Sarah Gonski | Arizona Capitol Times

9th Circuit denies bid to block petition law

A federal appeals court refused Friday to block an Arizona law that allows a judge to invalidate otherwise legitimate and qualified signatures on initiative petitions.

The three-judge panel of the 9th Circuit Court of Appeals did not dispute arguments that the law that requires petition circulators to show up in court when subpoenaed actually could leave petition drives short of the signatures they need. And they said it even could have the effect of convincing some people that they do not want to circulate petitions as their failure to show up could result in penalties.

But the judges said there’s no evidence presented so far that there would be irreparable injury if the law remains in place, at least while a trial judge considers the merits.

“The affidavits … support only speculative injury,” the judges wrote.

And they noted something else.

The law the challengers are seeking to void was enacted in 2014. Yet the lawsuit was not filed until last July — after the statute had been in effect for several elections.

“This delay implies a lack of urgency and irreparable harm,” they wrote.

Friday’s ruling does not mean the law is constitutional. That is a decision that U.S. District Court Judge Susan Bolton has yet to reach.

But it does mean the statute and the hurdles on initiative circulators will remain on the books for the time being — and will be in place as groups start submitting petitions to put issues on the 2020 ballot.

The decision comes on the heels of another setback for initiative circulators.

Last month a federal judge refused their request that they be allowed to get the remaining signatures they need online. The judge said the problems with face-to-face petition circulation due to the COVID-19 outbreak were insufficient for him to rule that they can use an alternate method not authorized by state law.

The law, which passed without significant debate, spells out that paid circulators and those who do not live in Arizona must first register with the Secretary of State or their signatures collected do not count.

Specifically, what’s been dubbed the Strikeout Law says that if any circulator who has to register does not show up, then all the signatures that person gathered can be struck — even if they were legally gathered and even if they were made by people who want the measure on the ballot — potentially leaving the petition drive short of its goal.

This is not an academic question.

Foes of the 2018 measure to prohibit anonymous donations to political campaigns successfully used the law to keep it off the ballot by issuing subpoenas for 15 circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.

Now attorney Sarah Gonski is arguing that the law “unconstitutionally discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.”

For example, Gonski argued, the requirement could reduce the number of people available to circulate initiative petitions. She said that groups seeking to change the law would be reluctant to hire paid circulators from outside the Phoenix metro area for fear they would not show up in court, with the result of all their signatures being tossed.

The appellate judges were unimpressed.

“To the extent that plaintiffs contend speech will be chilled if the Strikeout Law is left in place, the majority of the circulators’ affidavits indicate at most they might be hesitant to work on petitions in the future,” they wrote.

“Likewise, the initiative proponents do not indicate that they are dissuaded from trying to place initiatives on the ballot, but instead that they will plan to dedicates resource to ensure circulators appear in court if subpoenaed,” the ruling said.

Overall, the judges said, the record shows that any injury to groups seeking to put measures on the ballot is “quite speculative.”

“It would occur only if there was a court challenge, and if a circulator were properly served but failed to appear, and if the loss of that circulator’s signatures caused the initiative to fail to qualify for the ballot.”

The judges did say that the public interest is served by free and unchilled speech.

“But the public also wants guarantees of a fair and fraud-free election,” they wrote. “And a state indisputably has a compelling interest in preserving the integrity of its election process.”

Federal lawsuit challenges law to regulate signature gatherers

A new lawsuit seeks to strike down a statute that can invalidate otherwise legitimate and qualified signatures on an initiative petition.

Attorney Sarah Gonski said the requirement unconstitutionally “discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.” She is asking U.S. District Court Judge Susan Bolton to block Secretary of State Katie Hobbs from enforcing the requirement.

Gonski may have an uphill battle.

The statute in question was upheld just this past year by the Arizona Supreme Court. But Gonski is trying a different path of attack, alleging that it runs afoul of protections in the U.S. Constitution.

Arizonans can propose their own constitutional amendments and laws by gathering enough signatures to put the issue directly to voters.

The 2014 law, which passed without significant debate, spells out that paid circulators and those who do not live in Arizona must first register with the Secretary of State or their signatures collected do not count.

More significant, it allows those trying to keep a measure off the ballot to subpoena those circulators. And if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal.

One of the plaintiffs is Next Gen Climate Action Committee which pushed an unsuccessful measure last year to impose new renewable energy mandates on utilities. Gonski, arguing on behalf of the organization, said the statute has taken its toll, citing the experience of Jessica Miracle, a paid petition circulator on that measure.

Subpoenaed by foes of the measure, the lawsuit says Miracle could not attend because her children were sick, she did not have her own transportation to Phoenix, and no one would tell her clearly how many days she would need to be in Phoenix.

The result, according to Gonski, was that all of the 2,604 signatures Miracle gathered were invalidated.

Gonski said the law is not just unfair to circulators.

One of the plaintiffs in the lawsuit is Mary Katz, listed as a Phoenix resident and registered voter.

According to Gonski, Katz signed that renewable energy measure.

“But her signature was later invalidated when the circulator who witnessed it was unable to appear in court when subpoenaed,” the lawsuit states. And Gonski said Katz was not told until long after the election that her signature has been invalidated, meaning there was no way for her to go to court to tell the judge that it was, indeed, a valid signature.

The other key plaintiff in the case is Arizonans for Fair Lending which is currently circulating petitions to enact a law to outlaw title loans. Rod McLeod, who is managing that campaign, said the law has now become a tool for challengers to use to keep measures opposed by certain business interests from ever getting to voters.

He pointed out that challengers to the renewable energy measure issued subpoenas for about 1,180 circulators. McLeod said it was clear from the start there was no way they were going to question that many people in the one week the judge had set aside for trial.

In fact, Gonski said, out of the 913 circulators who appeared, 872 were sent home without ever being asked a single question about their work.

McLeod said challengers know that, using the massive subpoenas “just for intimidation” in hopes that some people would not show up, allowing all the signatures they gathered to be voided. And that could become an issue as his organization seeks to obtain the 237,645 valid signatures it needs by July 2, 2020, to put the title loan measure on the 2020 ballot.

The tactic of issuing subpoenas to disqualify signatures actually worked last year, though it didn’t involve nearly as many subpoenas.

At issue was an initiative to insert a “right-to-know” provision in the Arizona Constitution, requiring any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000.

Challengers issued subpoenas for 15 circulators, leaving them with a security guard at an office building which had been used by a company that had hired the paid circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.

Attorney Kim Demarchi challenged the law in that case in a bid to put the “Outlaw Dark Money” measure on the ballot. She argued that a circulator’s signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

But Supreme Court Justice John Lopez, writing for the unanimous court, said the constitutional right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” And he said requiring circulators to appear in court and tossing their signatures if they don’t show “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

Gonski, in her new lawsuit, argued to Bolton that the law is unfair and discriminatory. She pointed out that lawmakers decided the requirement to registering paid and out-of-state circulators and allowing their signatures to be struck if they don’t show up, applies only to ballot measures and not to nominating petitions for political candidates.

“There is no evidence to suggest that initiative petitions are more susceptible to fraud than candidate nomination petitions, nor that paid or out-of-state circulators are in need of special punishment above and beyond other circulators to compel their attendance in court,” she wrote.

A spokeswoman for Hobbs, who is the defendant in the case, said her office was reviewing the challenge.

The case presents an interesting situation for Hobbs: She actually voted for the measure when she was a state senator in 2014. In fact, all but two Senate Democrats supported it: Andrea Dalessandro of Green Valley and Robert Meza of Phoenix.

Correction: A previous version of this story erroneously reported that Arizonans for Fair Lending needed to enough signatures by July 2 to make the 2018 ballot. The group actually has until July 2, 2020, to make the 2020 ballot.

Groups give up on challenge to election law

Groups seeking to put initiatives on the ballot have thrown in the towel in their bid to void a law that can disqualify many otherwise valid signatures.

In a new filing in federal court here, attorney Sarah Gonski dismissed the request she had for Judge Susan Bolton to void the state’s “strikeout law.”

That means the 2014 statute will remain on the books and enforceable at least through this year’s election. It also means that those seeking to quash the initiative drives she represented will be able to use it to try to keep them off the November ballot.

Gonski, speaking for the team of attorneys who represented challengers, told Capitol Media Services she still believes the law is illegal and ultimately would have been struck down.

But she conceded that her efforts to get even a preliminary injunction were rebuffed, first by Bolton and then by the 9th Circuit Court of Appeals. And while that still left open the legal door to proceed to a trial on the merits of the law — eventually — Gonski said that did not make sense.

“One of the unfortunate realities of litigation is that sometimes you have to litigate for years to get what is ultimately the right conclusion,” she said.

“At this point, with this much time and money sunk into this effort, it just didn’t make sense to proceed,” Gonski said. “But that matter remains an open question and we hope that at some point in the future this law will no longer threaten the free-speech rights of Arizonans.”

The end of the case also has political implications.

Secretary of State Katie Hobbs, who as the state’s chief elections officers was named as the defendant, refused to defend the statute. That forced Attorney General Mark Brnovich to intervene. And Brnovich, a Republican, used the opportunity to slap down Democrat Hobbs in a press release, saying this is one of four instances where she did not try to uphold state laws.

All that could play out in 2022 when Hobbs and Brnovich could face off in the race for governor.

The underlying law is simple. It requires those who circulate initiative petitions for money or who are not Arizona residents to first register with the secretary of state’s office.

But the real teeth is that it also requires those people to show up in court if they are subpoenaed.

Foes of some initiatives have used that provision in the past to challenge initiative drives, knowing that if the people do not show — for whatever reason — that all the signatures they gathered are disqualified.

More to the point, that action is automatic, meaning it is legally irrelevant whether the signature itself was valid, whether the signer wants to vote on the measure, and even if the signer were to show up in court to verify the validity of the signature.

That, in turn, has led to the death of some petition drives, including one two years ago which would have put a provision into the Arizona Constitution to ban “dark money” anonymous contributions and require public disclosure of the true source of all funds for both candidate and ballot campaigns.

More immediately, it could affect this year’s elections.

Arizonans for Fair Lending, one of the groups that filed suit, is circulating petitions asking voters to cap interest rates on auto title loans at no more than 36 percent annual interest. Current law allows lenders to charge more than 200 percent.

Backers need 237,645 valid signatures by July 2 to qualify for the ballot.

Their signature-gathering process has been complicated by the COVID-19 pandemic as well as the stay-at-home directive by Gov. Doug Ducey and his orders closing various businesses where would-be signers might otherwise gather.

U.S. District Court Judge Dominic Lanza already has rejected a bid by some initiative drives to be able to gather signatures they need using an existing online system available to candidates. An appeal is pending at the 9th Circuit.

The Arizona Supreme Court has yet to rule on a parallel legal challenge.

Groups settle lawsuit over ballot counting

This April 11, 2018, photo shows a sign directing voters to an early-voting location in Surprise, Ariz. Secretary of State Katie Hobbs settled a lawsuit with the Navajo Nation by adopting an elections procedure that allows counties five days to fix early ballots that don’t match signatures on file or are missing signatures. PHOTO BY ANITA SNOW/ASSOCIATED PRESS — This April 11, 2018, photo shows a sign directing voters to an early-voting location in Surprise, Ariz. PHOTO BY ANITA SNOW/ASSOCIATED PRESS

Arizonans won’t be able to wait until the last minute to drop their early ballots in the mail.

In a deal reached June 18, two groups who challenged the law will not pursue their claim that it is unconstitutional to refuse to count ballots that have not arrived in the mail by 7 p.m. on Election Day. They had asked a federal judge to say that it’s the postmark that counts.

In exchange, Secretary of State Katie Hobbs has agreed to do more voter education to help ensure that the ballots do either get mailed in time to meet the deadline or that they are dropped off at polling places.

And Hobbs also is required, under the terms of the deal, to specifically look for ways to “expand early voting opportunities in Hispanic and Latino, Native American and rural communities.” But some of that is contingent on Hobbs, a Democrat, getting the Republican-controlled legislature to provide the funding — or at least authorization to use federal grant money — specifically to reach out to those communities.

Central to the litigation is the wide use of mail ballots, with about 1.9 million votes cast that way in the 2018 election out of about 2.4 million ballots cast.

Attorney Sarah Gonski said people who get early ballots can bring them to a polling location on Election Day. She said that personal drop-off option can be “more time-consuming and burdensome” for rural voters who often live many miles from a drop-off location, as well as Hispanic and Latino voters who she said have difficulty obtaining transportation or leaving work during the hours when county recorders’ offices are open.

The result, Gonski said, is about 90 percent of people who voted with a mail ballot returned it through the U.S. postal service. But if they don’t get them in the mail on time — and it can take days for delivery — the votes don’t get counted.

In 2018, she said, Maricopa County alone rejected 1,535 ballots for arriving late.

She had asked U.S. District Judge Dominic Lanza to declare that any ballot postmarked by 7 p.m. on Election Day had to be counted if it was received within five business days following.

In signing the settlement, Hobbs denied that the deadline violates any constitutional rights. But the deal not only avoids what could have been a protracted legal battle but also gives her an opportunity — and potentially some funding if lawmakers approve — to do more outreach to ensure that people get their ballots returned in time to be counted.

Some of that is totally within her control as the state’s chief elections officer.

For example, she committed to do more voter outreach in multiple languages, informing people about the early ballot process and the deadlines.

Hobbs told Capitol Media Services that she already was planning to do some of that. The secretary noted that she had asked to conduct this year’s election solely by mail, what with the COVID-19 outbreak.

“The legislative response to that was, ‘We think you should let voters know about their options to vote by mail,’ ” Hobbs said. “And that’s what we’re planning to do.

But there’s more in the agreement, including her promise to ask the legislature to let her use her allocation of money from the federal Coronaviruis Aid, Relief and Economic Security Act to help counties pay for things like more drop-off boxes for mail ballots in Hispanic, Latino, rural and Native American communities, more early voting locations, and “mobile early voting units.”

“Counties can start early voting 27 days before the election,” Hobbs pointed out. Providing things like curbside voting and secure drop boxes, she said, provides additional opportunities for people to cast ballots “so folks don’t have to rely on the mail.”

Mobile voting, however, is a newer concept.

Hobbs said Pinal County now operates a mobile voting unit, what essentially looks like a food truck, which can be used for everything from registering people to vote to being a secure place to drop a ballot. She said it makes sense for other counties to consider that option in light of the pandemic.

Aneesha McMillan, representing Priorities USA, one of the groups that sued, said her organization considers the settlement a victory even though it did not get what it asked for, meaning moving back the deadline for ballots to be returned.

“The biggest issue for us that we were concerned about it is awareness in the communities that are listed,” she told Capitol Media Services. And McMillan said that “ballot suppression” can take many forms, including keeping certain communities from being informed of their options, especially in a language that they are most familiar.

The plaintiffs also got something else that could help them in a future challenge.

Hobbs agreed to study how many votes were not counted in the past three elections because they missed the deadline as well as the “feasibility of implementing a postmark deadline.” That includes a requirement to see how other states have successfully moved to such a deadline.

Gonski, in filing suit, said there are public policy reasons to give people until Election Day to drop their ballots in the mail.

She cited the 2016 presidential preference primary where more than 72,000 Republicans cast a ballot saying they wanted Marco Rubio to be the GOP nominee. Only thing was that he quit the race days before, Gonski said, meaning all those were votes for “a ghost candidate.”

Hobbs asks court to dismiss challenge to 2014 election law

Secretary of State Katie Hobbs is urging a federal judge to throw out a challenge to a law that could make it more difficult for groups to put initiatives on the ballot.

In new legal filings, attorneys for Hobbs are defending a 2014 law which says that if petition circulators do not show up in court then all the signatures they gathered will not be counted, regardless of whether it turns out they actually were valid. Hobbs said the law serves a legitimate state purpose and does not unduly burden the right to circulate petitions or to vote.

Hobbs also brushed aside arguments that the law violates the First Amendment by making it less likely that initiatives will qualify for the ballot.

“The First Amendment does not mandate that ballot access be easy,” wrote Assistant Attorney General Joseph La Rue who is defending her and her office.

“There is no first Amendment right to place an initiative on the ballot,” he argued in the new legal papers to U.S. District Court Judge Susan Bolton. “The fact that a regulation makes it less likely that initiatives will be enacted is therefore not constitutionally determinative.”

The 2014 law, which passed without significant debate – and which Hobbs voted for as a state senator – spells out that paid circulators and those who do not live in Arizona must first register with the secretary of state or their signatures collected do not count.

Attorney Sarah Gonski represents several individuals and groups that have been involved in prior ballot measures. One of the plaintiffs is Jessica Miracle, a paid petition circulator on the 2018 proposal to impose new renewable energy mandates on utilities.

The measure still made the ballot but was defeated.

Hobbs, in the new legal filings through her attorneys, said the 2014 law is simply an extension of existing laws designed to protect the integrity of the initiative process.

For example, La Rue wrote, one requires a circulator to personally witness each signature.

“This requirement discourages those signing petitions from forging other electors’ signatures on petition sheets,” the legal papers state. Similarly, he cited the provision that says circulators must be qualified to register to vote in Arizona, meaning they cannot be felons unless their civil rights were restored.

“This helps ensure circulators have not been convicted of crimes that might call into question their trustworthiness,” La Rue wrote.

All of that, he said, goes to the nature of the 2014 law which requires Hobbs to remove signatures collected by circulators who have not complied with subpoenas.

“This assists the secretary in fulfilling her statutory duty to uphold the integrity of the initiative process for everyone by only certifying for the ballot those initiatives that have fully complied with applicable legal requirements and gathered sufficient signatures,” La Rue argued.

A spokeswoman for Hobbs said the secretary “has an obligation to enforce and defend duly enacted state law in good faith” but declined to comment on the specifics of the law or the lawsuit.

This isn’t the first challenge to the requirement.

A separate lawsuit was brought in state court by attorneys for the 2018 “Outlaw Dirty Money” campaign after a trial judge ruled there were no longer enough valid signatures after several petitions were disallowed due to the failure of circulators to show up. Attorney Kim Demarchi argued in that lawsuit that signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

But Supreme Court Justice John Lopez, writing for the unanimous court, said the constitutional right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” And Lopez said requiring circulators to appear in court – and tossing their signatures if they do not show – “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

No date has been set for a hearing on the latest federal court lawsuit.

Judge lets Arizona law on initiative petitions to stand

A federal judge on Monday refused to strike down an Arizona law that allows a judge to invalidate otherwise legitimate and qualified signatures on an initiative petition.

In a 19-page ruling, Judge Susan Bolton acknowledged that the 2014 statute could make it more difficult for those proposing their own laws and constitutional amendments to put their proposals before voters.

But Bolton said challengers did not present enough evidence, at least not yet, to show that allowing it to remain in effect presents irreparable harm, either to voters or those who hope to propose future ballot measures. So, for the moment, the law and its hurdles will remain on the books – and likely will be in place as groups start submitting petitions for issues to go to voters in 2020.

But the significant provision deals with the ability of those trying to keep a measure off the ballot to subpoena circulators to appear in court to verify both their own eligibility and how they gathered the signatures. Specifically, what’s been dubbed the Strikeout Law says that if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal.

Not An Academic Issue

The ruling comes as Arizonans for Fair Lending, one of the groups that filed suit, is circulating petitions asking voters in 2020 to cap interest rates on auto title loans at no more than 36 percent annual interest. Current laws allow lenders to charge more than 200 percent.

Rodd McLeod, campaign manager for the effort, said the decision allowing the law to remain on the books, at least for the time being, will make it more difficult to get the 237,645 valid signatures needed by July 2 to qualify for the ballot.

“This Strikeout Law is a gift to out-of-state corporations like predatory lenders,” he said. “It allows them to hijack our democracy and allow people the right to vote to lower interest rates.”

The 2014 law already has kept one measure off the ballot.

Voters did not get to decide last year on the “Outlaw Dark Money” initiative, which sought to put a provision in the Arizona Constitution to require any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000.

In that case, challengers issued subpoenas for 15 circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.

The Arizona Supreme Court upheld the law and the decision to keep the measure off the ballot, ruling that the statute “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

That led to this new lawsuit, with attorney Sarah Gonski telling Bolton that the law “unconstitutionally discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.”

Bolton disagreed. “There is insufficient evidence of a ‘chilling’ effect,” she wrote.

The judge was more willing to consider the argument that organizations pushing initiative measures will have to gather more than the minimum number of signatures required for fear some would be thrown out.

“Ballot-access measures like the Strikeout Law can restrict political speech,” Bolton said. But she said that challengers to this point “have simply failed to show facts or circumstances demonstrating such restrictive effect.”

Lawmakers Exempt

Bolton also showed interest in the fact that the legislators who approved the law on disqualification of signatures applied it only to ballot measures and not to nominating petitions for themselves and other elected officials.

Attorneys for the state argued that distinction is merited, citing the Voter Protection Act. That constitutional provision says once a measure is approved at the ballot box it cannot be repealed by the Legislature but instead must be taken back to voters.

But Bolton said that hurdle, by itself, is not enough to warrant the difference.

“The ‘near permanency’ of an initiative once passed is more of a legal outcome than a compelling government interest justifying (the state’s) chosen method of incentivizing subpoena compliance,” the judge wrote.

Still, none of that was enough for Bolton to grant Gonski’s motion to bar the state from enforcing the law at the next election.

She said challengers had failed to show they would suffer “irreparable harm” – one of the standards a court uses to determine whether to issue an injunction – if the law remains in effect. In fact, the judge noted, at least two of the groups that sued, Arizonans for Fair Lending and NextGen Climate Action, have provided no evidence that they will be deterred from conducting future campaigns in Arizona while the law remains in effect.

Because the lawsuit challenges an election law the defendant in the case is Secretary of State Katie Hobbs.

She actually voted for the measure when she was a state senator in 2014. In fact, all but two Senate Democrats supported it: Andrea Dalessandro of Green Valley and Robert Meza of Phoenix.

Editor’s note: This story has been revised to include comment from a spokesman for Arizonans for Fair Lending.

Kelly sues website over claim he dressed as Hitler at ’85 party

U.S. Senate hopeful Mark Kelly is going to court over uncorroborated claims by a web site that he dressed up as Nazi dictator Adolf Hitler for a 1985 party at the Merchant Marine Academy.

Legal papers filed in Pima County Superior Court claim that Flyover Media, which operates the site known as National File, knew when it posted the photos and a video on its website that the person in the picture was not Kelly. Attorney Sarah Gonski said Kelly’s campaign even furnished statements by those who back the candidate’s response.

But she said the operation decided to put up the photo and the claim anyway. And as of October 28, it remained on the site.

In a written response, a spokesperson for National File said that the story, which remains online, has been updated “to reflect Mark Kelly’s denial and his classmates’ comments on the record.

Gonski linked the posting to efforts on behalf of the Senate Leadership Fund that has spent tens of millions of dollars in attack ads urging Kelly’s defeat. That organization also gave $3.5 million to Defend Arizona, a separate political action committee working to keep Martha McSally in office.

There was no immediate response from either of the GOP committees about their role in the posting.

But no one from the Kelly campaign would explain why they decided to file a lawsuit that would only generate more publicity about the photo, which was not in general circulation.

In fact, the legal papers do not seek a temporary restraining order to immediately remove the photo ahead of the General Election, but only unspecified monetary damages and a prohibition against further publication of the photo and the claim that the person pictured is Kelly. And the defendants have 30 days to respond.

“Since they have refused to take it down, we are taking the necessary steps,” said Jacob Peters, spokesman for the Kelly campaign. “I have nothing more to add.”

At the heart of the litigation is a page from the 1986 yearbook from the U.S. Merchant Marine Academy, the year Kelly graduated. It details a Halloween Party at Delano Hall where “midshipmen were required to come in costume or attend in their drab liberty attire.”

One photo features five individuals, including one student in sunglasses that Patrick Howley, a National File reporter, identifies as Kelly.

“This is a lie, and defendants know it is a lie,” Gonski wrote. “Mr. Kelly never dressed as Hitler and does not even recall attending the event where the photograph was taken.”

She pointed out that none of the pages in the yearbook ever identifies who is dressed up as Hitler or even says that it was Kelly in any of the pictures with the person in the Hitler costume.

Gonski also said that National File was provided with statements by not just Kelly’s campaign but also others who were attending the academy that the person in the picture is not Kelly. And she said that both PolitiFact and FaceCheck.org, after doing their own independent investigations, both concluded there was no basis for the claim.

And PolitiFact said its own inquiry found one person, Ed McDonald, who said he had attended the party and that Kelly was not dressed as a Nazi. McDonald also was quoted as saying that the people in the photo were from the Second Company, different from that of Kelly.

“The fact that defendants insist on continuing to publish the article and video, despite confirmation that it is false from the Kelly campaign itself, numerous corroborating witnesses, and two independently conducted investigations, demonstrates actual malice and reckless disregard for the truth,” Gonski wrote.

That claim is crucial to Kelly prevailing in court.

Based on U.S. Supreme Court precedent, public figures cannot win libel cases based simply on the fact that something said or published was false. Instead, they have to prove “actual malice,” which generally means that the publication was made even though the person doing it either knew that the statements were false or acted with reckless disregard for whether the statement was true or false.

Aside from the denials, Gonski claims there are “clear visual indicia” that Kelly was not the man in the photo. That, she said, includes differences in the haircut and style, jawline and “other facial features.”

But she said National Flyer decided to publish it anyway “because they knew it would generate attention and could devastate Mr. Kelly’s and the Kelly campaign’s chance in the upcoming election.”

The link to the Senate Leadership Fund is based on Gonski’s claim that Peter Lindsey, one of Kelly’s classmates, was contacted on September 10, before the story was published, by Karim Addetia, who sent a screenshot of the yearbook photo and asked Lindsey if the man was Kelly. She said Lindsey told Addetia that he “highly doubted” the man in the photo was Kelly.

Gonski said records at the Federal Elections Commission said that, at the time, Addetia was a consultant to the Senate Leadership Fund. And she said Addetia and the SLF communicated about the photos with National Flyer and Howley, the National File reporter.

Progressive groups challenge law on deadline for ballots

Saying voters are being disenfranchised, two groups are asking a federal judge to void an Arizona law that says ballots have to be received by county officials by 7 p.m. on Election Day to be counted.

In new legal papers filed here Tuesday, attorney Sarah Gonski said the state has “no legitimate interest” in enforcing the deadline, particularly when the state is promoting that people cast their ballot by mail.

“Although Arizona may certainly set a reasonable deadline to receive ballots to ensure the finality of election results, the current Election Day receipt deadline is unreasonable and disenfranchising,” she wrote. “It is contrary to voters’ reasonable expectations, necessitates that ballots be cast far earlier than they need to be, and is poorly communicated to voters.”

What Gonski told Judge Dominic Lanza would be reasonable is to require that ballots be postmarked by the 7 p.m. deadline and received within five business days afterwards.

“After all, Arizona need not complete its total vote count until 20 days after Election Day,” she said.

Real Consequences

Gonski said this isn’t just an academic question.

She specifically cited the 2016 presidential preference primary where more than 72,000 Republicans cast a ballot saying they wanted Marco Rubio to be the GOP nominee. She said it was that requirement to have ballots in by that 7 p.m. Election Day deadline that caused so many people to “waste their vote on a ghost candidate.”

But Gonski also cited figures she said prove that minority voters, particularly those in rural counties, are five to six times more likely than Anglos to have their early ballots uncounted because they did not arrive on time. And she said at least some of the blame for that is “traceable to Arizona’s long history of discrimination against minority voters.”

“Discrimination in education has led to persistent gaps that have left these minority voters less educated than their white counterparts, which makes them less likely to be aware of the Election Day receipt deadline,” she wrote.

At least part of Gonski’s lawsuit relies on that disproportionate effect to claim the deadline violates the Voting Rights Act. It generally prohibits states from enacting laws that impair the rights of minorities to vote.

But she also claims that the law is an impermissible burden on the right of all people to vote.

Gonski is representing two groups.

One is Voto Latino, which she said is a nonprofit group that is involved in trying to register Latinos to vote. The other is Priorities USA which she describes as a “nonprofit, voter-centric progressive advocacy and service organization.”

It names Secretary of State Katie Hobbs, as the state’s chief election officer, as defendant. An aide to Hobbs said she was studying the lawsuit but does not comment about ongoing legal matters.

Central to the litigation is the wide use of mail ballots, with about 1.9 million votes cast that way in the 2018 election out of about 2.4 million ballots cast.

Gonski said while people who get early ballots can bring them to a polling location on Election Day, about 90 percent of people who voted with a mail ballot returned it through the U.S. postal service. She said that personal drop-off option can be “more time-consuming and burdensome” for rural voters who often live many miles from a drop-off location, as well as Hispanic and Latino voters who she said have difficulty obtaining transportation or leaving work during the hours when county recorders’ offices are open.

And Gonski said the situation is complicated by a 2016 law that now makes it a crime for volunteers and others to help collect early ballots. Gonski’s law firm has been involved in separate legal efforts – so far unsuccessful – to void that ban on what has been called “ballot harvesting.”

The result, she said, is borne out by figures from the 2018 election when she said Maricopa County rejected 1,535 ballots for arriving late.

“And Navajo County reported rejecting an eye-popping 3,062 late ballots – over 8 percent of all ballots cast in that county,” she told Lanza.

“Clearly, a large swath of Arizona voters believe their ballot is timely even when it is not,” Gonski said, with election officials and average voters unable to say exactly how early people need to be dropping their ballots into post office boxes to ensure they arrive on time to be counted.

Inconsistencies

She said that just last month the Pima County Recorder’s Office provided two different “recommended deadlines” for when voters were “required” to mail their ballots for them to be counted.

“Counties’ recommendations on when to place a ballot in the mail shift for a simple reason: Those recommendations are purely guesses,” Gonski said.

Beyond that, she argued that it is “reasonable” for people to believe that a ballot is timely if it is postmarked by Election Day.

“Postmarks are used to assess the timeliness of payments, applications, and other documents submitted to the government in other contexts,” she said, including taxes. And she said using a postmark rule makes good sense.

“Mail delivery times in Arizona are unpredictable, particularly in rural areas where home delivery is not common and even local mail is often re-routed through central processing facilities in far-flung cities,” Gonski said.

That issue of the disparate impact on Hispanics, which could be key to getting the relief sought, raises a separate question of why, one that Gonski conceded in the legal papers she cannot answer. But she has some theories of why, and not just that her claim there has been discrimination against minorities in education in Arizona.

She also said there is a lack of language assistance to voters. Gonski said that is coupled with “sustained resistance to bilingual education and mandated English-only education.”

“Hispanic and Latino voters are less likely to understand the instructions provided by county election officials regarding the Election Day receipt deadline, particularly when those instructions are inconsistent,” Gonski told the judge.

State claims Election Day deadline not illegal

Maricopa County elections official Deborah Atkins hangs "vote" signs outside a polling station prior to it's opening, Tuesday, Nov. 6, 2018, in Phoenix. (AP Photo/Matt York) — Maricopa County elections official Deborah Atkins hangs “vote” signs outside a polling station prior to it’s opening, Tuesday, Nov. 6, 2018, in Phoenix. (AP Photo/Matt York)

Secretary of State Katie Hobbs is asking a federal judge to declare there’s nothing unconstitutional about requiring people to get their early ballots to county offices by 7 p.m. on Election Day.

In legal briefs filed Monday on her behalf by Assistant Attorney General Kara Karlson, Hobbs said the two groups that sued, Voto Latino and Priorities USA, have no legal standing to challenge the law. She said they haven’t provided any evidence that a member of their organizations – or, for that matter, anyone at all – has been harmed by the failure to count their vote because the mail wasn’t delivered until after the deadline.

And Hobbs, through her attorney, claimed that Arizona provides more opportunities for voting than many other states. That includes the ability to cast an early ballot without having to provide any excuse at all.

More to the point, she said that people have 27 days to get that early ballot back to county officials. And if they can’t get them in the mail on time, Hobbs said, they can always drop them off at polling places before or on Election Day.

Hobbs also dismissed the idea that somehow voters are confused.

“The fact that all ballot must be received by election officials by Election Day is no secret,” the filings said. “State law requires that every ballot issued include printed instruction notifying voters that ballots must be delivered to the officer in charge of elections by 7 p.m. on Election Day,” information Hobbs said is provided in multiple languages as required by federal law.

The lawsuit filed in November contends the state has “no legitimate interest” in enforcing the deadline, particularly when the state is promoting that people cast their ballot by mail. Attorney Sarah Gonski wants U.S. District Court Judge Dominic Lanza to require counting of ballots postmarked by the 7 p.m. deadline and received within five business days afterwards.

Gonski cited the 2016 presidential preference primary where more than 72,000 Republicans cast a ballot saying they wanted Marco Rubio to be the GOP nominee.

Only thing was, he quit the race days before. Gonski said it was that requirement to have ballots in by that 7 p.m. Election Day deadline that caused so many people to “waste their vote on a ghost candidate.”

Hobbs was unimpressed.

“If voters want to wait until Election Day to see what happens until the campaign ends, they can do so,” she said.

“But Arizona law gives them the option of voting earlier if they choose to do so,” Hobbs continued. “That choice, however, is not a burden on the voters.”

Nor was Hobbs swayed by the fact that mail delivery can be “unpredictable, particularly in rural areas where home delivery is not common and mail is often re-routed through central processing facilities in far-flung cities.”

“Again, voters have choices, and they can weigh factors such as the unpredictability of mail delivery when deciding how and when to cast their ballot,” Hobbs said. “For any mailed ballot, there needs to be a deadline for receipt, and somebody may miss it, just as someone may arrive to the polls too late on Election Day to cast a ballot.”

Hobbs, in her filing on Monday, does not respond to specific complaints by Gonski that the personal drop-off option can be “more time-consuming and burdensome” for rural voters who often live many miles from a drop-off location, and Hispanic and Latino voters who she said have difficulty obtaining transportation or leaving work during the hours when county recorders’ offices are open. That opens the door for Gonski to claim a violation of the Voting Rights Act which generally prohibits states from enacting laws that impair the rights of minorities to vote.

Gonski also told the judge the problem is complicated by a 2016 law that now makes it a crime for volunteers and others to help collect early ballots.

A federal appeals court last month voided that law with the majority concluding that the Republican-controlled Legislature enacted that restriction with the goal of suppressing minority votes.

Attorney General Mark Brnovich is seeking U.S. Supreme Court review — but without Hobbs who said that she agrees with the court’s ruling.

Select Region or Brand

Upcoming Event

Issue: Sarah Gonski