, who’ve been dealing with their own threats and harassment stemming from the November election.

Nobody will have access to the basement, seventh, eighth or ninth floors of the building without an escort. Media and members of the public used to be able to access all but the ninth floor without a security badge. Neither agency would provide specific information on the new security measures that took effect on December 14 and will remain in place indefinitely.

“Security procedures at the state Capitol have been enhanced not for any one specific event but just to ensure the safety of the public. … Our policy is not to discuss specific security measures,” a DPS spokesman said.

The Senate told its employees to head home early January 6 afternoon and offered security escorts to their cars. Other state agencies soon followed suit.

The Arizona Supreme Court closed on January 7 at the urging of the Department of Public Safety and the Governor’s Office also alerted all other agencies to do the same.

Along with lingering threats of political unrest connected to the 2020 election, the Covid pandemic will upend what is normally a boisterous day of festivities. Ducey will present his State of the State Address by video from his office, rather than on the House floor in front of 90 lawmakers and their guests.

The speech will be broadcast on the big screen in the Senate, but most lawmakers expect to watch from their offices. Senators, who will be sworn in earlier in the day, are allowed to bring two guests but most have opted to take their oaths of office without friends or family watching.

In the House, new freshmen will each be allowed to bring two family members, but no returning lawmakers will get guests. House Minority Leader Reginald Bolding, D-Laveen, praised that plan as a way to balance the need for safety with allowing new lawmakers to mark a once-in-a-lifetime experience.

“You don’t get to recreate special moments like this in your life,” he said.

The field-tripping school children, advocacy groups and observers who normally fill the House and Senate galleries won’t be welcome this year, as the Senate has already adopted policies to limit attendance and the House appears likely to follow suit.

Under a set of Covid rules produced by the Senate late last year, members of the public would only be allowed in the building to attend a committee hearing for a measure they intended to testify on. They must wear a mask and pass a temperature check to get in, and must leave immediately after the hearing concludes.

On January 6, Senate President Karen shared an even stricter set of guidelines to follow in the event that she, Majority Leader Rick Gray and Minority Leader Rebecca Rios determine that an in-person meeting would cause increased health risks. In those cases, only five lawmakers would be allowed in a committee hearing room with the rest participating by video call from their offices, and the lobbyists and citizens testifying on bills would also be given information to call in to the hearing.

The updated rules also include incentives for lawmakers to keep their masks on: if anyone removes a mask or otherwise fails to comply with the Senate’s Covid rules on the floor or in committee hearings, the hearing or floor session will recess until the offending lawmaker complies with the rules.

Fann and Rios also confirmed plans to bar reporters from designated press desks on the Senate floor. This will primarily affect the Arizona Capitol Times, the sole media outlet that stations a reporter on the floor during every floor session.

Instead of the press tables on either side of the Senate president’s dais, Fann intends to set up two big screens for lawmakers who are participating by Zoom.

“We want to try and maintain that social distancing and it would be very, very difficult with the media right there in those press boxes,” she said.

Reporters will instead be allowed to view action from a gallery overlooking the chamber, and members of the public who normally fill the gallery won’t be permitted in the building. Several lawmakers, including influential Senate Appropriations Committee Chair David Gowan and Vice Chair Vince Leach, only answer media questions in person.

“It’s going to be easier for members who want to avoid reporters or their constituents,” Rios said.

A legislative chamber last tried to bar reporters from the floor in 2016, when then-Speaker Gowan demanded that the Capitol press corps pass background checks in an apparent act of retaliation for negative coverage in the Capitol Times. He quickly rescinded that policy under pressure from fellow lawmakers.

The new rules would permit any member of the Senate to participate in a floor session from their offices, provided Fann approves their request 90 minutes before it begins.

-Yellow Sheet Report Editor Hank Stephenson contributed to this story.

Crowd’s treatment of Ugenti-Rita heightens Senate discord

Sen. Michelle Ugenti-Rita, R-Scottsdale, angrily speaks during the vote of her bill to trim the Permanent Early Voting List while Sen. Kelly Townsend, R-Mesa, who voted against the measure, killing it, listens. SCREEN CAPTURE ARIZONA LEGISLATURE — Sen. Michelle Ugenti-Rita, R-Scottsdale, angrily speaks April 22, 2021, during the vote of her bill to trim the Permanent Early Voting List while Sen. Kelly Townsend, R-Mesa, who voted against the measure, killing it, listens. SCREEN CAPTURE ARIZONA LEGISLATURE

The unfriendly crowd Sen. Michelle Ugenti-Rita encountered at a Trump rally July 24 may prove problematic for her secretary of state run, but what happened after may complicate the 2022 legislative session.

After leaving the stage, Ugenti-Rita ran into a teenage provocateur working for a right-wing website whose approach of journalism consists of yelling at elected officials and bureaucrats he dislikes. She answered his first question – she blocked some of Sen. Kelly Townsend’s election bills because they were “bad” — and tried to walk away as the man yelled more questions after her.

Ugenti-Rita eventually told event security the man was harassing her, at which point they asked him to leave. Townsend encouraged him to return.

“This shows (Townsend’s) erratic emotional behavior & sick personal vendetta against me and others masked as caring about election integrity,” Ugenti-Rita tweeted. “If she isn’t stopped someone is going to get hurt.”

Her message continued as a direct appeal to Senate President Karen Fann: “This is the 2nd Senate member (Townsend) has encouraged violence against and you continue to ignore the situation. You must deal with her behavior immediately for the safety of the public, staff and members.”

Simmering tensions between Townsend and Ugenti-Rita have already killed multiple bills supported by the remainder of their caucuses. Townsend insists it won’t happen next year – but she also wants Ugenti-Rita to resign.

“I don’t care how well she’s done with election issues, or for how long she’s done it or how well she’s done it,” Townsend said. “If she is abusive in her position of power, then she needs to resign. We’ll find somebody that respects the community enough to not do that to them.”

Conflict within the caucus isn’t limited to the pair of senators. Senate Republicans can’t afford to lose a single vote on any legislation that Democrats won’t support, and leaders have continued to alienate Sen. Paul Boyer, the Glendale Republican most likely to balk on some issues – particularly the Senate’s ongoing audit of 2020 election results.

This week alone, Senate President Karen Fann, R-Prescott, went on a conservative talk show to complain that Boyer went “over to the dark side” and someone moved Boyer’s desk on the Senate floor to the Democratic side of the aisle. The desk-mover could be Senate Majority Whip Sonny Borrelli, who’s in charge of seating charts, but he didn’t return inquiries from Boyer or the Arizona Capitol Times. Fann and Ugenti-Rita also did not return phone calls.

Longtime lobbyist Chuck Coughlin speculated that problems in the Senate Republican caucus may result in Fann’s ouster, or even a power-sharing agreement with Senate Democrats.

“It’s the cannibalization of their own caucus,” he said. “I’m not clear that with these types of divisions going on and a one-seat majority that the leadership arrangement will persist.”

The Senate stands in sharp contrast to the House, where Speaker Rusty Bowers has held a 31-member Republican caucus with a one-vote majority in check for the past three years. Bowers has had disputes in his own caucus, including threats to replace him as speaker and a failed recall attempt supported by some House Republicans, but the House’s conflicts have never boiled over in the same way.

Coughlin attributes much of that success to Bowers’ even-keeled temperament. Like Coughlin’s former boss, Gov. Jan Brewer, and former President Ronald Reagan, the speaker seems to follow a rule of not publicly criticizing members of their own party.

“Speaker Bowers has been around much longer, and his discipline with regard to internal disputes won’t allow those things to come out,” Coughlin said. “He’s a very grace-filled man. He’s a human punching bag, but he never reacts to that. And, (House Majority Leader Ben) Toma is same way.”

Fann has been publicly critical of some of the senators in her caucus since shortly after she became president. During an end-of-session interview with the Arizona Capitol Times in 2019, Fann complained about a lack of “team spirit” from a group of new Republican senators who refused to vote for the budget plan she presented to them unless and until it included their priorities.

“It’s very hurtful to think that you work very closely with people only to find out that their personal wishes are more important than that of the entire group,” she said.

Prior to that, Ugenti-Rita said she asked Fann to let her preside over debate on some bills in committee of the whole, only to have Fann tell her that was a privilege reserved for “team players.”

“I asked [Fann] specifically, and I was told that I’m not a team player and that I’m a smart girl and can figure it out,” Ugenti-Rita said in June 2019.

Most of Fann’s comments have centered around Boyer, who began disappointing her before his first term in the Senate even began. He was one of several Republicans who voted for former House Speaker J.D. Mesnard, R-Chandler, for Senate president, and in 2019 his crusade to secure expanded legal rights for survivors of childhood sex abuse delayed the state’s budget and led to a standdown where Boyer ultimately prevailed.

In 2020, he joined two moderate Republicans who have since left the Senate in pushing for the Legislature to shut down during the height of the Covid pandemic. This year, he blocked Fann from arresting Maricopa County’s supervisors for contempt when they sought a court order affirming the Senate’s audit subpoenas and has become one of the most vocal Republican critics of the audit.

Boyer said he won’t let conflicts within the Senate or pressure from outside change how he votes on legislation. If it’s a good policy, no matter who the sponsor is, he’ll vote for it, he said.

“I’m not going to make my decision based on how I’m being treated,” he said. “I always looked at the argument. It doesn’t mean we’re going to go out for drinks after, but I don’t really do that anyways, so it’s not like I’m missing anything.”

Cyber Ninjas fails to submit partial report

The Arizona Senate’s legal team met August 25 to discuss the Cyber Ninjas’ partial report on its review of Maricopa County’s 2020 general election – but there was no report to discuss.

“There’s no report,” Senate audit liaison Randy Pullen said.

Pullen, former Republican Party of Arizona chairman, said the meeting instead focused on planning and “the process of getting the report completed and out the door.” Pullen did not have a timeline for when to expect a draft.

Senate President Karen Fann, R-Prescott, said on August 23 that the Senate legal team would receive a partial draft of the report and would review it August 25. She attributed the delay in getting a full report to Cyber Ninjas CEO Doug Logan and two members of his five-person team testing positive for Covid.

Fann said that one team member, not Logan, is in the hospital with pneumonia and that the three are “quite sick.”

Fann did not return a phone call August 25 seeking further comment. Senate attorney Kory Langhofer and Senate liaison Ken Bennett said they also have not seen a draft of the Cyber Ninjas report.

“To my knowledge, nobody has actually seen a draft,” Langhofer said via text.

Pullen confirmed that Logan attended the August 25 meeting via Zoom and that he was the only representative from the Cyber Ninjas team in attendance. Pullen said he wasn’t sure who else comprised the five-person team.

“I don’t believe that was disclosed or was going to be disclosed, and I don’t know exactly who that is anyway,” Pullen said.

On August 23, Fann said the Senate team plans to hold another meeting to review the rest of the draft report once submitted. Then the final report will be shared with the Senate Judiciary Committee and the findings will be released to the public.

It’s possible some information from the report will be made public sooner than that, Fann said.

“We don’t want to just put out just arbitrarily information, but if there’s something that the team is comfortable with that is hard, solid facts – we know that everybody’s anxious to see these reports and would like some information – so I would love to have the ability to share it as soon as we know that it’s confirmed,” she said.

Besides Covid, Fann blamed Maricopa County for the delay, saying the Senate received requested images of ballot envelopes on August 19 and that they still need to be analyzed.

But the county maintains that it already gave images of the ballot envelopes to the Senate on April 22, according to Megan Gilbertson, Maricopa County Elections Department spokeswoman. The county also said as much in an August 2 letter in response to the Senate’s July 26 subpoena.

“If Cyber Ninjas are unable to find them there, the County can produce them again,” the county’s August 2 letter stated, directing Cyber Ninjas to where it said the files could be found.

Gilbertson said the county gave the images to the Senate a second time on August 19.

Fann said that wasn’t true and that the auditors received the images for the first time on that day.

Pullen said the review of those images “probably would be finished sometime next week” but said the location of the review “hasn’t been settled yet.”

Fann’s plans for the audit release have changed several times over the past few months. In June, the Legislature included language in its budget saying the Senate Government Committee, led by secretary of state candidate and audit skeptic Sen. Michelle Ugenti-Rita, would receive and review the report. Members of the Senate Judiciary Committee later insisted they would have jurisdiction over it instead. And in recent weeks, Fann has referred to a “Senate team,” though she has yet to identify the people on that team.

Dem lawyers say election audit could violate laws

Voters arrive to vote at their polling station on Election Day, early, Tuesday, Nov. 3, 2020, in Glendale, Ariz. (AP Photo/Matt York)

A group of Arizona lawyers sent Senate president Karen Fann and her team of election auditors a warning that their plans to knock on voters’ doors violate a bevy of state and federal laws — including one passed because of the Ku Klux Klan.

The letter, signed by attorneys at Perkins Coie, Coppersmith Brockelman, Barton Mendez Soto and the Protect Democracy Project, describes significant concerns that the Senate’s planned election audit would result in illegal voter intimidation. If senators continue, the attorneys warned of potential litigation or referrals for prosecution.

They also requested that the audit team preserve records in anticipation of a lawsuit.

Cyber Ninjas, a Florida-based cybersecurity firm founded by a man who insisted in since-scrubbed tweets that the 2020 election was stolen, plans to send canvassers door-to-door in at least three precincts with “a high number of anomalies based on publicly available voting data and data from prior canvassing efforts” to ask residents about their voting history.

The attorneys who contacted CyberNinjas and the Senate today contend that is a clear example of illegal voter intimidation. And the audit team could illegally intimidate voters even if that wasn’t their intent, said Jared Davidson, a lawyer with Protect Democracy.

“This is the government and contractors for the government going out and questioning voters in an effort to uncover alleged illegality,” he said. “If an arm of the government came to my house and started questioning me about my voting history, I would feel intimidated.”

The letter points to multiple federal laws, including the Civil Rights Act of 1957, the Voting Rights Act of 1965 and the Ku Klux Klan Act of 1871, all of which reinforced the illegality of intimidating voters.

“Voter intimidation can take many forms and need not include threats of physical violence. Indeed, the anti-voter intimidation provisions of the Voting Rights Act were intended to address a ‘sometimes more subtle, certainly more damaging’ obstacle to voting: ‘fear,’” the letter says. “As a result, falsely accusing individuals of being unlawful voters can violate both the Voting Rights Act and the Klan Act.”

A Senate spokesman and Cyber Ninjas CEO Doug Logan did not return calls for comment about the cease-and-desist letter.

Secretary of State Katie Hobbs, who is copied on the letter, last week asked Attorney General Mark Brnovich if she could intervene to stop the Senate audit. Brnovich declined to represent her but said she could hire outside counsel at the sole expense of her office.

Hobbs said today that she was not involved in the cease-and-desist letter, but that she knew many attorneys were paying close attention to the Senate’s audit attempt.

The Senate expects Cyber Ninjas to lead a team of three other firms – CyTech Services, Wake Technology Services and Digital Discovery – in a four-pronged investigation that will include a full hand count of 2.5 million ballots and auditing election equipment.

Multiple audits conducted by Maricopa County, including both routine pre- and post-election tests of equipment, a partial hand count and two additional audits approved by the county Board of Supervisors, found no issues with the 2020 election.

The county has sought to distance itself from the Senate’s audit, first suing over subpoenas county attorneys believed could require the county to violate state law and then declining to let the Senate use county facilities to run their audit.

After Fann shared questions from Cyber Ninjas with county supervisors, chairman Jack Sellers replied on Monday that the county cannot support the Senate’s audit, in part because state laws don’t give the county the authority to conduct a full recount.

“To avoid any confusion, I want to be clear that the audit is not a joint effort between the County and the Senate Republican Caucus,” Sellers wrote. “Maricopa County will not communicate with your vendors or interpret Arizona law for them.”

Sellers, a Republican, added that the Cyber Ninjas could start by reviewing state law and the Election Procedures Manual and watching video of an extensive hearing the Senate Judiciary Committee held last December in which county officials and attorneys answered questions about the election.

On Tuesday, mere hours before he received the cease-and-desist letter, Logan sought to defend his company from the “spurious clamor over bias insinuations” after reporters found his deleted tweets advancing the “Stop the Steal” conspiracy that former President Donald Trump really won the election.

“The parallels between the statistical analysis of Venezuela and this year’s election are astonishing. I’m ashamed about how few Republicans are talking about it,” Logan wrote in one since-deleted December tweet, which could be found with a simple search on the Wayback Machine internet archive.

Logan is also a witness in a Michigan lawsuit alleging voter fraud.

On Tuesday, Logan argued in a lengthy statement that he came up with an audit process that was beyond reproach and designed to avoid any perception of wrongdoing. He dismissed concerns that his own personal bias would color the findings of any audit.

“The big question should not be ‘Am I biased,’ but ‘Will this audit be transparent, truthful and accurate,” Logan wrote. “The answer to the latter question is a resounding ‘Yes.’”

Staff writer Dillon Rosenblatt contributed reporting

Demise of sanctuary cities measure a mixed bag of politics, protests

Alejandra Gomez, co executive director of Living United for Change in Arizona, discusses the political defeat of a sanctuary cities ballot measure and the other issues still facing the Hispanic community. (Capitol Media Services photo by Howard Fischer)

Migrants-rights advocates started the week afraid Republican leaders in the House and Senate would ram through legislation to ask voters to enshrine a ban on sanctuary cities in the state Constitution in time for President Donald Trump to boast about it at a Wednesday rally mere blocks from the Capitol.

Instead, fewer than 24 hours after Air Force One left Phoenix, on the same day that a bipartisan group of Arizona lawmakers feted visiting legislators from Guanajuato, Mexico, the measure met an ignominious death, stripped from a House committee agenda without notice to the public.

Activists and Democratic lawmakers were relieved, if surprised: the referral was a key part of the Republican agenda, something Gov. Doug Ducey elevated in his State of the State address. And now, the night before a House version of the referral was set to pass through the Judiciary Committee, both versions of the bill were dead.

Rep. Diego Rodriguez, D-Phoenix, a member of the House Judiciary Committee that was set to hear that chamber’s version, was thankful when he heard the news. The sponsor of the Senate bill, Sen. Sylvia Allen, R-Snowflake, hadn’t even heard that her proposal was dead in the water. In short, this came as a surprise to most.

And yet, cracks in Ducey’s plan to pass a constitutional amendment that prevented local jurisdictions from limiting their cooperation with federal law enforcement had begun to show long ago.

Democratic lobbyists had heard rumblings that the plan might die. Rep. Tony Rivero, a Republican from Peoria, had said he would vote against a bill unless it came as part of a package of broader reforms. Losing a Republican in the House would be enough to stop it in its tracks. And in the Senate, votes from several Republicans who represent districts targeted by Democrats were up in the air.

Still, Senate President Karen Fann said Wednesday afternoon she had “no reason not to” bring Allen’s measure to the full floor for a vote. And Ducey was defensive when reporters questioned him mere hours before the measures died, saying “The economy is booming, and this was on the ballot in Tucson, it was widely rejected, and anything that goes forward would be up to the people. You’re living in the past.”

Rep. T.J. Shope, the sponsor of the House version of the referral, was as surprised as anyone.

“I woke up [Thursday] prepared to go to committee,” Shope said.

But by Thursday afternoon, it was clear something was afoot. Ducey Chief of Staff Daniel Scarpinato and governor’s office lobbyist Katie Fischer met Shope outside the chamber before scurrying inside, mum as to the purpose of his meeting.

This meeting was already scheduled, Shope said. It was supposed to be a time to chat strategy the day before the bill would get its hearing in Rep. John Allen’s House Judiciary Committee.

But a few minutes before they met, news broke in the Legislative Report, a sister publication of the Capitol Times, that Rivero was leaning no. This, in conjunction with lingering uncertainty about the votes of Sens. Paul Boyer, Kate Brophy McGee, R-Phoenix, and Heather Carter, recontextualized the meeting.

“It was brought to me by the Governor’s Office and they wanted to gauge my opinion on it,” Shope said. “I felt it’s beyond our control.”

The first signs of a crack in the Republican base in the Senate came earlier this week, when Allen told her Republican colleagues during a Tuesday caucus meeting that she planned to amend her SCR 1007 to remove language barring not just cities, counties and towns but “political subdivisions” from refusing to comply with federal immigration law.

Critics said the language would force schools, public hospitals, universities and utility districts to enforce federal immigration law, including by detaining students or patients and providing customer information to immigration officers. Allen said that interpretation was wrong, but she would change the bill anyway.

“Staff said it didn’t apply but better (to amend the referendum) so the Left can’t say it does,” Allen texted.

And even some of her own Republican colleagues needed the change for the measure to win their support. Boyer, R-Glendale, said Thursday afternoon that he would vote for the “pared-down” version of the referendum, but not its original form.

Boyer, like Sens. J.D. Mesnard, R-Chandler; Brophy McGee and Allen herself, represents a district that’s a top target for Democrats. Another moderate Republican, Sen. Heather Carter, R-Cave Creek, has backed in-state tuition for young people who graduated from Arizona high schools but lack legal status, but she faces a primary challenge from the right in Rep. Nancy Barto, R-Phoenix, and could have been compelled to support the measure to survive her own primary.

In the House, Rivero has close ties with Mexico, where he frequently leads trade delegations. And he’s skeptical of immigration hardliners in his caucus — he initially voted no on House Majority Leader Warren Petersen’s bill to allow private property owners to build border walls on their land without getting permits first.

Rivero said he wouldn’t vote for the sanctuary city referral, which he feared would do lasting harm to the state’s relationship with Mexico, unless Republicans also passed a variety of other broad-based immigration reforms including legalizing consular IDs and extending in-state tuition to students with Deferred Action for Childhood Arrivals status.

“I support border security,” Rivero said. “But my concern with this bill is, are we solving something? I think there’s missing components.”

But even Rivero was surprised by the death of the referral, he told the Capitol Times last night. He didn’t know of any other House Republicans who would vote no.

The usually cautious and calculated Governor’s Office was caught off guard by the reaction to the sanctuary city referral as well. Scarpinato said that the office’s decision to cut its losses on the legislation on Thursday was necessary, and that continuing to push for it would have risked it becoming a distraction that took focus away from the rest of their agenda. And mostly, it was about the votes.

“With any policy, the stars need to align to get it done, and on this one, we just came to the conclusion that the stars were not going to align,” Scarpinato said.

He said that concerns from the business community helped cement that decision.

Doug Ducey

“At the end of the day, 95 to 98 percent of what we want is already in law. We wanted to take it to 100%. And we decided it just wasn’t worth it.”

This has been one of the quirks of the debate since Ducey announced the referral in January — almost the whole time, Republicans have insisted on framing the referral as a needed but technical Constitutional amendment that would provide legal clarity, to the frustration of Democrats who branded the effort as Ducey’s SB1070, a divisive and wide-ranging 2010 measure aimed at giving the state more power to deal with the issue of illegal immigration.

“Shope yesterday went on the radio and said it wouldn’t change anything,” said Ben Scheel, a progressive consultant and campaign advisor to House Minority Leader Charlene Fernandez, D-Yuma. “If it’s not gonna change anything, why the hell would you push it? That’s not a good argument for your legislation!”

The time of SB1070’s passage was marked with racial tension, daily protests at the Capitol, national media attention and boycotts of the state.

The death of the referral on Thursday shows that the Arizona that once approved SB1070 no longer exists, according to legislative Democrats and community activists who lauded its demise. Sen. Tony Navarrete, D-Phoenix, said it proved Ducey “misread the people of Arizona.”

“Arizona has grown up since the times of SB1070, and the community is on alert,” he said. “The xenophobic attempt to try to energize the Republican base won’t succeed because it’s not the same kind of Republican base he had in 2010. We’re not going to go back to the dark days that made Arizona a laughingstock under Governor Brewer.”

In some ways, the past few weeks at the Capitol have seemed like a return to the era when SB1070 passed. Protesters disrupted two committee hearings — one on Allen’s proposal and one on proposed changes to election law — when Republican committee chairman Sen. Eddie Farnsworth, R-Gilbert, and Rep. Kelly Townsend, R-Mesa, took offense to characterizations of the bills as “racist” and references to President Trump before silencing testimony.

Migrant-rights advocates who gathered on the House lawn Friday morning to celebrate their victory and galvanize opposition to other bills — including a measure that would allow anyone harmed by an undocumented immigrant convicted of a felony to sue a city that didn’t enforce immigration law — ended their press conference with chants of “¡Sí, se puede!” the United Farm Workers motto that became a rallying cry for immigrant rights activists.

And while those same activists credit behind-the-scenes lobbying by the business community, it’s hard to understate the role of Living United for Change in Arizona and other groups that formed in the fallout of SB1070 and have since grown stronger and more effective. LUCHA in particular has won a series of unlikely battles, from getting a statewide minimum wage hike passed to helping recall Sen. Russell Pearce, SB1070’s sponsor.

“So many emotions,” Tomas Robles, one of the organization’s leaders, said Friday morning. “We’re happy, relieved, but we’re remaining diligent about making sure these bills don’t creep up again.”

Ducey and legislative Republicans appear to have received a lot more resistance on the sanctuary city referendum than they expected, said Paul Bentz, vice president of strategy at High Ground Consulting.

Immigration remains the highest-priority issue for Republicans in Arizona, Bentz said, so the referral idea looked good on paper.

“I think they proposed these bills because they thought it would be a nice base-building exercise and they’d receive a lot of support for it,” Bentz said.

But Republicans don’t need sanctuary cities on the ballot to turn out to vote in November, GOP pollster George Khalaf said.

“Of course immigration and the issue of immigration would drive people to the polls,” Khalaf said. “The thing that I’ve been saying to folks, and we’ve got the survey numbers to prove it, is that I’m not sure how much Republican enthusiasm could increase.”

The death of the referral marks the end of a two-month saga that began in Ducey’s January State of the State Address, in which it was unveiled as one of several policy proposals that the governor would push through the legislature. Shope received a glowing shoutout. Republicans rose to their feet.

In the intervening period, Scarpinato said that just about everything has been a surprise.

“After six years in the Governor’s Office, not one day of my life up here has gone as I predicted,” he said.

Democrats discouraged despite getting more bills passed

(Photograph by Hank Stephenson/Arizona Capitol Times)

Senate President Karen Fann can boast a 333 percent increase in the number of bills sponsored by Democrats that passed out of her chamber in 2019 compared to last year.

That’s because Senate Democrats cracked double digits, after getting only three bills out of the Senate last year. In the House, meanwhile, 15 Democratic bills passed this year. That’s marginally better than last year when they only got nine bills out of the House, an increase of about 67 percent.

And of the 320 bills signed by Gov. Doug Ducey, only eight were sponsored by Democrats.

“It’s pathetic,” said Sen. Martin Quezada, D-Glendale. “It’s a pathetic number.”

Democrats, perpetually in the minority in both chambers, started the year optimistic that close margins in both chambers and several statewide victories in the 2018 elections would lead to more success in the Legislature. In the House, where Republicans hold a 31-29 majority, Democrats began the year thinking they’d have a voice, said House Minority Leader Charlene Fernandez, D-Yuma.

Instead, Democrats in both chambers watched as most of the roughly 500 bills they introduced met quiet deaths in the middle of the session as procedural deadlines came and went without hearings or votes.

“I don’t like to look at those numbers because they’re so demoralizing,” Fernandez said. “They’re not reflective of 29-31, just like our committees.”

Some of her members found success through other channels.

Rep. Richard Andrade, D-Glendale, couldn’t get his legislation on adult changing stations in public restrooms heard in the House Rules Committee. It was one of many bills killed silently by Rules Chairman Rep. Anthony Kern, R-Glendale.

But Andrade’s idea still made it into law with the help of Hereford Republican Rep. Gail Griffin. Griffin sacrificed one of her own bills to allow a strike-everything amendment that adopted Andrade’s changing station language in place of her own proposal. Successes like that, involving procedural moves that essentially transferred ownership of a bill out of Democratic hands, were not counted in this analysis.

Senate Democrats succeeded in getting 13 bills out of their chamber, but only four of those received a vote in the House. If Fann were serious about working in a bipartisan way, she could have advocated for those bills in the House, Quezada said.

Two of his bills — SB1437, which would have prohibited most employers from asking about applicants’ criminal history until the interview stage of an application, and SB1424, which would have created a pilot program to help young entrepreneurs — made it out of the Senate but never came up for a vote in the House.

“To allow for Democratic bills to advance out of the Senate and then not advocate for them to at least get hearings in the House, it’s almost as if it would have been better had she done nothing at all and just killed all of our bills in the Senate,” Quezada said. “The end outcome is still the same.”

The bills Democrats succeeded in getting passed were rarely substantive policy issues. Sen. Lupe Contreras, D-Glendale, had a bill signed by Ducey that will allow court buildings to fly the POW/MIA flag. Sen. Rebecca Rios, D-Phoenix, secured a new license plate promoting affordable homeownership. And Rep. Arlando Teller, D-Chinle, succeeded with a two-sentence law saying rural Arizonans applying for a new federal rural broadband program can get the state Department of Agriculture’s help reviewing their applications.

Still, this year Democrats sponsored more successful bills than they have in any year since 2011. Senate Minority David Bradley, D-Tucson, said he’ll work next year to help other Democratic senators get more bills passed and feel some sense of success.

“While you’re in the minority, you’ve got to deal with the hand you’re dealt,” Bradley said. “You’ve got to be realistic about what can be accomplished, and it all reduces itself to a function of relationships with people, and that’s how you succeed around here.”

Getting substantive bills passed as a member of the minority requires working with the majority, said Sen. Sean Bowie, D-Phoenix. He credited Sen. J.D. Mesnard and Rep. Jeff Weninger, both Chandler Republicans, for helping him get his school suicide prevention bill passed by testifying for it in committee.

Bowie, who represents a swing district in the East Valley, said he thinks he gets a more welcome reception from Republicans than some of his Democratic colleagues because he takes a less hostile approach.

“Sometimes I think it depends on the member who’s introducing it,” Bowie said. “Sometimes it depends on luck.”

Democrats irked at barefaced Republicans, don’t file complaints

Rep. Judy Burges, R-Prescott, and Rep. Quang Nguyen, R-Prescott Valley, are sworn in as new members during the opening of the Arizona Legislature at the state Capitol Monday, Jan. 11, 2021, in Phoenix. The House Republican caucus had separate swearing-in ceremonies for masked and barefaced lawmakers. (AP Photo/Ross D. Franklin, Pool)

A month into the legislative session, nobody has yet filed a formal complaint about lawmakers who deliberately disregard the Covid safety guidelines set up by the House and Senate to ensure the safety of lawmakers, staff and visitors.

But Senate Democrats say that after pleading with Republicans to follow the rules and lodging verbal complaints with Senate leadership, they’re ready to take the next step and file formal complaints.

A public records request for complaints against lawmakers for breaking Covid protocols netted no records of any complaints in either the Senate or House.

But while no formal records have been filed, Senate Democrats have informally approached human resources and Republican leaders several times. Senate Minority Leader Rebecca Rios, D-Phoenix, said Senate President Karen Fann assured her she would intervene with lawmakers — but the time for polite requests is over.

“Clearly we are now in the second month of session, and we’re at the point where we’re going to start following up verbal complaints with written complaints,” Rios said. “It’s been a month, and that’s more than enough time to learn to wear a mask.”

Most recently, Sen. Sally Ann Gonzales, D-Tucson, on Monday complained to human resources about Sen. Kelly Townsend, R-Mesa, not wearing a mask while wandering the hallways of the Senate — but that complaint came only after Townsend filed a complaint against Gonzales for harassment because Gonzales told her to wear a mask.

Human resources told Gonzales that Townsend was exempt from wearing a mask because of a medical issue, though Townsend has declined to disclose what that medical issue is or why it prevents her from wearing a mask.

But for now no one is actually speaking up and filing complaints against those purposefully not following the rules.

The rules differ between chambers, but are basic. In the Senate, – everyone must remain masked except while alone in an office. The House, which installed plexiglass barriers, makes exceptions for lawmakers at their desks on the floor.

Everyone at the Capitol is also expected to keep six feet apart whenever possible, and handshakes and any physical contact aren’t allowed during committee hearings. But some lawmakers have disregarded the protocol since day one, and House leadership has empowered those who refuse to wear masks.

Instead of a single swearing-in ceremony at the House of Representatives, there were two: one for those who wore masks and one for those who didn’t.

Since then, guidelines have been repeatedly violated. Representatives routinely wander the floor and speak without masks or while wearing their masks as chin straps or earrings while several Republican senators only cover their noses when Fann is watching. One of the most salient details of former legislative assistant Michael Polloni’s ethics complaint against Sen. Wendy Rogers — that she screamed in his face until her spittle hit him — was only made possible because Rogers wasn’t wearing a mask while in close quarters with staffers.

In the Senate, a Covid policy explicitly gives staff permission to leave the room if lawmakers aren’t following rules — but in practice, pages are still called over to assist senators who fail to comply with safety guidelines.

That gets to the heart of the power dynamics at the Capitol, where staffers can be fired for no reason, and have little to no room to complain about lawmakers.

Lobbyists are largely in the same position. Just as staffers are allowed to file complaints, but cannot do so in practice without compromising their relationships and endangering their jobs, lobbyists depend on personal relationships with lawmakers to do their jobs. Complaining about a lawmakers’ refusal to wear a mask would “be bad for business,” Tory Roberg, a lobbyist for Secular Coalition for Arizona, said.

“It would definitely cause tension if I said or did anything,” she said.

Before the start of the legislative session, Senate President Karen Fann said that failure to comply with the new guidelines could lead to an inability to conduct voting and a possible session shutdown. That hasn’t happened.

Instead, Fann gave senators masks with the Senate seal and has gently reminded the lawmakers to wear their masks correctly.

“We’re doing a pretty darn good job with the masks, I just need a little more fine-tuning here,” Fann said on the Senate floor on the second day of session. “It needs to be up over your nose, please, because there are things that come out of your nose as well as your mouth.”

Marilyn Rodriguez, a lobbyist with Creosote Partners said she doubts that House or Senate leadership would even take action against lawmakers who have disregarded the rules they set in place to keep staff, lawmakers, lobbyists and visitors safe.

“It doesn’t sound like it would do anything other than making you feel a little better about getting it off of your chest, but the thing you’re getting off of your chest is that they’re not taking the pandemic seriously,” she said.

House Democrats have criticized House Republicans for not wearing a mask when speaking during House committee meetings and not keeping their mask over their nose. But none of the Democrats have filed a formal complaint.

House Minority Leader Reginald Bolding, D-Laveen, said he has seen some improvement from House Republicans in following guidelines, but there are still “bad actors who are putting others’ health and safety at risk.”

Those lawmakers who repeatedly break the rules need to “step up to the responsibility, that, not only that the (Senate) president has asked, but the governor, the (House) speaker and every other health expert has asked,” he said.

“Those who are choosing not to wear it are doing it out of a sense of arrogance and I believe that is something they absolutely need to change moving forward,” he said.

Bolding has discussed raising points of order against lawmakers in violation of protocols and said “everything is on the table when it comes to health and safety and protecting staff and members.”

Bolding said it will be obvious when someone pushes him to raise a point of order, but he wouldn’t elaborate.

Several staff and lawmakers have contracted the virus since the session started. While lawmakers continue to argue about taking the pandemic seriously, Arizonans continue to get sick. According to the Arizona Department of Health Service’s COVID-19 dashboard, since the Legislature began on January 11th over 123,000 new cases of Covid have been confirmed in Arizona and more than 2,500 deaths.

Julia Shumway contributed to this report

Democrats: Water plan missing conservation requirement

House Minority Leader Charlene Fernandez lays out the agenda Monday for Democrats this legislative session. (Capitol Media Services photo by Howard Fischer)

House Democrats are balking at ratifying a proposed drought contingency plan over what they see as a key missing element.

Minority Leader Charlene Fernandez said Thursday many of her members question why there’s nothing in the proposal to require more water conservation.

Instead, it is more focused on finding ways to move water around, particularly to meet the needs of Pinal County farmers. But the Yuma Democrat said that does not deal with the underlying problem that Arizona is using more water than is naturally available.

Fernandez said she’s not trying to hold the package hostage, especially with a Jan. 31 deadline to act or risk having the Bureau of Reclamation come up with its own plan to divide up the limited Colorado River water.

“Yes, we are at a very critical time with only 14 days left,” she said Thursday.

“But I do think it’s do-able,” Fernandez continued. “Conservation is something that’s important.”

She also pointed out that the package lawmakers are being asked to approve involves more than changing state water laws. There’s also money involved with the state coming up with cash both to buy water from the Colorado River Indian Community and to help Pinal County farmers drill new wells to replace some of the river water they will be losing.

“If we’re going to put money into this, and we’re talking about millions … and we could be on the hook for more, we need to get exactly what we want,” Fernandez said.

Senate President Karen Fann said she agrees with the sentiment. But the Prescott Republican said she does not want to bog down an already-complex issue at the last minute by throwing in additional issues.

“We’re up against the wall,” said Fann.

She pointed out the whole point of the multi-state drought contingency plan is to keep the level of Lake Mead from going any lower than already projected. If that happens, that would trigger requirements to make even deeper cuts in water use than the current plan envisions.

That risk, according to projections from the Bureau of Reclamation, are real.

The last time Arizona and other states made projections was in 2007. Using data for the past 100 years they figured the chance of Lake Mead hitting critical shortage by 2026 was less than 10 percent.

But here’s the thing: Once you look at more recent data only – specifically the last 30 years when the Southwest has been in a historic drought – continuing to withdraw water at this rate increases the chance of the lake falling to critical levels to more than 40 percent.

And Brenda Burman, commissioner of the Bureau of Reclamation, has made it clear that if the states do not come up with a plan to stop that, she will.

Fann said conservation will be addressed – eventually. But she said lawmakers need to keep an eye on the immediate problem and that hard “wall” of a Jan. 31 deadline.

“It’s really just a Band-Aid,” Fann said of the drought contingency plan.

“This is not the fix, this is not the solution,” she continued. “This is not the time or the place, quite honestly, because of the wall, to get into some of those bigger conversations about conservation.”

Fernandez, however, said there’s no reason to delay.

“We need something to address this issue so we’re not back here in five or 10 years,” she said. Fernandez said it was ignoring the problem for years is what has suddenly created this push for immediate action.

“We knew there was a drought,” she said.

“We knew climate change was real,” Fernandez said. “And this is what happens when we don’t believe our scientists.”

While Fann doesn’t want progress slowed by new issues like conservation, she said there’s no guarantee that she and other Republicans will vote for the necessary legislation.

It’s not that they’re opposed to it, she said. It’s just that all they’ve seen to date has been drafts.

“So I can’t tell you what’s in it and what’s not,” Fann said. Instead, she said some ideas have been “floated by” lawmakers.

“And everything that’s been floated by we’re still being told, ‘We’re still doing a couple of tweaks’ or ‘We’re almost there,’ ” she said. And without that language, Fann said, there is no way for lawmakers to decide if what they are being asked to approve is what’s been agreed to by the various special interests.

Dems sue to halt Senate audit

Officials unlock a truck prior to unloading election equipment into the Veterans Memorial Coliseum at the state fairgrounds, Wednesday, April 21, 2021, in Phoenix. Maricopa County officials began delivering equipment used in the November election won by President Joe Biden on Wednesday and will move 2.1 million ballots to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Matt York) — Officials unlock a truck prior to unloading election equipment into the Veterans Memorial Coliseum at the state fairgrounds, Wednesday, April 21, 2021, in Phoenix. Maricopa County officials began delivering equipment used in the November election won by President Joe Biden on Wednesday and will move 2.1 million ballots to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden’s victory was legitimate can recount them and audit the results. (AP Photo/Matt York)

The Arizona Democratic Party is going to court to halt — or at least delay — the audit of Maricopa County election results.

Legal papers filed late Thursday note that the Senate, which demanded possession of the 2.1 million ballots and counting equipment, has now had all that turned over directly to outsiders hired by the legislature. They are planning to conduct the review starting Friday at the Veterans Memorial Coliseum.

The problem said attorney Roopali Desai, is there is no evidence that the private firms hired by the Senate and the people they are retaining have been properly trained, not just in things like signature verification but also in protecting the security and privacy of the records.

So Desai wants Maricopa County Superior Court Judge Christopher Coury to declare the audit is unlawful and violates both state law and the state’s Election Procedures Manual.

More immediately she wants Coury to issue an immediate restraining order blocking further action until there is more information. A hearing is set for Friday morning.

Senate President Karen Fann, R-Prescott, said she had not seen the lawsuit.

The litigation is the latest wrinkle in efforts dating back to December by some senators to get a closer look at the election results in the state’s largest county where Joe Biden outpolled Donald Trump by 45,109. That was more than enough to offset votes for Trump elsewhere, giving the Democrat a 10,457 vote edge statewide and Arizona’s 11 electoral votes.

That led to various charges of fraud and demands to review the results. There even was an ill-fated effort by some Republican lawmakers to void the returns and require the state’s electoral votes go to Trump.

Maricopa County supervisors defended the final numbers, pointing out they had conducted required accuracy checks on machines both before and after the vote. There also was a legally mandated hand count of a random sample of ballots that county officials said matched the machine results 100%.

And when that wasn’t enough, they hired outside firms to conduct two audits of the equipment, both of which they said verified the results.

Fann, however, said she agreed to issue a subpoena for the ballots and the machinery because there are still people unconvinced the results were accurate.

That was fed by conspiracy theories peddled by not just some state lawmakers but Rudy Giuliani, an attorney for Trump, who came to Phoenix to tell lawmakers he had evidence of fraud.

Fann said the audit should get to the bottom of all this.

But the decision has been marred not just by the refusal of the county to allow the audit in their offices. That has forced the Senate to rent space in the Coliseum.

The Senate chose the firm Cyber Ninjas, with no history of conducting audits, to lead the audit team. And Doug Logan, the company’s founder and chief executive has previously made public statements that he believes the 2020 General Election was rigged.

What makes all that legally problematic, Desai told Coury, is that neither the Senate nor Cyber Ninjas appear to have policies and procedures in place to perform their tasks or for preserving the integrity of the process.

For example, she said, there is nothing to ensure that markings on ballots are not altered or added to during the audit. And there is nothing to ensure “a secure and documented chain of custody for the ballots and election equipment.”

Desai also said there is reason to believe that the inspections may not be performed by bipartisan teams including at least two members of different political parties.

She said former Secretary of State Ken Bennett, who the Senate hired to be the liaison with the auditors, has said that about 70% of those who have applied to be observers are Republicans, with the balance split among Libertarians, Democrats or independents.

And there are other issues, including conflicting statements from Bennett on what procedures will be in place to ensure that reporters will be able to observe the process.

Desai told Coury none of the claims should come as a surprise to Fann, Bennett or Cyber Ninjas, all of whom are named as defendants in the lawsuit.

She pointed out that Judge Timothy Thomason, in agreeing to let the Senate subpoena the ballots and the equipment, specifically expressed concerns about the confidentiality of the information he ordered the county to turn over.

That was followed up by a letter to Fann last month by Secretary of State Katie Hobbs who is the state’s chief elections officer. Hobbs reminded Fann of the obligation to maintain security and confidentiality of the materials,

“If your goal is truly to rebuild public confidence in our democracy, it is imperative that you establish and abide by clear procedures and parameters for the security and confidentiality of the ballot and election equipment while in your custody and ensure independence and transparency should you proceeds with any further audit,” Hobbs wrote.

Dissension in AZGOP as Trump dumps Ducey

President Donald Trump listens as Arizona Gov. Doug Ducey speaks at a campaign rally at Prescott Regional Airport, Monday, Oct. 19, 2020, in Prescott, Ariz. (AP Photo/Alex Brandon)

Gov. Doug Ducey got a phone call as he rustled through papers to find where to put his signature to certify the 2020 election results on November 30.

He removed his cell phone from inside his suit jacket, scowled slightly, and silenced the “Hail to the Chief” ringtone to continue his duty as an elected official.

He may not have realized it at the moment, but ignoring that call may have ended a close relationship with the most powerful man in the world and escalated dissension in the Arizona Republican Party.

On the other end of the line was the White House – likely President Trump himself.

Ducey would not say that it was the president who gave him a ring, but did allow that Trump was on the other end when he called the White House back after the certification signing.

Supporters of President Donald Trump protest in front of a local hotel where Arizona Republicans have scheduled a meeting as a "fact-finding hearing" to discuss the election, featuring members of Trump's legal team and Arizona legislators, Monday, Nov. 30, 2020, in Phoenix. (AP Photo/Ross D. Franklin) — Supporters of President Donald Trump protest in front of a local hotel where Arizona Republicans have scheduled a meeting as a “fact-finding hearing” to discuss the election, featuring members of Trump’s legal team and Arizona legislators, Monday, Nov. 30, 2020, in Phoenix. (AP Photo/Ross D. Franklin)

What exactly Trump told him, Ducey wouldn’t say. But it’s clear that Trump wasn’t pleased with Ducey for certifying the results of an election the president continues to dispute – results that give president-elect Joe Biden Arizona’s 11 electoral votes.

Trump lambasted his former ally on Twitter a few hours after Ducey ignored his call.

“Why is he rushing to put a Democrat in office, especially when so many horrible things concerning voter fraud are being revealed at the hearing going on right now. @OANN What is going on with @dougducey? Republicans will long remember!” Trump posted on November 30, following up with a retweet saying Ducey “has betrayed the people of Arizona” plus other attacks.

The hearing Trump referred to was happening two miles from the Executive Tower, where Ducey and other top officials did the certification. Rep. Mark Finchem, R-Oro Valley, and eight other legislative Republicans were at the Hyatt Regency Phoenix, hosting Trump attorneys Rudy Giuliani and Jenna Ellis at an unofficial election fraud hearing that they couldn’t get permission to hold at the Capitol.

Giuliani and Ellis were ostensibly there to share evidence of fraud, with testimony from a line of witnesses that included an army colonel who said that the United States is facing “an unconventional warfare scenario” and a single poll observer from Tucson.

The tide began to turn on Ducey as Trump and his followers at the Legislature and Arizona Republican Party launched a sustained attack on the governor, who until November 30, did everything in his power to appease the president.

Ducey came into the governorship as a straight-laced businessman, but had grown to accept Trump’s favor, if out of respect for the president’s many fans in Arizona politics as much as anything else. He became so accustomed to hearing from the White House that he disclosed making “Hail to the Chief” his ringtone for when Trump or Vice President Mike Pence called.

Arizona Gov. Doug Ducey hands over his signed election documents to certify the election results for federal, statewide, and legislative offices and statewide ballot measures at the official canvass at the Arizona Capitol, Monday, Nov. 30, 2020, in Phoenix. (AP Photo/Ross D. Franklin, Pool)

“We’ve had so much outreach personally both from the president and vice president that I had to change the ringtone on my phone and it rings ‘Hail to the Chief’ because I didn’t want to miss another phone call directly from the White House,” Ducey said at the time.

Minutes after Ducey ignored the first call and had turned off the ringtone, his phone vibrated audibly against the desk. The governor grimaced – and ignored it again.

Ducey kept Trump at arm’s length from the 2016 campaign trail until Ducey was re-elected in 2018. But Ducey swiftly jumped on the Trump bandwagon in 2019, handing the president an early endorsement and attending multiple rallies during the pandemic that health officials viewed as super-spreader events. Ducey defended the rallies and his attendance as falling under the First Amendment.

Ducey also patted Trump on the back at every opportunity for the handling of the pandemic, taking multiple trips to the White House while COVID-19 continued to ravage Arizona.

But the 10-hour hearing at the Hyatt served moreover as an opportunity for the nine Republican lawmakers to rail against their party’s top officials – with of course the exception of state GOP Chair Kelli Ward, an enemy of the governor who populates her social media feeds with daily video screeds about the stolen election.

Dr. Kelli Ward, chairperson of the Republican Party of Arizona, speaks to a gathering inside the Yuma GOP Headquarters, Monday Aug. 17, 2020, before introducing U.S. Congressman Paul A. Gosar. (Randy Hoeft/Yuma Sun via AP) — Dr. Kelli Ward, chairperson of the Republican Party of Arizona, speaks to a gathering inside the Yuma GOP Headquarters, Monday Aug. 17, 2020. (Randy Hoeft/Yuma Sun via AP)

To Rep. Mark Finchem, R-Oro Valley, and other like-minded Republicans, Ducey’s refusal to call the Legislature into a special session to audit the election, and the refusal of House Speaker Rusty Bowers and Senate President Karen Fann to assemble committees with subpoena power to do the same, constitutes an abdication of responsibility.

At the hearing, they readily embraced the legal theory that they have the right to withhold Arizona’s 11 presidential electors, disregarding Arizona’s “faithless elector” law, which requires the state’s Electoral College votes to go to the candidate who received the most votes in the state.

“I’m appalled by the inept actions and the rudeness . . . (of) leaders of our own party and the body,” said Rep. David Cook, R-Globe, at the Hyatt event, his voice raised. At one point, he apologized to Giuliani on behalf of the governor for ignoring his calls.

Senator-elect Kelly Townsend, R-Mesa, a persistent agitator against legislative leadership, called the government despotic and tyrannical, and added that it was “the right of the people and their duty to throw off such government, to throw off those leaders who are saying no.”

That some Republicans would take Trump’s side in his political divorce with Ducey isn’t a shock.

Even before the November 3 election, complaints abounded that Ducey was too distant or uncaring about the priorities of Republican lawmakers outside leadership. He didn’t have the kind of back-slapping relationship that previous Republican governors had with the Legislature, and his eventual willingness to issue a stay-at-home order to combat COVID-19 – combined with his reticence to convene a special session – further alienated him from lawmakers who promised their constituents that they would get back to work.

Proposals for legislation to rein in his executive authority soon followed, another sticking point between lawmakers like Finchem and Bowers.

Those lawmakers who publicly criticized the governor may end up paying for it if their bills reach his desk, as Ducey has been known to use his veto power to keep the Legislature in line, like he did in 2018 when he went on a veto frenzy of 10 Republican-sponsored House bills in an attempt to force the Legislature to finish the state budget and pass his teacher pay raise plan.

Ducey still has his allies in the Legislature, though they haven’t done much to back him up publicly. Bowers has put out internal statements to lawmakers explaining that they are effectively powerless to change the results of the election, but has not made any effort to censure them publicly.

“(Ducey) ended up in hot water for saying everything right,” said Senator-elect T.J. Shope, R-Coolidge, one of the governor’s staunchest supporters at the Capitol. “At a time when we should be celebrating the victories we had, it’s crazy to be doing this.”

Ducey and his staff have been mum on those lawmakers directly, deferring Capitol Times to his Twitter thread defending the integrity of Arizona’s elections, as his response to Trump and others.

But he took a more direct approach to Ward — one of the most loyal Trump supporters — who shared the thread and told the governor to “shut the hell up.”

“The feeling is mutual to her,” Ducey said Dec. 2. “And practice what you preach.”

Dissension over masks returns in Senate, House

FILE - In this March 16, 2021, file photo, an usher holds a sign to remind fans to wear masks during a spring training baseball game between the Oakland Athletics and the Arizona Diamondbacks in Scottdale, Ariz. The Republican-controlled Arizona Senate voted Monday, March 29, to rescind its mandatory mask policy, and the House speaker made the same move on his own authority. (AP Photo/Ashley Landis, File) — FILE – In this March 16, 2021, file photo, an usher holds a sign to remind fans to wear masks during a spring training baseball game between the Oakland Athletics and the Arizona Diamondbacks in Scottdale, Ariz. The Republican-controlled Arizona Senate voted Monday, March 29, to rescind its mandatory mask policy, and the House speaker made the same move on his own authority. (AP Photo/Ashley Landis, File)

Around the time Senate employees swapped out paper signs saying masks were “required” with signs saying they were “encouraged,” new signs popped up outside the office suite shared by Sens. Rebecca Rios and Victoria Steele.

Laminated yellow papers featuring a mask-wearing emoji and the words “please wear a face mask inside this office” are taped under their nameplates and on the door itself. After the Senate voted along party lines to eliminate its mask mandate on March 29, those pleas are all Democratic lawmakers and Senate staff say they have left to protect themselves from the airborne illness.

“Unfortunately, now it’s every man for themselves,” said Rios, the Senate minority leader. “People will have to stay masked up and avoid people who refuse to wear masks.”

In this Thursday, July 9, 2020, file photo, Gov. Doug Ducey speaks about the latest coronavirus update in Arizona. Ducey ordered cities and counties to scrap their mask mandates, but he will not take any action to curb their decisions to ignore the order. (AP Photo/Ross D. Franklin, Pool, File)

A week after Gov. Doug Ducey abruptly announced that he would stop local governments from enforcing mask mandates, except in their own buildings and public transportation – Arizona never adopted a statewide mask mandate – Republican majorities in the House and Senate have done away with mask requirements but left restrictions that limit public access to the government in place.

In the House, where a mask mandate existed solely on Speaker Rusty Bowers’ orders, enforcement stopped immediately. House Government and Elections Committee Chairman John Kavanagh, R-Fountain Hills, said during his afternoon meeting on March 26, scant hours after Ducey’s announcement, that Bowers, R-Mesa, had told him masks were now optional.

“I have no power to mandate mask wearing, especially when the actual rule is you don’t have to,” Kavanagh said in response to a complaint from Rep. Raquel Terán, D-Phoenix, about some Republicans not wearing masks.

Across the mall, Sen. Kelly Townsend, R-Mesa, took the news that the governor was blocking city mandates as a sign that she could finally leave her office, where she had been sequestered and voting by video call all session because she refuses to wear a mask.

Townsend walked on to the floor on March 26, causing a commotion. Senate President Karen Fann told her to wear a mask “at least one more day,” and Townsend moved to the doorway, prompting Sen. Lupe Contreras, D-Avondale, to insist that she needed to be escorted back to her office.

A few days later, Townsend returned to the floor once again, this time for good. After a frequently emotional debate on March 29, the Senate voted to do away with the mask mandate entirely, but keep other Covid restrictions.

Senate President Pro Tem Vince Leach, R-Saddlebrooke, tore his mask off with a flourish as soon as the vote ended and gestured for a senior Republican staffer to do the same (the staffer refused). One row in front of him, Sen. Warren Petersen, R-Gilbert, fired off a tweet using language from Martin Luther King Jr.’s “I Have a Dream” speech. “Free at last! I just removed my mask at the legislature. Looking forward to seeing more faces and fewer masks,” he wrote.

No vote was required in the House, where only four Republicans showed up with masks on March 29. By March 31, most Republicans had removed the plexiglass barriers separating their desks, though Democrats kept them up.

Masks are still mandatory in the chief clerk’s office and the rules office, and are encouraged wherever else social distancing is impossible, under the House’s new policy.

“We are basically asking people, if they come to see people who are wearing masks, they show respect and maintain social distancing,” Bowers said.

Fann, likewise, encouraged senators to show respect for each other. She swapped floor seats with Sen. Sine Kerr, R-Buckeye, and the only Republican who sat on the left side of the chamber, creating an invisible line between mask-wearers and non-mask-wearers. Fann is rarely at her desk because she presides over the chamber, and she vowed to wear a mask whenever she was there.

It was a nice gesture, said Sen. Martín Quezada, who sits behind Fann, but it had the unintended consequence of bringing even more barefaced Republicans to his side of the room because they want to talk to Fann.

“It’s like animals to a watering hole,” said Quezada, D-Glendale. “It just attracts more of those members over to her.”

Quezada said he is particularly concerned about Senate staff, including the many young and not yet vaccinated pages who sit next to lawmakers on the floor and run errands for them. While Senate rules still explicitly allow employees to leave any room in which CDC guidelines are not being followed, he said no staffer in their right mind would challenge an elected official.

One junior employee, the legislative assistant for freshman Sen. Wendy Rogers, R-Flagstaff, was abruptly forced to resign earlier this year after talking back to Rogers about office décor and working while sick. That former employee is preparing to sue the Senate.

“They can’t come out and give interviews,” Quezada said about Senate staff. “They can’t come out and be quoted in the newspaper, but I hear from them.”

In this May 19, 2020, photo, then-Rep. T.J. Shope, R-Coolidge, listens to debate in the House while wearing a protective mask. Shope, now a state senator, is one of few Republicans who continues to wear a mask after the Legislature dropped its mask mandate. (AP Photo/Ross D. Franklin)

All legislative Democrats and employees but only a few Republican lawmakers have continued covering their faces this week. Sen. T.J. Shope, R-Coolidge, said he decided to stay masked until after he gets his second dose of a Covid vaccine and waits the recommended number of days for the vaccine to fully take effect.

Even after that, Shope said he’ll keep a mask in his pocket and be ready to put it on as needed.

While the House and Senate have changed their mask policies, other Covid restrictions remain in place. As senators finished their work on the Senate floor on March 31, a masked-up custodial worker sanitized the bottom rung of a stair railing – continuing an intense cleaning regimen that began with Fann having pages scrub doorknobs every hour in March 2020.

Lawmakers are still allowed to vote remotely in committee hearings and on the floor. Public access to both buildings is still limited, though Bowers said he will begin allowing a limited number of guests in the gallery.

And in the Senate, Republicans and Democrats alike continue huddling in private rooms behind locked doors to hold caucus meetings that are legally required to be open to the public. Fann blocked Democrats from continuing to share video links to their caucus meetings and never offered the option for Republican caucuses, leaving lobbyists, reporters and interested citizens in the dark.

Fann has blamed Covid – or, more precisely, critical coverage of how Republicans have handled Covid – for shuttering the building.

Staff writer Nathan Brown contributed reporting.

Ducey draws line in sand on rainy-day fund

Calling an economic downturn “inevitable,” Gov. Doug Ducey is pushing back against demands by lawmakers from his own Republican Party to use an unexpected cash windfall to pay down debt.

The governor said Monday he is sticking to his demand that the extra $155 million being taken from Arizona taxpayers go into the state’s “rainy day” fund. He wants to get that account, currently in the $460 million range, brought up to an even $1 billion.

The amount in that fund has been virtually unchanged since Ducey became governor. It also is far below the statutory cap on what is formally known on the “budget stabilization fund” of 7 percent of general fund revenues, a figure that this year would translate out to more than $700 million.

What irks some GOP lawmakers is the fact that the $155 million isn’t money the state earned, at least not through the normal political process of debating and setting tax rates. Nor is it some sort of unearned income in the form of a court judgment, like the cash Arizona got in the settlement of a lawsuit with Volkswagen over vehicles that were spewing more pollution than allowed.

Instead it’s a bit of fallout from the changes in federal tax law that lowered rates for most Americans. But a byproduct of the state “conforming” its tax laws to those changes is that some Arizonans will be paying higher taxes.

Senate President Karen Fann said her lawmakers think the best course of action is to use the windfall to pay down debt. She figures that would reduce the state’s annual debt obligation by about $24 million a year, money Fann said could be better used to actually provide state services.

Ducey said the plan is unacceptable to him.

On one hand, the governor said the Arizona economy is booming.

“But it would be irresponsible to not plan ahead for a rainy day,” Ducey said.

“And the beauty of a rainy-day fund is it gives you options in the downturn or the crisis,” he continued. “You can only pay down debt once.”

And the governor said he views it through the eyes of a business executive, which he once was.

“This is the way any responsible chief executive would look at the situation in the private sector,” explained Ducey, the former executive of Cold Stone Creamery. “I should bring that same loving care to the public sector.”

The governor also brushed aside Fann’s contention that the state would be better served in the long run by using its newfound cash to actually fund state services instead of paying interest to some lender.

“We continue to pay down debt every day in this state,” he said.

That most notably includes the nearly $1 billion borrowed by selling off some state buildings – including the House and Senate – under a lease-purchase plan to get them back. But the debt still remains at about $750 million.

Rep. Ben Toma, R-Peoria, who chairs the House Ways and Means Committee, said there may be a middle ground.

“I’m not one of the members of the House or the Senate, for that matter, that is basically a ‘hell no’ on putting money in a rainy day fund. But it’s going to require some give on the governor’s part.” Toma said. “The only way I would support putting that money into the rainy day fund is if we got a big win on conformity reform.”

That means adjusting the state income tax system for future years to ensure the state does not continue to collect the unanticipated windfall from federal tax reform and the resultant hit on Arizona taxpayers.

“In the end, for me, what’s more important is what we do in perpetuity, if you will, to offset the additional increases,” he said.

Even with that $155 million, that still leaves the state far short of the $1 billion that Ducey wants for the rainy day fund.

“Will we have the votes in House and the Senate to do that?” Toma said. “That’s going to be a tough lift.”

Ducey open to working with Dems on budget

Gov. Doug Ducey, third from left, helps cut a ribbon Wednesday for the formal opening of the new U.S. headquarters of CP Technologies in Prescott. Ducey said after the ceremony that he is willing to work with Democrats to pass a state budget and tax cut. (Capitol Media Services photo by Howard Fischer)

With Republicans at a stalemate, Gov. Doug Ducey said Wednesday he’s willing to work with Democrats to cobble together the votes for a new state budget and tax cut.

“What’s important to me is that we get the budget that I presented — or as close to it as we can — over the finish line,” he told Capitol Media Services. And the governor said his door is “always open.”

That potentially paves the way for Democrats, who have been kept in the dark while the governor and GOP leaders crafted their spending and tax cut plan, a chance to have some input in exchange for needed votes.

And there may be room for a deal.

House Minority Leader Reginald Bolding, D-Laveen, told Capitol Media Services there may be some wiggle room, even on the idea of cutting taxes. It all comes down to details.

“I couldn’t tell you specifically whether or not we would support a tax cut in addition to additional revenues until we look at the plan,” he said.

“We won’t negotiate in isolation,” Bolding said of reducing tax rates. “We’ll look at the entire plan and what the trajectory looks like.”

Even Ducey, who is championing a $1.9 billion tax cut and creating a flat tax rate, said even that could be negotiable.

“That’s part of the deliberation process,” he said. “And, typically, as we begin moving forward, the debate happens, the deliberation happens.”

But Ducey won’t say how much he is willing to give to line up the votes.”

“I do not like to have those deliberations in the press,” Ducey said. “I like to do them with people rather than with the press.

What’s working in favor of the Democrats is that there is at least one GOP holdout in both the House and Senate unwilling to support the $12.8 billion spending plan and $1.9 billion in permanent tax cuts the governor is pushing.

In fact, neither the House nor Senate have any plans to try to vote on any part of the plan when lawmakers reconvene Thursday morning. About the only thing the Senate intends to do is start the process of seeking an override of the 22 bills Ducey vetoed two weeks ago after he got miffed when lawmakers decided to recess for two weeks when a budget deal first fell apart.

Senate President Karen Fann, R-Prescott, said that’s the nature of Republicans having a bare majority in both chambers: Leadership needs every one of them to line up in support for the party plan.

“It’s a challenge when you have 31 and 16,” Fann said Wednesday, referring, respectively, to the GOP membership in the 60-member House and 30-member Senate.

“Everybody knows they’re number 31 or 16,” she said, giving each of them leverage. “It creates a very tough working situation.”

Ducey, for his part, said he’s going to engage with Rep. David Cook, R-Globe, and Sen. Paul Boyer, R-Glendale, whose votes he needs — but does not have — for the plan.

“We have some very thoughtful legislators that care about certain things,” he said when asked about the two GOP holdouts. “And I want to understand what’s important to them and make sure they understand what’s important to me and make sure we have a successful budget.”

But it isn’t as simple as getting Cook and Boyer on board. Fann said if they get some of what they want, that could result in the loss of other Republican votes. And that is what could give Democrats a seat at the negotiating table.

Bolding insisted he is not trying to play political games.

“For us, it’s not about leverage or what puts us in the best position,” Bolding said. “It’s about putting together a plan that works for Arizona.”

And that plan clearly differs from what the Republicans are proposing.

Much of that is on the spending side of the ledger. Bolding said there are “critical gaps with our infrastructure,” seeking more money for housing for the needy, Covid relief and education.

“As long as we can do those things and create a plan that works for everybody, we are willing to engage,” he said. “At this point, everything is on the table.”

Well, not quite.

Bolding said the proposal to create a single 2.5% individual income tax rate for all Arizonans regardless of income is a non-starter. That would scrap the current system of four brackets, ranging from 2.59% for couples with taxable income up to $53,000 a year to 4.5% on taxable earnings above $318,000.

Also non-negotiable, Bolding said, is the plan he said undermines Proposition 208, the measure approved by voters in November to put a 3.5% income tax surcharge on the most wealthy — meaning income above $500,000 for married couples — to raise upwards of $800 million a year for K-12 education.

Strictly speaking, nothing in the budget plan repeals that levy as lawmakers are powerless to overturn the initiative. But it puts a provision in law creating an absolute cap of 4.5% on all income taxes, including that surcharge.

The proposal does require the state to “backfill” any lost revenues for schools. But Bolding said using other state revenues to do that effectively undermines the initiative.

“Proposition 208 clearly stated that these additional dollars were not to supplant (state revenues),” he said.

“They were supposed to be additional, supplemental resources,” Bolding said. “If we are shrinking our state budget, we are going to provide less funding into education, with education being the largest portion of our budget.”

But the minority leader said the claim by Ducey of being willing to work with Democrats rings hollow, at least right now.

“We obviously have reached out as we know that the state is facing a fiscal cliff in the next few weeks,” Bolding said.

That’s because the new budget year begins July 1. And, unlike Congress, there is no option in state law to enact a “continuing resolution” to keep the government operating in the absence of an adopted spending plan.

“But we have not been engaged up until this point,” Bolding said, saying Democrats have contacted “the highest staff member in Gov. Ducey’s office,” meaning Chief of Staff Daniel Scarpinato.

Ducey, for his part, acknowledged he has been distracted from what’s happening — or not — with the budget.

“My top priority right now is the Telegraph Fire and the Mescal Fire,” Ducey said, having issued a declaration of emergency earlier Wednesday. “We’ve got to do all the things that are appropriate to that and make sure they have the resources and appropriations as well.”

As to actually enacting a budget and tax-cut plan, the governor said he remains “optimistic.”

“We’re just not there yet,” Ducey said.

Ducey reinstates job-seeking requirement for unemployed

Arizonans are going to have to start looking for work again later this month if they want to keep their unemployment benefits.

Gov. Doug Ducey on Monday rescinded an order he signed in March 2020 suspending those job-search requirements during the pandemic. That was based on not wanting to force people who were infected with Covid or were caring for others with the virus to go out looking even as the pandemic was raging.

Now, effective the week of May 23, anyone wanting to keep those benefits will again have to make contact with potential employers at least four days a week.

Initially it requires just a “sincere” job search in the chosen field to maintain benefits. There also is a mandate to document the effort.

But anyone who collects benefits for at least four weeks will find themselves being forced to take pretty much anything that comes their way. That’s because a 2018 law signed by Ducey — and now again takes effect — says people forfeit their benefits if they do not accept any jobs that pays them at least 20% more than they were collecting.

With state benefits capped at $240 a week, that’s pretty low.

That translates out to $6 an hour for a full-time job. That means any job at all that pays the minimum wage of $12.15 an hour would qualify.

So, too, would jobs for tipped workers who are entitled to be paid just $9.15 an hour as long as their tips bring them up to the minimum.

Ducey’s move comes despite the fact that the state’s employment situation has not yet returned to pre-pandemic levels.

The state Office of Economic Opportunity lists the seasonally adjusted unemployment rate at 6.7% for March, the most recent figures available.

That is far below the 14.2% peak it reached in April 2020. But it had dropped as low as 4.7% in November 2019.

At the same time, the number of people actually working also still lags.

According to OEO, the state has recovered just 68% of the 331,500 jobs it lost since the pandemic-induced recession began in February 2019.

And that same agency reports that unemployment is still 36% higher than it was when the pandemic began.

More telling is that the recovery is quite uneven.

For example, the state’s financial activities sector has recovered just 37% of what was shed, versus 62% for leisure and hospitality — the sector that includes bars, restaurants and lodging facilities — and 78% for manufacturing.

In fact, the only part of the economy that’s doing better than before the Covid outbreak is trade and transportation.

That’s driven largely by e-commerce and the fact that people have been buying more online. That, in turn, has meant the need for more workers at warehouse and fulfillment centers, like those operated by Amazon, and delivery drivers.

How much better?

Doug Walls, the OEO’s marketing information director, said the 45,800 job loss has been more than compensated by 64,300 more people now working in this sector than at the beginning of the recession.

The most recent report from the state Department of Economic Security says there are about 55,000 Arizonans currently collecting state benefits.

That is down from a peak of more than 230,000 last summer. But it still is higher than the 17,000 a week before the pandemic.

Ducey in a prepared statement, said he believes it’s time to reinstate the job-search requirements.

“Arizonans are ready to get back to work,” he said. “Our economy is booming, jobs need filling more than two million Arizonans are fully vaccinated, and vaccination appointments are available to anyone who wants one.”

And the governor quoted from Ronald Reagan who said “the best social program is a job.”

“Unemployment benefits are still available to Arizonans who need them,” Ducey said. “But now that plenty of jobs are available, those receiving the benefits should be actively looking for work.”

Particularly hard hit has been the hospitality industry with many hotels and resorts, now starting to recover as more people are vaccinated and willing to travel, reporting they are finding no takers, including among former employees.

With the new executive order — and the mandate to take pretty much any job after four weeks of benefits — those hotel and restaurant jobs could be filled by former professionals from a variety of fields.

None of this affects current negotiations to boost the maximum benefits.

A Senate-approved measure by Sen. Karen Fann, R-Prescott, would increase the cap by $80 a week, to $320, and potentially to $400 at some point. But the trade-off is that once the statewide unemployment rate drops to 6% or less those benefits would be cut from the current 26-week cap to 22 weeks.

But Rep. David Cook, R-Globe, is pushing a plan to boost benefits to $300 a week, but without the cut in the length of benefits.

The governor has not yet weighed in on either of the measures.

Despite the governor’s new executive order, there are some exceptions.

Under federal law, those who are getting the extra $300 a week in “pandemic unemployment assistance” do not have to be out looking for a job to keep those federal benefits if they have been diagnosed with Covid or if they are caring for a family member who has the virus.

Also exempt are those who provide care to a child who cannot go to school because it is closed, and those who have been advised by a health care provider to self-quarantine due to concerns related to Covid.

Tasya Peterson, DES press secretary, said those exceptions do not apply to the $240-a-week in state benefits. But DES is empowered to allow someone to not return to work if they have “good cause,” which can include pandemic-related situations. She said these are determined on a case-by-case basis.

Ducey signs first bill into law in 2020 session

Doug Ducey (Photo by Dillon Rosenblatt/Arizona Capitol Times)

Gov. Doug Ducey signed his first bill of the 2020 legislative session Monday, which allows Arizona’s election supervisors to use electronic methods to fix errors on ballots.

The bill, S1135, written and shepherded by Sen. Eddie Farsnworth, R-Mesa, received unanimous bipartisan support and was one of several fast-tracked by Senate Republicans last week. Senate President Karen Fann, R-Prescott, pushed the bill through the chamber last week in order to send it over to the House and pass it with an emergency clause well before the March 17 Presidential Preference Election.

The bill, requested by the Maricopa County Board of Supervisors, allows election supervisors to fix ballot errors electronically. If a voter makes an error in filling out a ballot, such as drawing a circle where there should be a line or making an errant mark, it goes to an adjudication team that includes a representative from each party to determine if the voter’s intent is clear.

Under that process, the entire ballot needs to be duplicated without errors, recast and counted. Allowing for electronic adjudication should make counting votes faster and improve confidence in election results, Fann said on January 28, the week she pushed the bill through.

“We saw what some people thought was potential problems last year because it was taking people days, weeks to count and verify, and people were going to bed with one result one night and another the next night. This is a way to help us alleviate some of those problems, while still keeping the integrity of it,” Fann said On January 28.

Sen. Michelle Ugenti-Rita, R-Scottsdale, questioned the need for the bill and said she wants to ensure election supervisors maintain a paper trail for all ballots.

Correction: A previous version of this story erroneously identified Sen. Eddie Farnsworth, R-Mesa, as a Representative.

Ducey straddles fence on Senate election audit

Gov. Doug Ducey said he’s confident in the results of the 2020 election yet wants to see the results of a Republican-backed audit and hand count of 2.1 million ballots cast in Maricopa County.

“I’ve defended our election integrity,” the governor said at a Monday press conference. “I’m not going to change my position at all.”

Ducey said Arizona has had a series of reforms and improvements in the past three decades.

“In many ways I think Arizona is a model state,” he said. “We have a compendium of best practices in our state.”

Despite that, the governor said it was within the power of the Senate, as a separate branch of government, to decide whether yet another audit is needed. But he brushed aside a question of whether that feeds into the conspiracy theories that somehow the results of the election — the one he declared as accurate — were wrong and that people cheated.

“To give an accurate answer, I’d have to see the results of what the Senate is well within its legal rights to do,” he said.

All this comes as Democrats say the sole reason for the audit is to come up with an excuse to make it more difficult to vote.

“Right now Arizona is leading the country in voter suppression bills from Republican legislators,” said Sen. Martin Quezada, D-Glendale. “It is no coincidence this is happening after they lost an election.”

All five Maricopa County supervisors have said a new audit is unnecessary. But only Democrat Steve Gallardo showed up for the Monday press conference — and dealt with hecklers who insisted there was massive fraud and that Donald Trump actually beat Joe Biden in Arizona.

“You lost the election,” he said. “Deal with it.”

The move to audit the ballots comes despite a legally required hand count of a random sample which turned up no errors.

The counting equipment was tested both before and after the election. And the Maricopa supervisors, four of whom are Republicans, even hired outside auditors in a bid to prove that there was no tampering with the machinery.

That still left GOP senators dissatisfied and resulted in them going to court and winning the legal right to access the equipment and the ballots. Yet on Monday, Senate President Karen Fann said she is still working to get this process started more than four months after the election was completed.

“We hope we have something to get out to you very soon,” she told Capitol Media Services.

Some of what needs to be worked out is the mechanics of having people go through 2.1 million ballots and marked down, one by one, how someone voted.

Fann said she hoped to have bipartisan teams reviewing each batch to provide a level of accountability. So far, though, Democrats see the entire effort as purely political show and won’t participate.

“It’s too bad the Democratic Party doesn’t believe in getting answers for our constituents,” she said. “I think that’s our job.”

The Democrats, for their part, say the only reason people have questions is that Republicans, led by Trump, have made repeated and unsubstantiated claims of fraud. And they see no reason to participate.

But it isn’t just the Democrats who question the whole premise behind the audit.

Helen Purcell, a former Maricopa County recorder, and a Republican, said she was approached by an attorney representing GOP senators asking if she would be willing to oversee the process. She refused, calling it “not a necessary process” and saying she trusts the results of the two independent audits already conducted by the county.

Fann said that for the time being the plan is to limit the hand count solely to the presidential race, the one that Biden outpolled Trump in Maricopa County by more than 45,000 votes. That provided a crucial edge to let Biden win Arizona’s 11 electoral votes by 10,457.

The Senate president denied that all this does is feed into the claims, all so far with no basis, that Trump really won here.

“We start with the presidential primarily because that was the closest one in terms of numbers,” Fann said.

So what’s the plan to do the task?

“All this will be made clear as soon as we finish the contract details,” Fann said, referring to the agreement the senate is making with a yet-to-be-identified outside firm. And she promised the contract would be public.

Ducey’s proposed infrastructure upgrades road to bipartisanship

A UPS truck passes a digital sign on I-10. Gov. Doug Ducey proposed in his January 13 State of the State Address to earmark funds for a six-lane bridge on I-10 over the Gila River between Phoenix and Tucson. PHOTO COURTESY ARIZONA DEPARTMENT OF TRANSPORTATION

Spending part of a one-time windfall to build new roads and bridges was a rare idea in Gov. Doug Ducey’s January 13 State of the State Address that won plaudits from both liberal and conservative lawmakers.

Ducey pledged funding for a six-lane bridge over the Gila River on Interstate 10. A day later, the Senate Transportation and Public Safety Committee endorsed nearly a dozen bills to provide funding for bridges. And both legislative Republicans and Democrats discussed spending more for roads and bridges while laying out their priorities for the fiscal 2021 budget.

Lawmakers expect to have about $170 million available for ongoing funding and about $475 million for one-time spending, thanks in part to higher-than-expected revenue from sales taxes paid by out-of-state online retailers because of law changes this year.

“All of the members, Republicans and Democrats, on both sides of the aisle are in favor of infrastructure investments,” Senate President Karen Fann said.

Ducey said his budget proposal, which was due for release on January 17, will include funding for a six-lane bridge over the Gila River, as part of an ongoing push to widen I-10 between Phoenix and Tucson. The highway shrinks to two lanes in either direction for about 23 miles between Chandler and Casa Grande.

“Our budget puts the pedal to the metal, with the construction of a new six-lane bridge over the Gila River,” Ducey said during his speech. “This replaces a 56-year-old bridge. Sixty-two thousand people drive over it every day. That’s 23 million a year. So let’s break ground ASAP.”

Ducey also requested federal funding to build a bridge over Tonto Creek, where three children died in late November after their family drove past signs warning them not to cross. Sen. Sylvia Allen, R-Snowflake, and Rep. David Cook, R-Globe, previously introduced bills requesting state funding for the bridge.

Allen’s bill, which would appropriate $15 million, is scheduled for a hearing January 21 in the Senate Appropriations Committee. Cook’s, which would appropriate $20 million, is not yet scheduled.

The Senate Transportation and Public Safety Committee, meanwhile, has already endorsed spending about $46 million to replace or repair 10 other rural bridges, and an additional $11 million to study widening State Route 101 between I-10 and U.S. 60 in the West Valley and improving the interchange of the North Loop 101 and I-10.

Committee chairman David Livingston, R-Peoria, said he was deluged with phone calls from other cities and counties after the Legislature approved a $2.81 million appropriation to repair or replace Jesse Hayes Road bridge over Pinal Creek in Globe last year.

Because of those pleas, Livingston asked the state Transportation Department to send him a list of its most critical bridges in rural counties that don’t have funding. The sum comes to about $46 million.

House and Senate Democrats, in their own presentation prior to the State of the State Address, called for spending on county roads and bridges and airports, and replacing highway funds that have regularly been swept to other needs.

Overall, Fann said lawmakers should approach this year thinking of budgeting for infrastructure in the same way they think of budgeting for their own homes. In a good year, with money left over, they can get ahead on fixing a roof or doing other maintenance.

“I hate it when people say we have extra money; we have a surplus. We have a great, great economy right now,” she said.

Education alliance sues to end mask mandate prohibition, other new laws

A coalition of school board members, educators, child welfare advocates and others is asking a judge to void a host of changes in state law approved in the waning days of the legislative session.

Attorney Roopali Desai is not alleging that any of these new laws, individually, is illegal. They range from whether schools and even universities can impose mask mandates and changes to election laws to banning the teaching of what legislators and Gov. Doug Ducey have incorrectly labeled “critical race theory.”

The legal problem, she said, is that these were combined with other unrelated provisions into what lawmakers call “budget reconciliation bills,” essentially a grab-bag of issues.

That, said Desai, violates constitutional provisions which clearly state that each piece of legislation “shall embrace but one subject and matters properly connected therewith.” And that same provision requires each element to be laid out in the title.

What that means, she is telling Maricopa County Superior Court Judge Katherine Cooper, is that each of the challenged provisions was illegally enacted — and cannot be enforced.

If Desai wins the case, the implications go beyond nullifying the challenged provisions and, most immediately, ending the legal risk that now exists for schools, colleges and universities which are requiring staff and students to wear masks while on campus. It also would force a major change in the long-standing practice of lawmakers doing what she called “horse-trading,” piling unrelated issues — many which had previously failed on their own — into a single package designed to corral the necessary votes.

Senate President Karen Fann, R-Prescott, said she could not comment until she reviews the lawsuit with attorneys. There was a similar response from Ducey who has opposed mask mandates and signed all the measures into law.

All this comes as the Department of Health Services, whose director Dr. Cara Christ has said she backs the decision by the governor and lawmakers to bar mandated mask use in schools, reported more than 3,000 new cases, a level that hasn’t been seen in six months.

At the same time, hospitals reported 1,590 in-patient beds — 18% of capacity — occupied by Covid patients. And 22% of intensive-care beds were being used by Covid patients.

The question of whether the Legislature violated the requirement limiting each measure to a single subject and having the title properly reflect what is in the bill starts with HB 2898, which has the language banning not just school districts but also counties, cities and towns from requiring the use of face coverings or proof of vaccination against Covid to participate in in-person instruction.

What’s also in the 231-page bill is a provision prohibiting teaching curriculum “that presents any form of blame or judgment on the basis of race, ethnicity or sex.” That includes concepts like saying a student “should feel discomfort, guilt, anguish, or any other form of psychological distress because of the individual’s race, ethnicity or sex” and even authorizes the state Board of Education to suspend or revoke an offending teacher’s certificate.

Only thing is, Desai said, HB 2898 is titled “appropriating monies, relating to kindergarten through grade twelve budget reconciliation.” The reality, she said, is the bill includes “substantive policies that have nothing to do with the budget.”

“It’s bad enough that the titles don’t describe what’s actually happening in these bills,” Desai told Capitol Media Services. “But the legislature went out of its way to mislead people about what’s in the bills.”

For example, SB1824, dubbed as “appropriating monies; relating to health budget reconciliation,” says students cannot be required to be immunized to attend school using any vaccination that has only been given “emergency use authorization” by the Food and Drug Administration. That, for the moment, is the status of all Covid vaccines.

And another section bars local governments from establishing a “vaccine passport” or requiring proof of vaccination to enter a business.

Then there’s SB1819 which, according to its title, deals with “budget procedures.” But that bill includes “fraud countermeasures” for paper ballots and strips power from Secretary of State Katie Hobbs to defend election law challenges. What’s also in that bill is setting up a special committee to review the findings of the audit of the 2020 election, changes to the governor’s emergency powers, investigating the practices of social media platforms and even language about condominiums.

“None of these subjects have any logical connection to each other,” Desai said.

She argued this is more than just an academic discussion.

Desai said one purpose of the single-subject rule is to prevent “logrolling,” trying to pull together the support for a series of measures that would fail on their own by adding items designed to convince foes of any particular provision to agree to support the whole package because it also contains something they want.

For example, she cited statements by Rep. Joseph Chaplik, R-Scottsdale, that he would not support HB2898 unless it also included a ban on mask mandates for students.

Desai also pointed out the measure about the teaching certain concepts about race, ethnicity and gender actually failed to get the necessary votes when offered as a separate bill. But it then was then tucked into that same K-12 education reconciliation bill to get the votes of those who had previously opposed it.

“Never before has the legislature so ignored the normal process and procedure for enacting laws as they did for this session,” Desai wrote. She said if the courts do not enforce the single-subject rule it would be “rendered wholly meaningless.”

In her filing, Desai said these are not simply academic and legal concepts.

She said if the provisions in the K-12 measure are not voided “public schools could be left powerless to protect their students and staff.” And she said that teachers who are plaintiffs in the lawsuit could find themselves disciplined for violating a “vague prohibition” on what can be taught about race and gender.

No date has been set for a hearing on the new lawsuit.

Election audit overshadows work in Senate

Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas, May 6, 2021, at Veterans Memorial Coliseum. (AP Photo/Matt York, Pool)

In some ways, the most important event of the 2021 legislative session didn’t even happen at the Capitol.

Most senators had little to do with the independent review of 2020 election results ostensibly being done in their name, and as the recount and the session stretched on, many Republicans who supported the audit in theory were eager to focus on their own legislation instead of fielding questions about the audit.

But the shadow of the audit loomed over everything at the Capitol this year. Some speculated it was partially responsible for the long delay in passing a budget, and it was certainly responsible for a weekslong standoff when one senator publicly vowed that she would block adjournment, and vote against the budget, if necessary, until the audit was complete.

Senate President Karen Fann, R-Prescott, first locked the Senate into its ongoing audit by encouraging voters’ complaints in November, once it was apparent that Joe Biden was going to win Arizona and the presidency. While her counterpart in the House, Speaker Rusty Bowers, R-Mesa, unequivocally rejected attempts from inside and outside of his Republican caucus to challenge election results, Fann set up a voter fraud hotline, approved a December hearing about the election and signed multiple subpoenas demanding Maricopa County turn over ballots and election equipment.

All of this was done, Fann said, with the full support of the Senate Republican caucus. But their deliberations took place behind closed doors and outside of any normal hearing process.

“Our entire Republican body thought that this was – and still do believe this is – the right and ethical and moral thing to do,” she said.

Fractures in the Republican caucus first appeared in early February, when Fann introduced a resolution to hold the five Maricopa County supervisors in contempt. That would allow Fann to send the Senate’s sergeant at arms to arrest Maricopa County’s supervisors and incarcerate them for the duration of the legislative session, though Fann later insisted arrest was never really on the table.

Regardless, the prospect of arresting county supervisors – men many of the senators knew well and considered friends – was too much for Sen. Paul Boyer, R-Glendale. The first and only audit-related vote of the session failed 15-15, as Boyer joined Democrats to reject the contempt resolution.

The Senate eventually won its court battle with Maricopa County, and a judge affirmed that the Legislature could subpoena the election materials.

There were no formal hearings or public votes on the $150,000 contract Fann ultimately awarded to Cyber Ninjas, a cybersecurity firm led by a man who publicly endorsed claims of election fraud, her selection of former Secretary of State Ken Bennett to serve in a quasi-governmental role as the Senate’s liaison or any other aspect of the audit.

When Fann and Judiciary Chairman Warren Petersen, R-Gilbert, eventually held a hearing, during a two-week break in ballot counting because the counting wasn’t finished by the time the Senate’s contractors had to vacate Veterans’ Memorial Coliseums for high school graduations, Senate Democrats who attempted to sit in were barred from the room.

Sen. Martín Quezada, D-Glendale, said at the time that Democrats were informed that it was a closed meeting, it wasn’t safe for them to be there because of Covid and there was a livestream available to watch.

Quezada texted: “If I were in her shoes, I can’t imagine I’d ever lock elected members of the Senate out of this process unless I had absolutely zero confidence in the legitimacy of the process I had started, the people I hired to administer it, or my ability to respond to whatever legitimate questions were asked of me in that hearing. It seems pretty pathetic to me.”

While the Senate remained closed to the public, Republican elected officials from other states began popping up in the Senate gallery, as guests of Sen. Wendy Rogers, R-Flagstaff. Rogers, an outspoken Trump supporter and one of the audit’s biggest fans, invited lawmakers from around the country to tour the coliseum and take ideas back to their own states, with a visit to the Senate to round out their visit.

Diehard Trump supporters with “Stop the Steal” flags were a constant presence outside the Capitol in some weeks, sometimes confronting Democratic activists at press conferences or shouting down reporters as they tried to ask questions.

And when the session started looking like it would end before the audit did, true believers in the Republican caucus sought to block adjournment. After hearing that the Legislature could adjourn in two weeks, Sen. Kelly Townsend, R-Mesa, balked and began voting against election measures and vowing to vote against any other bills necessary to prevent adjournment.

In the end, Townsend secured a promise, laid out in the state budget, that she’ll serve on a committee to oversee the audit results and potentially recommend a special session for more legislative work. While the session ended, the audit hasn’t yet.

Election measures keep moving along partisan lines

With most headline-grabbing election measures dead, numerous others that pit arguments of voter integrity against voter suppression are working their way through the Legislature.

The basic contours of the debate aren’t new. For years, Democrats have generally supported making it easier to vote while Republicans have been more likely to focus on preventing illegal voting.

However, this year’s session has the added dimension of coming just after a contentious presidential election that many Republicans say they believe was stolen by fraud. It was an election in which Arizona, for years considered a safe Republican state, narrowly gave its 11 electoral votes to the Democrat for the first time in decades.

Partisanship was apparent on March 10, when the House Government and Elections Committee voted 7-6 along party lines to advance SB1485, which would remove voters from the Permanent Early Voting List if they miss four elections in a row and then don’t respond to a mailed notice asking if they would like to remain on the list.

The bill’s supporters characterized it as a simple housekeeping measure that would prevent at least some fraud.

Rep. John Kavanagh, R-Fountain Hills, said he doesn’t know how much fraud there is, but referred to the “pyramid of crime” he teaches about in his criminal justice class, with the bottom being the total number of crimes committed and the top being crimes that are recorded in the FBI’s Uniform Crime Reporting program.

“Crimes that we actually know are the tiny tip of a massive iceberg of criminal activity in this country, and I suspect the same is true of election fraud,” he said. “You just don’t get it all. So I don’t know what the number is, but it’s there.”

The bill’s opponents said it would disproportionately make things more difficult for people serving in the military or on missions, independent voters (who could be taken off the list after skipping two general elections), senior citizens, Latinos and Native Americans and could result in taking 143,000 people off the list.

Rep. Athena Salman, D-Tempe, said if the bill had been passed in 2019, it could have resulted in removing 50,000 Latinos who voted in 2020 from the list, more than enough to have changed the outcome given Joe Biden’s 12,000-vote victory in the state.

“This is not housekeeping,” she said. “This is the tip of a pyramid of a massive voter suppression campaign to make it harder for you to vote. … We’re seeing it in state legislatures across the country. And especially in a state like Arizona, it makes all the difference.”

As Salman said, Arizona is not the only state where Republican lawmakers are responding to concerns about fraud by pushing laws that critics say will make it harder to vote. Lawmakers in Georgia, the other longtime Republican state to narrowly flip to Biden, are considering bills to restrict ballot drop boxes, increase absentee voting restrictions and limit early voting, the Atlanta Journal Constitution reported last week.

The Brennan Center for Justice, a progressive law and public policy institute, said a month ago that restrictive voting bills are being introduced this year at a far faster clip than last year, and Arizona is leading the way. As of early February, lawmakers in 33 states had introduced a total of more than 165 such bills, compared to 35 in 15 states the same time in 2020, and 19 of those 165 bills were in Arizona.

The debate was much the same March 3 and 4, when the House spent much of its time on election-related bills. Voting was along party lines to ban same-day voter registration and to bar counties from accepting private money to help fund elections, like the grants nine Arizona counties received last year from the Center for Tech and Civic Life, which gets much of its funding from Facebook founder Mark Zuckerberg.

The next day, the House passed bills to let the attorney general issue subpoenas in voter fraud investigations, ban automatic vote-by-mail and voter registration and bar elections officials from modifying any voting deadlines set in statute.

“It’s bills like this that serve the purpose of continuing ‘the big lie,’” Salman said, using the term Democrats have embraced to describe claims that the 2020 election was stolen from former President Donald Trump.

Salman said repeated lawsuits challenging the results of the election have failed, and audits of the vote have shown no irregularities, but that “if you repeat a lie over and over and over again, you get justices on the highest court of the land using (the lie) … to undermine the voting rights of particularly people of color in this country.”

While arguing against HB2811, which bans same-day registration, Rep. Raquel Terán, D-Phoenix, similarly pointed to the arguments before the U.S. Supreme Court just a couple days before in challenges to two Arizona laws that critics claim make it harder to vote. Under questioning from Justice Amy Coney Barrett, Arizona GOP lawyer Michael Carvin said striking down the laws would “put (Republicans) at a competitive disadvantage relative to Democrats.”

“Keeping eligible voters (from voting) has nothing to do with integrity,” Terán said. “It just has to do with winning and holding onto power, whether you enjoy majority support or not.”

Same-day registration isn’t allowed in Arizona now, but HB2811 would cement this as law and make it a crime to register someone to vote on Election Day. Kavanagh, who heads the House’s Government and Elections Committee, which has heard most of the election-related bills, said one of the ways the Tammany Hall machine in 19th-century New York City stayed in power was using police to register people to vote and bring them to the polls. He raised the specter of same-day registration leading to similar corruption if it were to be allowed, and said people already have ample opportunity to register to vote.

“That’s exactly the type of corruption this same-day registration of voting can bring back, and we don’t need (that) anymore,” he said.

In November, Joe Biden became only the third Democrat to carry Arizona in a presidential election since World War II, and with Mark Kelly’s victory, Democrats ended up holding both of Arizona’s U.S. Senate seats for the first time since Barry Goldwater unseated Ernest McFarland in 1952.

Bills that would have let the Legislature appoint presidential electors or override the certification of the electoral vote were introduced this year and drew national attention but appear to be dead for the session. The battle over the 2020 results does continue to play out more explicitly in the Senate, which won a court case in late February to get access to Maricopa County’s ballots and has said it plans to conduct an audit of them.

Meanwhile, bills to change election procedures are moving forward in both chambers of the Legislature. On March 8, the Senate voted 16-14 to pass a bill requiring more identification to vote early, during a contentious floor session in which Democrats said the measure would have a disparate impact on minority voting rights and Republicans recoiled at accusations of racism. Also pending in the Senate is SB1593, which would reduce the time people have to vote early and require ballots to be postmarked by the Thursday before Election Day.

Elections priority for GOP lawmakers

Winged Victory atop the Arizona Capitol Building (Photo by Gage Skidmore/Flickr)

Lawmakers return to the Capitol Monday with a full agenda of things they want, ranging from reenacting what the Supreme Court voided to deciding what to do about previously approved tax cuts that are subject to voter repeal.

But the biggest fights may be over how much to alter state election laws. And at least some of the proposals stem from the continued charges that the 2020 election was stolen from former President Trump despite numerous lawsuits and audits that have shown those claims have no basis in fact.

A few of what lawmakers are expected to debate could be considered relatively innocuous, at least on the surface.

For example, Sen. Wendy Rogers, R-Flagstaff, proposes to make the dates of the primary and general elections a state holiday. That would mean a day off for public workers.

The plan, however, could run into business opposition because the same measure says anyone registered to vote “may be absent from the service or employment” to go vote and cannot be penalized or having his or her pay docked. By contrast, current law allows just a three-hour window — and one that is selected by the employer.

But Rogers has a more far-reaching measure, setting up a new Bureau of Elections within the governor’s office to investigate any allegations of fraud in any state, county or local election.

That new $5 million agency would have the power to not only subpoena individuals but also get a court order to impound election equipment and records. It would issue public reports but would be unable on its own to bring criminal charges.

There also will be debates over the actual process of how people vote.

Arizona already uses paper ballots. But they are tallied by machines. That had led to a series of claims — never proven — that the tabulated results could be manipulated, whether through stray marks on the ballots or entirely forged ones.

House Speaker Rusty Bowers, R-Mesa, brushed aside calls to have ballots counted entirely by hand as impractical.

“If we’ve got seven months to wait for an election, then count away,” he said.

“Most people want it in a relatively short amount of time,” Bowers said. “And that’s what I’m interested in delivering.

But that excuse doesn’t hold water for Sen. Kelly Townsend, R-Mesa, who will head the Senate Government Committee, where Senate elections bills will be vetted.

“Do you want convenience or do you want secure elections,” she said. “Pick one.”

Anyway, Townsend said hand counts are possible.

Her solution? Break up each county into much smaller voting precincts. Then, on election night, the poll workers at each one would tally the ballots, with the machines there solely to compare the totals.

Even if the state sticks with machine counts, there are proposals to address questions of accuracy of the equipment.

Sen. J.D. Mesnard, R-Chandler, supports increasing to 5% the number of precincts where there had to be a random hand count of votes following each election to compare with the machine totals. The current figure is 2%.

And for those who think that doesn’t go far enough, Mesnard also wants to allow anyone who has the money to pay the cost to demand a full recount of any race.

Sen. Michelle Ugenti-Rita, R-Scottsdale, is looking at the issue through a different lens, altering the law on when there has to be an automatic recount.

In most cases, that occurs when the margin of difference between the top two candidates is less than 0.1% or 200 votes, whichever is less. Ugenit-Rita, who is hoping to become the Republican nominee for secretary of state, the state’s chief election officer, wants to move that up to 0.5%.

That change is significant. Democrat Joe Biden won Arizona and its 11 electoral votes by 10,457 over Trump, a margin of just 0.3%. Had this measure been in effect in 2020, it would have required a recount of the more than 3.3 million ballots already cast.

In this May 2, 2018, file photo, Republican Rep. Mark Finchem argues against an amendment to the state budget proposed by minority Democrats, at the Capitol in Phoenix. PHOTO BY BOB CHRISTIE/ASSOCIATED PRESS

Then there’s the question of the ballots themselves. And that has caught the attention of Rep. Mark Finchem, R-Oro Valley, who also is angling for the GOP nomination for secretary of state.

He has been pushing to replace the traditional ballots with paper that is specially encoded with things like watermarks, ballot identification numbers, QR codes and even embedded holograms.

There are other more far-reaching proposals, many stemming by claims by Trump and his supporters, even before the 2020 election, that early voting is subject to fraud.

Those claims continue, with GOP gubernatorial hopefuls Kari Lake and Matt Salmon signing a pledge to eliminate early voting. And Lake in particular continues to insist that Joe Biden did not win the vote, a contention she repeated in a Twitter post this past week claiming, without any proof, that 200 “bag loads of ballots” were dumped in Arizona.

So far, though, calls to eliminate the practice entirely have so far attracted little support.

In the 2020 election, of the 3.4 million people who voted, about 3 million cast early ballots. And many Republican lawmakers say their constituents like and use the opportunity to vote by mail.

But concerns about their validity remain.

Townsend wants to let people continue to get their ballots in the mail. But she seeks to address the allegations of dumped ballots by requiring voters to return them, in person, to a designated voting location.

In this November 6, 2020, photo, Arizona elections officials continue to count ballots inside the Maricopa County Recorder’s Office in Phoenix. The Arizona Senate got affirmation from a court that its subpoena for Maricopa County’s 2.1 million ballots and election equipment for an audit of the 2020 election is valid.

Rogers already has introduced a variant, saying that counties cannot set up drive-up drop boxes for ballots, saying that, except for people with disabilities, they have to walk it into a polling place or election office where someone is monitoring. But that bill would appear to continue to allow mail-in ballots.

And Mesnard continues to push for a requirement for anyone who casts an early ballot to confirm their identity with one of several forms of identification, like a driver’s license number or last four digits of their Social Security number. Right now the only verification is done by county election officials who compare the signature on the ballot envelope with those already on file.

Senate President Karen Fann, R-Prescott, said she is looking for measures that are designed to make it easy to vote and hard to cheat.

“I know that seems to be a cliche right now,” she said. But Fann said she is interested in discussing issues like the kind of paper used for ballots as well as ensuring that the chain of custody is not broken from the time a ballot is dropped into a box until the final count is over.

Townsend has a proposal to address the latter, making it a crime for anyone to “misplace” a ballot as well as to say that those which are not included in initial tallies are invalid, even if they turn up later, and cannot be counted.

There may be even more radical proposals waiting in the wings.

Last year Rep. Shawnna Bolick, R-Phoenix, crafted a measure allowing the Arizona Legislature to overturn the results of a presidential election, even after the results had been certified and even after Congress had declared the winner, right up until noon on Jan. 20 when the president is sworn in.

Bolick did not respond to inquiries on whether she plans to reintroduce the measure.

There are other related measures that don’t directly affect how elections are run or votes are counted but also could influence the results.

Sen. Sonny Borrelli, R-Lake Havasu City, has been pushing for an investigation of social media platforms and search engines. He contends that some of these have been very biased towards one political party over another.

For example, he said, the algorithms used by search engines to determine results when someone asks a question can be altered so that certain answers or subjects come up first. And there have been claims that sites like Twitter and Facebook have a liberal bias, an argument based in part on decisions by some sites that banned Trump after they said he violated their policies by inciting people to violence, particularly ahead of the Jan. 6 riot at the U.S. Capitol.

What makes this an election-related issue is that Arizona law requires the reporting of “in-kind” contributions to a candidate, meaning a donation not of cash but of a service with financial value. And those who violate campaign finance laws with unreported in-kind donations can be fined.

Employment law attorneys say Biden vax edict legal

Gov. Doug Ducey says it’s illegal and “will never stand up in court.”

And Attorney General Mark Brnovich says it is taking “federal overreach to unheard of levels.”

But attorneys who specialize in labor law say the decision by President Biden that large employers must have all workers vaccinated is well within the power of the federal government. And companies that listen to the Republicans and ignore the requirement could find themselves facing stiff fines.

In his Sept. 9 announcement, Biden said the Occupational Safety and Health Administration is developing a rule to require all companies with 100 or more employees to ensure their workforce is fully vaccinated. The alternative is requiring any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.

The administration estimates it will impact more than 80 million workers in the private sector.

Normally, that kind of rule change takes time, including hearings. But the president said OSHA will implement an “emergency temporary standard” to put it into effect.

“This is not the power vested with the federal government,” Ducey said of the order. And he promised resistance against what he called a “dictatorial” approach.

“What the Biden administration is doing is government overreach, pure and simple,” the governor said.

Brnovich promised to “take all legal recourse to defend our state’s sovereignty and the rights of Arizonans to make the best healthcare decisions for themselves.”

And House Speaker Rusty Bowers and Senate President Karen Fann, also both Republicans, call it “an illegal government mandate.”

But Shefali Milczarek-Desai, director of the Workers’ Rights Clinic at the University of Arizona College of Law, said the actions by the administration are neither as questionable nor as outrageous as the Republican politicians contend.

The key is that the plan is rooted in the authority of OSHA to ensure that employers have safe workplaces.

“Not only is this something that OSHA can do but it’s something OSHA’s always done in the past,” she said.

The key Milczarek-Desai said, is a federal statute that allows for emergency temporary standards “when workers are exposed to ‘grave danger.’ ”

“The exposure here can be toxic substances, it can be something that is physically harmful,” she explained.

“Or, interestingly, the statute also says ‘from new hazards,” said Milczarek-Desai who also is a practicing attorney. “And that can be where Covid is coming in.”

Attorney David Selden agreed.

“They do that under the ‘general duty’ clause which requires that all employers have a workplace free of recognized hazards that can cause serious injury,” he said. And while that may be “ill-defined,” Selden said it’s broad enough to sweep in Covid-related issues.

It is true, he said, that Arizona has its own OSHA plan and program, funded in part by the federal government and administered by the state Industrial Commission. But he said that does not make Arizona free to ignore federal rules, as the federal law requires the state program be “at least as effective” as the federal plan.

“Once federal OSHA adopts a standard, it will be mandatory for Arizona to enforce the same standard,” said Selden who normally represents employers in legal issues, including OSHA compliance.

Attorney James Barton, who represents worker interests, said he believes legal efforts to void the mandate will fall flat, given the agency’s statutory duties.

“I think you’d have a hard time saying that this language isn’t about workplace safety,” he said. “It sure seems like it is to me.”

Nor is this unprecedented.

“There have already been OSHA reviews and inspections based upon Covid protocols,” said Selden. “We have situations, even in Arizona, where an employee may make a complaint to OSHA.”

Usually, he said, it involves people who want to work at home because they say they’re being asked to work too close to others, especially if they are not wearing masks. That forces him, as an attorney for the company, to respond to state OSHA officials to assure them that there are policies in place to protect the health of the workers.

That can include leaving every other cubicle open, testing workers and even taking their temperature when they report to work. But citations remain possible.

But aren’t vaccines something different?

Milczarek-Desai doesn’t think so.

She said it is up to OSHA to show that there is that risk of “grave danger” when workers have to be in proximity with others who are not vaccinated. And if that’s the case, Milczarek-Desai said, requiring vaccinations “is something that comes within OSHA’s purview.”

“It’s a health and safety measure that impacts the workforce,” Barton agreed. “To me, it doesn’t seem any different than any other health and safety measure.”

Barton also noted there is an alternate option: weekly testing.

“So it doesn’t mandate vaccines,” he said. And Barton said there always are the requirements for accommodations to be made in cases where there are medical reasons or someone’s sincerely held religious belief.

If there is a potential weak point in the plan, Selden said it is that fact that is will apply only to companies with 100 or more employees may provide some basis for a challenge.

“A worker in a workplace with 75 employees could be exposed to the exact same risks as someone who works for someplace with 101 employees,” he explained.

“Why would there be a different standard for one than the other?” Selden continued. “That kind of gives the appearance this is a politically driven thing rather than pure safety because every worker should be entitled to protection, particularly when the grounds for this are that it’s a grave risk.”

Barton, however, said he thinks the exemption for smaller firms might be upheld.

He said that precedent has been set in other laws. For example, federal statutes on age and race discrimination apply only to companies with 15 or more employees.

Milczarek-Desai said there’s something else that could become an issue.

Take, for example, a company that has more than 100 employees but most of them work from home. She said the firm might be able to make a case for an exemption.

But Milczarek-Desai said she expects challenges “to be quite limited in scope.”

Selden said there’s a word of caution for employers who implement the new policy: address employee concerns on an individual basis and avoid “uniform edicts and ultimatums that cause people to be resistant to a top-down mandate.” He also said companies must take care to maintain medical information about employees as confidential, including vaccine ID cards and Covid test results.

And Selden said employers should not have a retaliatory attitude towards those who are resistant to vaccines.

English immersion repeal priority of schools chief, Dems, GOP

Group of Multiethnic Diverse Hands Raised

Reyna Montoya was a math whiz, but she didn’t speak English when she was 13.

Neither did the kid from Russia who sat beside her four hours a day, nor the one from China nor the one from Afghanistan.

She and her classmates were there together because of Proposition 203, which banned bi-lingual education in favor of an “English immersion” approach.

Republicans and civic groups backed the 2000 ballot measure, saying that by forcing non-English speakers to speak English – and only English – in school, would allow them to pick up the language faster.

It was an argument that many voters intuitively understood. But it hasn’t been backed up by the data.

Montoya, the 28-year-old founder of Aliento, a community organization that helps undocumented kids, said being forced into the four-hour English-immersion bloc kept her from moving into an honors math class at the suggestion of her teacher, and it put her behind in all her other studies.

Reyna Montoya (Photo by Diego Lozano/Aliento)

“I was really good at math, but because of the bloc I couldn’t make it work with my schedule … so I felt discouraged that all that seemed to matter about me wasn’t that I was good at math, but that I could not speak English,” Montoya said.

The days of English immersion may be numbered as Democratic Superintendent of Public Instruction Kathy Hoffman plans to make repealing the voter-approved law a legislative priority in 2020. The Legislature’s Democratic Caucus has also made a repeal one of its top priorities and Republicans are also on board.

Hoffman came close last year to getting a full repeal of the English-only education law referred to the 2020 ballot, but the measure sponsored by Rep. John Fillmore, R-Apache Junction, fell short.

The House approved Fillmore’s HCR 2026 on a 59-1 vote, and it flew through the Senate Education Committee unanimously. But in the waning hours of the legislative session, the repeal was left to die, never receiving a full Senate vote.

Still, lawmakers backed serious reforms to the English-only policy. SB1014, sponsored by Sen. Paul Boyer, R-Glendale, quickly made it through both House and Senate unanimously and became one of the first bills Gov. Doug Ducey signed into law in 2019. That bill reduced the time English Language Learners, known in schools as ELL students, have to spend in an English immersion class from four hours per day to two.

But because the voter-approved initiative mandates some kind of “English immersion” program, that’s about all legislators can do – they can’t kill the policy outright without getting voter approval.

For opponents of English immersion, it was a huge step against a policy they say has failed Arizona children for nearly 20 years.

But it wasn’t enough to water down the policy

Marisol Garcia, vice president of the Arizona Education Association, said new research and data is what can be attributed to proponents of Proposition 203 coming around to now support repealing it altogether.

She said when the law was first introduced in Arizona, people just didn’t understand how linguistics or learning a second language worked. Putting students in these immersion classes was “hurting our kids.”

“Part of being an Arizonan and American is learning from each other,” Garcia said.

Nearly two decades later, Arizona’s estimated 83,000 ELL students are struggling. State data shows students who are struggling the most on the AzMERIT test are “Limited English Proficient.” Those non-native English speakers are only passing at a 4% and 9% rate in English and math, respectively.

Stuck

Prop. 203 calls for ELL students to spend one year in immersion classes, then, when they can demonstrate a working knowledge of the language, they’re supposed to transition into traditional classes.

Instead, ELL students often languish in ELL classes for years.

A report from the State Board of Education found “significant deficiencies” in Arizona’s Structured English Immersion model, and concluded that Arizona’s model segregates students “both physically and academically,” doesn’t allow access to rigorous courses, doesn’t provide proper training for teachers, and is unrealistic in its goal of transitioning students into mainstream classrooms in one year.

But Montoya was determined. She said she realized quickly that if she didn’t know English well enough, she wouldn’t be able to access the same opportunities as her peers even if she was succeeding in her other classes.

“I learned [the language] pretty fast and was fortunate to test out after a year [or so],” she said.

Because they’re stuck in extended English classes, those ELL students often fall behind in other required classes and can’t graduate on time.

The most recent data from the Department of Education shows the 2017 graduation rate of Limited English Proficient students is roughly 40%.

Montoya, who is from Mexico, said she fell behind in her other classes because of the time commitment she had to learn English in a class with just three other students from different countries.

She said it was very difficult because it was a requirement to be in a four-hour bloc where she would then have to go to her other classes that only were in English and she didn’t speak the language yet. So she fell behind.

“I benefited more being in those mainstream classes because I was able to talk to native speakers,” Montoya said.

Isolated

And while they’re stuck in that immersion program, they’re surrounded by other non-English speakers – almost always Spanish speakers.

“I felt isolated, no matter how hard I worked it was never good enough,” Montoya said. “It created a lot of stress and anxiety.”

Which is part of the reason Fillmore introduced his ballot referral.

The effort from Fillmore would allow schools to mix native English speakers with students learning English as an additional language in the classroom, commonly referred to as bilingual education or dual-immersion.

Fillmore suggested they take a “military or business” approach to this idea.

“Throw them in a room for a couple hours and, believe me, after a week they’ll both be able to speak a little bit of each other’s language,” he said.

Hoffman’s spokesman, Richie Taylor, said the Arizona Department of Education has not yet broached the idea with lawmakers, who are already talking about getting this accomplished.

Rep. Michelle Udall, R-Mesa, said she has seen data that would support the repeal being a good idea.

“Studies are showing more and more that if you can teach students in both languages simultaneously they can do much better in all subjects,” Udall said. Udall chairs the House Education Committee and also said the English-only law is not more successful than the previous program.

Udall said statewide polling she saw during the last session looked promising that voters would also support the repeal in 2020.

Taylor also said there seems to be a “public appetite” for repealing the law, as its deleterious effects have become more apparent to policymakers and the public in recent years.

Outside of Udall, Democrats in the Senate have already put repealing Proposition 203 on its list of priorities for the next year in a 15-page document titled “A Tale of Two Sessions.”

Sen. Sylvia Allen, R-Snowflake, who voted for Fillmore’s measure last session in committee, said she does not plan to introduce any bill next session on this matter.

“However, if any other legislator brings forward a bill that has a good proposition, I will be glad to hear it in my committee,” she said via a spokesperson.

Allen said she didn’t know why the bill never received a full vote from the Senate.

On the final day of the legislative session, Senate President Karen Fann introduced a floor amendment to remove two words and add a comma, thus effectively killing the bill because it would have had to go back to the House for a final read.

“It’s a tricky inside baseball move, but obviously someone was against [the bill] and wanted to slow it down to give it an excuse for it not to go through,” said Sen. Martin Quezada, D-Glendale. “The excuse was that there wasn’t enough time.”

Sen. Kate Brophy-McGee, R-Phoenix, who also sits on the Senate Education Committee, said she’s hopeful this referral will get done next session.

“Everybody, even my most conservative colleagues are for the repeal and that has been the case both times legislation has been offered,” she said. “There are still some hurdles to overcome, but I am absolutely certain we will get there next session.”

Even amid COVID, scandals set the tone at the Legislature

Arizona's historic Capitol (Photo by Gage Skidmore/Flickr — Arizona’s historic Capitol (Photo by Gage Skidmore/Flickr

The 2020 session was, in some ways, the story of two scandals: one that rocked the Capitol and continued reverberating weeks after the Legislature adjourned, and one that quickly fizzled into nothing more than off-color jokes and innuendo on the campaign trail.

From the outset, the cases of Rep. David Cook and Sen. Michelle Ugenti-Rita appeared similar. Both stood accused of engaging in inappropriate relationships with lobbyists: Cook in a seemingly consensual affair that raised concerns about conflicts of interest, while Ugenti-Rita is alleged to have sexually harassed a female lobbyist and used her position as a powerful lawmaker to intimidate the woman.

The handling of the two cases, however, couldn’t have been more different.

Cook’s case was quickly referred to a special House ethics committee, which hired a legal team to conduct a months-long review of the Globe Republican’s conduct, a probe that continued even as the coronavirus sidelined most other legislative business. Senate Republicans, meanwhile, brushed off allegations against Ugenti-Rita as irrelevant to current Senate business because Ugenti-Rita was not a senator at the time of the alleged incidents of harassment. The allegations against her had surfaced in court documents in an ongoing legal battle between the Scottsdale Republican and former Rep. Don Shooter, who was expelled after himself facing allegations of sexual harassment.

The investigation into Cook stems largely from dozens of intimate letters he wrote to agricultural lobbyist AnnaMarie Knorr over a 45-day period in which he refers to “coveting another man’s wife” and his personal struggles with drinking and women. The Yellow Sheet Report, a sister publication of the Arizona Capitol Times, first published contents of those letters in January.

At the time, House Speaker Rusty Bowers hadn’t yet read the letters, though he said he wasn’t happy with the situation. By February 4, Bowers confirmed that the House Ethics Committee had received notarized complaints relating to Cook’s apparent affair with Knorr, and that it would investigate the matter.

One of those complaints went beyond the scope of the alleged affair, accusing Cook of having used his influence to intervene in plans for Pinal County to seize Knorr’s farm, which is in debt.

Bowers appointed Rep. John Allen, chairman of the House Judiciary Committee, to lead the House Ethics Committee in this probe. Allen brought on outside attorneys from Ballard Spahr, who up until last week engaged in a lengthy investigation, gathering documents and witness testimony that culminated in a 34-page report.

In the process, the committee angered Cook and his attorneys in just about every way possible, and waged protracted battles over document discovery that went largely unresolved. Though Cook eventually sat down for an interview, the probe’s investigators had to prod him to get even a portion of the documents they requested, both through normal channels and through a legislative subpoena, the report says.

The committee also ran afoul of several other Republican lawmakers, who agreed with Cook’s attorneys that the committee was leading a politically motivated witch hunt that exceeded the scope of the lawmaker’s responsibilities and actions while in office.

Some of those same lawmakers have chafed at other committee’s investigations, notably into Rep. Don Shooter, the subject of multiple claims of sexual harassment.

But Bowers held firm, albeit quietly, in his support of Allen’s work.

“The thing I have felt most effective is to make sure that you have a process that’s treated equally of every person,” Bowers said. “If there’s a complaint, the complaint will be given serious consideration. If the complaint is not found to have merit, the committee makes that decision, and they have – there have been other complaints which the committee has not chosen to pursue, right? So, I think that there is a method that was adopted and accepted by the membership.”

But some lawmakers say the process isn’t as equitable as Bowers would claim.

“The culture down there at the legislature is that if you get sideways with the speaker, you get punished,” said Rep. Kelly Townsend, R-Mesa, who has been one of Cook’s fiercest defenders.

Complaints about lawmakers are left up to the House Speaker or Senate President — and the ethics committees they appoint — to handle. And that, Townsend said, leads to investigations and disciplinary actions taken based on how leaders feel about individual lawmakers.

The House fails in not having a standard human resources department, Townsend said. She has wrestled with the House’s way of investigating ethics complaints since she and Sen. Michelle Ugenti-Rita first reported sexual harassment they experienced to House leadership years ago.

Bowers countered that ultimately, it’s up to that committee to run investigations, not necessarily House leadership, even while the Speaker picks the members of an Ethics Committee.

“The caucus expressed early in my desires to be speaker that they were not fully on board with how other ethics things have happened in the past,” he said. “And I said we will establish that there is an Ethics Committee, just like any committee. The committee has opportunities, powers, authorities, responsibility, but the committee will do its deal here. Not the Speaker.”

In the end, it may not matter much. Cook has until June 19 to provide a formal response to the committee. At that point, it will meet once more to vote on further action – if any. But even if the committee’s members recommend that the Legislature expel Cook, there’s currently no venue to do so.

“The reality is that the session is over, and now they can’t throw him out,” said Barry Aarons, a long-time lobbyist around the Capitol.

Even if the Legislature were to convene in a special session after the August primary, a vote to dismiss Cook would be a tough sell.

“If he wins his primary, which I think he is very capable of doing, it’d be tough to say the voters sent him back [to the Legislature] and now we send him back,” Aarons said. “For anyone who is unhappy with Rep. Cook – and I’m not one of those people – I think then options have kind of been taken off the table.”

In Ugenti-Rita’s case, those options were taken off the table long before the session ended. Shortly after the allegations against her became public, Senate Democrats called on Republicans to launch an investigation, but stopped short of filing a formal ethics complaint.

The woman who accused Ugenti-Rita hadn’t wanted her case made public in the first place, and no one else stepped forward with complaints. Senate President Karen Fann dismissed calls from Democrats to investigate — and questions from reporters about why she wasn’t launching an inquiry — by saying that the issue was being settled in a lawsuit that didn’t involve the Senate.

“We have a lot of extremely important bills that are going to affect a lot of people’s lives, and that should be the focus,” Fann said in February, nearly a week after the allegations against Ugenti-Rita became public. “To keep stirring the pot on something that is already in litigation and has already been investigated, quite honestly, I’m very saddened that that’s where the media would rather go instead of let’s talk about the policy and all the good stuff that’s going on around here.”

It’s very likely that in both cases, voters will be the ultimate judge.

The details of allegations against Ugenti-Rita are well-known in her Scottsdale-based district even if the Senate never truly acknowledged them, said her primary challenger, Scottsdale attorney Alex Kolodin. It was one of the reasons he wanted to run against her, Kolodin said.

“The people of Scottsdale and Fountain Hills, who are tremendously accomplished people, that they would have a representative who did them proud as they deserve – that’s very important,” Kolodin said.

But Sen. Frank Pratt, R-Casa Grande, who’s running for one of the seats in Cook’s district now that Rep. T.J. Shope of Coolidge is mounting a Senate run, hasn’t made hay out of the issue. Neal Carter, another challenger in the district’s House race, has gone easy on Cook on the campaign trail. In any event, the scandal hasn’t hurt Cook’s fundraising ability.

The scandal-ridden Legislature – Cook and Ugenti-Rita are only the two most recent lawmakers to get into trouble – isn’t conducive to productivity, said House Minority Leader Charlene Fernandez, D-Yuma.

“It cast a shadow on everyone,” she said. “I’m thinking that maybe that is what hindered the work that the majority was doing, or I should say, not doing – they were focusing on individual members, rather than the greater good.”

Fernandez hopes that the House will adopt a code of conduct that specifically prohibits certain behaviors.

Bowers directed the House Ethics committee to come up with a code of conduct in 2019 in the fallout of the Don Shooter scandal, though he only did so under pressure from Fernandez’s caucus. But while Democrats even drafted a code, lawmakers have never actually adopted one.

“We worked really long and very hard on it, and we presented it to the Ethics Committee and to the Speaker to no avail,” Fernandez said. “That should have been adopted, so we know where we stand, what you have to do to be a member in good standing. And if you’re not there, then you need to move on.”

Before Bowers’ tenure, then-Speaker J.D. Mesnard sought to draft a code for staff, but one never materialized following disagreements over its content with Democrats. Upon Mesnard’s departure for the Senate, it was left up to Bowers, and even though House rules say that the chamber “shall” adopt such a code, in addition to a written harassment policy, no such code was written.

The Senate similarly has no formal code of conduct. In 2018, then-Senate President Steve Yarborough never appointed members to a joint committee that set out to write a code. Appetite for a set of written rules of comportment didn’t grow in the following two years.

Bowers pushed back on the idea that the adoption of a code of ethics that specifically interdicted romantic relationships between lobbyists and lawmakers is the best path forward. Rather, he said, the simple first provision of House Rules – that the chamber may punish members for disorderly behavior – should be enough.

“And if you look in the rule book, if you just read the first page, it says what a member is required to remember about his or her deportment,” he said. “Could it be interpreted differently by different people seated on a committee or different leadership? Yes, it could. But that’s why there’s a rule book.”

Aarons agreed with Bowers that adopting a code of conduct might not help.

“As far as romantic relationships … you can prohibit it, but you have to make some decisions as to where you are going to draw the line,” he said.

Bowers said that a list of specific violations could lead to situations where lawmakers who are acting unethically get off because their cases don’t exactly match the behaviors described in a code of ethics.

“I don’t want to have periods and dashes and crossed ‘T’s’ and dotted ‘I’s’ because then you get a lawyer who says, ‘Oh, but he didn’t do exactly what that says,’” he said. “And this is not a court of law. This is the Legislature.”

Fann acting like a child

Dear Editor:

I’m frustrated and upset that Arizona Senate President Karen Fann continues to fuel false information and ignore that facts regarding the integrity of the November 2020 election. No abnormalities were found in either the hand or forensic audits. The certification of votes was verified by a Republican governor and other Republican officials who confirmed the votes were accurately counted and the 2020 elections results were fraud free, secure, and fair.

Senator Fann quickly forgot that a majority of down line Republican candidates on the same ballot were winners in Maricopa County in 2020. It is baffling that this leader is like a small child who didn’t get her way, so she had a complete meltdown that has affected millions of voters. Her recount ploy is very dangerous for future elections. She is saying that if your party doesn’t win, do anything legal or not to reverse the outcome. Are Arizona voters really in step with this trend? It has been said many times during this fiasco, there may be no democracy in the next election. Watch out!

Joanie Rose

Scottsdale

Fann demands records on audit from Hobbs

From left are Katie Hobbs and Karen Fann

In a sign the Senate audit, which was supposed to be only about the 2020 election results, is now expanding in scope, Senate President Karen Fann now wants documents from Secretary of State Katie Hobbs.

In a public records request, the Prescott Republican is demanding any communications Hobbs has had with anyone about the audit and the litigation it has produced. And Fann is casting a wide net, seeking not just messages with federal, state and local officials but also political parties, volunteers, consultants, vendors, formal or informal advisors, fundraisers and the media.

“I can’t disclose what we’re looking for at this time,” Fann told Capitol Media Services, including how any of what she wants fits into the Senate’s need to investigate the election conduct and results as part of its duties to review existing laws and craft new ones.

The move comes as Hobbs, a Democrat, has publicly accused the auditors of “making it up as they go along,” and saying she has no confidence in whatever is produced by Cyber Ninjas, the firm Fann hired to conduct the review.

For the moment, Hobbs aide Murphy Hebert said her boss, is reviewing the request.

“At this point it appears to be the kind of nebulous fishing expedition that we’ve come to expect from the Senate president,” she said. And Hebert called it “ironic” that this comes even as Fann has hired outside counsel to fight requests for public records about the audit, “including who’s actually funding the partisan ballot review.”

The development comes as former Secretary of State Ken Bennett, who was Fann’s initial choice as her liaison with Cyber Ninjas, said he has been locked out of the Veterans Memorial Coliseum over a dispute about information he provided to outsiders.

Meanwhile, Randy Pullen, whom Fann also tapped to work with the auditors, said the final counting of the ballots was completed Tuesday. He said they are being packed up for return to Maricopa County.

Pullen said a report on the audit could be prepared by the middle of August.

But all that depends on what new information is obtained from the county. And that goes to Fann’s separate decision to now issue new — and long expected — subpoenas to the county supervisors for items that Cyber Ninjas contends is necessary for it to complete its work.

Here, too, the scope is broad, ranging from envelopes in which early ballots were received to passwords, security keys or tokens to access the ballot tabulation devices. And then there’s the demand for the county’s routers, the devices that show traffic between computers as well as any links to the internet.

All that goes to the contention by the auditors that the county’s election system had somehow been compromised or hacked. That follows reports that the county’s voter registration system had been breached.

The issue of those routers — and what those who question the fact that Joe Biden won the state’s 11 electoral votes — has become so heated that former President Trump commented on it during the rally this past weekend in Phoenix, telling senators they must pursue that demand.

County officials say the election equipment itself was never connected to the internet, citing their own audit which they say confirms that fact.

But the fight goes beyond that, to the claim by Sheriff Paul Penzone that giving outsiders access to the routers could compromise law enforcement because it provides a road map of everyone communicating with anyone else in the county.

The subpoena also wants up-to-date voter records along with notations of any changes made. That goes to allegations by Cyber Ninjas that there is evidence some people were permitted to vote who had not registered by the deadline.

County spokesman Fields Moseley said any response will have to wait until the supervisors meet and consult with their legal counsel. But he said the supervisors believe “the county has already provided everything competent auditors would need to confirm the accuracy and security of the 2020 election,” a slap at Cyber Ninjas which has never performed this kind of audit before.

And Jack Sellers, who chairs the board, already has made his feelings quite apparent.

“I want to make it clear: I will not be responding to any more requests from this sham process,” he said in May.

The board is set to meet Wednesday. They don’t have a lot of time to respond: Fann has demanded that everything they want be produced at the Senate at 1 p.m. Monday.

That’s also the same deadline Fann set for Dominion Voting Systems, from who the county leases the counting equipment, to produce all the passwords necessary “for all levels of access, including, but not limited to, administrator access.” County officials, who have also been asked for that information, say they can’t produce what they don’t have.

Dominion is making it clear it intends to fight.

“Releasing Dominion’s intellectual property to an unaccredited, biased, and plainly unreliable actor such as Cyber Ninjas would be reckless, causing irreperable damage to the commercial interests of the company and the election security of the country,” a spokeswoman said in a prepared comment. “No company should be compelled to participate in such an irresponsible act.”

All this could pave the way for a new round of litigation about the extent of the ability of Fann to demand whatever she says is necessary for the Senate to investigate the 2020 election.

Strictly speaking, Fann does not have the necessary 16 votes in the Senate to hold the supervisors — or anyone — in contempt for failing to comply with the subpoenas.

Sen. Paul Boyer, R-Glendale, balked at an earlier contempt vote. And since that time, Sen. Michelle Ugenti-Rita, R-Scottsdale, initially a supporter of the audit said she has become soured on what has happened.

“Sadly, it’s now become clear that the audit has been botched,” she wrote in a Twitter post. “The total lack of competence by Karen Fann over the last five months has deprived the voters of Arizona a comprehensive accounting of the 2020 election.”

But just because the Senate can’t hold anyone in contempt does not leave Fann powerless.

The last time the supervisors sought to fight a subpoena they lost. Maricopa County Superior Court Judge Timothy Thomasson said that Fann,, as Senate president, has broad powers to issue subpoenas for anything related to a legitimate legislative purpose. And he said the Senate is entitled to review the election results to determine whether changes are needed in election laws.

More to the point, the judge said there is no requirement for a majority of the Senate to approve issuance of a subpoena.

Fann not running for re-election

Senate President Karen Fann is calling it quits after next year’s session.

The Prescott Republican, who wouldn’t have been term-limited out until 2024, announced Monday afternoon that she will not be running for re-election. However, she does plan to stick around as Senate president in 2022.

“It has been a privilege to advocate on behalf of Arizona citizens in my 12 years at the state Legislature and the honor of a lifetime to serve as Senate president,” Fann said in a written statement. “I look forward to a successful session in 2022 advancing policies that benefit all Arizonans, and then enjoying the life my husband and I have built for ourselves in retirement with our family.”

Fann’s departure means, no matter what, both chambers of the Legislature will have new leadership in 2023 even if Republicans keep the majority – House Speaker Rusty Bowers, R-Mesa, is term-limited.

This year, much of the Senate’s time has been spent on the audit of the 2020 election results in Maricopa County the chamber ordered and oversaw. Fann has been a vocal supporter of the audit, which drew national attention on Arizona and which some Republicans hoped would lead to the results of the 2020 election being overturned, although Fann has said that was never her goal. Democrats have heavily criticized the “fraudit,” as they’ve called it, as a partisan exercise that has been based on and provided fuel for conspiracy theorists and undermined confidence in elections.

The auditors’ report found no evidence of widespread fraud, although it did raise concerns about some election processes.

Attorney General Mark Brnovich is investigating some of the questions in the Cyber Ninjas’ audit report – former Maricopa County Recorder Adrian Fontes was interviewed last week by an agent from Brnovich’s office – and the audit is also expected to weigh heavily on next year’s legislative agenda, with Fann and other Republicans calling for new laws in response to the Ninjas’ findings.

Fann was involved in local politics in Yavapai County before running for the Legislature, joining the House in 2011 and serving there before becoming a senator in 2017. She has been Senate president since 2019, beating Sen. J.D. Mesnard, R-Chandler, who had also sought the position. She succeeded former Sen. Steve Yarbrough, who didn’t run for re-election in 2018 due to term limits. Fann was the second woman in history to run the Arizona Senate; Brenda Burns, who had the job from 1997 to 2000, was the first.

Mesnard wished Fann the best Monday.

“There are a lot of unknowns right now with the legislative maps, etc., but I will be giving serious consideration to leadership as we approach the next Legislature,” he told the Capitol Times.

Mesnard added that, “while I’m sure people are starting to talk leadership, and all the more now with (President) Fann’s announcement, but we have a whole other session in front of us with a leadership team in place, so it seems a bit early to start talking about it. I want to be respectful of the team we have there now.

Yellow Sheet Editor Wayne Schutsky contributed.

Fann passes on experienced auditor, picks cheapest

Officials guide a truck into the loading area prior to unloading election equipment into the Veterans Memorial Coliseum at the state fairgrounds, Wednesday, April 21, 2021, in Phoenix. Maricopa County officials began delivering equipment used in the November election won by President Joe Biden on Wednesday and will move 2.1 million ballots to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Matt York) — Officials guide a truck into the loading area prior to unloading election equipment into the Veterans Memorial Coliseum at the state fairgrounds, Wednesday, April 21, 2021, in Phoenix. Maricopa County officials began delivering equipment used in the November election won by President Joe Biden on Wednesday and will move 2.1 million ballots to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden’s victory was legitimate can recount them and audit the results. (AP Photo/Matt York)

Arizona Senate President Karen Fann passed up an opportunity to hire an experienced auditing company to conduct its ballot review, opting instead for a company without experience and whose founder has said he believes President Joe Biden stole the election.

Arizona Capitol Times received public records from the Senate on offers to conduct the audit of Maricopa County’s 2.1 million ballots from the November election.

The records request revealed only two firms that put in an official offer – neither of which was Cyber Ninjas, the group Fann ultimately selected. Clear Ballot Group, a Massachusetts firm that has conducted election audits in several states, including a statewide audit in Maryland and Vermont, offered to do the audit within six weeks for $415,000.

On its website, the company says it “offers much more than a post-election audit solution. It’s the only system capable of tabulating other system’s ballots to provide an independent comparison of results for purposes of post-election audits.”

Keir Holeman, Clear Ballot’s vice president of technical services, wrote in the proposal letter that the group is also conducting audits for multiple counties in Florida and New York as well as projects in South Carolina and Colorado.

“It is this experience that makes us confident we can help you with your desire to audit the results in Maricopa County,” Holeman wrote.

Holeman did not return multiple attempts for comment.

One potential hiccup for the group is that they only conduct audits of election results – not equipment and technology.

Cyber Ninjas and its subcontractors have pledged to conduct a full “forensic” audit of the equipment, including using “kinematic artifact” detection technology (essentially looking at folds in ballots to determine if it’s a fake mail-in ballot) developed by Jovan Hutton Pulitzer, an inventor who years ago developed a handheld, cat-shaped scanner that was dubbed “one of the most ridiculed products of the internet era” by “PC World.”

Pulitzer acknowledged recently that he would have some involvement in the Senate’s audit.

He claimed that “technology” he developed is being used.

“I am happy to confirm that #ScanTheBallots for #KinematicArtifact detection is being used,” he wrote on Twitter, calling the auditing team hired by the Senate “one of the most impressive and qualified auditing teams ever assembled.”

A quick dive into Holeman’s online presence shows he’s basically the polar opposite of the Cyber Ninja CEO, Doug Logan. Holeman used to be an elections official in Ohio and said he doesn’t believe the election was stolen.

According to his LinkedIn, he was the election coordinator for the Montgomery County Board of Elections, then served as a regional director for Diebold Elections, the group known for election problems during the 2000 presidential recount in Florida. (Dominion now owns Diebold.)

Holeman then went on to become the director of the Warren County Board of Elections and eventually found his way to VOTEC Corporation before starting at Clear Ballot in August 2017.

Holeman created his Twitter account in January and his first post was a retweet of the FBI looking for information about insurrectionists. His entire feed is now mostly made up of critiques of Republican congressmen over the January 6 riot at the U.S. Capitol and few retweets of others commenting on why they think President Trump should be convicted by the U.S. Senate after he was impeached for a second time.

Of course, that presence won’t ingratiate an auditor to Senate Republicans, but Fann has made clear that a person’s tweets shouldn’t disqualify them from auditing the election on the Senate’s behalf.

“Just because somebody found some Tweet that’s within some archive program that none of us ever would have done it (the search) doesn’t mean anything,” Fann said about reporters surfacing old tweets from Logan showing biases about the election results.

It’s unclear if Fann considered Holeman’s proposal.

Fann and the Senate skipped out on going to the floor on April 21 in favor of going to a photo opportunity at the border with Gov. Doug Ducey, and her spokesman did not answer several questions.

Fann additionally passed on hiring a cybersecurity company called Intersec Worldwide, which pitched a process that would take roughly 20,000 hours and cost more than $8 million, not including the auditors’ travel and expenses. Email records show Fann interviewed the company in early-March.

Intersec’s pitch included biographies for each of its top executives and then broke down its scope of work into five categories: Engagement, evidence preservation, forensics analysis, forensics reports of results and testimony/defense findings.

David Hughes, the vice president of sales, made the official pitch and said the engagement and evidence need to happen “immediately regardless of who does the work.”

The engagement phase would include setting up legal agreements, contracts and retainers and would take roughly 500 hours. Securing the evidence, including taking forensic images and copies of hard drives, would take about 2,500 hours, according to the proposal. Those two projects would cost $1.45 million. The actual audit would tack on another $6.6 million.

Hughes would not answer any questions about the interview with Fann.

What’s still unclear is how many groups Fann actually interviewed, if Cyber Ninjas received an interview at all and why the Senate took the cheapest offer when the audit liaison Ken Bennett, Arizona’s former secretary of state, repeatedly remarked how $150,000 would not be enough to conduct the full audit.

Bennett said that the auditors will be accepting outside sources of money, which will not be subject to Arizona’s public records law. He said he hopes for transparency, but also said he wouldn’t do anything to ensure the auditors would be transparent about donors.

“The only agenda that I’m going to make sure happens is that we do the audit in a fair and open and transparent and accurate way,” he said. “If the agenda of somebody wanting to contribute funds is anything other than that, then it’s a waste of their money.”

Fann says audit, county counts don’t match

Senate President Karen Fann went on the radio Tuesday to say the ballot counts of the election audit she’s leading and Maricopa County’s are different.

Fann told conservative radio host Mike Broomhead she doesn’t know the difference between the Cyber Ninjas’ count of ballots and Maricopa County’s, but it doesn’t match the 2,089,563 tabulated by the county.

Broomhead, a radio host for KTAR News who has been critical of the Senate’s partisan audit, also pressed Fann on whether she is confident in the work of Cyber Ninjas, the company hired to do the recount. Fann said she is, and took the opportunity to criticize Maricopa County, Secretary of State Katie Hobbs, the Democratic Party and former Maricopa County Recorder Adrian Fontes, all of whom she said have done everything in their power to stop the audit.

Fontes has been a private citizen since before the audit began, but is now seeking the Democratic nomination for secretary of state in 2022. Hobbs is running for governor.

“All you guys are hearing is the negative spin that is being put out by the media right now. You’re not hearing all the positive things,” she said.

It’s another attack Fann has taken against the media, who she says refuses to tell the full story, despite also limiting reporter access along the way.

Among other things, she praised “The Deep Rig,” a film produced by Donald Trump-supporting Overstock.com CEO Patrick Byrne as a documentary that doubled as a security measure because the filmmakers were filming every ballot box. Byrne is one of several figures who has confirmed is financially contributing to the audit. Who is funding it overall is still unknown as is how much money has been raised to date.

While Cyber Ninjas and the county’s ballot counts are different, another round of counting needs to be done, though it’s been delayed due to East Coast storms, audit spokesman Randy Pullen told the Arizona audit pool reporter Monday.

The added count of ballots is now supposed to start this today, using additional, companion equipment needed for the Senate’s two paper counting machines, whose arrival was delayed due to the storms, Pullen said.

These “jogger” machines align the paper ballots so they can go through the machines. Pullen said the estimated cost to the Senate is $30,000 for the machines, joggers and a local technician. The counting will continue into next week, he said.

Fann also took a shot at current Maricopa County Recorder Stephen Richer, a Republican who unseated Fontes in November in a tight race.

She questioned why Richer was critical of Fontes during the campaign, but believes the election was run smoothly.

Richer wasn’t the recorder in 2020, so Fann didn’t think he would know what happened.

“I would think that Mr. Richer would be on board with this,” Fann said. “When he ran, he ran on the premise that Mr. Fontes was doing some unusual things, if you will. So why is it when he ran, he was all over Adrian Fontes about maybe not doing everything exactly right, and now all of a sudden he’s siding with the Board of Supervisors saying ‘oh nothing to see here?’”

Richer had a simple explanation for Fann’s question.

“Karen said I opposed Adrian so I therefore should support the audit. I did oppose Adrian. I supported an audit. Heck, Maricopa County did two audits of the tabulators. But I don’t support the Cyber Ninjas,” he told Capitol Times. “I opposed Adrian because I thought he played fast and loose with the law because he was a hyper-partisan, and because I don’t think he’s a competent manager.”

Richer referenced Fontes’ attempt to send every registered voter – including those not on the early voting list – a ballot by mail for last year’s Presidential Preference Election, which a county judge had to put a stop to before he could do so.

“Those aren’t just my opinions – all of those things have been affirmed, explicitly, in multiple published court decisions at both the state and federal level. But these are the same courts that have stated – repeatedly – that there is nothing to the claims of widespread fraud. I put stock in the judicial branch of our government,” Richer said.

Richer has become something of a national figure of sorts for the anti-audit crowd despite his pleas to make his office boring. And while he is against what the Senate and its contractors are doing for three months now, he is not against election audits altogether.

“From my vantage, the Ninjas are conspiracy theorists who have shot a conspiracy theory movie at their audit, have baselessly accused me of deleting files, and who check things like vote switching by the machines or ballots flown in from China,” Richer said. “Those are crazy things that I wouldn’t have touched as a candidate with a ten-foot pole.”

Richer has joined the four Republican supervisors and one Democrat in criticizing the audit because they don’t feel like it qualifies under what audits typically do.

Chairman Jack Sellers once referred to it as a “grift disguised as an audit,” and the supervisors have called out other Republicans to speak out against it to little success so far.

“If Karen wants to talk about how to remove politics from the elections process, or how to better safeguard compliance with statute, then I welcome her partnership,” Richer said before adding a final correction to claims Fann made.

“For the November 2020 election, Adrian wasn’t even allowed to play any part of the handling of the ballots for the whole election. Because he was a candidate.”

Fann says Supervisors fear outcome of election audit

Senate President Karen Fann said Friday that Maricopa County officials may be balking at cooperating with an audit of the 2020 election results because they fear what it might turn up.

“I’m beginning to wonder if they’re not as confident in their (election) system as they say they are,” Fann told Capitol Media Services on Friday of the latest refusal by county supervisors to let Senate-hired auditors review the tallying equipment and hand count the 2.1 million ballots where they are currently located at county election offices.

Her comments come less than 24 hours after the board foreclosed the option of opening up the Maricopa County Tabulation and Election Center to the outside auditors.

In a letter to the Senate’s attorney, Steve Tully who represents the supervisors, said they stand ready to comply with the original subpoena. That required the equipment and ballots to be delivered to the Senate.

“The request to perform any audit, recount or other related activities at MCTEC is beyond the scope of the subpoenas issued,” Tully wrote.

Fann said efforts are underway to find an alternate location.

It’s not a simple matter of space. She said the very nature of having actual ballots and counting equipment requires that it be in a place that is both secure 24 hours a day while also having the capability of being monitored by those who want to watch.

And if nothing else, Fann said it will add to the $150,000 that the Senate has agreed to pay its audit team. All this, she said, could be avoided if the county would just cooperate.

“For the life of me, I cannot figure out what they’re so afraid of,” Fann said. She said senators simply want to put the issues surrounding the vote to bed.

“If constituents have questions and they want those questions answered, why wouldn’t we do this?” Fann said. “It makes no sense.”

Tully said the board remains ready to deliver the ballots and the equipment to the Senate, which is what is in the subpoena.

“Alternatively, the county is willing to discuss delivery of the requested items to the senators’ custody at a non-county owned location of the senators’ choosing,” he said.

Jack Sellers, who chairs the board, said it’s not like the county is blindly accepting the election results. He said the county conducted “two extensive and independent” audits of the election in February.

“They showed no evidence of equipment malfunction or foul play,” Sellers said in a prepared statement. These findings, in addition to the hand count audit completed by the political parties and accuracy tests before and after the election, affirm no hacking or vote switching occurred in the 2020 election.”

And he took a swat of his own for the Senate’s decision to pursue its own review even after the one done by “certified experts” hired by the county.

“I hope the auditors hired by the Senate will take great care with your ballots and the election equipment leased with your tax dollars,” Sellers said.

All this comes on the heels of the Senate releasing the contract and other documents Fann has signed with Douglas Logan, chief executive officer of Cyber Ninjas, the lead firm hired to conduct the audit.

Questions were raised about that choice after discovery of Twitter posts by Logan suggesting he already has concluded that the election results, at least on the national level, are suspicious.

“The parallels between the statistical analysis of Venezuela and this year’s election are astonishing,” he wrote in a December post, a clear reference to unproven and denied allegations that Dominion Voting Systems, the company that produced the equipment used by Maricopa County, is linked to the family of the deceased former dictator.

Logan also has shared other posts, including one that said, “With all due respect, if you can’t see the blatant cheating, malfeasance and outright voter fraud, then you are ignorant or lying.”

“It was not a mistake to hire him,” Fann said.

“We have four great, reputable companies that are involved with this,” she said, referring to other firms that will work under the control of Cyber Ninjas. “This is being done in the utmost transparency with the most qualified people, with checks, double checks and triple checks to make sure all this is done correctly.”

And what of his Twitter messages which he deleted, but were found through archive searches?

“Just because somebody found some Tweet that’s within some archive program that none of us ever would have done it (the search) doesn’t mean anything,” Fann said. “Is no one allowed to say anything?”

Logan’s qualifications and possible bias aside, the scope of work that Logan has agreed to do for the Senate shows the firm is starting from the position that something is wrong. And it raises questions about the tactics.

According to the contract, Cyber Ninjas may contact individual voters in at least three precincts, even going to their homes, “to collect information of whether the individual voted in the election.”

In fact, the contract says part of the audit team the Senate hired already “has worked together with a number of individuals” — who are not identified in the contract — who knocked on doors “to confirm if valid voters actually lived at the stated address.”

Logan did not immediately respond to calls seeking more information. But Fann said the moves make sense.

“There were a lot of people that filled out affidavits saying that ‘I got 25 ballots at my house and there’s only two of us that live here,’ ” Fann said. And there also was a report of 75 ballots sent to a vacant lot in Tucson.

“They’re going to take those affidavits and they’re going to go to those people and they’re going to say, ‘You signed an affidavit that said that this happened. Is this true? Give us a little information so we can verify this and track it down,’ ” she said.

But not all those contacts will be based on affidavits. The audit team is going to be contacting voters in person to look for inconsistencies.

For example, Fann said, historical records may show a given precinct has never had more than a 35% turnout.

“And all of a sudden they had a 90% voter turnout,” she said. Fann acknowledged that this election did produce record turnout for both presidential candidates.

“But the question is, how do you go from 35% to 90%?” she asked.

Assuming voters talk to auditors at their door, that still leaves the question of what does it prove if those interviews show that 90% of them did not vote. Fann said that will lead to further investigation.

One possibility, she said, is that not all the ballots cast from that precinct were authentic, though Fann said it “obviously didn’t happen.”

She said it’s also possible that ballots from one precinct got mixed with ballots from another one. But that would not change the outcome of the presidential race as it was on all ballots.

Fann selects Republican Douglas York for IRC

Senate President Karen Fann has selected Douglas York, a Republican from Maricopa County, to serve on the Arizona Independent Redistricting Commission, the Senate GOP announced today.

In a statement, Fann said that York, the president of an irrigation business, understands “the challenges Arizona faces in the next decade” and the growth patterns of the state.

York’s appointment to the commission means that Senate Minority Leader David Bradley, D-Tucson, the next and final legislative leader to make their pick, must select someone from outside Maricopa County. The state Constitution stipulates that no more than two of the four partisan picks can hail from the state’s largest county.

Fann had until next week to make her pick. House Minority Leader Charlene Fernandez, D-Yuma, made her selection yesterday, starting a seven-day clock for the Senate president.

Evidently, Fann chose to accelerate an already sped-up timeline — House Speaker Rusty Bowers began the process last week, earlier than at any point in the IRC’s history, prompting an ongoing lawsuit from Fernandez and Bradley that stalled yesterday when a judge decided not to slow down the selection process.

In his application for the IRC, York wrote that he was motivated to seek the job in part because of his dissatisfaction with the outcome of redistricting in 2010.

“I am interested in beginning a new process that is fair for the state of Arizona,” he wrote.

Fann threatens Maricopa County with more subpoenas

Senate President Karen Fann said lawmakers may have to take new steps — including new subpoenas and possibly going back to court — to get information that Maricopa County election officials are refusing to provide about their ballots and equipment.

The move by the Prescott Republican comes after county officials, as promised, refused to show up at a hearing she had called for Tuesday where they were supposed to answer the questions posed by Cyber Ninjas. That’s the firm she hired to conduct a review of the 2020 election returns, including the 2.1 million ballots.

County supervisors did submit written responses on Monday. But they also made it clear they were not going to attend on Tuesday. And they said they were done answering questions related to what several consider a “sham” audit being conducted by a firm run by Doug Logan, who had previously said he does not believe that Donald Trump lost the election.

In the end, that just led to Logan and others involved with the audit telling Fann and Sen. Warren Petersen, R-Gilbert, who chairs the Senate Judiciary Committee, what they still don’t know and why they still believe they need to know it to finish their report.

Tuesday’s hearing did produce one new piece of information.

Ben Cotton, founder of CyFIR, one of the subcontractors hired by Cyber Ninjas, told lawmakers he was able to locate files in election equipment that the auditors initially claimed the county had deleted. He said it turns out there were duplicates in the system.

Less clear is what happens now given the county’s refusal to answer more questions.

Ken Bennett, the Senate’s liaison with the auditors, said work will resume Monday at Veterans Memorial Coliseum.

The plan had been to have the audit done by the end of last week. But when that didn’t happen, the auditors needed to pack up all the ballots and equipment and store them in another building at the State Fairgrounds because the coliseum had been promised for high school graduation ceremonies.

Fann said the auditors, denied additional answers from Maricopa County, will proceed as best they can with the information they have.

“At that point we’ll figure it out,” she said.

“We may need to take it to another level and see if we can get them to please sit down with us,” Fann said. That opens the possibility of yet another subpoena beyond the earlier ones that eventually forced the county to surrender the ballots and election equipment.

And that could lead to new litigation, with a judge asked to decide what questions, if any, the county needs to answer so the Senate can complete its examination.

But that’s not the only option.

“Or the auditors will issue a report to say, ‘Here’s what we’ve found and here are the questions that we have but we can’t seem to get answers for them,’ ” Fann said.

In any event, she said, the next step following completion of the audit would be changes in election laws to deal with any issues that senators believe are weak points in the election process. But that may not happen this legislative session as the completion deadline has now moved to June.

One question that neither Fann nor Petersen asked of Logan is where he is getting the money to conduct the review.

Logan has long since acknowledged the audit is costing more than the $150,000 authorized by the Senate. And outside interests tied to efforts to discredit the election results have been engaged in fundraising efforts.

One site, Fundtheaudit.com, claims it already has raised more than $1.7 million towards its $2.8 million goal. That site is being operated by The America Project, started by millionaire Patrick Byrne, the former CEO of Overstock.com, who has said it was “a fraudulent election.”

Fann told Capitol Media Services Tuesday she does not know who is providing the extra cash.

“They have told me I will get a list at the end of the audit,” she said. And Fann said once she gets it, she will make that public.

Much of what else emerged Tuesday was already known, such as the refusal of county officials to provide Senate auditors with the password for the highest-level access to the vote tallying machines.

“We cannot give you a password that we do not possess any more than we can give you the formula for Coca Cola,” they wrote Monday in their response. “We do not have it; we have no legal right to acquire it; and so, we cannot give it to you.”

Cotton told Fann and Petersen he has been told those passwords remain in the exclusive custody of Dominion Voting Systems which owns the equipment leased by the county.

Dominion did provide them earlier this year, not to the county but to two firms hired by the county to conduct their own forensic audits. County officials said those firms — unlike Cyber Ninjas — are both certified by the U.S. Election Assistance Commission as voting system testing laboratories.

And county officials said even if they did have the passwords they would not turn them over.

“Your chosen ‘auditors,’ the Cyber Ninjas, are certainly many things,” the supervisors wrote. “But

accredited by the EAC’ is not one of them.”

But Cotton, under questioning from Petersen, said he has been certified as an expert witness in court hearings. And he said he has done highly confidential security work for private corporations.

Cotton also disputed a contention by the county that providing Senate auditors with the highest-level password access would allow them to see Dominion’s proprietary “source code” for how the machine operates.

What it would allow them to do, he said, is determine if any of these tabulators had the capability of being connected to the internet. And Cotton said Pro V & V, one of the companies hired by the county for its own audit, said there was no such connection.

“The county, however, cannot validate or verify that there were or were not Verizon wireless cards inside those tabulators which would have, by definition, touched the internet,” he said. “They can’t validate that their own policies and procedures are being carried out without the ability to validate the configurations of the systems.”

Nothing in Tuesday’s hearing cleared up the questions about access to the routers, essentially the equipment that directs messages and other traffic between computers.

Bennett again insisted that he was told earlier this year by Joseph LaRue, a deputy county attorney, that the routers had been removed from the system and were ready for delivery. The current county position is that providing the routers would provide a “blueprint” of the county computer system which could direct criminals where to stage their hacking attacks to access confidential information and compromise law enforcement.

But Cotton said if that is true, that means the election equipment which was connected to the routers also had to be exposed to the internet.

“That’s certainly something that we need to explore given the inconsistencies in the public statements and reports,” he said.

Tuesday’s event was hardly a hearing, at least in the traditional sense. Only Fann and Petersen got to participate. And Democrats who are members of the Senate Judiciary Committee, on whose behalf the initial subpoenas were issued, were not invited.

Fate of most 2020 bills met at Legislature’s deadline

Silent death has come for about two-thirds of the 1,707 bills and resolutions introduced this year in the Legislature.

A February 21 deadline for bills to be heard in their chambers of origin killed most of them, but other bills died primarily because of public outcry

Ideas contained in some of those dead bills could still be revived via amendments later in the legislative process, but their chances of success remain slim.

On February 20, mirror resolutions relating to a constitutional ban of sanctuary cities in the state both saw their demise after protests and controversy drew plenty of local and national attention. The measures were dubbed Gov. Doug Ducey’s “1070,” a reference to the divisive 2010 immigration bill SB1070, which sought to give the state more power to deal with the issue of illegal immigration.

Other notable legislation, including most of the measures in the House to revamp sentencing laws and any attempt to usurp the impending effort to legalize recreational marijuana, also hit a wall.

And Senate President Karen Fann, R-Prescott, put a quick end to any sex education measures in that chamber – controversial or otherwise – after the first day of session.

Sex Ed

Sex education appeared poised to be one of the biggest fights of the session, after conservatives, including Sen. Sylvia Allen, R-Snowflake, House Speaker Rusty Bowers, R-Mesa, and Rep. Kelly Townsend, R-Mesa, took the position that sex ed is the school-sponsored sexualization of young children.

Before the session started, Allen drafted a bill that would ban schools from teaching sex education before seventh grade. The Snowflake Republican’s measure also appeared to ban any discussion of homosexuality during sex ed courses, bringing national attention to the state.

While Allen dismissed that reading of her bill and pledged to amend it, Senate President Karen Fann killed it quickly. Four of the seven bills Fann declined to assign to committees relate to sex education and depictions of homosexuality in instructional materials.

“I am looking at and reading carefully bills that could be highly controversial and whether they have a chance of passing or not,” Fann said.

House Republicans, including Rep. Leo Biasiucci of Lake Havasu and John Fillmore of Apache Junction, introduced their own bills to ban the teaching of sex ed for young students. Those measures also died without hearings, and the only bill related to sex ed that has continued its journey is an omnibus measure proposed by a governor’s task force that would require instruction on recognizing signs of child abuse.

Criminal Justice Change

Rep. Walter Blackman’s bill to establish and expand earned release credits for people incarcerated for non-violent crimes cleared an important hurdle in the House Judiciary Committee on February 20. and looks likely to pass the full House. But this came in spite of – or perhaps at the expense of – a flurry of other proposed changes to the criminal justice system from both caucuses.

The Snowflake Republican, who is at the spearhead of a movement to remake the criminal system, also proposed legislation to establish an oversight committee and ombudsman position to regulate and audit the oft-troubled Arizona Department of Corrections. That bill never got a hearing. Same with his bill to establish pre-arrest diversion and deflection programs that would allow officers to direct people they contact to social services, though a watered down version from Rep. John Allen, R-Scottsdale, made it through the Judiciary Committee he chairs.

Additionally, his bill that would compel the department to offer free feminine hygiene products and provide extra services to pregnant women didn’t even get a committee assignment. Similar bills from Democrats like Rep. Diego Rodriguez, D-Phoenix, and Rep. Kristen Engel, D-Tucson, were victims of the partisan process, never even making it across the starting line.

Allen is responsible for some of this. In a February Judiciary Committee hearing, he killed a series of bills that would bolster data collection and make other reforms to the Arizona Criminal Justice Commission, an apparent act of revenge against members of the committee he chairs who voted down one of his criminal justice bills.

Elections

A pair of House Republicans introduced election bills that stirred outcry at the Capitol this year — one that would bar college students from listing dormitories as an address on their voter registration and another that would allow law enforcement officers to be posted at all polling places throughout the state during primary and general elections.

While these may not be considered the most controversial election bills, limiting how college students can vote is not a new idea, especially from the bill’s sponsor, Rep. Bob Thorpe, R-Flagstaff.

Thorpe introduced his measure on two separate occasions. Once when it was assigned to the House Elections Committee, but never received a hearing, and another he wrote as a strike-everything amendment to a different bill of his assigned to the House Technology Committee, which he chairs. He ultimately did not give it a hearing, effectively killing it.

Rep. Jay Lawrence, R-Scottsdale, on the other hand, wanted police officers at every polling station in the state because of potential violence he thought could erupt due to the growing political divide in the country. But without a plan to fund this option, among other potential issues, the bill was never assigned to a committee.

Marijuana

Despite the likely-to-pass recreational marijuana initiative coming to the ballot this November, Democratic lawmakers still made attempts of their own to legalize the product without seeking voter approval.

Two attempts were virtually marked dead on arrival when Bowers and Fann confirmed that they wouldn’t hear any legislation to legalize recreational pot.

Democratic Reps. Isela Blanc, D-Tempe, and Randy Friese, D-Tucson, came out with dueling proposals. Blanc’s was fueled by her criticism of the Smart and Safe Arizona Act, a proposed ballot measure which she has said would create an oligopoly of powerful cannabis business interests at the expense of minority communities ravaged by the war on drugs. The act’s backers took note and made changes, but not enough to stave off her attempt, which never received a committee hearing.

Across the aisle, Sen. Sonny Borrelli, R-Lake Havasu City, lost his battle to pass legislation aiming to keep potentially dangerous pesticides of marijuana plants by requiring grow-ops to exclusively use pesticides exempt from federal regulations. But that bill went up in smoke. It needed three-fourths vote to amend the voter-approved law, but was killed when 10 Democrats voted in opposition.

Gender Identity

The Legislature made clear it had no appetite for bills that dealt with gender identity this session. Reps. Rosanna Gabaldon, D-Green Valley, and John Filllmore, R-Apache Junction, introduced opposing bills.

Gabaldon’s HB2075 would have added “nonbinary” as a third option for gender on state-issued driver’s licenses, something more than a dozen states already allow. It would also make that identity available for people who don’t drive.

“These individuals don’t recognize themselves as male or female,” Gabaldon said to Capitol Media Services in January. “I don’t see it as controversial.”

Fillmore’s HB2080 would prohibit any state agency, board, commission or department from issuing any document that lists any sex other that “male” or “female.” It would also require birth certificates to only use those options as well and stop schools from requiring teachers to use a sex or gender pronoun when discussing class material “other than the sex or gender pronoun that corresponds to the sex listed on the student’s birth certificate.”

Neither bill got a hearing.

Title Lending

Sen. David Farnsworth, R-Mesa, arrived at the Capitol before dawn on the first day to pre-file bills, with a stack of measures to regulate the title lending industry in hand. But Farnsworth’s first bills of the session — just like the resolution Sen. Victoria Steele introduced early that same morning to ratify the Equal Rights Amendment — died unheard.

One of Farnsworth’s bills aimed to prohibit title lenders, who offer short-term loans at high interest rates with a car as collateral, from making these loans to people who don’t actually own their car outright.

Two others were slightly differently worded attempts to cap annual interest rates for title loans at 36%. A 2020 ballot initiative dubbed the Arizona Fair Lending Act would have included both clauses, but supporters conceded that they could not gather the 237,645 valid signatures of registered voters required to make the ballot.

Farnsworth’s legislative measures, meanwhile, never received a hearing in Sen. J.D. Mesnard’s Senate Finance Committee. The Chandler Republican said he prefers that customers have the “freedom” to negotiate their own contracts without government interference.

Farnsworth lamented: “It looks like my whole summer was wasted! I guess I should’ve gone on vacation like everyone else.”

Correction: A previous version of this story erroneously reported that there have been 1842 bills and resolutions introduced in the 2020 legislative session. The actual number is 1,707

Fernandez, rebuffed by judge, picks Shereen Lerner for IRC

House Minority Leader Charlene Fernandez this afternoon picked Democrat Shereen Lerner to serve on the Arizona Independent Redistricting Commission, a decision that came only a few hours after a Maricopa County Superior Court judge denied a request from Democratic legislative leadership for a temporary restraining order to halt the nomination process.

Lerner, a professor of anthropology at Mesa Community College and historic preservationist who’s active in Tempe civic life, wrote in her application that she had studied election systems from an anthropological perspective and was interested in applying that knowledge at the IRC.

“Shereen Lerner was far and away the most qualified candidate we interviewed, and I’m proud to select her for this vital role in our state’s history,” Fernandez said today in a written statement. “Redistricting is an intense and highly challenging process that requires a combination of intelligence, communication skills and strength of character to succeed. That is exactly what Dr. Lerner will bring to the Commission.”

The pick of the first candidate from Maricopa County still leaves some flexibility for Senate President Karen Fann and Senate Minority Leader David Bradley, who pick next in that order. No more than two of the picks from legislative leaders can be from Maricopa County or from either party. Fann must make her choice within the next seven days.

“Creating fair and competitive legislative and Congressional districts that reflect Arizona’s diverse population and communities of interest is an incredible responsibility, and I will carry out those duties to the best of my abilities at all times,” Lerner said in a written statement.

Fernandez would have preferred not to make the announcement today, as Democrats argued that House Speaker Rusty Bowers’ pick — the earliest a House Speaker has made their choice since the commission’s inception — was premature.

Fernandez and Bradley filed a lawsuit last week against the Commission on Appellate Court Appointments shortly after Bowers on Oct. 22 picked David Mehl, a prominent Republican from Tucson. Historically, the Speaker has made the first pick in the year ending in one.

But Judge Janice Crawford ruled late this morning that while the Arizona Constitution sets a deadline for IRC picks, it says nothing about how early the process can begin. Crawford also said that Democrats failed to explain why they did not file their request for a TRO prior to Bowers’ pick, given that their legal argument for why the order is necessary is that two of the independent candidates — Thomas Loquvam and Robert Wilson — are not qualified, a case that Democrats have been pleading for weeks.

“As set forth above, Plaintiffs had acted to oppose Mr. Loquvam’s and Mr. Wilson’s applications and, thus, knew the facts on which they contend Mr. Loquvam and Mr. Wilson are unqualified,” Crawford wrote. “Any irreparable injury is caused by Plaintiffs waiting until after the Speaker made his appointment to seek the Court’s intervention.”

In explaining her ruling on the TRO, Crawford signaled that she did not believe that the case to remove Loquvam and Wilson from consideration for the IRC was likely to succeed on its merits.

Democrats filed the suit a day after Bowers made his pick, alleging that because Loquvam was a lobbyist with EPCOR and Wilson held a Trump rally at his Flagstaff gun store they were not qualified to chair the IRC.

The state constitution bans paid lobbyists from serving on the commission if they were active in the prior three years. While the Commission on Appellate Court Appointments winnowed out IRC candidates who were registered as legislative lobbyists, they did not do the same for Loquvam, who is registered with the Arizona Corporation Commission.

“It is undisputed that Mr. Loquvam disclosed that he was registered as a lobbyist with the ACC. While the Court, at this stage, may consider Plaintiffs’ position to have some merit, the Court declines to substitute its opinion on the qualifications of a nominee who was fully vetted by the CACA,” Crawford wrote.

She added that the plaintiffs failed to demonstrate that they would be “deprived of making their selection or will have lost an opportunity to select a candidate that did not become part of the pool because of Mr. Loquvam’s nomination.”

As for Wilson, who owns a gun store in Flagstaff, Crawford said it’s “undisputed that Mr. Wilson has been registered as an Independent for three or more years prior to the appointment” and that “it is unlikely that the CACA was not fully apprised on the facts under which Plaintiffs contend Mr. Wilson is not unbiased.”

In general, she seems intent to respect the role of the commission in vetting candidates, writing that the public’s interest in ensuring that the IRC is composed of “qualified individuals” is secured through the commission’s process.

Earlier this week, Jim Barton, the attorney representing Democratic legislative leadership, told the Yellow Sheet Report, a sister publication of the Capitol Times, that the case wouldn’t become “moot” even if the judge denies the TRO, as the plaintiffs wanted to ensure that Bradley had a qualified pool of applicants.

Today’s ruling didn’t shake his belief in the chances of the suit, he said.

“I understand the court’s ruling … but I don’t think it has any impact on our ability to litigate against two candidates who in our opinion are not qualified,” Barton said. “Courts take briefing for a reason. We will brief on the merits of our argument, we will have an opportunity to take some depositions and put on evidence.”

He continued: “I think what is going to happen in effect now is we’re going to be litigating over who’s gonna be qualified to serve as the independent chair.”

Fetal heartbeat bill stalls in Senate

Medical Concept: Black Chalkboard with Abortion. Medical Concept - Abortion Handwritten on Black Chalkboard. Top View Composition with Chalkboard and Red Stethoscope. 3D Rendering. — Medical Concept: Black Chalkboard with Abortion. Medical Concept – Abortion Handwritten on Black Chalkboard. Top View Composition with Chalkboard and Red Stethoscope. 3D Rendering.

Arizona will not be enacting a law to outlaw virtually all abortions, at least not this year.

Senate President Karen Fann told Capitol Media Services Tuesday she will not allow HB2140 to come to the floor for debate. It would have outlawed abortions at the point a fetal heartbeat could be conducted, as early as five weeks into pregnancy.

“This bill was not vetted properly with stakeholders to ensure it is constitutional,” Fann said. And there clearly was a consensus, even among supporters, that the measure would have run up against U.S. Supreme Court precedents dating back nearly half a century.

But Fann said there was another problem. She said that Sen. Wendy Rogers, R-Flagstaff, who crafted the language did not check to see if it was acceptable to sufficient senators to survive the debate.

With all Democrats opposed, it would have required the approval of all 16 Senate Republicans. And Fann, who did not identify anyone specifically, said that isn’t the case.

Rogers did not respond to multiple messages seeking comment.

Fann’s decision does not mean an end to new abortion restrictions this session.

The Senate already has approved a measure making it a felony to terminate a pregnancy because of a fetal genetic defect. SB1457 still requires one more Senate vote after the House added its own modifications.

But HB2140 was much more far reaching. And that provoked some often heated debate when it cleared the Senate Appropriations Committee April 1, the only hearing it would get.

Rogers quoted from Psalms about how God knows people even in the uterus.

And then she made a reference to having visited Auschwitz, the extermination camp operated by Nazi Germany in occupied Poland and wondering how the residents of the nearby town could not know what was going on there even as the ashes of the burning corpses settled on the community.

“We know what we’re doing,” she told colleagues. “We know we are sacrificing innocent life.”

But the measure drew opposition not just from Planned Parenthood Advocates of Arizona, the political and lobbying arm of the organization, but also a lobbyist who represents doctors who would be placed in positions of having to determine whether exceptions to save the life of the mother would be allowed.

“They’re going to face potential criminal liability and severe civil liability if they make a decision to save the life of the mother and somebody second-guesses that decision later,” Steve Barclay said. “That could put more mothers in real danger because I think you’re going to have fewer neonatologists doing their jobs in these high-risk pregnancies.”

And there was something else: There was no lobbying for HB2140 by Cathi Herrod, president of the anti-abortion Center for Arizona Politics who has been a force over the years in getting lawmakers to enact a series of restrictions on the procedure. What it came down to, she told Capitol Media Services, is focusing on things that have a real chance, both politically and legally.

“I’m not opposed to heartbeat legislation,” she said.

“But the courts have declined to uphold heartbeat laws as constitutional,” Herrod continued. “Our focus is on SB1457 to protect babies with genetic abnormalities.”

That kind of legislation, she said, has at least some chance of surviving a legal challenge, pointing out there are virtually identical laws in four other states.

In fact, Arizona has its own similar law which prohibits aborting a fetus based on race or gender. And that law remains on the books after a challenge to that in federal court was thrown out.

Even if Rogers had somehow gotten her bill through the Senate, its future in the House would be questionable at best, with the very real possibility that Speaker Rusty Bowers might have quashed it there.

Earlier this year, Bowers quashed an even more far-reaching proposal by Rep. Walt Blackman, R-Snowflake.

He had introduced HB2650 which would have required prosecutors to bring homicide charges in any case of abortion “regardless of any contrary or conflicting federal laws, regulations, treaties, court decisions or executive orders.” And those charges would be against not just the doctor but also against the mother.

Bowers refused to even assign that measure to a committee for a hearing.

Former Yuma lawmaker Guenther dies

Former Democratic state senator and representative Herb Guenther died recently, the Arizona Department of Water Resources confirmed.

Guenther spent more than four decades working on water issues in Arizona and served in the House of Representatives from 1985 to 1992 and in the Senate from 1999 to 2002. He was appointed director of the Arizona Department of Water Resources in 2003 and held that position until 2011, when former Gov. Jan Brewer appointed then-assistant director Sandra Fabritz-Whitney as the agency’s acting director.

In 2013, Guenther was recognized for his lifetime achievement as one of Arizona Capitol Times’ 2013 Leaders of the Year in Public Policy.

At the time, he told the Capitol Times he was proud of his successful legislation associated with inter-state water transfers, intra-state water transfers, streambed ownership and the seven-state 2007 Colorado River Operational Guidelines Agreement.

Guenther said that the quality that differentiates a successful leader from a failed one is “working to find compromise on issues without caring who gets the credit.”

Legislators past and present and Guenther’s other colleagues noted that he took that attitude with his own work.

Former long-time Democratic state Rep. Robert McLendon, who was Guenther’s seatmate while he was in the House, said Guenther spent many hours in the basement of the House meeting with legislators from both parties, water conservationists and water users to “come to make some sense about what was happening in our state because water is so, so important.”

“I felt honored to be his seatmate, and I felt honored as a legislator at that time — we had, I felt like, a great team from Southwestern Arizona,” McLendon said.

McLendon, who served nine terms in the House from 1983 to 2001 representing the Yuma area, remembered Guenther as someone who always “did his homework” and was respected not only for his expertise but also his “straight-forward honesty.”

Sen. Lisa Otondo, D-Yuma, said Guenther was her longtime mentor on water issues. She described him as a statesman who worked across the aisle, had a wonderful sense of humor and was kind and intelligent. She had known him all her life, as he was a friend of her father’s.

“I remember when I started getting involved in politics my father said, ‘Lisa, if you ever want to learn about water, you go to Herb Guenther,’” Otondo said.

In a written statement, Senate President Karen Fann, R-Prescott, said she had known Guenther for almost 30 years and that he was a big presence during her time in the legislature. She also learned about water from Guenther.

“He was always my mentor on water issues, and I considered him a dear friend,” she said. “He was the salt of the earth and will be deeply missed. My thoughts and prayers are with his family during this difficult time.”

In 2013, Guenther was asked if the legislature could grant him one request, what would it be?

“Stop the partisan bickering and pass legislation that is in the best interest of the future of Arizona,” Guenther said. “I never knew whether I was a Democrat or a Republican or other and I still don’t and I don’t care. What I do care about is solving problems.”

Gambling bill stalls in senate as politics take shape

Arizona Diamondbacks left fielder Tim Locastro dives but cannot get to a ball hit for a single by Seattle Mariners' Sam Haggerty in the third inning of a spring training baseball game on March 15, 2021, in Surprise. Current legislation would allow for betting on sports, but the measure is currently stalled in the Senate. (AP Photo/Sue Ogrocki) — Arizona Diamondbacks left fielder Tim Locastro dives but cannot get to a ball hit for a single by Seattle Mariners’ Sam Haggerty in the third inning of a spring training baseball game on March 15, 2021, in Surprise. Current legislation would allow for betting on sports, but the measure is currently stalled in the Senate. (AP Photo/Sue Ogrocki)

A top legislative priority for Gov. Doug Ducey to expand off-reservation gaming is stalled in the Senate after the House voted 48-12 to approve a mirror bill on March 4.

The bills from Rep. Jeff Weninger, R-Chandler, and Sen. T.J. Shope, R-Coolidge, appear to be getting hit from Democrats and Senate Republican leadership when strong bipartisanship is needed to pass the legislation because several Republican senators already said they won’t support the measures.

Sen. Sean Bowie, D-Phoenix, might be a key holdout vote. He told Arizona Capitol Times he and other Democrats in the Senate have some reservations about giving their support to a key Ducey priority while many controversial election bills are advancing through the Legislature. The gaming bills have an emergency clause attached to them, which means two-thirds is needed for immediate enactment, but can still pass with just 16 votes.

“I’m looking for more from the Governor’s Office in terms of being willing to work together and there’s a lot of bills that we don’t like – particularly around voting rights,” he said. “We would like to have a conversation and more of a working relationship around [how] some of these bills are bad public policy and we would obviously not like to see them get signed into law.”

While he hasn’t seen any indication from the Governor’s Office that Ducey is willing to kill controversial election bills in exchange for support on sports betting, Bowie said he’s hopeful the two sides can work together. Bowie, who represents a swing district, is the most bipartisan Democrat in the Senate and has a good working relationship with Ducey, so his support is crucial to get enough Democrats to vote for either gaming bill.

Shope’s effort is currently in limbo since Senate President Karen Fann has yet to remove it from the Appropriations Committee after Chairman Sen. David Gowan, R-Sierra Vista, held it in a maneuver to try to force through his historic horse racing bill that would include Shope’s measure as an amendment.

Karen Fann (Photo by Dillon Rosenblatt/Arizona Capitol Times)

Historic horse racing is considered a “poison pill” to Native American tribes and does not have the broad support of Ducey, tribes or Democrats. What’s more, Fann said Shope’s measure is also a poison pill of sorts considering it does not match up with the current gaming compact that bars off-reservation gaming. Fann said she didn’t think the poison pill provision was enough of a reason to not support Gowan’s bill, SB1794.

Fann also hasn’t assigned Weninger’s bill to a committee, likely waiting to see if she can ensure enough Democrats support whichever gets to the floor. Nine Republicans in the House voted against the House version. Bowie speculated it could be a couple of weeks before there is any movement on gaming legislation, so Democrats’ immediate focus is on the controversial election-related bills they want Ducey or the Legislature to kill.

Fann told Capitol Times she is going to sit on the sports betting bills until she and other senators can learn more about what the gaming bills will do and their ties to the gaming compact negotiations.

“Members just needed more time to understand … we were not a part of the negotiations so we have had to slow the process down,” she said.

Anni Foster, Ducey’s general counsel and key figure in the ongoing negotiations, said in committee on Shope’s SB1797 that the Governor’s Office met with about nine lawmakers. Senate Majority Whip Sonny Borrelli, R-Lake Havasu City, said he was one, as were other members of House and Senate leadership.

Fann said that was mostly true and added that Ducey’s office said their door would be open for anybody who had questions.

“With all the Covid restrictions and full schedules it’s just taking time for everyone to feel knowledgeable,” Fann said. “The bills refer to the compacts. Our members not only had to understand the bills, but also what was in the compacts. We do not want to get in the position of ‘you have to pass it to know what’s in it.’”

Meanwhile, despite overwhelming support from House Democrats, three Democrats still held out. Rep. Randy Friese, D-Tucson said he didn’t support it because he had several unanswered questions about what the bill would do. He said his understanding is that Democrats mostly voted in favor of it because the tribes support it.

“I think the tribes feel that they get more and more leverage with the banks if they have a new compact that’s gonna last 20 some years and not an old compact that has a clock ticking on it,” Friese said. He was referring to the current compact approved on the ballot in 2002 that is about to expire for some tribes as early as 2023. “They get better leverage with their loans and interest rates, which I get, but as I said on the floor, I object to marrying this bill to the compact. This Legislature should have nothing to do with those negotiations, and the governor took the easy path.”

Friese said he thinks Ducey told the tribes to whip the Democratic votes for him and Ducey would give them a new compact in return. Friese also said he wasn’t in favor of the sports owners being the ones who will likely get all available licenses. Ultimately, Friese said he let the tribes know he was uncomfortable with the language and wouldn’t support the bill.

“I am my own legislator,” he said.

David Lujan, director of the Arizona Center for Economic Progress, said he recently started to follow the bills and gaming compact and doesn’t understand all the Democratic support outside of the fact that the tribes support it. He said he doesn’t know what would even happen if Democrats said “no” considering they hold all the cards and can try to bargain with Republicans and Ducey for their votes.

“I think it’s good for the tribes. I think certainly they can use the revenue, but I don’t think the state should be using it to pay for tax cuts,” Lujan said. “I don’t see the harm in holding those votes out until [Democrats] know that this is a good deal for Arizona and so, to me it seems like they should be slowing this down and taking a closer look at it and asking more questions,” he said.

Ducey’s office did not comment on the Senate hold up.

Give voters say on 1-cent tax to fund public schools

Arizona’s public schools need help. Even as we agree with the truthfulness of that statement, a solution isn’t obvious. But, we as leaders within rural Arizona’s political and education communities want to help our colleagues focus on the heart of the problem the way we do. Then we can work toward meaningful solutions.

In 2017, Senator Sylvia Allen wrote a much-referenced opinion piece stating additional education funding was only going to happen when voter support for public schools made it possible. Her proposal to take a simply elegant proposal to the voters in 2020 to establish a permanent 1-cent education sales tax, offers just what is needed. Her proposal also simplifies the program to ensure what’s raised to support our schools supports student learning.

When we ask voters to support funding to strengthen public schools – an issue polls show Arizonans care deeply about – we must ensure nobody is hitching their budget to that sentiment. Other proposals in years past and even today try to peel away funds to support additional government programs the Legislature didn’t fund in the regular budget. We have to focus on helping students.

The Arizona Rural Schools Association has consistently worked with leadership in business and government to support additional revenue for schools. The day after Senator Allen published her proposal, a letter to Senate President Karen Fann from ARSA asked her to support Allen. Their letter stated: “The proposal offered by Senator Sylvia Allen meets [the needs of rural schools] squarely, honestly and without ambiguity. Additional funding for public schools to be used to support the education of Arizona’s children based on locally determined priorities addresses the greatest need of our schools.”

Focused funds guided by locally elected school boards to serve the needs of students will make the difference for Arizona’s future.

Education leaders are stewards over children, but elected officials have to carefully manage investments in our future. Arizona spends a bigger piece of the pie on education than any other state, but we work hard to ensure that we keep the pie small. Limiting government is at the heart of our effort to ensure future prosperity. Ensuring a quality education is also essential. Folks who only care about education spending pretend that raising taxes doesn’t affect the economy. A 1-cent education sales tax will not wreck our economy, but a 150 percent increase in taxes on those we rely on for investment in economic growth would do damage. This proposal does not disproportionately tax anybody. Taking smart (but small) steps forward is our best strategy for ensuring we are meeting the needs of our rural schools without jeopardizing our future.

We wholeheartedly encourage other leaders from across the state in both government and education to support judicious, simple, transparent funding for public education by giving the voters of Arizona the opportunity to answer the question, “Are we or are we not in favor of a 1-cent education sales tax to fund better public schools in Arizona?”

John Warren, superintendent, Topock Elementary School District; Melissa Sadorf, superintendent, Stanfield Elementary School District; Robert Devere, superintendent, Tombstone Unified School District; Sean E. Rickert, superintendent, Pima Unified School District; Christopher Knutsen, superintendent, Florence Unified School District; Mike Wright, superintendent, Blue Ridge Unified School District; and Hollis Merrell, superintendent, Snowflake Unified School District.

Good revenues belie looming budget uncertainty

In this April 15, 2020, file photo, the blur of car lights zip past the Arizona Capitol as the dome is illuminated in blue as a symbol of support for Arizona's frontline medical workers and emergency responders battling the coronavirus in Phoenix. (AP Photo/Ross D. Franklin, File) — In this April 15, 2020, file photo, the blur of car lights zip past the Arizona Capitol as the dome is illuminated in blue as a symbol of support for Arizona’s frontline medical workers and emergency responders battling the coronavirus in Phoenix. (AP Photo/Ross D. Franklin, File)

With COVID-19 again on the rise in Arizona and the next legislative session looming, some in the Legislature are coming around to the idea of passing a so-called “skinny budget” that retains baseline spending levels from the previous fiscal year and ducking out early, just as lawmakers did last session.

Admittedly, legislative budget analysts announced last week that the state could end the 2022 fiscal year, which begins next July 1, with $800 million in the bank – positively peachy compared to original projections that had COVID-19 decimating state revenues. But House Appropriations Committee Chair Regina Cobb, R-Kingman, said lawmakers should still hold back “on some of what we want to do,” adding that she’d be open to another skinny budget.

While projections still look good, Cobb said the state needs to keep its belt tight and be honest about the budget, which could mean re-categorizing some one-time spending items – such as the School Facilities Board – as ongoing expenditures. And there might be room for some new spending, she said, such as rural broadband among other priorities.

Still, as revenues continue to come in much higher than the gloomy June forecast, few seem keen on the idea of a baseline spending plan.

“I would not be supportive of that,” said Sen. J.D. Mesnard, R-Chandler. “I don’t think most of my colleagues in the Senate would be either.”

And then there’s the question of to what degree the lingering pandemic and risks to health will affect normal business.

Rep. Ben Toma, R-Peoria, the newly elected House majority leader, said his intention is to begin a full legislative session in January with the ability to work virtually if people are concerned about safety.

“If other people can work from home, so can we,” he said.

The House has made several additions to combat COVID-19, including acrylic barriers on the floor, new hand sanitizer stations, air purifiers, temperature scanners and more.

But Speaker Rusty Bowers, R-Mesa, has yet to announce any other protocol changes – such as a mask mandate, for example – though he is considering several proposals, according to his spokesman, Andrew Wilder.

Safety concerns aside, the thin margins in the House (and Senate, for that matter) mean that if just one Republican lawmaker is incapacitated, the partisan math changes dramatically. At that stage, either lawmakers make a rare demonstration of bipartisanship and pass a bevy of legislation with at least one Democratic vote, or, more likely, policymaking would grind to a halt.

But the solution to this quandary is not to end the session early or pass an austerity budget, said Rep. Randy Friese, D-Tucson, the top Democrat on the House Appropriations Committee.

Friese said lawmakers have an obligation to mitigate the effects of the pandemic on public health and the economy, and that digital tools should enable them to do the people’s work safely. This means, he said, that all lawmakers need to get behind basic safety measures like wearing masks.

“Here we are again with spiking cases, and yet we still have a lot of people in the Legislature who are deniers,” Friese said. “We need to move past that.”

Senate President Karen Fann, R-Prescott, said there was “absolutely no truth” to the rumor that lawmakers were eying another skinny budget as a possibility.

In fact, Fann got her caucus on board with the “skinny” budget last session, in part, by pledging to fast-track failed 2020 bills during the slow first couple of weeks of the 2021 session.

“We have lots of work to do this session,” she said via text.

GOP county chairs urge Ducey to call special session

Maricopa County elections officials count ballots, Wednesday, Nov. 4, 2020, at the Maricopa County Recorders Office in Phoenix. (AP Photo/Matt York)

Top officials of the 15 Republican county committees want a special session — and soon — to order an audit of the machinery used to count ballots.

But only in Maricopa County.

Michael Burke, who heads the Pinal GOP, delivered a letter to the governor Tuesday asking that he call lawmakers back to the Capitol to approve a special one-time law requiring an examination of the software used in machines made by Dominion Voting Systems. Burke said he and his colleagues — the letter was signed on behalf of 14 county chairs and one vice-chair — do not believe that Democrat Joe Biden could have picked up so many more new votes in 2020 in the state’s largest county than Hillary Clinton got four years ago absent a software problem.

But the letter does not call for the same kind of examination of the tabulating machines in other counties where the results for the president were much more favorable. This, Burke said, needs to be focused on Maricopa County.

And Donna Tanzi, who chairs the Yavapai County Republican Committee, said things ran smoothly in her county. It is only in Maricopa, which gave Biden about 45,100 more votes than Trump out of nearly 2.1 million cast, that the GOP officials say there needs to be a closer look.

Those Maricopa votes are crucial: Biden won Arizona by fewer than 11,000 votes.

Burke said he hand delivered the letter Tuesday afternoon to the governor’s office. An aide to the governor said the letter has not yet been reviewed.

Senate President Karen Fann said she has her own questions about election procedures. And, going forward, she is looking at examining state election laws and procedures to ensure there are sufficient safeguards and that voters have “100% confidence” in the system.

But Fann told Capitol Media Services there is virtually no chance that what the party officials want will happen, even if the governor agrees to go along. She said there simply isn’t the time to enact a special law, have it take effect and examine the software before the votes cast this year need to be formally canvassed, something that has to occur no later than Dec. 3.

“I realize this is a Hail Mary,” Burke said. But he said he remains convinced that the legislature is constitutionally empowered to do what it wants on presidential elections.

What the request comes down to, the party chairs told Capitol Media Services, is that they’ve heard things.

“We’re hearing stories about Dominion software changing votes, doing all kinds of unfortunate things,” Burke said.

“I don’t know if that’s true or not,” he conceded. “But let’s find out.”

Tanzi said her particular concern is the Dominion software, “or any software for that matter, and how is that being handled.”

There already are auditing procedures that were established and approved by the Republican-controlled legislature. These involve taking random samples from precincts chosen by officials of the two major parties and doing a hand count, comparing what humans find with what the machine tallied.

If the results fall within the margin of error, that’s the end of it.

But if not, the size of the sample continues to increase until the numbers correspond, potentially getting to a point — which has never happened — where all the ballots are reviewed by hand and that becomes the official count.

In fact, if that were to occur, there already is a requirement in the law for the secretary of state to furnish the “source code” used in the machines to a superior court judge. And the judge then is required to appoint a special master to review the software.

The GOP county chairs, however, want the legislature to short-circuit all of those existing laws and order a special audit this year of the Dominion software.

“We just want to have somebody who is an expert at IT security take a look at that software and make sure it’s fine,” said Burke who put the letter together.

Tanzi, for her part, said she’s not convinced the hand count already authorized in law will answer all the questions.

“That should catch a lot of things,” she said. But Tanzi said pulling out a sample “could mean there’s a whole section that is missed.”

For his part, Russ Jones who chairs the Yuma GOP, said he has yet to see any hard evidence that the Dominion software, which is not used in his county, has caused problems. But Jones said he supported the call for the special audit “so we can satisfy, once and for all in Arizona, that the issues that apparently exist or may exist elsewhere did not occur in Arizona.”

“It’s a matter of voter confidence in our systems,” he said.

And Elizabeth Speck, the former chair and now secretary of the Greenlee GOP, had her own concerns.

“I’ve always been very skeptical of electronic voting machines,” she said. Speck said she worries about software and hardware that essentially sits unnoticed in equipment until activated.

“The legislature has the ability to interview witnesses, review complaints, and most importantly, engage the services of an independent professional IT security firm, who have the expertise to conduct a forensic audit of the suspect software, determine if irregularities exist and provide piece (sic) of mind to the voters of this state,” the letter to Ducey reads “We must begin this process immediately before the election is certified.”

What the county chairs want goes beyond what even is being sought by the Arizona Republican Party.

It’s lawsuit, playing out in Maricopa County Superior Court, is demanding that hand-count review be done on a precinct-by-precinct basis even though state law specifically allows counties to set up vote centers rather than force people to cast a ballot at a specific neighborhood location. A judge will hear arguments on that Wednesday.

Ducey, who has remained silent on the entire election and the results, is a critical player in all of this because he can bring lawmakers to the Capitol on any issue he wants. It would take a two-thirds vote for legislators to call themselves into special session, something that would require Democrat support.

But Fann said even if the Republicans who control the House and Senate did marshal the votes for the audit, they lack the two-thirds vote to have it take effect immediately. And the Arizona Constitution says laws cannot take effect until at least 90 days after the end of the session.

That means not just blowing by the canvass schedule but also the Dec. 14 date for the state’s 11 electors to cast their votes — and even the Jan. 20 date for the presidential inauguration.

Editor’s note: A previous version of this story reported that David Eppihimer, chair of the Pima County Republican committee said he never signed the letter, but he later retracted the statement.

GOP divide spurs call to arms, doxing

In this file photo, Arizona House Speaker Rusty Bowers speaks on a video-chat with a handful of members who planned to vote remotely before the start of an unusual session devoid of members of the public on March 19, 2020. On December 8, 2020, protesters gathered at his Mesa home after people unhappy with his decisions related to the 2020 election posted his home address on social media. (AP Photo/Bob Christie)

Protesters rallied outside House Speaker Rusty Bowers’ home December 8 and a self-declared candidate for Arizona governor threatened to remove Gov. Doug Ducey through non-legal means this week as intraparty Republican conflict reached new heights of intimidation and innuendo.

The branch of the party that cannot and will not accept the results of the presidential election, led by state party chair Kelli Ward and a small group of GOP lawmakers has grown increasingly desperate as the number of available legal options to reverse Joe Biden’s victory continues to shrink.

Arizona Republicans and the Trump campaign have brought eight lawsuits in state and federal court and lost seven so far, though Ward vowed to appeal one to the U.S. Supreme Court. Legislative attorneys shut down theories that lawmakers could appoint their own presidential electors, and Ducey, Bowers and Senate President Karen Fann have stonewalled requests to reopen the Legislature for a special session — though Fann authorized a special committee hearing on election fraud for December 11.

With slightly more than a month to go until Biden’s inauguration, elements of the Republican Party turned this week to suggesting that it was time for violence. On December 7, the state Republican Party fired off a pair of tweets advocating violence and encouraging supporters to die for President Donald Trump’s false conspiracy that the election was stolen from him.

Throughout the week, the party’s official Twitter account continued its onslaught on Ducey and Democratic Secretary of State Katie Hobbs. In one of its less aggressive tweets, the party shared a picture of the state’s top two officials from March with the caption “betrayed.”

On December 5, a male nurse who previously accosted a female state senator and Department of Health Services Director Cara Christ appeared to threaten Ducey’s life during a rally at the Capitol. Bryan Masche, flanked on either side by men carrying rifles, said he put out a call to militia groups after he forced his way into the state House the previous week and was arrested on his way home.

“Doug Ducey will be removed from office,” Masche said. “He will be gone, either through legal means, or, beyond that, it might come down to ‘Plan B.’ We know what it means. I don’t have to tell you what Plan B means. There are people here that know exactly what Plan B means.”

And Rep. Kelly Townsend, the Mesa Republican leading many of the calls to overturn election results, earned national attention for tweeting at Ducey a phrase from the Old Testament that was written by a mysterious hand on a Babylonian king’s wall to inform him that God found him wanting and his kingdom would fall. The biblical king was killed the night he saw that message, leading some to interpret Townsend’s message as a death threat against Ducey.

Townsend did not return phone calls for comment, but tweeted that her use of a biblical message was just intended to show that Ducey has not acted sufficiently by not calling the Legislature back into session.

Other Republican lawmakers have privately condemned calls to arms, but largely stayed mum publicly. Ducey declined to call out his own party in a tweet he posted December 8, ostensibly responding to the calls to arms.

“The Republican Party is the party of the Constitution and the rule of law,” he tweeted. “We prioritize public safety, law & order, and we respect the law enforcement officers who keep us safe. We don’t burn stuff down. We build things up.”

One exception to the anti-Ducey gang was Rep. T.J. Shope, the House speaker pro tem from Coolidge. He said he used up his monthly quota of curse words in responding to tweets from the state party.

Shope has been the only outspoken member of the Republican legislative caucus to repeatedly condemn the behavior coming from his peers. In separate tweets, he publicly called the doxing and protests of the House speaker “gross” and “crappy.”

He told Arizona Capitol Times it’s “not acceptable” to do this to anyone, including to Hobbs, who faced her own doxing and home protests last month, or U.S. Senate Majority Leader Mitch McConnell.

“You shouldn’t have to fear for your safety at your own home,” he said.

Protesters showed up outside Bowers’ Mesa home the evening of December 8, and they were rowdy enough that Maricopa County Sheriff’s deputies responded. A Twitter user shared his address and a Republican Phoenix City Council candidate facing a run-off election shared his personal number encouraging people to call and text him.

Incoming House Majority Leader Ben Toma, R-Peoria, was on the phone with Bowers during part of the demonstration outside the speaker’s home. He could hear cars honking in the background, he said.

That level of protest crosses the line and is “un-American,” Toma said.

“We don’t do this as Republicans,” he said. “It’s one thing to make your displeasure known to someone in their official capacity – showing up at the Capitol and protesting and whatnot. It’s quite another to try to terrorize their family at their home.”

Rep. Walt Blackman, R-Snowflake, has been among the vocal lawmakers calling to overturn election results. He insists that Donald Trump won the election in Arizona, based on unproven anecdotes about voting machines changing Trump votes to Biden votes and residents who aren’t registered voters receiving multiple ballots.

But Blackman said the protests outside Bowers’ house and the state party asking if people were willing to die to overturn election results went too far for him. Before being elected to the House in 2018, he served in the army for 21 years, including tours of duty in Kosovo, Iraq and Afghanistan.

“Being a soldier that’s deployed several times to real places where people die, I don’t use that word lightly,” Blackman said. “When people use that word like that, are they using it for showmanship or are they actually prepared to do that?”

Bowers and Ducey are far from the first high-profile Arizona elected officials to receive threats and targeted harassment from people angry about the results of the presidential election. Protesters showed up outside Hobbs’ home in mid-November, after a user on Parler posted her home address and contact information for family members.

Ducey and lawmakers denounced threats made against Hobbs and her family, but argued that there was no connection between the people harassing her and the various unfounded election fraud theories trumpeted by many elected Republicans.

That week, Townsend had resurfaced a 2017 tweet in which Hobbs — then a Democratic state senator — complained about Trump’s refusal to condemn a neo-Nazi who struck and killed a woman with his car during a white supremacist rally in Charlottesville, Virginia.

Separately, more than a dozen lawmakers signed an open letter demanding that Maricopa County redo its hand count audit of ballots because of “growing concerns expressed by voters about the integrity of the ballot counting process.”

Sen. Paul Boyer, a Glendale Republican who signed that letter, said he doubted the letter had anything to do with harassment of Hobbs.

“I mean, don’t you think that someone like that is going to do it regardless of whether or not we as a legislative body are asking for an interpretation of the statute that says 2% of precincts rather than voting centers?” he asked. “Someone like that who’s willing to be disgusting, and atrocious, and dox a public official, do they really need an excuse to do that?”

GOP lawmakers seek to nullify Hobbs in election litigation

From left are Katie Hobbs and Mark Brnovich

Republican lawmakers took the first steps Tuesday to strip Secretary of State Katie Hobbs of some of her powers.

Measures approved by both the House and Senate Appropriations committees would take away her power to defend state election laws and give it to Attorney General Mark Brnovich.

It even prevents her from being able to get legal advice from the Attorney General’s Office. And it also would remove her purview over the Capitol Museum located in the historic Capitol.

But they insist it’s not personal, not a power grab and not punishment for her political stance, even as several said how unhappy they are with things she’s done.

It does, however, come as relations between Democrat Hobbs and Republican Brnovich have apparently reached a new low. It was disclosed Tuesday that she has filed more than a dozen complaints against Brnovich and staffers with the State Bar of Arizona, the organization that polices attorney conduct and has the ability to punish those who violate ethical rules.

A spokesman for the Bar said he is legally precluded from providing specifics. And there is no timeline for conducting any investigation and releasing any findings.

But Sen. Vince Leach, R-Tucson, said the move by Hobbs only adds to why the Republicans in the legislature are moving against her. And he used them to respond to arguments by Sen. Sean Bowie, D-Tempe, that the action to remove some her authority was political.

“I don’t know what’s more political than the secretary of state submitting charges against almost the entire upper echelon of the attorney general,” he said.

“I would say the unprecedented attack on the attorney general, the chief deputy and many high-level attorneys is uncalled for,” Leach said. “This is really disconcerting and should be disconcerting to the people of Arizona.”

“She’s the one acting politically,” added Sen. David Livingston, R-Peoria.

A spokesman for the State Bar said he can only confirm that a complaint was filed. And neither Hobbs nor Brnovich provided any immediate details.

And with no timeline on how long that inquiry would take, that leaves GOP lawmakers making the moves it can, using the state budget as their tool.

The actions spell out that the attorney general and not the secretary of state has the sole authority to defend the state when election laws are challenged. It also precludes the attorney general from providing any legal advice to the secretary of state, instead giving her $100,000 to hire a single legal adviser.

“This is a more efficient way of doing this,” said Rep. Regina Cobb, R-Kingman, who chairs the House panel.

But Democrats noted this isn’t a permanent change. Instead, it’s only for the coming state fiscal year. And that means it will expire after Hobbs leaves office in 2023.

Cobb acknowledged that a lot of this has to do with how Hobbs chooses to defend — or not — state statutes being challenged in court.

She said there have been instances where Hobbs and Brnovich have started on the same page, defending the changes enacted by the Republican-controlled legislature.

“And during the litigation, half way through the litigation, she’s decided to go the other direction from the AG’s office, from what they’ve been helping her with,” Cobb said. Then, on top of that, Hobbs is billing the state when she hires outside counsel to make those legal arguments.

And sometimes Hobbs actively opposed what Brnovich was arguing.

That’s the case with the challenge to the 2016 law on “ballot harvesting” where lawmakers voted to make it a felony for someone to take anyone else’s filled-out ballot to a polling place.

Brnovich sought review by the U.S. Supreme Court after a federal appellate court voided the law. But Hobbs urged the justices, who are still considering the matter, to uphold that ruling and void the statute.

Rep. Randall Friese, D-Tucson, pointed out that Hobbs, like Brnovich, is elected directly by voters.

“The secretary of state is entitled to her own opinion of the law,” he said, pointing out her role as the state’s chief elections officer. And Friese said if her views differ from that of the attorney general she should be entitled to hire outside counsel.

Sen. Lisa Otondo, D-Yuma, said there’s more to the move than that.

“I really believe that this is not about policy but politics,” she said. And Sen. Tony Navarrete, D-Phoenix, called it “politically driven.”

It also comes as Hobbs, who is expected to announce a run for governor in the 2022 election, has been vocal about what she considers a “sham audit” of ballots being conducted by Senate President Karen Fann, R-Prescott.

Republicans are not stopping with the question of election laws.

A separate provision takes away the authority Hobbs now has over the Capitol museum, the parts of the old Capitol building with historic displays. That would now be under the purview of the Legislative Council, essentially legal staff that advises lawmakers and helps draft legislation.

Rep. John Kavanagh, R-Fountain Hills, said the transfer would ensure that better use can be made of the building by lawmakers. But Rep. Aaron Lieberman, D-Paradise Valley, said this appears to be a reaction to the fact that Hobbs in 2019 chose to hang a “gay pride” flag from the balcony of the building.

“Oh, I have an issue with that,” Kavanagh said.

“I don’t think we should politicize government buildings,” he continued. “But that’s not what this is about.”

Cobb agreed, saying the flag incident was “done a long time ago.”

Rep. Aaron Lieberman, D-Paradise Valley, said he wasn’t buying any of what he saw as excuses by Republicans for what they were doing.

“I learned a long time ago when smart people are saying things that don’t make sense there’s something else going on that’s not being talked about,” he said.

GOP legislators look to curtail emergency powers of governor

FILE - In this May 20, 2020, file photo, Arizona Gov. Doug Ducey speaks during a news conference in Phoenix to give the latest updates regarding the coronavirus. While the Republican governor has never discouraged the use of masks, his full-throated endorsement of them Monday, June 29, was a big change from a largely lukewarm stance the last few months. (AP Photo/Ross D. Franklin, Pool, File) — In this May 20, 2020, file photo, Arizona Gov. Doug Ducey speaks during a news conference in Phoenix to give the latest updates regarding the coronavirus. While the Republican governor has never discouraged the use of masks, his full-throated endorsement of them Monday, June 29, was a big change from a largely lukewarm stance the last few months. (AP Photo/Ross D. Franklin, Pool, File)

Some lawmakers say it’s time to revisit Arizona laws that give the governor broad powers in cases of emergency.

Rep. Mark Finchem, R-Oro Valley, wants a constitutional amendment sent to the ballot to require governors to get the “advice and consent” of the legislature within a certain period — perhaps 14 days — of declaring an emergency. He said the state’s chief executive would need to provide lawmakers with “evidence that an emergency exists.”

Rep. Kelly Townsend, R-Mesa, said she’s not willing to wait to have voters consider constitutional restraints on the power of the governor. She wants a special session of the legislature this fall to reconsider the powers that were given to governors, some specifically in the wake of the 9/11 terrorist attacks.

Senate President Karen Fann, R-Prescott, doesn’t see the need for such a rush. But she, too, thinks that once this crisis is over that legislators need to consider exactly how much unilateral power they have given governors.

But House Minority Leader Charlene Fernandez, D-Yuma, said voters elected Doug Ducey to do a job and that they — and lawmakers — should give him the latitude to do what he thinks is necessary.

In each case, those interviewed by Capitol Media Services say this has nothing to do with Ducey, the emergency he declared in March and the ways he has exercised those powers over everything from what businesses can be open to when people need to stay at home.

“We obviously respect the tough position that the governor is in,” Fann said. “It’s kind of a no-win situation for him.”

But in some ways it is about Ducey since he is the one who declared the emergency.

Fann said that, with the knowledge now of how all that works, that requires a new look at those laws and how they fit into the constitutional balance of power that’s supposed to exist between the executive and legislative branches of government.

“They probably thought it would be 30, 60 days,” she said of those who crafted the laws. And the thinking, Fann said, probably was based on the idea that it’s not easy to call lawmakers into special session to approve specific acts giving the governor special powers.

“But I seriously do not think that this was intended to go on for three, five, six months,” she said.

Ducey, for his part, isn’t interested in any limit on either the breadt