The James R. Browning United States Courthouse building, a courthouse for the U.S. Court of Appeals for the Ninth Circuit, is shown in San Francisco, Wednesday, Jan. 8, 2020. (AP Photo/Jeff Chiu)
Reversing course, Secretary of State Katie Hobbs now wants a federal appeals court to quash a trial judge’s order giving Arizonans an extra 2 1/2 weeks to register to vote for this election.
In a new court filing, Hobbs said she always opposed scrapping the Oct. 5 deadline. Hobbs said she did not initially appeal for fear it would cause more confusion than simply leaving the order from U.S. District Court Judge Steven Logan, an appointee of President Obama, in place.
But Hobbs is telling the appellate judges that if they overturn the order they should not do it summarily.
With people out there registering right now, she said, there should be some notice that the Oct. 23 deadline set by Logan is being voided. So she wants any order by the 9th Circuit Court of Appeals to provide a few more days to gather up those registrations, perhaps through this coming Friday.
And there’s something else.
Katie Hobbs
Hobbs wants the appellate court to say that anyone who relied on Logan’s order and registered in the interim still gets to vote this election, even if the judges ultimately conclude that Logan was legally wrong in voiding the statutory Oct. 5 registration deadline.
All this comes as the appellate court heard arguments Monday about what to do now — and how quickly to do it.
It was Logan who last week sided with Mi Familia Vota and the Arizona Coalition for Change, concluding that the COVID-19 outbreak and restrictions on travel and group activities imposed by Gov. Doug Ducey means there should be more time this year to get signed up to vote.
In her latest filing, Hobbs told the appellate judges she still believes — as she told Logan — that the lawsuit by two groups challenging the Oct. 5 deadline came too late. The decision not to appeal was amid concerns of causing more confusion.
“The secretary was prepared to accept the district court’s order and work to implement it despite the hardships it causes for Arizona’s election administrators,” attorney Roopali Desai wrote for Hobbs.
As it turns out, that already is occurring, what with an appeal filed anyway by attorneys for the Republican National Committee and the National Republican Senatorial Committee. And on top of that, Attorney General Mark Brnovich, who had stayed out of the original fight, now wants the appellate judges to overturn Logan.
“Because of the appeal and the pending stay requests, the secretary, county recorders, and voters alike face the very uncertainly that she sought to avoid,” Desai wrote explaining Hobbs’ changed legal position.
But there’s something else.
Hobbs’ initial decision not to appeal put her at odds with 10 of the state’s 15 county recorders from both parties, the people who actually have to process the new registrations. They joined with Gov. Doug Ducey and legislative leaders with their own legal filing asking the appellate judges to reverse Logan’s order.
Steven Logan
“Voting in Arizona already has begun,” wrote attorney Brett Johnson, pointing out that early ballots went out last Wednesday. “County recorders had already shifted resources from registration functions to election activities.”
And Johnson pointed out that recorders were never included in the lawsuit which named only Hobbs as defendant. Yet he said they are the ones who actually are responsible for collecting, verifying and maintaining voter registration applications.
Now, without a chance to defend the Oct. 5 registration deadline, Johnson said, they now have to receive, review, verify and follow up on voter-registration applications, something he said “cannot be accomplished this close to the election without creating questions about the authenticity of those registrations.”
Johnson also took a swat at the challengers for blaming Ducey’s orders for their inability to get people registered.
“This is incorrect,” he wrote. “The executive orders expressly protected the exercise of constitutional rights.”
But Zoe Salzman who represents those who want more time said the orders themselves kept people at home, closed businesses and malls where voter registrations would normally take place and even precluded large gatherings. All of that, she said, reduced registrations to a relative trickle to what they were before the COVID-19 restrictions.
As to why wait — she did not sue until less than a week before the Oct. 5 deadline — Salzman said she needed evidence to show that once Ducey lifted his restrictions in August that voter signup went back to near pre-COVID numbers. That, she argued, was necessary to prove to Logan that extending the deadline would definitely mean more people would be eligible to vote.
Not all the last-minute filings at the appellate court were seeking to void Logan’s order.
The League of Women Voters and the Phoenix Indian Center, in their own legal papers, told the appellate judges that there are legitimate reasons to give people more time.
Attorney Jordan Elias criticized the arguments by the Republican interests that the extension is unnecessary because “it has never been easier to register to vote” in Arizona, calling it a “let-them-eat-cake assertion.”
Elias said there are options like online registration for those who have a state-issued driver’s license or identification card.
“That is not a viable option for many voters,” he told the court.
“Fewer than half of the homes on tribal lands have reliable broadband access,” Elias wrote. “Even if a voter on a reservation has access to broadband, the state of Arizona does not allow tribal IDs to be used as a form of identification to register to vote online, even though tribal enrollment is a valid form of proof of U.S. citizenship.”
Arizona Republican legislators have a habit of pushing ideas that make their own lives easier, but harder for voters to have their voices heard.
Critics say the GOP-led efforts are a consolidation of legislative authority, designed to fend off an increasingly independent and incensed electorate in a state that’s becoming slightly more competitive every two years.
Some examples include legislation like SB1023, which would allow legislative candidates to identify fewer of those individuals who make financial contributions to their campaigns, leaving voters in the dark about who’s influencing elections.
And Republicans are also leading an effort to quash a movement in Tempe to reveal the sources of “dark money” in local elections. It’s a GOP bid to keep campaign dollars spent by groups that don’t disclose the source of their money a secret.
And there are more.
Arizona is no stranger to bills that are criticized as a power struggle between lawmakers and voters, but Zachary Smith, a regents professor of politics and international affairs at Northern Arizona University, said this year’s wave of legislation is unprecedented.
“In 30 years of watching the Arizona Legislature, I’ve never seen such blatant attempts to empower the Legislature and disempower the voters, and that’s taking all of these things into consideration,” Smith said.
Republican lawmakers say there’s no concerted effort to undermine voters, and make the case for bills on an individual basis as good for Arizona and good for their constituents. But on some issues, their policy positions contradict popular public opinion.
Rivko Knox, a volunteer lobbyist with the League of Women Voters, recalled one legislative hearing this year on a bill with dozens of speakers signed in to oppose, and minimal support, but still, a lawmaker claimed the measure was widely backed.
The “request to speak” system is by no means a definitive arbiter of public opinion. Still, in the face of overwhelming opposition at the hearing, “the legislator said, ‘That’s not what I hear in my district,’” Knox said.
If that’s the case, she said, “to what extent you’re really representing your district, I don’t know.”
Power retention
In some ways, Knox sees Republican efforts to consolidate power in the Legislature as instinctual, albeit a tactic that shies away from transparency and shows a disrespect for the public, she said.
“To some extent it’s almost a natural reaction, in the sense that one body wants to retain power,” she said.
Joel Edman
Those bodies, the Republican-dominated Arizona Senate and House of Representatives, are frustrating lobbyists like Knox and Joel Edman, executive director of the Arizona Advocacy Network.
“Instead of having huge debates on how we can get more money into classrooms, and how we can take care of the families that don’t have reliable access to health care, that we’re trying to figure out, can we raise the salaries of legislators, can we make it so we don’t have to run for re-election so often, can we make it so we can hide some of our campaign contributions?” Edman said. “It’s a really sort of twisted view of the priorities.”
There is in fact an effort to dramatically increase legislative salaries, though such a pay hike would require a vote of the people, and Arizonans haven’t been keen on rewarding lawmakers with a raise for years.
Arizonans may also be asked whether they want senators and representatives to serve four-year terms, rather than two years. The resolution, sponsored by Rep. Drew John, R-Safford, would halve the number of elections in which legislators must campaign, a boon for institutional knowledge, some argue. Even Edman and Knox see the benefits of such a proposal.
And yet, HCR2006 finds a way to make legislators’ lives even more easy because legislative elections would only be held every four years during midterm elections, when voter turnout is at its lowest and campaigns are dominated by the most passionate, and arguably far-right and -left, of each party, Edman said.
“That means that some segment of voters who show up just for presidential years aren’t going to have their voices heard at all – they’re basically irrelevant as far as the state Capitol is concerned. And so that’s a whole segment of voters that are taken out of the process,” he said.
Should they vote every year? Sure, Edman said. But as long as they don’t, fewer elections should at least be held at a time when more voters are likely to cast ballots, he said.
Initiatives
Edman and Knox speculate that avoiding voters might be the underlying goal. For example, it has become routine for Republicans to sponsor bills that chip away at the initiative process, by which voters can bypass the Legislature and pass laws on their own, or even block laws the Legislature approved.
Proposition 206, a citizens initiative to raise the minimum wage that voters approved in 2016, seems to have accelerated those efforts, Edman said.
“Certainly it brought on all these attacks on the initiative process, but I think folks down here, and I think in particular a couple of powerful interests groups like the (Arizona Chamber of Commerce and Industry) who were used to getting their way saw they can’t always get their way with the electorate,” he said. “So let’s see if they can again find a way to make the electorate less important in how the state runs things.”
That feeling is also reflected in efforts like HCR2022. Sponsored by Rep. Travis Grantham, R-Gilbert, the resolution would ask voters to give up their right to elect partisan candidates in primary elections for the U.S. Senate. Instead, legislators from the Republican and Democratic parties would select two nominees each whose names would appear on the General Election ballot.
When the resolution was approved by a House committee on a 6-3 party-line vote, Republican representatives said the measure will better serve the state by ensuring U.S. senators are acting in the best interest of the state.
“That to me is such a blatant way of saying, ‘We ought to control what’s going on. We want senators that are dependent on us,’ as if the legislators are the people of the state, and they’re not,” Knox said.
Some don’t pan out
Rep. Bob Thorpe (R-Flagstaff)
The sponsors of resolutions like HCR 2022 are often criticized for not having their finger on the pulse of the electorate. Rep. Bob Thorpe, the Flagstaff Republican who has sponsored several bills to draw the fire of progressive and nonpartisan interest groups alike, said he knows exactly what he’s doing – it’s what his voters want.
Not all constituents may like it, but Thorpe said he’s doing right by his Legislative District 6.
Sometimes that means pitching bills that don’t pan out. Thorpe said he sponsored HCR2014, the resolution to block independents from voting in partisan primaries, because a voter in his district asked him to. But he backed off the idea after consulting with state Republican leaders, who weren’t in favor of the idea.
Thorpe said most bills come from ideas from constituents. There’s nothing nefarious going on, as if Republican lawmakers are plotting with one another about ways to undermine the will of the voters.
“We are all free agents down here, and it’s very rare that as we’re crafting bill ideas that we’re having conversations with members. … I think what you might be suggesting and other people might be suggesting is there’s a collaborative effort to push the agenda in a certain direction,” Thorpe said. “We don’t even have right now a majority plan in place, where the majority has decided we’re going to be pushing A, B and C.”
For Thorpe, the best way to represent the voters of his district is to push for what he philosophically believes is in the best interest of the state of Arizona.
Take the minimum wage issue as an example.
Thorpe argued that such a high minimum wage – Arizona’s now stands at $10.50 per hour, but will increase to $12 by 2020 – is bad for businesses and ultimately hurts the residents it’s trying to help. So he supports efforts to freeze the minimum wage at its current rate and undo paid-leave protections for employees that were approved by voters less than 18 months ago.
Initiatives like Prop. 206 that increased the minimum wage get in the way of Thorpe’s view of a representative form of government.
“People elect us to come down here and the Legislature to write laws,” he said. “So when you have a bill, whether it’s well intentioned or not, a referendum, it basically steps on our toes as the Legislature.”
Stepping on toes or not, Prop. 206 passed with little opposition. Roughly 58 percent of voters approved the minimum wage hike across the state, and in Thorpe’s LD6, the proposition passed with more than 57 percent of the vote, according to an analysis prepared for Arizona Wins, a progressive advocacy group.
So how does Thorpe reconcile supporting a measure to undo something that voters in his district supported?
“I look at my constituents. When I go before the people in northern Arizona, I’m thanked for the job I’m doing,” he said.
And if he keeps getting elected, that must mean there’s at least some voters in LD6 who approve of what he’s doing, like undermining the minimum wage initiative.
“Any election, (voters) have the opportunity to get rid of me and to elect someone else. I’m coming up for re-election now, and they have that opportunity to do so,” Thorpe said. “So if I’m not doing what they want me to do, they’ll replace me.”
Ignoring the popular vote
Smith, the NAU professor, said there are many factors that create an environment where a lawmaker like Thorpe can ignore the popular vote in his district. Lawmakers are listening to some, but not all, of their constituents, he said.
As far as having their finger on the pulse of the electorate, it’s a valid criticism, Smith said, “but see, they don’t have to, because they only have to have 51 percent of the people that vote in the Republican primary in their district, and most of those guys know it.”
Smith said that Republicans in charge of the state right now are “enriched and empowered by forces that weren’t in play in the past” – particularly anonymous campaign expenditures like the ones Tempe wants to shine a light on, but Republican legislators want to keep in the, well, dark.
The financial influence of anonymous political spending stretches from the highest office in the state – Gov. Doug Ducey was the beneficiary of $8.2 million in dark money during the 2014 election — to some legislative races.
On the bright side, Smith noted that many of these legislative efforts are dead or dying.
Sen. John Kavanagh, R-Fountain Hills, is killing SB1023, which would shield some campaign contributor s from exposure, in the face of opposition, including some from his own party. A Thorpe bill to exempt communications on personal devices from the public record never passed a committee hearing.
But bills like the dark money ban pre-emption and an effort to overhaul Arizona’s Independent Redistricting Commission are alive and will likely be approved along party-line votes. Progressives like Edman are hopeful that the changing demographics of the state will alter that reality.
Some see a not-too-distant future where that might be the case.
Sen. Robert Meza (D-Phoenix) (Cronkite News photo by Griselda Nevarez)
In a committee hearing on the resolution to undermine the voter-approved minimum wage hike, Sen. Robert Meza, D-Phoenix, warned his GOP colleagues that a wave is coming in the form of a young, educated, and arguably angry voter fed up with legislators who don’t listen to the people.
Smith isn’t so sure.
“You know if you’re a Republican sitting in a safe district, you can do just about anything,” he said. “Is there gonna be a backlash? Yeah, I think some of these things are going to be a bit too far. Is the backlash gonna extend to throwing people out of office? No.”
Legislation voters likely won’t love
Critics say that Republican lawmakers are pushing ideas to make legislators’ lives easier at the expense of voters, who would be cut off from vital knowledge about their elected officials and in some cases denied opportunities to vote. Here are a few examples of those bills they oppose – many have failed, but others are still making their way through the process.
SB 1023
Sponsored by Sen. John Kavanagh, the bill would have hidden the identities of most individuals who donate to political campaigns and legislative candidates in elections. Roughly three out of every four donors would not have their identities disclosed. Kavanagh won’t pursue the bill after facing some criticism from his GOP colleagues.
HB 2153
Sponsored by Rep. Vince Leach, the bill would bar Arizona municipalities from requiring politically active, tax-exempt organizations from revealing their donors. No city, county or town currently does this, but Tempe is considering the idea. The bill already passed the House, but must now be voted on in the Senate.
HB 2256
Sponsored by Rep. Bob Thorpe, the bill would undermine a recent ruling by the Arizona Court of Appeals that found records stored on public official’s personal media devices are subject to public records laws. The bill would exempt those records, even if a public official was using a personal device to conduct official business. The bill never received a hearing.
SCR 1034
Sponsored by Senate President Steve Yarbrough, the resolution would increase the members serving on the Independent Redistricting Commission, the body responsible for redrawing Arizona’s congressional and legislative district boundaries. The bill has faced criticisms that it re-politicizes a process that voters explicitly don’t want legislators to be involved in. It awaits a vote on the Senate floor.
SCR 1002
Sponsored by Sen. David Farnsworth, the resolution sought to require voters to re-consider statewide initiatives or referendums every 10 years, essentially putting laws up for a revote each decade, something not required of laws approved by the Legislature. The resolution never received a hearing.
SCR 1016 and HCR 2026
Sponsored by Sen. Sylvia Allen and House Speaker J.D. Mesnard, the resolutions second-guess the voters, who in 2016 approved an initiative to hike the minimum wage and give protections for employees who need paid sick leave. Mesnard’s resolution would weaken those protections, while Allen’s goes further and seeks to freeze the minimum wage at its current rate of $10.50 per hour, rather than let it climb to $12 as voters approved. Both measures are working their way through the Capitol.
HCR 2022
Sponsored by Rep. Travis Grantham, the resolution would eliminate primaries when it comes to electing U.S. senators to represent Arizona in Congress. Legislators, not voters, would get to decide which partisan candidates run in the general election. It was approved in a House committee, but awaits a vote by the full chamber.
A worker prepares volunteers to verify ballots at the Maricopa County Recorder’s Office Thursday, Nov. 8, 2018, in Phoenix. There are several races too close to call in Arizona, especially the Senate race between Democratic candidate Kyrsten Sinema and Republican candidate Martha McSally. (AP Photo/Ross D. Franklin)
Residents in all of the state’s 15 counties are going to get another few days to fix problems with their early ballots to ensure their votes are counted.
A deal reached Friday in a lawsuit brought by the Republican parties of four counties directs officials in all counties to follow the same procedures through 5 p.m. Wednesday that they had used to verify questioned ballots before last Tuesday’s election.
Until now, only election officials in Maricopa, Pima, Coconino and Apache counties had allowed voters to “cure” defects with early ballots after the polls closed at 7 p.m. Tuesday. Creating that opportunity in the other 11 counties means that even more votes are likely to be tallied.
How many are out there is unclear.
State Elections Director Eric Spencer said he believes there may be up to 10,000 early ballots statewide where there now is a chance they will be counted.
Less clear is whether the additional votes will affect several close races yet to be decided. But Brett Johnson, who represents the Republicans who filed suit, said it creates a “level playing field,” where voters in all counties — including most of the 11 which have GOP majorities — have the same rights.
At the heart of the legal fight is what happens with early ballots.
Voters are required to sign the outside of the envelope before mailing or dropping it off at a polling place. When county officials get each envelope the first thing they do is check to ensure that the signatures match what they have on file.
If they do not, the practice of all 15 counties has been to allow voters to come in to provide , an explanation, such as whether there is an ailment that affects the person’s ability to hold a pen.
But only in Maricopa, Pima, Cochise and Apache counties have officials continued the verification practice beyond the 7 p.m. Tuesday deadline when the polls close; the other counties stopped those checks at that time, meaning any unverified early ballots still outstanding at that time are not counted.
What caused consternation of Republicans and resulted in the lawsuit is that the early ballots being tallied from those four counties have overall been running in favor of Democrats — a lot.
In fact, while Republican Martha McSally was leading in the race for the U.S. Senate after the votes cast at the polls were counted, updated figures with early ballot returns have put Democrat Kyrsten Sinema in the lead.
And in the race for state schools chief, the lead that Republican Frank Riggs enjoyed on election night has evaporated, with Democrat Kathy Hoffman now outpolling him.
The lawsuit filed by Johnson argued that the disparate procedures were an unconstitutional violation of the equal protection provision of the U.S. Constitution. In essence, he said, Arizona cannot allow one early ballot to be counted in one county when an early ballot mailed at the same time in another county is not.
Johnson’s efforts to halt the post-Election Day ballot “curing” in the four counties drew complaints that the Republicans were trying to suppress votes. And Colleen Connor, an assistant Maricopa County attorney, said what Johnson was seeking was impossible: County election officials, after verifying the signatures, had removed the ballots from their envelopes and mixed them in with others to be counted.
That left Republicans with the alternative of requiring the other 11 counties to also give their voters more opportunity to explain signature disparities.
Nothing in the deal, however, requires recorders throughout the state to follow the procedures used in Pima and Maricopa counties where election officials actually try to reach out to voters with questioned ballots.
More to the point, the agreement does not require county recorders to do more now than they were doing with the early ballots before Election Day. So if prior to Tuesday a county never tried to contact a voter but simply allowed them to come in if they heard there was a problem, that will suffice for the early ballots still left after the election.
“We believe that each county, for process purposes, have the ability to cure in their own manner, including the outreach to the residents,” Johnson told Maricopa County Superior Court Judge Margaret Mahoney.
But Johnson made it clear that he believes all those voters whose early ballots were set aside due to signature mismatches will be contacted, one way or another.
“The (political) parties are able to contact their members through the lists that are provided by the counties so that we can affirmatively get voters in to making that cure,” he told the judge.
That provides some opportunities for Republicans to salvage the races they thought they won on election night: The majority of those 11 counties that now will revisit those early ballots were producing more GOP votes.
Not everyone was pleased by the outcome.
Spencer Scharff who represents the League of Women Voters and the Arizona Advocacy Network, pointed out the deal covers only what happens right now. He said nothing addresses what will happen if there are similar problems in the 2020 election.
But Kory Langhofer, attorney for the Arizona Republican Party, told Mahoney there is no legal authority for her to tell counties what they should be doing two years from now. Anyway, Langhofer said, it’s unlikely the problem of different procedures in different counties will repeat itself.
“There will most certainly be a legislative solution,” he said, with lawmakers likely to alter the statute to ensure there are clear — and consistent — provisions for what happens in these situations in the future.
The deal, however, does have the blessing of the recorders in all the counties as well as the Arizona Democratic Party which intervened in the lawsuit filed by Republicans and also will get a chance to find party adherents in all the counties whose early ballots need verification.
The partisan nature of the dispute spilled over onto the national stage, even drawing the attention of President Trump.
Speaking to reporters early Friday, the president questioned how Republicans who were leading on election night in Arizona and Florida now seem to be losing ground.
“It always seems to go the way of the Democrats,” Trump said. “Now in Arizona, all of a sudden, out of the wilderness, they find a lot of votes, and she — the other candidate — is just winning by a hair,” referring to Sinema.
But the president, perhaps indicating he did not understand the legal issue of mismatched signatures between early ballot envelopes and county records, later sent out a tweet reading, “Just out — in Arizona, SIGNATURES DON’T MATCH. Electoral corruption,” along with a question of whether there should be a call for a new election.
Vermont Sen. Bernie Sanders on Friday claimed in his own tweet that Republicans are trying to “suppress the vote.” And he urged election officials here and in Florida and Georgia to “do their jobs and count every vote.”
“They must not allow the president, a bully & a pathological liar, or anyone else to intimidate them,” Sanders wrote.
A Senate panel voted Thursday to erect some new hurdles in the path of those seeking to recall state and local elected officials.
SB 1434 crafted by Sen. David Gowan, R-Sierra Vista, adds new requirements for paid circulators and those from other states to first have to register with the secretary of state. This mirrors changes the Republican-controlled Legislature already have imposed on those proposing new laws through initiatives.
The legislation also spells out in detail exactly how petitions must be formatted with language allowing legal challenges if the forms are not in “strict compliance” with those standards.
David Gowan
Potentially most significant is that it permits anyone challenging the recall to demand that paid circulators show up in court. And if that person does not appear, it requires judges to disqualify all the signatures that person collected, regardless of whether there is other evidence to show that the signature is valid and the signer does support the recall.
That provision, too, already exists for initiative petitions.
Another bill approved Thursday by the Judiciary Committee permits, but does not require, county election officials to reach out to voters who forget to sign the envelopes in which they return their early ballots.
This version of SB 1032 is less severe than the original proposal by Sen. Michelle Ugenti-Rita, R-Scottsdale, which would have banned the practice entirely.
But Sen. Martin Quezada, D-Glendale, said that still leaves the door open for inconsistent practices across the state should some county recorders decide that they don’t want to do that. And that effectively would nullify any ballot within an unsigned envelope.
Both measures drew strong opposition from the League of Women Voters.
Rivko Knox, the organization’s lobbyist, told lawmakers that her members oppose all efforts to require “strict compliance” with election laws, where technical violations can disqualify petition drives.
Rivko Knox
“The Arizona Constitution speaks favorably and strongly in support of direct democracy, as does the League,” she said. “And although direct democracy remains in our laws, so many barriers have been placed before it that it may shortly become a part of history and unusable by Arizona citizens.”
Knox also said there is “some irony” in the fact that lawmakers have not extended that requirement for strict compliance to their own nominating petitions or those of other elected officials.
“Why should the latter not be subject to all the hoops that a recall petition would be subject to if this bill is passed?” she asked. “Does this Legislature believe those circulating nominating petitions are somehow more trustworthy than those circulating recall petitions?”
The issue of early ballots and unsigned envelopes addresses a different problem.
Election officials in each of the 15 counties had their own policies of whether to try to contact voters when ballots showed up without the legally required signature. There also were differing practices about how much time voters had to come in and make the fix, with some setting the deadline at 7 p.m. on Election Day and others giving voters up to five days after.
Secretary of State Katie Hobbs, responding to a lawsuit filed by the Navajo Nation, agreed to a uniform standard of five days.
Attorney General Mark Brnovich vetoed that agreement, saying Hobbs lacked the authority to make such a change. That sent the issue to the Legislature to resolve, which is what SB 1032 is designed to do.
But that language allowing and not requiring election officials to seek out voters who forgot to sign their envelopes annoyed Randy Perez, the democracy director for Living United for Change in Arizona.
He told lawmakers there were thousands of ballots that were not counted last election. And Perez said this bill, along with other moves by the Republican-dominated Legislature, has an ulterior motive.
“We know these bills are not in a silo,” he said.
“This Legislature has a horrible, horrible partisan history of attacking the right to vote,” Perez continued. And he said LUCHA believes that Republicans are pushing this now because they fear they will lose their legislative majorities in the 2020 election.
“We know that we are only one seat away from power in the House and two seats away from power in the Senate,” Perez said, referring to the 31-29 GOP edge in the House and 17-13 margin in the Senate. “And we know that bills like this will not be able to move forward in the future.”
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)
An attorney for American Oversight charged on September 1 that the Senate has not complied with a court order to surrender all the documents it has dealing with the audit of the 2020 election.
Roopali Desai told Maricopa County Superior Court Judge Michael Kemp that the Senate has failed to produce various text messages between members of the Senate as well as messages sent between senators and others, including officials from Cyber Ninjas, the private firm hired by Senate President Karen Fann to review the election results.
The deadline for production was August 31.
Attorney Kory Langhofer does not dispute that the Senate has not turned over everything in its possession. In fact, he told Kemp, there are 2,885 documents that remain undisclosed.
Langhofer said some of that is designed to give Senate staffers a chance to remove personally identifying information.
But he conceded that there is a large group of documents protected by what he claims is “legislative privilege.” And Langhofer acknowledged to Kemp that list of withheld documents includes texts between Fann and anyone from Cyber Ninjas.
In fact, Langhofer said that as far as the Senate is concerned, any documents not produced about the application process or the ultimate selection of Cyber Ninjas to do the work also is protected from public disclosure as either legislative privilege or covered under attorney-client privilege.
Those claims potentially set the stage for Kemp to appoint a “special master” to go over the disputed documents in what is known as “in-camera review,” where a judge or a neutral third party goes over the materials to determine if they can legally be withheld. But Langhofer said he will fight even that, saying there is no inherent right of someone seeking records to demand judicial review.
“There has to be a reasonable, good-faith showing under the precedents of the Arizona Supreme Court that a claim of privilege is inappropriate before a party is entitled to in-camera review,” he said.
Kemp made no rulings September 1, scheduling another hearing for September 16, to see what progress, if any, has been made in producing the documents.
Langhofer did tell Kemp that, as of September 1, the Senate did not yet have in its possession the draft report promised by Cyber Ninjas about what it found from its review. And he said the final report, which is expected to be in three volumes, will not be ready for at least another two weeks.
Separately, Arizona media outlets and contractors are lining up on opposite sides of the argument about whether a separate batch of audit records held solely by Cyber Ninjas are public.
Robert Roos is urging the Arizona Supreme Court to overturn lower court rulings that private companies can be forced to surrender documents in their possession if they involve public business. Roos, representing the Arizona Chapter of the Associated General Contractors of America, told the justices that there is no basis for such a conclusion,
But Daniel Barr, filing on behalf of the First Amendment Coalition, said there is ample reason to justify the ruling that documents, even in private hands, are subject to the state’s public records law when a public agency – in this case, the Senate – has delegated a “core and delicate governmental function” like an audit to an outside firm.
And Barr, also representing the League of Women Voters, took a swat at arguments by an attorney for the Senate and Fann who have argued against having to obtain and disclose the documents held by Cyber Ninjas. One of those arguments is that the Senate is immune from lawsuits about when and how to comply with the public records law.
In fact, Barr said, the Legislature actually expanded the scope of the law in 1975.
“Given this history, it is disingenuous to conclude anything other than that the legislature has intentionally subjected itself to the public record law’s mandate,” he wrote. “If petitioners (the Senate) want to avoid the transparency that the public records law protects, they can easily seek to do so through statute.”
Langhofer said the Senate is producing everything in their possession that is legally required to be released. Whether that is true is the basis for those court arguments September 1.
But the Senate has balked at turning over anything not in its actual physical possession.
In July, Kemp said there’s no basis for that distinction, noting that Fann herself said that the audit is a public function being conducted by the Senate.
“Cyber Ninjas and the subvendors are clearly agents of the Senate defendants,” Kemp wrote. “Cyber Ninjas and the subvendors’ records would not be subject to disclosure under the public records law if they had not been hired to conduct the audit on behalf of the Senate.”
That was affirmed just last month by the state Court of Appeals.
“There is no dispute that the audit is being conducted with public funds, and that Cyber Ninjas and its subvendors are agents of the Senate,” wrote Judge Maria Elena Cruz for the three-judge panel. More to the point, she rejected the contention that the lack of physical possession of the documents by the Senate means no obligation to produce them.
“Nothing in the plain text of the public records law suggests that physical possession of the public records by the Senate is required,” Cruz wrote.
It is that conclusion that Roos wants the Supreme Court to overturn, what with his association’s members doing work for government agencies and potentially subject to the effects of the ruling.
“Nowhere in the legislative history of the statute is there a clear expression of legislative intent suggesting that the legislature intended to expand the scope of the public records law to the internal documents and communications of third party vendors, in the custody of those vendors, even when no public officer was a party to or in any manner relied upon or used those documents,” Roos told the justices.
But Roos, recognizing the unique nature of this case and the decision of the Senate to farm out the audit, also has a fallback position. He told the justices that if they are going to conclude that the records in the hands of Cyber Ninjas are public, they should confine the precedent solely to election cases.
“Elections are different than other governmental functions and documents created by and about elections are therefore different than other public records,” Roos wrote. “The public’s interest in the transparency of an election audit might thus justify the privacy intrusion into the communications of a third-party vendor hired to audit an election as agent of the Senate.”
But he told the justices that what his clients do falls into a different category.
“There are strong public policy reasons to differentiate between contractors hired to conduct election audits, and those other generic contractors that are hired to perform construction work for state or local governments or even school districts,” Roos wrote.
Arizona is entitled to make “ballot harvesting” a crime despite a federal law that allows anyone to deliver a letter, the state’s legal defenders are arguing.
In new legal filings, Joseph La Rue, an assistant attorney general, acknowledged there is a federal statute that spells out that federal law “shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation.” What makes that significant is that challengers say once someone puts an early ballot into an envelope and gives it to someone else to take to the polls, it becomes “mail” which the state cannot regulate.
But La Rue is telling U.S. District Court Judge Douglas Rayes that those seeking to void the 2016 state statute are misreading that federal law.
He said all it does is create a “narrow exception” to the monopoly the U.S. Postal Service has in delivering mail. Specifically, he said it says federal law cannot bar the private delivery of mail.
“There is no general, freestanding authorization – let alone federally protected right – for individuals to carry any piece of mail (or, in this case, ballots that are not mail) unencumbered by state regulation,” La Rue said. And he said the U.S. Constitution gives states broad power to regulate how elections are conducted.
Hanging in the balance is whether the state can enforce the 2016 law which makes it a felony for anyone to handle anyone else’s voted or unvoted ballot. Violators can be sentenced to a year in state prison and a $150,000 fine.
The practice at issue involves civic and political groups who have previously gone door-to-door into neighborhoods ahead of elections to see if residents have returned the early ballots they have requested. If not, they offer to bring them directly to polling places, especially if there is a chance that a ballot put in the mail will not reach county officials by election day.
Republican lawmakers said this creates an opportunity for fraud, with those doing the collection making a decision on which ballots to deliver and which to trash based on how they believe the person voted.
Rep. J.D. Mesnard, R-Chandler, now House speaker, conceded during debate at the time there was no evidence anyone was engaging in such a practice. But he said what is important “is that many people believe it’s happening.”
Rayes dismissed an earlier lawsuit challenging the law on the basis that it has a disparate effect on minorities.
This new one, brought on behalf of Rivko Knox of the League of Women Voters, argues that the Arizona statute is precluded by the federal law saying anyone can deliver mail as long as there is no charge.
La Rue, in the new court filing, called it a “novel” theory. But he told Rayes there is no conflict between the state law and the federal one.
“Nothing in (federal law) creates an affirmative right for individuals to collect anything, let alone other voters’ early ballots that have never been submitted to the Postal Service in the first place and are not required to be submitted by mail,” he wrote. And La Rue said the law creates no “express right” to deliver mail free of charge “but merely exempts citizens from federal penalties that otherwise would apply to the private carriage of mail.”
La Rue also told Rayes there’s another reason to reject the challenge.
He said Knox and other opponents have known about the law since it was adopted two years ago. In fact, he said, Knox, who said she has previously helped deliver early ballots, actually testified against it when it was being considered.
“If plaintiff believed that she was suffering irreparable harm, she could have brought her lawsuit in 2016, or 2017, or even early 2018,” La Rue said. “But she did not, waiting instead of the 2018 election season to begin in earnest.”
And he said that Knox offers “only the flimsiest of excuses” for the delay, citing a statement she made that she “got busy doing other things.”
La Rue said it would be wrong to change the rules on early ballots this close to the election, noting they go out 10 days before the hearing he has set for Aug. 10.
Isn’t it bad enough to lose your job without losing your employer-based health insurance along with it?
Our country is suffering. Tens of thousands have confirmed cases of COVID-19— thousands have died, and many are in quarantine and missing work. More than 17 million Americans have applied for unemployment as of this writing. What is even worse—and unnecessary—is that when they lost their jobs, most also lost their employer-based health insurance. A recession brought on by a pandemic illuminates the fact that tying health insurance to employment is a disaster. The consequences are devastating.
Our current state of emergency gives our leaders an opportunity to lead. Now make us proud, lead!
Linda Napier
We need our elected officials to immediately pass the current federal bill, “The Medicare For All Act”, so that all Americans have guaranteed health care. No more incremental steps. Yes, some of the measures our government has taken will help “temporarily” get us through this epidemic. Congress has voted to cover testing for some…but not the care associated with treatment. How will those without insurance, or those with inadequate insurance, be able to pay for all the accompanying expenses, i.e. doctor and hospital bills. Will some simply not seek care because they cannot afford it, thus endangering us all?
Here’s a question we should all ask. Why did Congress, in the aid package just passed, allow coronavirus profiteering by drug makers? This is outrageous.
What is happening right now shows more than ever that we need a cost-efficient, comprehensive, health care system that works for everyone. COVID-19 cases are doubling every two or three days and with unemployment growing exponentially, we cannot afford to wait another day.
Americans are past due for a health care system that prioritizes patient care and public health over lining the pockets of big pharma and health care CEOs. As our country responds to the global coronavirus pandemic and millions of Americans lose their jobs—and as a result, their healthcare—our elected officials must ensure all of us have access to quality health care. One person’s illness, if not treated, can affect hundreds more.
Fortunately, we have a well-tested solution, our beloved Medicare! It is time to improve and expand it to cover everyone for 100% of all medically necessary care. It’s much simpler and cost-effective than the current complex for-profit system, and it’s accountable to patients and providers, not to investors. It has 2% overhead, a huge savings over the 30% for-profit insurance companies incur.
Carol Mattoon
Fortunately, leaders with vision, along with the support of grassroots movements and healthcare workers, have paved the way for expanded health care coverage with the “Medicare for All Act”.
Medicare for All means health care would no longer be tied to our jobs. Gone would be networks and “out-of-network” surprise billing. We would have the choice of any doctor and/or hospital, and we would be covered regardless of where we are in the U.S.
Medicare for All will not eradicate COVID-19 in a stroke, but it will give us better tools to contain it, and we will be better equipped when another health care crisis arises. The pandemic has made clear how interconnected we are. Each of us needs coverage for ourselves and for everyone with whom we come in contact. If people could seek medical care without financial fear, they would not try to work when they are sick and risk infecting others.
Contact your elected officials by going to Congress.gov, find your congress person, and tell them to be bold and choose peoples’ health over profits. NOW is the time to pass an effective health care system—single payer, Medicare for All.
Carol Mattoon and Linda Napier are co-chairs of the Healthcare Committee for the League of Women Voters, Northwest Maricopa County.
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