After nearly a century, why are we still fighting for the ERA?


As Arizona moves closer to ratifying the Equal Rights Amendment, those against women’s equality are trotting out those old desperate Phyllis Schlafly myths so I’d like to set the record straight with a few facts.

The language of the ERA is simple and direct – the same 24 words Alice Paul introduced to Congress in 1923. “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”  Who, can argue with that?

Victoria Steele
Victoria Steele

The Equal Rights Amendment is a Constitutional Amendment. The fact that we have various statutes prohibiting sex discrimination is not the same as a Constitutional right. The Constitution focuses on fundamental values like ending slavery and with the ERA, granting women legal equality.

Some opponents erroneously claim the 14th Amendment gives women all the protection they need but Republican Supreme Court Justice Scalia rebutted that when he said, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”  Besides, if women had all Constitutional protections under the 14th amendment, why did we need the 19th Amendment to vote?

Yes, women have more rights today but those rights are based on laws that can and do change with each political election.  And, if laws were working why is there still a gender pay gap? On average, Arizona women make 83 cents of what a man makes, but African American women make 68 cents, Latinos make 55 cents and Native Americans make 46 cents. The wage gap cannot be explained away by choices.  Women are paid less than men across all industries.

The gender pay gap exists regardless of education level. Women with master’s degrees working full time, year-round are paid just 72 cents for every dollar paid to men with master’s degrees. Further, women with doctoral degrees are paid less than men with master’s degrees, and women with master’s degrees are paid less than men with bachelor’s degrees.

A recent court case, National Coalition for Men versus the Selective Service System found that, “If there ever was a time to discuss the “place of women in the Armed Services” that time has passed.” Women have all the duties of citizens – we pay taxes, we serve on juries, and we serve in the military – but we do not have all the rights.

To be clear; The ERA is not about abortion, which is already a Constitutional right. The fight over reproductive rights will continue long after the ERA is enshrined in the Constitution.  If it was about abortion, Justice Sandra Day (O’Connor) a Republican and Sister Clare Dunn would never have introduced the ERA legislation in Arizona as they did in the mid-70s.

ERA foes are also wrong on the Supreme Court precedent on the “deadline” issue. What the Court really said was that whether there is a deadline is entirely up to Congress, not the Court. Congress can make a deadline, change it or take it away, which bi-partisan bills now in Congress are seeking to do.

In 1776 Abigail Adams wrote a letter to her husband John Adams urging him to please “remember the ladies” in the “new code of laws.”  She wrote, “I desire you would Remember, the Ladies and be more generous and favourable to them than your ancestors.  Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.”

John Adams did forget “the ladies” but women have never forgotten our thirst for equality and never will.

Victoria Steele represents Tucson in the Arizona Senate.

AG rules against regents, concludes Legislature can set university tuition rates

Attorney General Mark Brnovich issued a legal opinion December 7 saying that, with only narrow exceptions, the Legislature has “unrestricted’’ authority to redefine the powers and duties of the Arizona Board of Regents.

That opens the door to ongoing efforts by Rep. Mark Finchem, R-Oro Valley, to rein in the board.

More to the point, Brnovich said he reads prior Supreme Court rulings to say that the Legislature itself could set tuition, wresting that power away from the regents.

And if lawmakers opted to do that, it would make the regents’ legal arguments defending their tuition-setting policies legally moot.

Arizona Attorney General Mark Brnovich announces a lawsuit against the Arizona Board of Regents on Sept. 8. The suit alleges ABOR is not adhering to a constitutional requirement that tuition for residents attending state universities be “nearly as free as possible.” (Photo by Katie Campbell/Arizona Capitol Times)
Arizona Attorney General Mark Brnovich announces a lawsuit against the Arizona Board of Regents on Sept. 8. The suit alleges ABOR is not adhering to a constitutional requirement that tuition for residents attending state universities be “nearly as free as possible.” (Photo by Katie Campbell/Arizona Capitol Times)

Brnovich filed suit in September, saying the regents have “dramatically and unconstitutionally’’ increased the cost of going to school at any of the state’s three universities. He claims that costs have gone up from 315 percent to 370 percent since the 2002 school year, a figure he said computes out to 14.1 percent on an annualized basis, “the third fastest growth rate among all 50 states.’’

He acknowledged that during the same period the Legislature sharply decreased the aid it supplies to higher education. Legislative budget reports have found that since 2008 alone, state aid went from $9,648 per student to $4,098, even before the effects of inflation are considered.

Brnovich has dismissed that as irrelevant, saying it still does not excuse the regents from what he contends is their obligation to keep tuition to what it actually costs to educate students above and beyond state aid.

He said what is happening is that the regents are using other improper – and illegal – factors, including looking at what other state universities charge to the ability of students to get scholarships and loans. The only solution at this point, Brnovich said, is to have the question resolved by the courts.

“I believe that the obligation of the state’s universities are to provide an education that’s nearly as free as possible,’’ Brnovich said. “That is the debate we want to have.’’

He also defended filing the lawsuit in the first place, pointing out his inquiry started after the regents reaffirmed their policy of allowing students in the Deferred Action for Childhood Arrivals program to pay in-state tuition if they met other residency requirements even after the Court of Appeals ruled a similar policy by the Maricopa Community Colleges was illegal.

“The universities and the Board of Regents forced this office to take action when they were blatantly disregarding the law when it came to who was and who was not being given in-state tuition,’’ Brnovich said. “During the course of examining that, we discovered that the tuition at our state universities had skyrocketed much faster than the cuts that were made by the Legislature.

He also lashed out at the regents for trying to short-circuit the lawsuit through its claim that he has no right to sue.

“The taxpayers deserve to have a hearing on the merits so we can discuss the costs, we can look at the formula the university is using and make a legal determination whether that formula is constitutional,’’ Brnovich said.

Board attorney Paul Eckstein, in a written motion to dismiss Brnovich’s lawsuit, is not relying solely on the question of whether the attorney general has a right to sue.

He noted in his briefs that the Supreme Court ruled a decade ago, in a separate lawsuit, that the issue of whether tuition is as nearly free as possible is a political question beyond the reach of the courts. In fact, Eckstein noted, it was the Attorney General’s Office, at the time under Democrat Terry Goddard, which offered that legal argument, defended the regents and won that lawsuit.

Bill Ridenour, chairman of Arizona Board of Regents (Capitol Media Services 2017 file photo by Howard Fischer)
Bill Ridenour, chairman of Arizona Board of Regents (Capitol Media Services 2017 file photo by Howard Fischer)

The chairman of the board, Bill Ridenhour, said December 7, Brnovich has no legal right to sue over its tuition policy.

“The AG can’t just file a lawsuit without either the governor’s authority or some statutory authority,’’ Ridenour told Capitol Media Services.

Ridenour, who is an attorney, said there is nothing in state law that permits Brnovich to ask a judge to rule that the tuition charged at the state’s three universities does not comply with a constitutional mandate that instruction be “as nearly free as possible.’’

And as to the governor, Doug Ducey has not sided with Brnovich in this fight. In fact, the governor told Capitol Media Services in September that he was not only opposed to the litigation but also took issue with Brnovich’s basic contention that tuition is too high.

“Our universities are accessible and affordable,’’ Ducey said at the time.

Ridenour is not just making a statement of opinion. Eckstein made the same argument December 7 in new legal filings asking Maricopa County Superior Court Judge Connie Contes to throw out Brnovich’s lawsuit.

The new pleadings drew an angry response from Brnovich.

“I think it’s unfortunate that the universities and the  Board of Regents would try to get this lawsuit dismissed on a technicality instead of having an argument on the merits,’’ he said. “I think Arizona taxpayers deserve to know what formula the universities are using (to set tuition) and where their tax dollars are going and what kind of education system those tax dollars are supporting.’’

But Ridenour, for his part, said he suspects there’s something more than Brnovich’s desire for a clear court ruling on permissible tuition.

He said Brnovich filed suit without even bothering to ask the board for an explanation of its policies. And Ridenour said efforts since the lawsuit was filed to explain what the universities are doing proved fruitless.

“I can’t help but thinking, since we tried to answer all their questions, that it’s now politics,’’ he said. And Brnovich is up for re-election next year.

“It’s very hard to make headway against that,’’ Ridenour said.

But it’s very likely that the fight playing out in court – the lawsuit the regents want dismissed – won’t end the fight.

America’s future: Restore good to achieve great


America the beautiful offers us free will, which means those of us living in America, from sea to shining sea, have been granted a choice: repeat our mistakes or evolve into something great for the benefit of all.

Will this be the year for America to finally get things right?

The biggest mistake Americans can make this year is to wait for The President, Congress or The Supreme Court to secure America’s future.

Monica Avila Beal
Monica Avila Beal

History has shown us that they can’t fix America. Together, we can.

Arrows of History and Truth

Time and time again, great civilizations collapse when morality is at its lowest — the result of a civilized society that chooses to act like gluttonous self-serving savages. Remember why Rome fell?

In Charles Krauthammer’s powerful posthumous book, “The Point of It All,” brilliantly edited by his son, Daniel Krauthammer, Mr. Krauthammer asks a question aimed for reflection:

“Are we condemned to do the same damn thing over and over, generation after generation —or is there hope for some enduring progress in the world order?”

I’m not proud of the current state of America. Are you?

In just a few short weeks, the holiday spirit in the air has evaporated to reveal the ever-present heavy cloud of rhetorical soot that hangs low, like rotten fruit, intended to keep our society distracted, divided, angry and confused. We’ve allowed them to pollute our minds and hearts.

How on earth can America be great again if, collectively speaking, our society just isn’t being good!

I’m ashamed by the actions of our politicians and their cronies on both sides. Are you?

I’m no expert on public policy, but I’d say that the worst of them is merely a reflection of the worst of us. Self-serving savages willing to exploit and leverage others for the sake of power and profit.

America’s Future — Divided or United?

If we, the people of the current Divided States of America, want to make America Great Again, we must become united once again.

Let’s put a stop to wasting our time listening to the senseless blaming and hypocritical finger pointing coming from the left and right.

Let’s invest our time to work together in our local communities in order to make our country strong and good again.

Let’s stop using corrupt power as the benchmark to rebuild our nation and use morality instead.

Let’s combine the best of blue and red political ideologies and create a more valuable purple society based on fiscally conservative and socially liberal values. And let’s not forget how the United States of America became a great nation: Through the tireless work and sacrifice of immigrants looking to build a better life not only for themselves but for their community at large. Yes, we’re all descendants of immigrants in search of religious freedom and greater economic opportunity.

Remember, it took generations upon generations of hard work, bravery, determination and grit from those willing to work together for the greater good of society. In this way, America belongs to them, not self-serving thought leaders and politicians. Most importantly, let’s not forget why America was able to become a great nation in the first place — there were a lot more people holding out their hands asking how they could help others instead of asking who could help them. And God shed his grace on thee.  #makeamericagoodagain. . .

Monica Avila Beal is a composer and musician and graduate student of the University of Colorado in Denver who lives in Cave Creek.

Arizona Supreme Court upholds Medicaid expansion

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick and Ann Scott Timmer. Bolick disqualified himself in the Medicaid ruling because he used to work for the Goldwater Institute, the organization that brought the legal action. 

The state’s high court on Friday upheld the legality of an assessment on hospitals that helps pay for health care for 400,000 Arizonans.

In a unanimous decision, the justices rejected the contention by the lawyer for some Republican lawmakers that the levy, approved by the Legislature in 2013, was illegally enacted.

Attorney Christina Sandefur of the Goldwater Institute argued that it really was a tax, making it subject to a 1992 voter-approved constitutional amendment requiring a two-thirds vote in both the House and Senate. The levy passed with a simple majority.

But Chief Justice Scott Bales, writing for the court, said the assessment does not fit within the legal definition of what is a “tax” subject to the supermajority requirement.

He also said the constitutional provision does not apply in cases of assessments approved not by lawmakers but instead by a state agency. That, Bales said, is the case with the $290 million being raised here, with the levy being imposed on hospitals by the director of the Arizona Health Care Cost Containment System, the state’s Medicaid program.

And the justices also rejected Sandefur’s arguments that even if the assessment is imposed by the director, the authorization for the director should have been approved by a two-thirds vote in the first place. The justices said that’s not the way the constitution is worded.

Sandefur blasted the ruling, calling it “a major blow to taxpayer rights.”

“Essentially what this court has done is created a very dangerous loophole,” she told Capitol Media Services.

“It allows legislators to call taxes ‘assessments’ and give away the taxing power to an unelected and unaccountable administrator,” Sandefur said. “We believe this is exactly the opposite of what the voters intended.”

She said voters who want to plug that loophole will need to go back to the ballot with a new amendment.

House Speaker J.D. Mesnard, who opposed the Medicaid expansion and was one of the lawmakers who sued to overturn the levy, said he does not think voters wanted the exception to the supermajority requirement that the high court says exists.

“It is clear Arizonans support requiring a two-thirds vote of the Legislature when taking more of their money,” he said. And Mesnard said that’s particularly true in cases like this involving hundreds of millions of dollars a year.

But Mesnard said he’s not sure at this point if it will take yet another constitutional amendment to cure the problem.

“It will be incumbent on the Legislature moving forward to resist the temptation to use the court’s opinion in this case to circumvent the taxpayer protections intended,” he said. “We must not abuse the flexibility they have given us.”

Friday’s ruling is more than an assurance that government-paid healthcare will continue for the nearly 400,000 Arizonans who were added to the state’s Medicaid rolls because of the assessment. It also is a significant victory for former Gov. Jan Brewer who came up with the plan to expand the state’s Medicaid program.

“Medicaid restoration honored the will of the voters, saved lives, prevented rural hospitals from closing and preserved the Arizona economy,” the former governor said in a statement.

But the ruling is more mixed for current Gov. Doug Ducey.

On one hand, Ducey’s administration defended the legality of the assessment in court.

But Ducey, who was state treasurer at the time of the 2013 vote, never wanted the expansion of Medicaid, actively opposing the legislation. In fact, he charged that Scott Smith, his foe in the 2014 Republican gubernatorial primary, was too liberal on Medicaid expansion.

That ambivalence was reflected in Ducey’s own statement.

“The court has spoken, and I respect its ruling,” the governor said. “The state of Arizona will continue to follow the law passed by the Legislature in 2013.”

It was Brewer who decided in 2013 to take advantage of a provision of the Affordable Care Act to expand Medicaid coverage.

That law provided for the federal government to pick up most of the costs for expanding health coverage to those earning up to 138 percent of the federal poverty level, currently about $28,180 for a family of three. Before expansion, AHCCCS covered only those below the poverty line, or $20,420 at current levels for the same-size family.

But to qualify for those federal dollars, the state had to first restore coverage for childless adults. Enrollment for them had been frozen years earlier in a budget-savings maneuver.

To cover that cost and other state expenses, Brewer proposed giving Betlach authority to impose a charge on hospitals.

Hospitals did not object because Betlach crafted the levy so that every hospital chain actually would make money from the deal: More patients with government-provided insurance coverage means fewer bills written off as bad debt because of a person’s inability to pay.

The plan was adopted by a simple majority of the House and Senate, with the Republican governor cobbling together a coalition of Democrats and some members of her own party to vote for it.

But the Republican lawmakers who voted against expansion sued, contending the levy was illegally enacted. And enough of them opposed the assessment to block it if it actually required a two-thirds vote.

Sandefur told the justice at arguments last month that 1992 constitutional amendment requires a supermajority for anything that increases state revenues. But the high court did not see it that way.

Bales said the mandate first applies to “the imposition of any new tax.”

He conceded that word is not defined. But Bales said he and his colleagues said they do not believe it applies in this case.

“The assessment is imposed only on hospitals, which cannot pass on the costs to patients or third-party payors,” Bales wrote. And he noted the director even was given the power to exempt certain hospitals who might not benefit because they take few Medicaid patients, like the Mayo Clinic.

And Bales said while the levy does serve a broad public purpose — more people with health insurance — it was designed to provide financial relief to hospitals, the very group paying it.

The justices also dismissed Sandefur’s contention that it takes a two-thirds vote for the Legislature to authorize a state agency to impose a fee in the first place. They said that’s not the way the 1992 amendment is worded.

That leads back to Sandefur’s belief that another amendment may be necessary.

“It’s important to go back to the voters and make sure that their voice, which they made loud and clear over 25 years ago, is actually heard,” she said. “It’s a shame that the voters would have to do that and would have to clarify to the court that when they said that a two-thirds supermajority should be required for any revenue-raising measures, that they meant it.”

AZ Supreme Court to decide if Medicaid levy a tax

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.

The state’s high court agreed Tuesday to decide whether a levy that funds Arizona’s expanded Medicaid program was illegally enacted.

Without comment, the justices said they want to give foes of the levy — current and former state lawmakers — a chance to make the case that it really is a tax.

What the court decides will be significant, as it takes a two-thirds vote of both the House and Senate to raise taxes. And since the measure did not get that margin, a finding that the levy actually is a tax would mean the Arizona Health Care Cost Containment System, the state’s Medicaid program, could no longer collect it.

More significant, without the approximately $265 million being collected each year, the state could no longer afford to provide care to about 400,000 Arizonans who were added to the plan as a result of the 2013 action.

Tuesday’s action does not mean the justices have already reached a conclusion. But just the decision to review lower court ruling upholding the legality of the levy places it in potential jeopardy.

At the heart of the fight is who gets government-provided health coverage.

Prior to 2013 AHCCCS provided care for those below the federal poverty level.

That year then-Gov. Jan Brewer sought to take advantage of a provision of the Affordable Care Act where Congress agreed to pick up most of the costs for expanding health-care coverage to those making up to 138 percent of the federal poverty level. That is currently about $28,180 a year for a family of three.

To get those federal dollars, however, the state had to restore coverage for childless adults, coverage which had been dropped years earlier in a budget-saving maneuver. And to cover that cost and other state expenses, Brewer proposed — and lawmakers approved — giving AHCCCS Director Tom Betlach authority to impose a charge on hospitals.

The plan was adopted by a simple majority of the House and Senate, with the Republican governor cobbling together a coalition of Democrats and some members of her own party to vote for it.

That led the GOP lawmakers who voted against it to file suit. While they were in the numeric minority, there actually were enough of them to block the levy if it really is a tax and really required a two-thirds vote.

Christina Sandefur, attorney for the Goldwater Institute, which is representing challengers, is arguing to the justices that they need to respect the 1992 voter-approved amendment to the Arizona Constitution requiring a two-thirds vote.

She said it was designed as a check on new taxes. More to the point, Sandefur said it was specifically designed to empower a minority of lawmakers — in this case, just over a third — to block new taxes.

That argument did not impress the Court of Appeals. In a ruling earlier this year, the judges said what the Legislature enacted does not fit within what the constitution defines as a tax.

Appellate Judge Paul McMurdie, writing for the three-judge panel, acknowledged the 2013 law empowered AHCCCS Director Tom Betlach to impose a levy. And that vote, he said, was approved by just a simple majority.

But he pointed out that the levy itself was not imposed by the Legislature.

“Instead, the levies are imposed by an entity with discretion to set and administer them,” the judge explained, meaning AHCCCS. And he said the constitutional provision requiring a two-thirds vote has a clear exception for fees set by a state agency.

Nor was the court impressed by Sandefur’s argument that even if Betlach gets to decide the amount of the assessment, it took an act of the legislature to authorize him to levy it.

“That is the most circular argument I think I’ve ever heard,” McMurdie told her during oral arguments.

The court also rejected Sandefur’s contention that the levy is a tax because the funds collected are being expended for “general public purposes.” That, she argued, is the very definition of a tax.

McMurdie conceded the ultimate goal of expanding Medicaid was to provide health care to more of Arizona’s working poor.

But he said the actual beneficiaries are the hospitals — the entities paying the levy — who have fewer people showing up at their doors unable to pay because they lack insurance.

The hospitals, for their part, never challenged the levy. That’s because Betlach structured it in a way so the amount charged would be less than the reduction in unpaid bills.

No date has been set for the hearing.

AZ taxpayers can breathe a sigh of relief

tax or taxes concept with word on business folder index

The state Supreme Court has ruled that the historic income tax reduction passed by the Legislature and signed by Gov. Ducey last year will not be referred to the November ballot.

That means Arizona is on its way to having a simple, low, fair and flat state income tax of 2.5% –the lowest in the nation. But it’s worth remembering how we got to this point. In 2014, Arizona was fighting to emerge from the Great Recession, hit harder than almost every state in the country. We were staring down a billion-dollar budget deficit.

Danny Seiden (Photo by Jennifer Stewart)

I was on the campaign trail for then-candidate Doug Ducey when he made a pledge that, to many, may have sounded like a pipe dream – as governor, he would make Arizona the No. 1 state to live, work, and start and run a business – all while reducing the state income tax to as close to zero as possible.

Skeptics mocked the idea, believing it wasn’t possible. Opponents called instead for higher taxes, claiming his plan would bankrupt Arizona. Cynics, perhaps disillusioned by years of empty promises, assumed they were being fed another speech by an ambitious politician who’d say anything to get elected. All stump, no substance.

Undeterred, Governor Ducey was elected – not once, but twice – and he has been delivering on those promises since Day One. I’ve known our governor a long time. And if there’s one thing you should know, it’s that his administration is about results – not rhetoric. And the results speak for themselves.

Fast forward to today. Arizona has dug itself out of a $1 billion hole, and now sits on a record $5 billion surplus. Our economy is booming. Our population is growing. Since taking office, Arizona has welcomed 18,000 new businesses and over half-a-million new residents. We’ve created almost 400,000 new jobs and recovered those lost during the pandemic faster than nearly every other state. Our 3.3% unemployment rate, better than the national average, represents a historic low not seen in over 45 years.

All of this, while pumping record investments into K-12 education, supporting vital infrastructure needs, and funding core priorities like public safety, health care and more. All of this, while cutting taxes every year and advancing pro-growth policies that have made our state among the most competitive in the nation.

None of this was by accident. The current circumstances reflect 7-plus years of good policy and relentless salesmanship by a leader who had a strong vision for what our economy could be. And as for that campaign promise? Last session, Governor Ducey championed and signed into law a historic tax reform package that slashed rates for every Arizona taxpayer and implemented a 2.5% flat rate – the lowest among all other states with an income tax.

The fate of that plan hung in limbo over recent months, as opponents attempted to overturn it via a voter referendum. Thankfully, the Arizona Supreme Court blocked those efforts, rightfully recognizing our Constitution does not allow for the referral of tax measures that impact the “support and maintenance” of state government.

This would be a win for Arizona taxpayers and small businesses under any circumstance, never mind during this period of unprecedented inflation. This decision provides relief for every Arizonan who finds themselves spending more than ever before to fill up their cars, put food on the table, and shelter and clothe their families – and yes, that’s every Arizonan. It also provides the much-needed certainty that Arizona will have the lowest flat-tax rate in the nation – keeping our business environment among the most attractive and competitive for job creators and ensuring the continued long-term economic growth of our state.

We’re grateful to Governor Ducey and the state Legislature for delivering on a promise that Arizonans can take to the bank.

Danny Seiden is president and CEO of the Arizona Chamber of Commerce and Industry.  


Brnovich at arm’s length in election suit

In this Nov. 5, 2020, file photo, the Supreme Court in Washington. The Supreme Court has rejected Republicans' last-gasp bid to reverse Pennsylvania’s certification of President-elect Joe Biden’s victory in the electoral battleground. The court without comment Tuesday, Dec. 8, refused to call into question the certification process in Pennsylvania. (AP Photo/J. Scott Applewhite)
In this Nov. 5, 2020, file photo, the Supreme Court in Washington. (AP Photo/J. Scott Applewhite)

Arizona is seeking a voice in the lawsuit Texas has brought against some other states won by President-elect Joe Biden.

But exactly who Attorney General Mark Brnovich will side with remains unclear.

In legal papers filed with the U.S. Supreme Court, Brnovich said he wants to file a brief to argue the importance of “election integrity.” And he said he wants a quick decision in the case.

What’s telling, though, is that Brnovich is not joining with 17 other Republican attorneys general who filed their own brief with the Supreme Court siding with Texas. That asks the justices to back Texas in its bid to block a final vote by the Electoral College while the court considers allegations that illegal changes in laws in Pennsylvania, Georgia, Michigan and Wisconsin created the opportunity for fraud.

Instead, Brnovich aide Ryan Anderson said his boss wants to ensure that any ruling from the U.S. Supreme Court about laws and rules that govern election laws – in this case, in particular, about the presidential race – do not undermine Arizona’s own regulations. And Anderson said as far as his boss is concerned, Arizona does elections right, which is why it wasn’t sued by Texas as were the four other states where, like Arizona, Biden won the popular vote.

“Had Arizona been sued, that would have put our office in a situation where we would have had to decide what we would have filed and what we would have done,” Anderson said. That would have put Brnovich in the position of having to defend not only the state but the election – and Biden’s win – against Texas Attorney General Ken Paxton.

Mark Brnovich
Mark Brnovich

And Anderson left no question about what Brnovich thinks of how Arizona conducted the election.

“The Arizona attorney general will not be advocating to overturn the election results in Arizona,” he said.

Anderson said Brnovich does share one sentiment with his Texas counterpart.

“We all agree that the integrity of our elections are important,” he said. “And there are too many Americans who do not trust the outcome of the election.”

But Anderson said that Arizona’s interest in the legal fight is different than that of the other Republican attorneys general.

The lawsuit filed by Paxton charges that changes made this year to election procedures in the four battleground states, many due to the impact of the pandemic, are illegal.

In essence, he said that the changes, some enacted by courts, weakened ballot-integrity statutes. And that, in turn, has created the opportunity for fraud, though he does not allege any actual instances where that has occurred.

Courts in each of those states have dismissed similar claims. But Paxton is arguing that it is the responsibility of the nation’s highest court to intercede and declare that the procedures used in those four states were illegal and therefore the results should not be allowed to stand.

Anderson said it is noteworthy that Texas did not sue Arizona despite the fact that the election returns, which remain standing after several legal challenges, are awarding the state’s 11 electoral votes to Biden.

He said some of that is due to the fact that Brnovich has fought off various efforts to allow last-minute changes in election laws, ranging from how county election officials have to handle unsigned early ballots to extending the deadline for people registering to vote.

Anderson said it’s not clear the Supreme Court will even consider the Texas petition. But he said if the justices take it up, Brnovich wants to be sure that any ruling they issue respects the interests of Arizona.

Those interests, he said, is that the justices recognize and affirm that it is the legislature that has prime say over how elections are conducted and not courts or even officials of the executive branch.

That’s crucial because Arizona already has some of the laws that the Texas lawsuit says are lacking or were ignored elsewhere.

For example, Paxton complained that some states do not require that signatures on envelopes with early ballots be compared with records on file. Arizona requires matching of all envelopes received.

He also said that some states “flooded their citizenry with tens of millions of ballot applications and ballots,” ignoring normal controls. Arizona, by contrast, sends early ballots only to those who request them, whether on an election-by-election basis or by signing up on the permanent early voting list.

Brnovich is not the only Arizona elected official weighing in at the Supreme Court.

Ten state representatives and three senators, all Republicans, joined with counterparts from Alaska and Idaho on Thursday filed their own brief in support of Texas.

“An elite group of sitting Democrat officers in each of the defendant states coordinated with the Democrat party to illegally and unconstitutionally change the rules established by the legislature in the defendant states, thereby depriving the people of their states a free and fair election — the very basis of a republican form of government,” they charged through their attorneys.

The representatives are Nancy Barto, Frank Carroll, John Fillmore, Mark Finchem, Travis Granthan, Anthony Kern, David Livingston, Steve Pierce, Bret Roberts and Kelly Townsend. The senators are Sylvia Allen, Sonny Borrelli and David Gowan.





County Attorney Bill Montgomery vying for Arizona Supreme Court

Bill Montgomery
Bill Montgomery

Maricopa County Attorney Bill Montgomery is one of 13 people who applied to fill an upcoming vacancy on the Arizona Supreme Court.

The Supreme Court seat that will become vacant on March 1 currently belongs to Justice John Pelander, who announced in December his plans to retire. The vacancy means Ducey gets to appoint his fourth justice to the court after appointing Bolick in early 2016 and justices Andrew Gould and John Lopez IV when the court expanded from five to seven justices in later that year.

When asked in December if he would be vying for the U.S. Senate seat that was eventually filled by Martha McSally, Montgomery said that his current position “is where God wants me to be.” The claim came after Phoenix New Times reported that Arizona Supreme Court Justice Clint Bolick had texted Gov. Doug Ducey a recommendation of Montgomery to the U.S. Senate, even before Sen. Jon Kyl was appointed as a placeholder.

Arizona Capitol Times previously reported Chief Justice Scott Bales, whose five-year term as chief justice expires in June, is contemplating retiring as well. That would give Ducey the chance to appoint a fifth justice.

Twelve others also applied for the vacancy. They are:

Paul V. Avelar of the Institute for Justice

James P. Beene, an Arizona Court of Appeals Judge – Division I

Sean E. Brearcliffe, an Arizona Court of Appeals Judge – Division II

Kent E. Cattani, an Arizona Court of Appeals Judge – Division I

Maria Elena Cruz, an Arizona Court of Appeals Judge – Division I

David J. Euchner of the Pima County Public Defender’s Office

Richard E. Gordon, a Pima County Superior Court Judge

Randall M. Howe, an Arizona Court of Appeals Judge – Division I

Andrew M. Jacobs of Snell & Wilmer, LLP

Regina L. Nassen of the Pima County Attorney’s Office

Jennifer M. Perkins, an Arizona Court of Appeals Judge – Division I

Timothy M. Wright, a Gila County Superior Court Judge

The Commission on Appellate Court Appointments will review the applications and take comments from the public at a meeting on February 6. The commission must send at least three names to Ducey, no more than two-thirds of which can come from the same political party. The governor ultimately picks the next justice.

High court: Same-sex married couples entitled to ‘constellation of benefits’


A new ruling Monday by the U.S. Supreme Court could strengthen claims by gays that they’re entitled to more than just the right to marry.

In a 6-3 decision, the justices said their historic 2015 ruling stands for more than the fact that states may not limit the right to wed only to heterosexual couples. The majority in the unsigned opinion said that ruling also means that same-sex couples are entitled to “the constellation of benefits that the states have linked to marriage.”

The case out of Arkansas voids a state law there which says that when a gay married couple gives birth, only the name of the biological mother is listed on the state-issued birth certificate. The justices noted that other Arkansas laws spell out that in opposite-sex marriages, the name of the husband is always listed on the birth certificate, even if the child is the product of artificial insemination.

The new ruling could most immediately affect a case set for a hearing Tuesday at the Arizona Supreme Court in which the justices are considering the rights of the non-biological parent when a same-sex couple gets divorced.

Arizona laws, like those in Arkansas, generally require that the husband of the woman who has given birth be listed on the birth certificate. More to the point, that presumption of parenthood is key in questions of custody and visitation rights when the marriage breaks apart.

But two different divisions of the state Court of Appeals have issued two diametrically opposed and conflicting rulings as to whether the 2015 U.S. Supreme Court ruling extends those same presumptions in case of same-sex marriage.

Potentially more significant, the broad language in Monday’s ruling could give gay rights advocates the chance to argue that other laws which favor opposite-sex couples are similarly void. That includes one which says that in adoption, “placement preference shall be with a married man and woman.”

But Maricopa County Attorney Bill Montgomery, who has taken a narrower view of the 2015 ruling, said he does not see what the high court decided on Monday as going that far.

“Because single persons, as well as married couples, can adopt, adoption is not exclusively ‘linked’ to marriage,” he told Capitol Media Services.

That contention drew fire from Jenny Pizer, attorney for Lambda Legal Defense Fund.

She said it probably would be legal for the state to decide that married couples should be given first preference in adoption over single people.

“There would be, could be, nondiscriminatory reasons to say a household can be presumed to be more stable if there are two adults to raise children and they have a legal tie between them,” Pizer said. But she said any law giving a preference for a different-sex married couple over same-sex married couple would be constitutionally suspect.

“Well, what’s the state’s reason for that?” she said. And Pizer said gender stereotypes of men and women are “not a legitimate reason for distinction.”

Montgomery caused a stir in 2015 when he refused to have his staffers provide the same legal help to couples seeking to adopt to gay couples as his office had been doing for years, as legally required, for opposite-sex couples. He insisted that rulings voiding Arizona laws banning same-sex marriage did not give gays the same legal standing to adopt.

“The Supreme Court case addressed marriage,” he said at a news briefing. “It didn’t address adoption, so I didn’t read it to affect that at all.”

In a bid to help Montgomery, Arizona lawmakers approved legislation to rescind the mandate that county attorneys provide legal help to couples seeking to adopt. But that was vetoed by Gov. Doug Ducey who said he wants more children adopted – and does not particularly care if the parents are straight or gay.

“I want to see more kids in loving homes under the legal structure,” the governor said at the time. “And that’s just something I’m going to continue to be a legal advocate for.”

But rather than having his own staff provide the help, Montgomery decided to farm out the legal help to private attorneys for all adoptions.

Mia Garcia, spokeswoman for Attorney General Mark Brnovich, said the ruling is being reviewed.

Two years ago, after the first court rulings legalizing same-sex married, Brnovich had advised the Department of Child Safety that he did not read them to revise other laws, including one which says only “a husband and a wife may jointly adopt children.” But DCS, at Ducey’s instruction, ignored Brnovich’s advice.

Justices side with Mexican immigrant in deportation case


The Supreme Court on Tuesday sided with a Mexican immigrant who faced deportation after he was convicted of having consensual sex with his underage girlfriend.

The justices ruled unanimously that while Juan Esquivel-Quintana committed a crime under California law, his conduct did not violate federal immigration law.

The opinion comes as the Trump administration steps up enforcement of the nation’s immigration laws, including deporting those who commit crimes. Immigration arrests have increased 38 percent this year, compared with a similar period last year.

California law makes it a crime to have sex with anyone under 18 if the age difference is more than three years. That applied to Esquivel-Quintana, who had sex with his 16-year-old girlfriend before and after his 21st birthday.

But Esquivel-Quintana said his conduct would have been legal under federal law and the laws of 43 other states that are less strict. The government argued that courts should defer to immigration officials in interpreting laws that are vague.

Writing for the court, Justice Clarence Thomas said the generic federal definition of sexual abuse of a minor requires the victim to be younger than 16. Since Esquivel-Quintana’s conduct did not constitute sexual abuse under federal immigration laws, Thomas said the state conviction did not count as an aggravated felony and he could not be deported.

Esquivel-Quintana moved to the United States with his family when he was 12 and became a lawful permanent resident. He served 90 days in jail after pleading no contest to the California charges involving sex with a minor.

He later moved to Michigan, where federal officials began deportation proceedings. Immigration officials said he was convicted of “sexual abuse of a minor” ai??i?? a deportable offense under federal immigration laws.

An immigration judge said he should be deported and the Board of Immigration Appeals agreed. A divided federal appeals court affirmed that ruling.

Esquivel-Quintana has been living in Mexico since being deported but now plans to return to the U.S., his lawyer, Michael Carlin, said.

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Legislature should address problems facing state, not culture war


Arizona’s children are going back to school, and our elected officials face enormous decisions on how to weigh containing a deadly pandemic against the needs of families. We are losing lives and livelihoods every day, and yet somehow our Legislature cannot be bothered to focus on Covid relief when school-mandated prayer and the Pledge of Allegiance make such an ideal wedge in the culture wars.

Rep. Fillmore, R-Apache Junction, wants to make the Pledge of Allegiance and a “moment of silence for moral reasoning” (AKA school-mandated prayer in all but name) mandatory for all students K-12. A favorite of religious right ideologues in the Legislature, HB 2060 is in committee with a very strong chance of seeing the Governor’s desk before this session is out.

Luke Douglas
Luke Douglas

The Constitution, as the Supreme Court understands it, is clear. Students can pray in public school as long as the school does not force them to. Because children are vulnerable to coercion, they have more protections than adults when it comes to state-sanctioned prayer. No child can be required to participate in someone else’s faith.

The “moment of silence” issue has also been tried before. In Wallace v. Jaffree, (yes, the same Governor Wallace who notoriously opposed civil rights), the State of Alabama didn’t just oppose desegregation. Their Legislature was outraged that the Supreme Court told them to stop forcing children to pray in school. They enacted a mandatory moment of silence to start each school day, which legislators lauded as an effort to return “prayer to our public schools . . . it is a beginning and a step in the right direction.” The Supreme Court didn’t buy it.

The First Amendment does not allow public schools to backdoor school-mandated prayer through “moments of silence.” Period.

So why ram through a law that the courts have already thrown out? The same reason this session has already seen a blitz of polarizing religious right bills that would rather give women the death penalty for having an abortion than enact any real solutions for a state that is reeling.

The answer is Christian Nationalism.

Christian Nationalism is a radical, predominantly white movement that seeks to enact theocratic laws to merge fundamentalist Christian identity with American identity. The primary tactic to push it forward is Project Blitz: simply flooding state legislatures across the nation with more social conservative bills than opponents can possibly stop. The tactic is especially effective when the party in the Legislature knows it is on its way out of power.

So now, the Legislature is in its busiest session in recent memory, partly due to a Christian Nationalist agenda that its proponents have limited time to enact. They want to make in-person church services an “essential service” that can remain active during a pandemic even if it further spreads the virus. They want to keep conversion therapy legal even if communities choose to ban it. And of course they want our kids to learn to walk in lockstep at an early age by starting every school day with the Pledge of Allegiance and prayer in all but name.

If HB2060 gets to Gov. Doug Ducey, it’s not about whether he’s a conservative governor, because he is. Their myriad bills that highlight the Legislature’s extremist approach, but also separate them from both traditional conservatism and the governor. When they clash over, say, opening churches during the pandemic, it’s not a difference of principle so much as the governor’s punishment for insufficient loyalty to their reactionary agenda.

But in all the politicking, there are people who should never be punished for insufficient loyalty. A child who doesn’t wish to recite the Pledge, pray, or be a political pawn should not be bullied by the state.

At the end of the day, the Legislature’s job is to make life-and-death decisions about Covid, education, and how to come back from this crisis. I might agree with their decisions or I might not, but they could at least do us the courtesy of focusing on problems Arizona families are facing instead of dredging up a culture war. Whatever your beliefs, it’s too extreme for Arizona.

Luke Douglas, J.D. is executive director of the Humanist Society of Greater Phoenix, Secular Coalition Board Member.

New judge to oversee attorney discipline


Margaret Downie will be Arizona’s second ever presiding disciplinary judge, the state Supreme Court announced Thursday.

Downie, who starts her new role on May 17, will replace Judge William J. O’Neil who is retiring after holding the seat since its inception in 2010. The disciplinary judge presides over attorney discipline, reinstatement and disability cases.

“I have been involved in the fields of legal and judicial ethics for more than 35 years and am honored that the Supreme Court has chosen me to serve as Arizona’s next Presiding Disciplinary Judge,” Downie said in a written statement.

Margaret Downie
Margaret Downie

Chief Justice Robert Brutinel said in a written statement that Downie was an ideal choice as the incoming judge because of her experience as a trial and appellate judge, and as Executive Director of the Commission on Judicial Conduct. He also credited her reputation for integrity and handling of previous bar discipline cases.

“The judicial branch, the public and the bar will be well served by the new Presiding Disciplinary Judge,”  Brutinel said. 

The Commission on Judicial Conduct independently investigates complaints against judges and justices in the state. Downie has held the executive director position since 2017. Before that, she was a Court of Appeals, Division One judge from 2008 to 2017. She also served with the Maricopa County Superior Court for 11 years as a court commissioner and then a trial judge. 

Retired appellate court judge Patricia Norris was among those who wrote in support of Downie’s appointment. Norris served with Downie on the bench before retiring. Norris, who has worked as a volunteer attorney on hearing panels for O’Neil, said Downie also has administrative and organizational skills, as well as the legal skills needed for the job. 

“She was an outstanding jurist — always prepared, familiar with all the pertinent parts of the record on appeal, and diplomatically direct and to the point,” Norris wrote.

The other candidates for the position included Stephen Little, Jeffrey Messing and Patricia A. Sallen.

During his time as the first disciplinary judge, O’Neil presided over the disbarment proceedings of former Maricopa County Attorney Andrew Thomas and his former top deputy, Lisa Aubuchon.

The disciplinary panel found that Thomas worked with Maricopa County Sheriff Joe Arpaio to go after their political enemies, and that Aubuchon and Thomas committed numerous ethical violations during a four-year window when private attorneys, judges and other officials were pursued for prosecution and lawsuits.

Ninja records public, Supreme Court decides

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

The Arizona Senate has no legal excuse to refuse to publicly produce the records of the firm it hired to audit the 2020 election returns.

In a brief order Tuesday, the Arizona Supreme Court refused to overturn a Court of Appeals ruling that the records of Cyber Ninjas as related to the audit are public.

That leaves intact the finding that the records are the property of the Senate. And that, the appellate judges said, makes them subject to disclosure under the state’s public records law.

The justices also dissolved a stay they had issued to allow the Senate to keep the documents confidential at least for the time being.

But it remains unclear exactly when the public will finally get a look at what has been shielded.

Senate spokesman Mile Philipsen said he knows some of the disputed documents already have been gathered and may be ready for release within days. But with an estimated 60,000 records that have yet to be produced, it may take longer to get the rest of them online for public viewing.

And then there’s the possibility the Senate will try to make new claims about why some of the documents should remain shielded.

That is not speculation. Attorney Kory Langhofer who represents Senate President Karen Fann, told a judge in a parallel case that there may be an argument that communications between senators and the auditors who are under contract could be withheld under the argument that they represent either legislative privilege or attorney-client privilege.

“I will need to confer with our attorneys the best way to comply,” Fann told Capitol Media Services.

But attorney Roopali Desai who represents American Oversight, the organization that filed suit for access, said as far as she is concerned this is the end of the road.

“They need to produce Cyber Ninjas documents,” she told Capitol Media Services. And she dismissed the idea that the Senate could now claim the these are somehow “internal documents” subject to some sort of privilege, given that the Senate all along argued that Cyber Ninjas is not part of the Senate.

Maricopa County Superior Court Judge Michael Kemp has scheduled a hearing for Thursday on what happens next.

American Oversight filed suit in May, more than a month into the audit, demanding all records created, sent and received not only by the Senate but any of the Senate’s agents. Desai said that includes Cyber Ninjas which had a $150,000 contract to review the 2.1 million ballots cast in Maricopa County this past November, compare the results of the presidential race with what was officially reported, and examine the voting equipment used to look for flaws or signs of tampering.

Langhofer said the Senate never disputed its obligation to produce the records it actually has. But he argued there is no requirement to turn over records it does not have, meaning those in the hands of Cyber Ninjas.

That argument didn’t wash with the Court of Appeals.

“Public officials must make and maintain records reasonably necessary to provide knowledge of all activities they undertake in furtherance of their duties,” wrote appellate Judge Maria Elena Cruz. And she said the election audit is both a public function being carried out by the Senate within its constitutional powers as well as an official legislative activity.

Cruz also pointed out that the audit is being conducted with public funds, with Cyber Ninjas and the sub-vendors it hired, acting as agents of the Senate.

“The Senate defendants, as officers and a public body under the public records law, have a duty to maintain and produce public records related to their official duties,” she wrote.

“This includes public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate’s agents,” Cruz continued. “The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”

All that was left undisturbed by Tuesday’s Supreme Court order.

That order comes as Fann along with key senators and staffers are reviewing what is billed to be a three-volume report on its findings. But that report may not be released until next week.

Fann has said repeatedly that the purpose of the audit is not to overturn the results of the presidential election which showed Democrat Joe Biden outpolling incumbent Republican Donald Trump in Maricopa County. The Biden margin was enough in the state’s largest county to counter strong Trump support in some of the rural counties and give the Democrat the state’s 11 electoral votes.

But she said it will prove useful to find out if changes are needed in state laws governing how future elections are conducted.



Roe no reason to revisit gay marriage laws, Ducey says

Doug Ducey

Gov. Doug Ducey said he’s not interested in using the Supreme Court ruling overturning its own precedent on the right to abortion as a reason to revisit the question of whether gays should be able to marry in Arizona.

Ducey acknowledged that the justices, in their decision late last month, said it was wrong of the court to take the question of abortion away from the states 49 years ago.

“The Supreme Court has gone neutral on it,” the governor said of the new ruling.

“That issue comes back to the states,” Ducey continued, a conclusion he urged the justices to reach when he signed on a legal brief asking the court to overturn Roe v. Wade. “And now it’s left to the people.”

But it was the decision of the people of Arizona in 2008 to approve a constitutional amendment limiting marriage to “one man and one woman.” And that was the law of the land in Arizona until federal judges – and, ultimately, the Supreme Court in 2015 – held the U.S. Constitution requires states to license a marriage between two people of the same sex.

“I want to separate these issues out,” Ducey told Capitol Media Services when asked if the question of same-sex marriage, like the question of abortion, should be left to the states. And he said that the Supreme Court, in overturning Roe, was dealing with something different, something “that has been battled nationally for 50 years.”

The governor acknowledged that at least one justice suggested there are parallels between the Supreme Court preempting the right of states to regulate or outlaw abortion and rulings over the years which have overruled other laws about personal decisions.

Justice Clarence Thomas, in a concurring opinion on Roe, said the court’s decision concluding there is no “due process” protection for the right of abortion should be used to revisit not only its 2015 ruling on same-sex marriage but also its 2003 ruling overturning state sodomy laws and even its 1965 decision saying that married couples have the right to use contraception.

“Thomas said one thing,” Ducey said. But he pointed out that Justice Samuel Alito, who wrote the majority ruling, spelled out that the decision to overturn Roe and its constitutional right of abortion did not affect those other rulings.

“So the Supreme Court has spoken,” the governor said.

“I respect the process,” he said. “And I believe in federalism.”

And Ducey said that means questions like the rights of gays to marry are not necessarily left to each state.

“Federalism would say that there’s a mix between national government, the federal government, and what’s left to the states,” he said.

And what of that 56-44% decision by Arizona voters to say that gays should not be able to marry here?

“Well, the courts have since ruled on that,” Ducey said, deferring to the Supreme Court.

“Like I said, if you’re going to respect the process and be devoted to the Constitution, you have to respect the institutions.”





Supreme Court rejects utility regulator’s bid to overturn APS rate hike

power lines az electricity 620

The Arizona Supreme Court court won’t intercede to overturn the just-approved 3.3 percent rate hike approved for the state’s largest electric utility.

In a brief order Tuesday the justices rejected a bid by Bob Burns, one of the members of the Arizona Corporation Commission, to overturn the decision by his other four colleagues in favor of the increase for Arizona Public Service. Burns argued that the process followed by his colleagues did not comply with statutory and constitutional requirement for a full airing of all relevant issues before they voted.

But Tuesday’s order does not end the fight.

Burns still has another case pending in Maricopa County Superior Court. There he is asking Judge Daniel Kiley to rule that he was entitled to subpoena APS executives and their records as part of the inquiry to determine if the company was really entitled to collect an additional $7 million a month from customers. A hearing on that case is set for later this week.

If Kiley rules that Burns’ rights were violated, that could pave the way for a ruling requiring that the entire rate case be reheard from scratch, this time with the testimony and documents that Burns wants. And depending on what that turns up, it also could open the door for Burns to seek to disqualify one or more of his colleagues from voting on the case because of financial support they received from APS for their election campaigns.

The court ruling comes as Gov. Doug Ducey appointed former state Rep. Justin Olson, R-Mesa, to the commission. He replaces Doug Little, also a Republican, who quit to take a post in the Trump administration with the U.S. Department of Energy.

Olson left the Legislature at the end of 2016 to make an unsuccessful bid for Congress. Now a senior tax analyst for the Apollo Education Group in Phoenix, he will serve out the 15 months remaining on Little’s term; at that point he would have to decide if he wants a full four-year term of his own.

Ducey, in a prepared statement, said Olson has “a reputation as a strong proponent for taxpayers and an incredibly hard worker.”

Tuesday’s Supreme Court order does not explain the decision to spurn Burns’ request.

But the ruling comes after Mary O’Grady, the company’s attorney, told the justices there was no reason for them to jump into the legal fray now, what with the parallel case before Kiley. She argued that Burns’ petition to the high court to void the rate hike was “an attempt to gain leverage” in that other case “by putting the new rates at risk.”

“The court should reject that ploy,” O’Grady wrote.

There was no immediate response from Burns.

He had previously conceded to Capitol Media Services there was no legal precedent for the extraordinary relief he was seeking in having the justices void a rate increase which had been approved by the commission. But Burns insisted that the current political situation — including the open hostility between him and the other four commissioners — forced him to try to seek Supreme Court intervention.

At issue is the 4-1 vote by the commission which resulted in an immediate increase of $7 a month to the average APS residential customer.

That vote came after a deal was hammered out among the utility, the commission’s own staff, the Residential Utility Consumer Office and most of the groups and individuals who had interceded in the case. Also on board were companies that sell or lease solar panels to homeowners and businesses to generate their own electricity as the final package blunted the fiscal impact on their customers.

Burns has been arguing that there is reason to believe that the company does not need the money.

Among the issues he wants explored is how much of $3.2 million donated anonymously to help elect Republicans Little and Tom Forese to the panel in 2014 came from APS or parent Pinnacle West Capital Corp. A spokesman for APS will neither confirm nor deny the company’s role in that campaign.

Burns sought to question company executives about the cash.

APS was more upfront about the $4.2 million it spent last year to ensure the five member commission remained an all-Republican affair.

Burns said all that raises the question of whether the other commissioners were beholden to APS.

Bill Richards, his attorney, was more pointed in his arguments.

He said the decision by the other four commissioners to deny Burns’ subpoena requests and vote on the issue means they let APS increase its rates before there was a chance to ascertain how much money the company spent to get a commission of its choosing.

Supreme Court to hear appeal on Shooter residency ruling

Don Shooter testifies during a hearing, June 14, 2018, in Judge Rosa Mroz’s Maricopa County Superior Courtroom, Phoenix. (Photo by Mike Meister/Arizona Republic)
Don Shooter testifies during a hearing, June 14, 2018, in Judge Rosa Mroz’s Maricopa County Superior Courtroom, Phoenix. (Photo by Mark Henle/Arizona Republic)

A Republican contender in Legislative District 13 is appealing a lower court ruling to the Arizona Supreme Court that former lawmaker Don Shooter can stay on the ballot.

Maricopa County Superior Court Judge Rosa Mroz ruled June 15 that Shooter, who was expelled from the Arizona House of Representatives in February for sexually harassing women, meets the residency requirements to run for the state Senate in LD13.

Brent Backus, one of Shooter’s opponents in the August 28 primary, claimed that Shooter doesn’t reside in Yuma County, where Shooter declared his primary residence. Lawmakers are required to reside in the county they are running in for at least one year prior to the election, according to a constitutional provision.

Tim LaSota, an attorney for Backus, appealed the judge’s determination that Shooter always intended to return to Yuma, even though Shooter’s voter registration was changed to Maricopa County and Shooter himself testified that he spends roughly two-thirds of his time at a home in Phoenix with his wife, Susan Shooter.

The appeal goes directly to the Arizona Supreme Court, which is required to hear election-related appeals.

Shooter testified he never changed his voter registration, had no idea how the change occurred, and that he didn’t know the power had been turned off at his Yuma condo.

“Yuma’s been good to me,” Shooter said in court on June 14. “It’s my home. I’ve spent considerable time and effort and money to continue that relationship. … I’m spending a lot of money right now to be a part of Yuma. It would be real easy to walk away. It’s a little irritating.”

LaSota previously told the Arizona Capitol Times that if the ruling stands, it would set a terrible precedent.

“The qualification for running for office are that you rent an apartment in the district you want to run from. You don’t even need power,” he said. “I don’t think that’s what the voters of the state had in mind when they passed the requirement that politicians have residency in the district they run from.”

Trump in AZ rally urges Republicans to ‘cast second greatest vote ever’ for McSally

President Donald Trump talks to a pilot in the cockpit of an F-35 aircraft during a Defense Capability Tour at Luke Air Force Base, Ariz., Friday, Oct. 19, 2018. (AP Photo/Carolyn Kaster)
President Donald Trump talks to a pilot in the cockpit of an F-35 aircraft during a Defense Capability Tour at Luke Air Force Base, Ariz., Friday, Oct. 19, 2018. (AP Photo/Carolyn Kaster)

The Arizona GOP enlisted the party’s campaigner-in-chief at a Friday rally in Mesa to boost Republican enthusiasm for U.S. Senate candidate Martha McSally and down-ballot Republicans ahead of the congressional midterm election.

President Donald Trump praised himself for appointing two conservative Supreme Court justices, cutting taxes and pushing for a border wall and insisted that progress would be lost if “radical” Democrats won control of Congress this election cycle.

“If the radical Democrats take control of Congress on Nov. 6, they will try to plunge our country into a nightmare of gridlock, poverty and chaos,” he said.

Trump also touted McSally, who spoke for about five minutes in comparison to the president’s 50 minutes, as someone who fought for her country all her life and would do the same in the Senate. The president also tore down McSally’s opponent, Democrat Kyrsten Sinema, as a “far-left extremist,” perpetuating what already has been a cutthroat and personal contest to replace retiring U.S. Sen. Jeff Flake.

The president praised McSally, the first female fighter pilot, as a hero for leading airstrikes against Islamic terrorists after 9/11.

“While Martha was bravely fighting the Taliban, Kyrsten said she had no problems with Americans defecting from our country to join the Taliban,” he said, referencing something Sinema said in a radio interview from the 2000s.

Sinema’s campaign has said her comments were clearly just offhand remarks that have been misconstrued.

Unofficial estimates from Mesa law enforcement was that there were about 6,300 Trump supporters inside the rally at the Phoenix-Mesa Gateway Airport with an additional 3,000 people outside. Supporters waited in line for hours in the heat to see Trump at his only Arizona rally so far this year.

Trump also criticized Sinema for voting against his Tax Cuts and Jobs Act, a vote he said she took because House Minority Leader Nancy Pelosi told her to do so. Sinema voted against the bill, saying it didn’t reflect the values of hard working Americans. But Sinema, a moderate Democrat who paints herself as an independent voice in Congress, is no friend of Pelosi, having voted against keeping her as party leader in 2016.

Both Trump and McSally said Sinema voted in favor of “sanctuary cities.” But Sinema was actually one of a small group of Democrats who voted in favor of legislation to bar “sanctuary cities” from receiving federal law enforcement grants if they fail to cooperate with immigration authorities.

McSally came out swinging against her opponent, tearing Sinema down for calling Arizona “crazy” and a “meth lab of democracy.”

“I just wanted to let you know, we are not crazy here,” she said. “We are not a meth lab of democracy.”

Video recently surfaced of Sinema calling the state both things after the state Legislature passed the widely disavowed immigration bill SB1070. The phrase “meth lab of democracy” did not stem from Sinema, but rather, a late-night TV show host.

McSally drew contrasts between her and her opponent, citing her support and Sinema’s opposition to the confirmation of Supreme Court Justice Brett Kavanaugh. McSally also supported Trump’s tax cuts plan.

McSally also brought back Sinema’s past, telling the crowd Sinema was protesting the Iraq War in a pink tutu while she was wearing a flight suit and flying into combat zones.

Trump promised his supporters that a vote for McSally would be one of the best votes they would ever cast.

“It will be the second greatest vote you’ve ever cast,” he said. “The first greatest vote was for me.”

Trump also gave shoutouts to several Republican congresspeople from Arizona at the rally. He also praised Gov. Doug Ducey, who spoke before him, as a “fantastic governor and friend of mine.”


During his brief remarks, Ducey praised Trump’s steps on immigration and tax reform and applauded him for nominating conservatives Brett Kavanaugh and Neil Gorsuch to the U.S. Supreme Court.

Ducey also twisted his Democratic opponent David Garcia’s immigration stances and criticized him for being proud to stump with Democratic socialist Bernie Sanders next week.

“Can you believe it? These guys are actually proud to stand with Bernie Sanders,” Ducey said. “Would you be proud to stand with Bernie Sanders?”

Garcia and Sanders will rally students at the University of Arizona and Arizona State University on Tuesday. Garcia has tacked to the left in his gubernatorial bid and run on a number of Sanders-style reforms, such as promising free college and calling for a single-payer health system.

Ducey also criticized Garcia’s positions on immigration, though he took liberties with some of his opponent’s stances. The governor riffed off Garcia’s speech at a progressive conference in New Orleans, in which the Democrat said, “imagine no wall in southern Arizona,”

“No wall in southern Arizona, is that the Arizona you want to imagine?” Ducey said. “No more national guard on our southern border, is that the Arizona you want to imagine? Abolish ICE, is that the Arizona you want to imagine?”

Garcia clarified his statement after the conference, saying he is opposed to Trump’s border wall. He has also said he would remove U.S. National Guard troops from the border and would replace the Immigration and Customs Enforcement agency.

As he campaigns for re-election, Ducey has somewhat shied away from Trump as Democrats have tried to link him to the president whenever possible. Ultimately, the contentious national political environment has done little to hurt Ducey’s re-election bid.


The political newcomer and candidate for secretary of state criticized outside groups spending against his campaign and said socialism is this generation’s threat to liberty.

Gaynor, who faces Democrat Katie Hobbs, tied the argument to a history lesson on the Revolutionary War and Americans fighting for their freedom.

“It seems in every generation, a new threat to liberty arises,” he said. “This comes from those who believe socialism is better than free markets.”

Gaynor also criticized a group called iVote, which is spending millions to help get Hobbs elected. The group, which supports Democratic candidates for secretary of state, aims to get rid of voter registration because it leads to voter suppression, Gaynor noted with disdain.

Democratic response

While Trump stumped for McSally, Sinema was kicking off get-out-the-vote efforts with campaign volunteers in Phoenix. Her campaign put out a fundraising plea tied to Trump’s rally shortly after the president walked off stage.

Meanwhile, Garcia’s campaign criticized Ducey for supporting Trump at the rally while the president attacked American values.

“Trump has disgraced himself and the White House, attacked the free press, the rule of law and American values tonight at his rally for Ducey and McSally,” said Garcia spokeswoman Sarah Elliott. “In the face of this reckless and dangerous administration, Ducey has not once stood up for our values and sides with Trump time and again.”

State of the election

Ducey holds a comfortable lead in the polls. A Real Clear Politics average of multiple polls shows him leading Democrat David Garcia by double digits.

The contest between McSally and Sinema is much closer. Polls have consistently showed Sinema leading, but most of the polls have been so close that the results are within the margin of error.

Gaynor and Hobbs are close in the polls, but Gaynor leads his Democratic opponent.

Voters will head to the polls on Nov. 6.

What Arizona can do to prepare for a post ACA


A federal judge in Texas (Judge Reed O’Connor) dealt a blow to the Affordable Care Act in December when he ruled in Texas v. Azar that the ACA is unconstitutional in its entirety, including the implementation of market reforms (e.g. protections for folks with pre-existing conditions), the health insurance marketplaces, and the expansion of Medicaid.

Fortunately, he didn’t issue an injunction ordering the administration to stop implementing the law – so the ACA will remain the law of the land for now.

Will Humble
Will Humble

Back in February, 20 states (including Arizona) filed the lawsuit seeking to invalidate the three legs of the ACA stool: pre-existing condition exclusions, community rating, and guaranteed issue.

The ACA prevents health insurance companies from: 1) denying someone health insurance because they have a pre-existing condition – called the “guaranteed issue” requirement; 2) refusing to cover services that people need to treat a pre-existing condition – called “pre-existing condition exclusions”; and 3) charging a higher premium based on a person’s health status – called the “community rating” provision.

The U.S. Department of Justice isn’t defending the ACA because they agree with the plaintiff states. In fact, the Justice Department has urged the court to strike down the law. Luckily, several states including California are defending the law.

The plaintiffs (including Arizona) argue that since the new federal tax reform law removed the financial penalty for not having health insurance, the ACA is now unconstitutional.

So, Will the Supreme Court Uphold the ACA Again?

The December ruling isn’t the last word. The case will certainly be appealed in the federal appellate court system and then to the U.S. Supreme Court, which has a different cast of characters than it did when the ACA was originally upheld back in 2012 by a 5-4 vote.

Since then, Justice Gorsuch replaced Justice Scalia and Justice Kavanaugh replaced Justice Kennedy. Both Scalia and Kennedy voted against the ACA – so presumably not much on that score has changed.

Chief Justice Roberts voted with the majority that upheld the law. His argument rested on the ACA’s link to the financial penalties for not having health insurance. But remember, the financial penalties for not having health insurance were removed from the IRS tax codes in last year’s federal tax overhaul, pulling out the structure that Roberts used in his argument.

In the 2012 ruling, Justice Roberts wrote that: “… the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax… because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Roberts rejected the Obama Administration’s argument that the federal government’s authority to regulate interstate commerce provides the authority needed for the ACA to be constitutional (the court struck down that argument 5-4).

The bottom line is that the ACA, including its protections for folks with pre-existing conditions, may very well be in jeopardy if Chief Justice Roberts views the ACA as fundamentally different now that the financial penalties for not having health insurance are gone.

What Happens in Arizona if the ACA Goes Away and How Can We Prepare?

It’s easy to see how the ACA could end up being struck down in a couple of years once this case gets to the highest court. Gone would be the health insurance market reforms like protection for folks with pre-existing conditions, community rating pricing and guarantee issue as well as Medicaid expansion and the health insurance marketplaces.

Fortunately, Arizona is partially in control of our own destiny if the ACA is struck down. We couldn’t do much about Medicaid rolling back to pre-ACA levels or the loss of subsidies on the marketplace, but we could have some control over the market reforms like pre-existing condition exclusions, community pricing, and guarantee issue.

Several states already have their own laws that incorporate some or all the ACA insurance market protections. Arizona could do the same.

The good news is that we have time before the Texas v. Azar case makes it to the Supreme Court. A reasonable first step would be for the governor to ask the Arizona Department of Insurance, the Arizona Department of Health Services and AHCCCS to generate (or commission) a report outlining the real-life impact in Arizona in the event that the Texas v. Azar suit is ultimately successful. The report would also put forward options for state-based health insurance market reform laws that could be enacted to require things like prohibiting pre-existing condition exclusions.

Such a report would give the Arizona Legislature an analysis with which to evaluate public policy options for state-based market reforms.

I know what you’re thinking: It’s impossible to pass these kinds of market reforms in Arizona. Maybe, but many thought Arizona’s expansion of our Medicaid system back in 2013 was impossible.

That case study shows that with the right kind of leadership on the Ninth Floor, anything is possible.

— Will Humble is the executive director of the Arizona Public Health Association and former director of the Arizona Department of Health Services.

Young voters will save our democracy


Dear Editor:


If the nation’s eyes weren’t already on Arizona for the most expensive and consequential U.S. Senate race in our state’s history, the possibility of Mark Kelly being sworn in to replace Sen. Martha McSally in time to vote on a new Supreme Court nominee has now put us under an inescapable microscope. The despicable but not surprising reality is Senator McSally’s complete inability to even pretend that she’s anything more than Trump’s puppet, as if she could even attempt to muster up whatever dignity she has left to take a stand for our democracy and the people she was appointed to represent.

Instead, typically and in line with her brand, she has once again left Arizona voters behind, leaving all principle and morality in the trash alongside us. She and the rest of the GOP know that voting for a Supreme Court justice now is a stark contradiction to what they did in 2016 when Mitch McConnell said – nine months out – that an election year was no time to fill a spot on the Supreme Court.

Here we are, six weeks until a presidential election, with some parts of the country already voting, and Republicans are attempting to sell out and undermine the power of our democracy for a greasy, malicious political power grab. There’s no question that Republicans are scared of what this country is starting to look like and consequently the result of a government truly based on the people’s choice isn’t something their party can survive right now.

The simple fact is that the GOP has completely lost their way. They elected a racist reality TV star as their leader, installed a cheap loyalist with no backbone in Arizona, and are now further spiraling down a path that is a far cry from John McCain’s party. They are going back on their word, throwing out decency, and hastily speeding up this process because they know it is one of their last chances to hold our country back from progress.

However, the young people of Arizona have a message for them: if Republicans want to play dirty, then they’ll find the fight they’re looking for here. If they think the largest, most diverse, most educated generation in American history will take this lying down, they have another think coming. At NextGen Arizona, the largest youth vote organization in the state, we’re prepping for the biggest battle of our lifetimes. We’re suiting up in droves right now to show the GOP where the real power lies. The future of Arizona and this country belongs to young, Black, Brown, LGBTQ, working-class, multiracial Americans and we cannot wait to stand over Senator McSally and Trump when we prove that in November. Shots fired and it’s on.

Kristi Johnston

Arizona press secretary for NextGen America.