11th hour attempts to change election laws undermine voter confidence

(Jim Weber/Daily Memphian via AP)
(Jim Weber/Daily Memphian via AP)

Uncertainty again looms over Arizona’s upcoming election, as liberal officials and progressive activists chase last-minute changes to our well-established voting practices.

In March, Maricopa County Recorder Adrian Fontes unexpectedly announced that he was mailing early ballots to every Democratic voter who had not cast a ballot, regardless of whether the voter had requested an early ballot or not. This sparked immense controversy among Arizona voters and elections officials on both sides of the aisle.

Both Arizona Attorney General Mark Brnovich and Secretary of State Katie Hobbs challenged Fontes’s decision, but Fontes attempted to send the ballots nevertheless.

Kory Langhofer

Attorney General Brnovich rebuked Fontes with strong words: “The Maricopa County Recorder cannot unilaterally rewrite state election laws. Fontes is creating chaos in our elections during an already difficult time. In times of crisis, the public looks to our elected officials to follow the law – not make reactionary decisions for political gain.”  The court swiftly shot down Fontes’s plan.

Since then, the Democratic Party has been busy filing lawsuits in hopes to talk the courts into hurriedly granting partisan advantages in Arizona elections. These lawsuits have argued, for example, that elections officials should count mail ballots received after Election Day, including mail-in ballots contained in envelopes that the (ostensible) voter never signed. According to these lawsuits, you have a right for your ballot to count even if you ignore elections deadlines and fail to sign your ballot envelope. 

This is reminiscent of the 2016 election, where at the last possible minute, the Democratic Party challenged Arizona’s prohibition on “ballot harvesting.” That lawsuit, which is currently awaiting review by the U.S. Supreme Court, argues that it is a constitutional right for a third party to show up at your home, ask you to hand over your physical absentee ballot, and return it for you.

In 2016, Arizona was the first state to make ballot harvesting a felony due to valid concerns about voter coercion and fraud. This decision was seemingly justified in 2018, when ballot harvesting irremediably tainted a North Carolina congressional election, resulting in the State Board of Elections’ refusal to certify the election and ordering a new one.

Then again in 2018, the Democratic Party rushed to the courts just before 5:00 p.m. on Election Day to try and keep polling locations open late only in Maricopa County, which happens to be the most populous Democratic county. That is the unfortunate partisan nature of virtually all last-minute changes in election law.

When courts or elections officials change voting procedures on the eve of an election, particularly in a manner that has disparate partisan impact, it has significant consequences. It creates widespread voter confusion — most importantly among elderly voters, a vulnerable demographic that historically trends conservative — and opportunities for fraud and voter disenfranchisement.

Perhaps most importantly, though, last-minute election changes dramatically undermine public confidence in our democratic system of government. If the rules of poker changed just before the final card, you wouldn’t think the outcome was particularly fair – it’s no different in elections.

Our state is increasingly the venue for shamelessly partisan attempts to rewrite election laws at the very last minute — and as an emerging battleground state, this dismal trend will continue for the foreseeable future. Let us hope that in our state, at least, these efforts are not successful.

Kory Langhofer is a Phoenix-based attorney with extensive experience in political law, constitutional law, and government enforcement proceedings. He regularly serves as a legal expert in print, radio, and television news reports.



6 Arizonans object to Trump’s voter fraud panel, cancel their registration

At least six Arizonans from the state’s two biggest counties have canceled their voter registration following a request by President Trump’s voter fraud commission for data.

The voters, who are from Pima and Maricopa counties, directly cited efforts of the Presidential Advisory Commission on Election Integrity to obtain voter information in their decision to cancel their registration, according to election officials.

The state has more than 3.6 million registered voters, so the six cancellations are negligible.

Joel Edman
Joel Edman

Arizona Advocacy Network Executive Director Joel Edman said it’s still “six too many.” The group aims to make voting fair, simple and inclusive.

Maricopa County Recorder Adrian Fontes, a Democrat who is critical of the federal fraud commission, said the cancellations are “concerning” because they are proof that “voter suppression” is working.

Fontes said if it were up to him, he would not cooperate with the commission.

He mentioned the ACLU’s lawsuit against Kris Kobach, the federal commission’s vice chairman and the secretary of state of Kansas, over that state’s citizenship documentation requirements.

Four of the voters who canceled their registration came from Pima County, said Pima County Recorder F. Ann Rodriguez.

Edman said the cancellations reveal the “over-arching problem” with having such a federal commission.

“(It exists) to scare voters and to convince voters that our democracy is on shaky ground and that they should be afraid,” he said.

Officials from the two counties said they have received numerous phone calls and emails both supporting and opposing the release of voter information. Many asked about canceling their voter registration, although only a few followed through with the actual paperwork.

Michele Reagan
Michele Reagan

Arizona Secretary of State Michele Reagan officially rejected Kobach’s initial request for voter rolls, including names, addresses, dates of birth, political party, the last four digits of Social Security numbers, voter history from 2006 onward, felony convictions, registration in other states, military status, and “overseas citizen information.”

Reagan cited cybersecurity issues and argued that complying with the request is not in the state’s best interest.

In a new request letter, Kobach sought to ease Reagan’s security concerns, saying the commission won’t publicly release any personally identifiable information and any records turned over will be kept confidential and secure.

The public can already access certain parts of the voter database, including names, addresses and party registration, via a records request for a fee. Political parties can access the information for free.

Reagan won’t discuss details of the new request, but added that her office is committed to following the law. She said her office’s counsel is looking at all legal options.

A word to the candidates

Dear Editor:

The electorate wants to hear ideas on resolving major problems that affect them and their families. We have a pandemic that is not over and many are still sick.  Arizona education is in peril, and our pay scale is one of the lowest in the United States. This summer has been one of the hottest on record, and yes, climate change is real. Thousands of Arizonans have lost their jobs due to Covid-19 and are in dire need of financial assistance.

The upcoming Supreme Court hearing on the Affordable Care Act, and the thought of losing health care coverage, is a frightening reality.  These are the concerns of the people.  Candidates, when you want votes, stick to viable solutions, forget the name calling, and put the people before power and party.  Why not start today by showing voters you have respect, empathy, and ideas to bring the state together. Voters are looking to you for answers, so remember that together we will stand and flourish while the continued divisiveness is beneficial to no one.

Joanie Rose



ACLU to spend big on voter education of Maricopa County Attorney race

From left are candidates for Maricopa County Attorney, Democrat Julie Gunnigle and Republican Allister Adel
From left are candidates for Maricopa County Attorney, Democrat Julie Gunnigle and Republican Allister Adel

The ACLU of Arizona is going to spend nearly $1 million to inform 300,000 registered voters about the Maricopa County Attorney’s race.

Analise Ortiz, campaign strategist for the ACLU of Arizona, said the total is closer to $850,000 and will be evenly distributed between campaign mailers, digital advertising and phone banking. She said the spending has been ongoing since the August 4 primary election, where only the Democratic race was competitive, but the bulk of the money will come for the general election between appointed incumbent Allister Adel, the Republican, and her Democratic challenger, Julie Gunnigle. 

“It will be a nonpartisan voter education effort to inform voters about the importance of this race and policy differences between the two candidates,” Ortiz said. 

The County Attorney race is widely seen as one of the most competitive races in Arizona this election cycle where the county, which has one of the largest prosecutor’s offices in the nation, has an open seat for a full four-year term and is guaranteed to elect the first woman to lead the office. 

The ACLU does not endorse candidates, and Ortiz said the progressive organization’s efforts will only aim to inform voters on who is running, what the office does and oversees and what issues are on the ballot this year.

“There is so much at stake when it comes to reproductive freedom in the county attorney’s race and the reason for that is because Roe v. Wade is at risk,” Ortiz  said, referencing the U.S. Supreme Court nomination of Judge Amy Coney Barrett who the left believes will be the deciding vote to overturn the landmark 1973 decision that protects a woman’s right to choose to have an abortion. 

“It’s very important to understand how states respond to reproductive freedom –– and what we know is, in Arizona, if Roe is overturned, abortion could become illegal,” she said. 

Ortiz said when Gunnigle was asked in March, she committed to not prosecuting abortion whereas Adel said she has an ethical and legal obligation to enforce the law.

To help address other issues for the two candidates, Ortiz said the ACLU is relying on a questionnaire the group sent candidates during the primary, but Adel did not participate. The other issues they want voters to know are ending prosecution for low-level drug offenses and creating a completely independent prosecuting unit for cases of police brutality.

On marijuana charges, Ortiz did mention how a ballot initiative, Proposition 207 –– formerly known as Smart and Safe Arizona, is on the ballot and would decriminalize marijuana up to 2.5 ounces and create a path for record expungement which does not currently exist in state law.

Ortiz reiterated that this voter outreach program will be “policy driven” rather than candidate driven, since the ACLU does not endorse candidates.

“We really want to push both candidates to commit to ending the prosecutions of low level marijuana offenses … to commit to creating an independent prosecutor unit for cases of police brutality [and] we want voters to be aware that if Roe is overturned, their county attorney could charge someone with a crime for seeking an abortion,” Ortiz said. 

Digital ads began running on October 6, one day before ballots are mailed to voters, addressing police brutality and reproductive freedom and voters in Maricopa County can expect to see mailers soon.

Another round of voter-approved minimum wage boosts to take effect

Pizza delivery girl with bundles of money and a pizza box isolated on white background (www.ljsphotographyonline.com)

What would you buy with an extra $6 a week?

Two gallons of milk? A Big Mac Meal?

An overpriced venti half-caf, sugar-free latte?

That’s how much more those at the bottom of the pay scale will be making come Jan. 1 when the minimum wage in Arizona rises 15 cents an hour to $12.15.

Before taxes.

Arizona voters mandated in 2006 that the state have its own minimum wage not tied to the federal figure. That set the bottom of the pay scale here at $6.75 an hour, $1.60 higher than what federal law mandated at the time.

Plus there were inflation adjustments.

A decade later, voters decided to turbocharge the raises, imposing a $10 minimum with automatic increases up to $12 as of 2020.

Meanwhile, the federal minimum wage remains at $7.25 an hour.

With the last of the pre-approved boosts now done, that puts Arizona back into the inflation-adjusted annual increases.

The state Industrial Commission figures that the Consumer Price Index, measured in August as required by law, is 1.3 percent higher than a year earlier. Add that to the current $12 figure, round to the nearest nickel and you come up with $12.15.

How many Arizonans that might affect remains unclear.

The Bureau of Labor Statistics has data about the number of workers who are earning at or below the federal minimum wage, the latter category including those who are in industries exempt from federal law. As of 2019, the agency figures that 1.9 percent of workers were at or below $7.25 an hour, or about 31,000 employees.

At $12 an hour the indications are the numbers get bigger. A lot bigger.

The same federal agency reports that, as of last year, the median wage for just home health and personal care aides in Arizona was just $12.02 an hour. That half of the nearly 67,000 workers in that category were making less than that.

Another more than 89,000 workers in retail sales had a median wage of $12.09 an hour. And among the 268,000 people in food preparation and serving, the median wage was $12.26.

Under Arizona law, employees who earn tips can be paid $3 an hour less — but only as long as the tips boost their wages to the minimum.

The same 2016 voter-approved law also requires nearly all employers to provide paid sick leave. Depending on the employer’s size, every worker can earn up to 24 or 40 hours of leave a year.

The whole concept of a state-set minimum wage continues to grate on the Arizona Chamber of Commerce and Industry, which waged unsuccessful efforts to kill both the 2006 and 2016 plans.

Chamber spokesman Garrick Taylor acknowledged this year’s increase of just 15 cents an hour is far less than when the floor went up by a dollar between 2019 and 2020. But he said even these inflationary year-over-year changes are problematic.

“What concerns us going forward, though, is we are now putting these automatic escalators to the test amid a wobbly economy due to an economic downturn brought on by the pandemic,” Taylor said.

He sidestepped a question of whether those at the bottom of the pay scale are entitled to have wages adjusted to account for higher costs, instead turning the question to overall employment.

“We are concerned with the downward pressure this puts on hiring because hiring becomes a more expensive proposition each year,” Taylor said.

He acknowledged the difference is $312 a year for affected employees. But it all adds up, with the difference between the federal minimum and what Arizona employers will now be required to pay now exceeding $10,000 a year.

History of Arizona and federal minimum wage

Year / State / Federal
2006 / $5.15 / $5.15
2007 / $6.75 / $5.85
2008 / $6.90 / $6.55
2009 / $7.25 / $7.25
2010 / $7.25 / $7.25
2011 / $7.35 / $7.25
2012 / $7.65 / $7.25
2013 / $7.80 / $7.25
2014 / $7.90 / $7.25

2015 / $8.05 / $7.25
2016 / $8.05 / $7.25

2017 / $10.00 / $7.25

2018 / $10.50 / $7.25

2019 / $11.00 / $7.25

2020 / $12.00 / $7.25

2021 / $12.15 / $7.25

Arizona election deadline legal, judge rules


A federal judge won’t give reservation residents more time to submit their early ballots and ensure they will be counted.

In an order late Friday, U.S. District Court Judge Murray Snow, a President George W. Bush appointee, said challengers provided no proof that requiring ballots to be received by county officials by 7 p.m. on Election Day is a greater burden on members of the Navajo Nation than anywhere else. And he said there was no evidence that votes from the reservation were discarded due to late filing at a greater rate than from anywhere else.

Potentially more significant, Snow said there was no showing that the deadline has a disparate impact on Navajos who, as Native Americans, are a “protected class” under federal voting laws. Instead, the judge said, the time it takes for Navajos to get their votes received in county offices may be no different for them than for it is for other, non-Native voters living in rural areas.

And there’s something else.

Snow said it’s not like the deadline — and slow mail service — leaves reservation voters without options. Snow pointed out that there are alternatives that allow votes to be counted even if it is too late to drop them in the mail, including bringing them to polling locations.

Friday’s ruling is a defeat for challengers who sought a ruling from Snow requiring counties to tabulate any ballot that is postmarked by Election Day.

They presented evidence showing how much longer it takes for a ballot to first get from county election officials to reservation addresses than those living in urban areas. On the other side, it also takes longer for a ballot mailed from the reservation to get to where it needs to be.

That, the attorney for challengers argued, shows discrimination which he said can be resolved by providing the extra time for ballots to be counted.

Snow said the lawsuit fails for another reason.

He said laws can be challenged if they were enacted for discriminatory reasons. But Snow said there is no evidence that the 7 p.m. deadline was put into place with the intent of disenfranchising Navajo voters.

Friday’s ruling may not be the last word.

Snow’s order simply denies a request for an order to immediately provide more time for ballots to be received. But it still leaves the door open for challengers to see a full-blown hearing on the issue in hopes of getting changes for future elections.

Arizona judge rules common practice of validating ballot signatures illegal

A practice used by some, if not all, Arizona counties to verify signatures on early ballots may be illegal.

And that could result in election officials across the state have to change their procedures – and potentially result in more signatures on ballot envelopes being questioned.

Yavapai County Superior Court Judge John Napper, a Republican, said state law is “clear and unambiguous” that election officials must compare the signatures on the envelopes with the voter’s actual registration record. And that, he said, consists only of the document signed when a person first registered along with subsequent changes for things like altering party affiliation.

And what that means, the judge said, is it is illegal for county election officials to instead use other documents to determine if the signature on that ballot envelope is correct and should be accepted.

John Napper

Napper’s conclusion is not the last word.

Strictly speaking, he only rejected efforts by Secretary of State Adrian Fontes to have the lawsuit by two groups challenging the process thrown out. Napper has not issued a final order.

“We look forward to the issue being litigated,” said Paul Smith-Leonard, spokesman for Fontes.

But the judge, in his ruling, made it clear that he is not buying arguments by the secretary of state that the rules in the Elections Procedures Manual allowing the comparison of signatures against other documents – the practice now widely in use – complies with what state law clearly requires.

And Kory Langhofer, who represents those challenging the practice, said Napper’s refusal to dismiss the case means “there’s nothing left to fight about.”

Central to the fight is a section of law which requires the county recorder, on receiving early ballots, to “compare the signatures thereon with the signature of the elector on the elector’s registration record.”

Langhofer, in his court filing, acknowledged that there is nothing in state law that explicitly defines what is a “registration record.”

But he argued that “most naturally” means the state or federal documents by which someone signs up to vote and provides certain other information. And what it also includes, Langhofer said, are updated state or federal forms.

Only thing is, he said, is the most recent version of the Elections Procedures Manual, prepared by the Secretary of State’s Office, says county recorders “should also consult additional known signatures from other official election documents in the voter’s registration record, such as signature rosters or early ballot request forms.”

In some cases, Langhofer said, counties are using signatures on early ballot envelopes from prior elections for their comparisons.

Pima County Recorder Gabriella Cazares-Kelly doesn’t go that far. But she said her office relies on much more than the voter registration record.

It starts, she said, with the fact that some people register to vote when they get a driver’s license. But those licenses, she noted, can be good for up to 45 years.

“As everybody should know, signatures vary by time and place and how much time you have,” Cazares-Kelly said. “You will change your signature a number of times throughout your life, going from adolescent to full adulthood.”

And she said even her own signature changes given having to sign “a hundred documents a day.”

So other documents can be helpful.

“We receive other notifications from the voters,” Cazares-Kelly said.

“Every single time we receive something in writing, it goes into their voter file,” she continued. “So every single thing that has a signature on it, it is another indication, another touch point, another opportunity to update what those signatures look like.

Cochise County Recorder David Stevens said his office also relies on signatures on other correspondence it has received from a voter. He also said that ballot signatures can be compared with those on file with the Motor Vehicle Division.

Fontes, in asking Napper to dismiss the lawsuit, argued that other documents listed as acceptable in the Elections Procedures Manual are within the definition of a “registration record.” And if the judge wasn’t buying that, Fontes said that phrase is ambiguous, meaning that the manual can interpret it as part of his duties.

Napper was having none of that.

“The language of the statute is clear and unambiguous,” the judge wrote. “The common meaning of ‘registration’ in the English language is to sign up to participate in an activity.”

And Napper derided the idea that other documents submitted by a voter fit that definition.

“No English speaker would linguistically confuse the acting of signing up to participate in an event with the act of participating in the event,” the judge wrote.

“Registering to attend law school is not the same as attending class,” he continued. “Registering to vote is not the same as voting.”

Nor was Napper impressed by the claim that the phrase “registration record” is ambiguous, allowing the secretary of state some latitude to interpret it.

“Pursuant to the statute, the recorder is to compare the signature on the envelope with the voter’s prior registration,” he said, quoting from the law. “If they match, then the vote is counted.”

The judge also noted there is a procedure in state law that allows county election officials, if they question whether a signature on a ballot matches the official record, to contact the voter. That allows the voter to verify that it is his or her signature and offer an explanation that could be related to age, illness or injury.

Langhofer represents the Arizona Free Enterprise Club. It has backed various measures to impose new identification requirements on voters while opposing efforts to restore the state’s permanent early voting list.

Also suing is an organization called Restoring Integrity and Trust in Elections. It bills itself as opposing laws changes in election laws that seek to give one group a partisan advantage and enforcing “constitutional standards against voting laws and procedures that threaten or dilute the right of qualified citizens to vote.”

Reuters says that that founders of RITE, formed last year, include former U.S. Attorney General William Barr, Karl Rove who was a top adviser to former President George W. Bush, and hotelier Steve Wynn.

Behind the Ballot: The comeback kids?


Charles Loftus, Don Shooter and Tim Jeffries
Charles Loftus, Don Shooter and Tim Jeffries

Three men running for the state legislature are seeking much more than your votes – they want retribution.

Tim Jeffries and Charles Loftus are already suing the state to clear their names after being removed from the Arizona Department of Economic Security. And Don Shooter is contemplating a suit of his own after departing the Arizona House of Representatives in disgrace, expelled by the vast majority of his colleagues.

These candidates insist their cases against the state will have no impact on their capacity to serve as elected officials, and they’re confident their histories with the current powers that be won’t be enough to deter voters.

Don’t forget to subscribe to The Breakdown on iTunes.


Music in this episode included “Little Idea,” “Funky Element” and “Energy” by Bensound.


Coalition of voters takes Ducey to court over filling U.S. Senate seat

Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)
Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

The former leader of Arizona’s Libertarian Party filed a lawsuit against Gov. Doug Ducey Wednesday, arguing he must immediately hold a special election to fill the U.S. Senate seat formerly held by John McCain.

The suit, filed in the U.S. District Court for Arizona, alleges that Arizona laws dictating how to handle a vacancy in the U.S. Senate violate the 17th amendment of the U.S. Constitution, and deprive Arizona citizens of their 14th Amendment and First Amendment rights.

Michael Kielsky, an attorney at Udall Shumway, former chairman of the Arizona Libertarian Party and frequent candidate for public office, brought the suit on behalf of a coalition of five Libertarian, independent, Republican and Democratic voters.

Daniel Scarpinato, Ducey’s chief of staff, dismissed the suit as “another frivolous lawsuit.”

But Kielsky said that leaving the seat with an appointee until 2020 is unreasonable, and a judge will decide if the suit is frivolous.

“As with a lot of constitutional provisions, we have to apply a reasonable standard… (An election in) March would be reasonable, May would be OK, but two years is unreasonable,” he said.

He noted that a lawsuit challenging the appointment to the U.S. Senate seat in Illinois that former President Obama vacated in 2009 was successful on similar grounds.

Arizona law states that if a vacancy occurs in the U.S. Senate, the governor shall appoint a person to fill the vacancy, and that person shall serve until the next general election. But if the vacancy occurs less than 150 days before the next primary election – as happened with McCain – the appointee “shall serve until the vacancy is filled at the second regular general election held after the vacancy occurs,” meaning the 2020 election.

The suit argues that law violates the 17th Amendment, which granted voters direct elections of U.S. Senators. That amendment states that in the event of a Senate vacancy, the state governor shall issue writs of election to fill such vacancies, “Provided, that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

But the suit argues that the state Legislature has no authority to mandate that a temporary appointee serve in lieu of a Senator directly elected by the people, “beyond any period necessary to hold an orderly election.”

The suit argues that by keeping in office a “temporary” appointee far beyond the period within which an orderly election could be held, Ducey has deprived plaintiffs and other citizens of their right to vote under the 17th Amendment and to determine who shall represent the people in the Senate.

As a result of the state law, “citizens of Arizona will be deprived of elected representation in the Senate for over twenty eight months, and will suffer irreparable injury from such a lengthy loss of elected representation in the United States Senate,” the suit argues.

While some states dictate that U.S. Senate vacancies must be filled by special election, most states employ similar delays in filling a vacancy that occurs shortly before a scheduled election, though most use shorter timelines than Arizona, according to the National Conference on State Legislatures.

In Virginia, if the vacancy occurs fewer than 120 days before the primary election, the appointee serves until the following election cycle, according to the NCSL. In New Jersey, if a vacancy occurs more than 30 days before the next primary election, it’s filled that year, otherwise the appointee serves until the next election cycle.

Court dismisses Ward election suit

Cork, Ireland

A federal judge has tossed out a bid by Kelli Ward and other Arizona would-be Republican electors to force Vice President Mike Pence to use a different procedure when counting electoral votes this coming Wednesday.

In a 13-page order, Judge Jeremy Kernodle said that Ward, who is chair of the Arizona Republican Party, and her fellow plaintiffs lack standing to even sue Pence in the first place.

He said what they want is for him to order the vice president to ignore the procedures set forward in the federal Electoral Count Act, one that should result in a finding that Democrat Joe Biden won the race with 306 electoral votes versus 232 for President Trump. That would set the set the stage for Pence, as presiding officer of the U.S. Senate, to reject the election results, certified by Gov. Doug Ducey, which found that Biden had outpolled Trump in Arizona by 10,457 votes.

Kernodle said that, in the minds of the Arizona challengers, that would open the door for Pence to decline to give the state’s 11 electoral votes to Biden — and possibly do the same in other states where Biden won. At that point, the way Ward and the other GOP “electors” see it, Pence could either count their votes for Trump despite the fact they’re not the electors certified by the governor, or refuse to count either slate, setting the stage for the House, with one vote per state, to choose the president.

But the judge said their lawsuit is based on the premise that Ducey unlawfully certified and transmitted the votes of the Biden electors. And even if that were true, Kernodle said is not the fault of Pence who is named as the sole defendant in the lawsuit.

“Plaintiffs do not allege that the vice president had any involvement in the certification and transmission of a competing slate of electors,” he said.

“That act is performed solely by the Arizona governor, who is a third party not before the court, the judge continued. “The vice president’s anticipated actions on Jan. 6 will not affect the decision of Gov. Ducey regarding the certification of presidential electors — which occurred more than two weeks ago on Dec. 14.

And Kernodle said there’s something else.

He pointed out that what Ward and the other electors want him to do is order Pence to follow a certain procedure when opening the votes, one they contend gives the vice president the “exclusive authority and sole discretion in determining which electoral votes to count for a given state.”

But Kernodle pointed out that even if he were to do that, that still doesn’t guarantee they will get the result they want: rejection of the 11 Democratic votes, whether by Pence or the full Congress. And that, he said, means they lack legal standing to bring the lawsuit.

The judge reached a similar conclusion that Republican Congressman Louie Gohmert of Texas, who also is part of the lawsuit, lacks standing to sue.

He said Gohmert intends to raise an objection on Wednesday when the electoral votes are counted for Arizona and several other states where voters chose Biden over Trump.

The Electoral Count Act then requires each member of the House and Senate to vote to resolve the objections. But Gohmert contends that violates the Twelfth Amendment which he said requires state-by-state voting, with each state having one vote, for which slate to accept, a process that likely would favor Trump.

“Members of Congress lack standing to bring a claim for an injury suffered solely because they are members of Congress,” Kernodle wrote. “And that is all Congressman Gohmert is alleging here.”

He said Gohmert is not alleging that he was denied the right to vote in the 2020 presidential election.

“Rather, he asserts that under the Electoral Count Act, he will not be able to vote as a congressional representative in accordance with the Twelfth Amendment,” the judge wrote, something Kernodle said he is legally powerless to address.

The judge also said that Gohmert’s claim suffers from the same flaw as does the one by Kelly and the other would-be GOP electors: It is based on what Gohmert believes would happen in “a series of hypothetical — but by no means certain — events.”

That ranges from what Pence will do on Wednesday in opening and counting the votes, whether any member of Congress would object, how members of Congress would vote individually if that were the process and how a one-vote-per-state result might be different.

There was no immediate response from Ward to the ruling. But the attorneys representing her, the other would-be Arizona GOP electors and Gohmert already have filed notice they intend to seek review by the Fifth Circuit Court of Appeals.

This is the second federal court defeat for Ward and that Republican “slate.”

Last month Judge Diane Humetewa tossed out claims of fraud and irregularities based on theories that Secretary of State Katie Hobbs conspired with various foreign and domestic individuals and companies to manipulate the results and allow Biden to win.

“The allegations they put forth to support their claim of fraud fail in their particularity and plausability,” the judge wrote. “The various affidavits and expert reports are largely based on anonymous witnesses, hearsay and irrelevant analysis of unrelated elections.”

That is among more than four dozen lawsuits filed by Trump or his supporters that have been rejected by state and federal courts. The U.S. Supreme Court also has turned away several appeals, though Ward is involved with two more which technically remain on the court’s docket.

Democratic poll concludes Ducey is vulnerable in 2018

Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)
Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

Gov. Doug Ducey is vulnerable to a Democratic challenger in the 2018 election as voters find him lukewarm, a new poll shows.

The poll by Democratic-leaning national firm Lake Research Partners, commissioned by ProgressNow Arizona, surveyed 600 likely voters using both landlines and cell phones – 44 percent registered Republicans and 32 percent Democrats – weighted for factors like party registration, geography and gender.

According to the polling memo, 74 percent of the voters sampled participated in the 2014 elections.
The key takeaway, pollsters Joshua Ulibarri and Caroline Bye concluded, is that Ducey is vulnerable to a challenger, if that challenger can make the race competitive.

Lake Research concluded that Ducey “lacks any real definition among voters.” Ducey is up by only 8 percentage points in his favorability ratings, trails by 16 percentage points in his job performance rating, and couldn’t break the 40-percent mark in a head-to-head matchup with a generic Democrat, the poll showed.

The pollsters concluded that if the circumstances are right, and there is a well-funded effort, Ducey can be defeated.

But it remains to be seen if David Garcia or Sen. Steve Farley, who are running for governor in the Democratic primary, can capitalize on Ducey’s vulnerability and mount the type of campaign needed to oust Ducey, a prolific fundraiser who can easily tap into money from the Koch Brothers network.

The most recent campaign finance reports showed Ducey had raised more than $3 million this cycle, while Farley brought in more than $500,000 and Garcia nearly $300,000.

The Democratic nominee would need a serious influx of support, likely from national Democratic groups, at a time when several other races in the state, like the U.S. Senate and 2nd Congressional District, could be Democratic pickups.

Sixty percent of respondents gave Ducey a favorable review, while 45 percent said he was doing a good or excellent job as governor, the poll shows. Among Republicans, 49 percent said he was doing excellent or good, while only 29 percent of independents and 25 percent of Democrats gave him the excellent/good ratings.

The poll matched Ducey against a generic Democrat and found he got 36 percent of the vote compared to 28 percent for an unnamed Democrat. The publicly released poll didn’t show any matchups between Farley or Garcia and Ducey.

The generic Democrat and Ducey both underperformed their party registration numbers, the pollsters pointed out, meaning there’s room to consolidate the vote.

“But this is particularly risky territory for an incumbent governor,” the firm wrote. “It is rare for a majority of undecided voters to break for the incumbent, and that is what Ducey would need at this point in the cycle to secure a majority.”

Part of Ducey’s problem with voters, the poll projects, is his lack of definition on key issues that matter to voters, like school funding, health care, and having the wealthy pay their fair share.

“The circumstances exist for progressives to make this a competitive race if they keep applying pressure and define the frame for this election,” the poll concludes. “That will take time, effort, and money. If not, partisan habits can set in and Ducey can secure re- election, but the opportunity is real.”

Ducey’s campaign spokesman, J.P. Twist, feigned surprise that a poll commissioned by a Democratic group would reinforce a Democratic narrative and be touted by Democrats.

“I know Democrats may be on cloud nine after a visit from their liberal leader Nancy Pelosi, but the reality is, Gov. Ducey enters 2018 in the strongest possible position. A growing economy, dropping unemployment, wage growth, billions of new dollars invested into our schools…” Twist said in an email to the Arizona Capitol Times.

Garcia’s campaign spokeswoman, Sarah Elliott, said the poll reinforces the idea that Ducey isn’t well-known or popular in Arizona because “he has abandoned regular Arizonans, starved our public schools, and is simply looking out for himself and the interests of the top 1 percent. He’s just another out of touch greedy politician.”

The poll confirms Ducey is weak and hasn’t delivered on his promises since taking office, Farley campaign manager Joe Wolf said.

“Glowing and aspirational State of the State speeches will only get you so far. Eventually you have to deliver on your promises to voters. Ducey hasn’t done that and now he’s in trouble. I bet his staff are scrambling to find out when the next Koch retreat is,” Wolf said in an email.

Ducey talks disdain for new education tax, vows fast fix

 In this Dec. 2, 2020, file photo, Arizona Republican Gov. Doug Ducey answers a question during a news conference in Phoenix. A new voter-approved tax on high-earning Arizonans that will boost education spending is firmly in Gov. Doug Ducey's crosshairs, with the Republican vowing Friday, March 19, 2021, to see Proposition 208's new tax cancelled either through the courts or the GOP-controlled Legislature. (AP Photo/Ross D. Franklin, Pool, File)
In this Dec. 2, 2020, file photo, Arizona Republican Gov. Doug Ducey answers a question during a news conference in Phoenix. A new voter-approved tax on high-earning Arizonans that will boost education spending is firmly in Gov. Doug Ducey’s crosshairs, with the Republican vowing Friday, March 19, 2021, to see Proposition 208’s new tax cancelled either through the courts or the GOP-controlled Legislature. (AP Photo/Ross D. Franklin, Pool, File)

A new voter-approved tax on high-earning Arizonans that will boost education spending is firmly in Gov. Doug Ducey’s crosshairs, with the Republican vowing Friday to see Proposition 208’s new tax cancelled either through the courts or the GOP-controlled Legislature.

Ducey told the Valley Partnership business group that he’s been advising people who ask him about the new 3.5% surcharge on the wealthy’s income to wait to take their investments to other states because payments on the tax now in effect won’t be due until April 2022. Meanwhile, he’s working to make the measure die, and he laid out his two-pronged strategy for doing just that.

Business groups and the GOP-led Legislature are challenging the new tax, and Ducey noted that the state Supreme Court has fast-tracked that effort by accepting the case before it can be fully heard by a trial court. Ducey filed a friend of the court brief urging the court to act, and it will be heard on April 20. Ducey has appointed a majority of the justices.

If that effort fails, Ducey said he’s working with House and Senate leaders to come up with ways to neuter the new tax, which he said will make the state’s tax code uncompetitive.

“Prop 208 promised additional dollars to K-12 education. I had no problem with that at all,” Ducey said. “But what it also did is took our top tier tax rate from 4.5% to 8%. It was a 77% increase. That I have real issues with.”

There are multiple tracks the Legislature could take, but one that eliminates about a third of the estimated $827 million a year in new revenue has already passed the Senate. That measure, by GOP Sen. J.D. Mesnar d, creates a new tax code section just for small businesses, setting the top tax rate at 4.5% but avoiding the new 3.5% surcharge.

Arizona small business income is currently taxed on personal tax returns. The new tax voters approved in November imposes a 3.5% tax surcharge on income above $250,000 for individuals or above $500,000 for couples. Opponents backed by the Arizona Chamber of Commerce and Industry spent millions trying to persuade voters it would hurt small businesses.

Proponents said the tax’s effect is on owners’ income, but Mesnard argued at a February committee hearing that setting up the new small business tax is fair.

“I obviously during the campaigns heard consistently the surcharge is not aimed at small businesses, would not impact small businesses,” he told the Senate Finance Committee. “In many respect this just codifies that sentiment.”

Democratic Sen. Martin Quezada said at a full Senate debate that Mesnard’s plan was “a direct attack on the will of the voters.”

“This is another reason exactly why voters don’t trust us,” Quezada said,. “They work their butts off to collect signatures, put a measure on the ballot that is going to fix a problem that we have failed to fix ourselves as legislators. They pass a proposition and we go and do something like this.”

Other paths to making the new tax less painful for the wealthy are contained in a state budget proposal now being negotiated where GOP lawmakers are considering a massive revamp of the tax code, at Ducey’s urging. His January budget proposal contains a $200 million per year tax cut that would rise to $600 million in three years. But with a budget surplus estimated to top $1 billion, Senate and House Republicans are looking way beyond that number.

Republican Rep. Ben Toma is leading efforts in the House to revamp the tax code. His proposal eliminates the current graduated tax brackets and replaces them with a flat 2.5% tax on all income levels. Under the current progressive tax structure, taxes start at 2.59% on the first $26,500 of income and rise to a maximum of 4.5% on income over $159,000.

The flat tax proposal means the wealthy would see the biggest cuts. Toma said there’s also talk of capping maximum tax with the Proposition 208 surcharge at 5% and using the general fund to make up the difference in the special fund created by the new initiative.

Half of the new tax on the wealthy will be used for raises for credentialed teachers, 25% to boosting wages for cafeteria workers, bus drivers and other support staff, and the rest for teacher training, vocational education and other initiatives.

The initiative was an outgrowth from a 2018 teachers strike that highlighted low wages for educators and a slow rebound from budget cuts enacted during the Great Recession. The walkout secured higher wages for teachers, but many education interest groups said it fell short. A grassroots group then organized to pass the initiative.

Ducey said at Friday’s online meeting of Valley Partnership that he respects the initiative process and the will of the voters — then laid out his reasons for gutting the measure. And he said he backs more cash for K-12 schools even as he is working to eliminate the new tax.

“I think there’s a way to either fix this or in a way have the dollars available for K-12 education and keep our state competitive. One route is judicial, the other route is legislative,” he said. “And you should see resolution on this and clarity around this issue sometime in the coming months. But it will be this session.”

Elections officials mull criminal probes of forgeries


Elections officials said they will likely refer several campaigns that have been implicated for fraud and forgery to law enforcement for further investigation.

At least four candidates whose nominating petitions were challenged in Maricopa County Superior Court have faced allegations of widespread signature fraud.

Eric Spencer
Eric Spencer

State Elections Director Eric Spencer said the Secretary of State’s Office will allow the Maricopa County Recorder’s Office to determine whether to refer the four cases to law enforcement or an outside agency that can analyze the allegedly forged signatures.

County Recorder Adrian Fontes said he has not yet decided if the cases will be referred for prosecution. He said he met with the county attorney on June 27 to determine what the office will do.

Gubernatorial candidate Ken Bennett; Sandra Dowling, who is running for the 8th Congressional District; Rep. Ray Martinez, D-Phoenix, who was running for the vacant Senate seat in Legislative District 30; and Mark Syms, an independent candidate running for the Senate in Legislative District 28, have all been accused of filing fraudulent signatures.

The County Recorder’s Office invalidated thousands of the signatures the candidates turned in, including 1,460 collected by Syms, Dowling and Martinez that didn’t match those on voter registration records.

The candidates hired a man named Larry Herrera to collect signatures for them. Herrera, a Democrat who ran for the Senate in Legislative District 20 earlier this year, is also facing fraud allegations from the Arizona Citizens Clean Elections Commission in connection with his campaign.

If the county refuses to pursue the matter, Spencer said, the Secretary of State’s Office will.

“I think we would give Maricopa County breathing space for a couple of weeks to determine if they want to do something. If they pass, I’m fairly certain Secretary (Michele) Reagan would want to take the next step and work on referring it to the attorney general,” he said.

Spencer said staff has been asked to do a cursory review of all candidate petitions to see if some of the same circulators who were implicated in these cases collected signatures for other campaigns.

However, he said a review of the nominating petitions will depend on what kind of resources the office is able to dedicate to this, since the office is also working on other election-related matters.

Still, that won’t deter the office from pursuing further action, he said.

“The bottom line is we’re not going to let this fade away or let it go. It’s probably too late to do anything for the 2018 cycle in terms of a deterrent effect, but in terms of the 2020 cycle, we need the circulator community to know there will be consequences for fraudulent activity,” he said.

Agency spokesman Matt Roberts said it’s premature to say if the Secretary of State’s Office will push for legislative changes to petition gathering laws next year. He said no one from the Legislature has approached the office about changes to the law.

“There has been what seems to be an uptick in issues in petition circulation and we will certainly take a look at the election cycle as a whole and determine what types of legislation might be necessary moving into the next election cycle and more importantly the next legislative cycle,” he said.

Spencer said in addition to a possible criminal investigation, another way to prevent such signature fraud from happening in future elections is to encourage candidates to vet signatures before submitting them to the Secretary of State’s Office.

He said much of the blame has been placed on the signature-gathering firms and the circulators themselves, but candidates hold some responsibility to double check their work.

“They don’t bear a criminal responsibility, but they do hold some responsibility, on a sliding scale, to ensure everything looks right,” Spencer said.

Spencer said first-time candidates or candidates using a new or unknown firm have an obligation to check their nominating petitions before turning them in. That obligation is less for experienced candidates who are working with a firm that has a proven track record, he said.

In Syms’ case, Spencer said there were numerous red flags, including widely reported fraud allegations against Herrera, the large number of signatures collected in such a short time frame, and the “astronomical” number of signatures collected in a single day by some of the circulators.

Taking all that into account, he said there was a high burden on Syms’ campaign to review the petitions.

“It is not enough to call yourself a victim of fraud,” he said. “Candidates aren’t victims here.”

Spencer pointed out that there are several candidates who withdrew from their respective races prior to a challenge being filed or once a challenge was filed because they reviewed their petitions and found that they didn’t have enough valid signatures to remain on the ballot.

Radio host Seth Leibsohn dropped out of the Republican primary for the 9th Congressional District after submitting his signatures to the Secretary of State’s Office but before a legal challenge was filed. Leibsohn ended his campaign after he reviewed his petition sheets and found that he didn’t have enough valid signatures to qualify.

Rep. Mark Cardenas, D-Phoenix, who was running for state treasurer, didn’t file nominating petitions because the people he hired to collect signatures provided fraudulent signatures the day before the filing deadline.

“That was a responsible and ethical thing for them to do. Those are two good examples of candidates taking responsibility for what goes on in their campaigns,” Spencer said.

Josselyn Berry: A progressive messenger from a conservative Republican household

Cap Times Q&A

Josselyn Berry is the 28-year-old executive director of ProgressNow Arizona, an advocacy group that she said “acts like a communications hub for the state’s progressive infrastructure.” She said ProgressNow Arizona aims to hold all politicians, regardless of party affiliation, accountable, while simultaneously pushing back on “right-wing messaging” within the state.

Berry, who did a college internship with the Arizona Capitol Times, graduated from Arizona State University’s Walter Cronkite School of Journalism and Mass Communication in 2013, but had difficulty with the requirement to be “unbiased” as a journalist, and instead decided to pursue a more politically driven career path.

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

If you could fix one issue in Arizona with a snap of your fingers, what would it be?

Oh god, there’s so many. I’m a woman, I’m a young woman, and I am just tired of seeing the constant attacks on Planned Parenthood and on reproductive rights, and the lack of science based sex-ed, the lack of programs for teenagers. I’m really tired of seeing the stranglehold that lobbyists like Cathi Herrod have on our Legislature, and on our governor. It’s really frustrating to see people in office that are supposed to represent their constituents instead listening to a special interest that doesn’t have everyone’s best interest at heart.

If you had to describe the Arizona legislature with one emoji, what emoji would that be, and why?

I don’t know. Maybe the money bag emoji? Because I feel like there’s a lot of corruption in our Legislature. We have some legislators that own charter schools, or sit on the board of charter schools, and they’re allowed to make legislation that helps charter schools. Or we see ALEC’s influence at the Legislature. We have Debbie Lesko, who is the chair at ALEC. She’s at an ALEC conference in Denver today. So, we see bills that are pushed at these ALEC conferences that then show up in Arizona. So, I feel like there’s a lot of corruption at the Legislature. It just feels like a lot of money changing hands.

Do you have a least-favorite politician in the legislature?

Probably Bob Thorpe. I just feel like he’s constantly attacking students in his district who want to vote by trying to pass bills that would prevent students from voting. He refuses to hold town halls for his constituents. Instead, he goes on conservative talk shows, and I feel like he’s really holed himself away from his constituents and is refusing to speak with them. Come on! Just come out of your office and meet with people. They elected you to the office. You should have the courage to talk to them and stand up for the bills and the values you believe in, and if you’re not, why are you there?

What is one thing you wish people understood about advocacy groups like yours?

It’s not that we’re trying to manipulate people. I’m not trying to trick people into thinking a certain way, or doing a certain thing. I just am very passionate about making Arizona a better place and the way that I think we do that is through progressive policies. And, obviously, not everyone is going to agree with that, but I think that I am here trying to make a better world for our community, and I’m not sitting here plotting about how I can destroy people’s lives. I genuinely want to make Arizona a better, more equitable place for everyone.

I know that you were originally born in California, so do you think Arizona or California is better?

That’s a dangerous question. I’ve lived in Arizona for 20 years now, so it definitely feels like home. I do love Arizona. I feel like the people here are a bunch of fighters. I feel like the people here are scrappy, really passionate, and they feel very strongly about Arizona and there’s a lot of Arizona pride, and I really love that.

What goals do you have for the next five or ten years, personally or professionally?

You know one of my passions is definitely, this always sounds weird, but I really love birds. So, I would really love to one day be a communications director for a conservation or wildlife advocacy organization, and also just owning a bunch of birds.

So, why birds?

My grandmother got me a lovebird when I was in middle school. She got it for me when it was really young and hand-fed, so it bonded to me. I think they’re just really sweet, and cuddly, and I love hanging out with my bird, Paloma. She flies around my house. She’s always on my shoulder, on my head, and we just hang out and it’s amazing.

Are you close with your family, and how do they feel about you advocacy work?

I’m a little bit close with them. My family is actually – they’re mostly conservative Republicans and they voted for Trump. My mother supports Trump, but she is also a union worker and very pro-Planned Parenthood, which is very interesting.  I grew up in a pretty Republican household, and the reason I think I went opposite of that is maybe some just typical teenage rebellion. But I think also just seeing sometimes the way they viewed the world didn’t really feel right in my heart. It didn’t feel generous. It felt like there was a lot of anger in their worldview, and I didn’t feel like I reflected that. So, when I started to work in politics, I think it upset my dad more than anyone else. My mother’s always saying, “I don’t always agree with you, but you’re doing what you believe in, and I love you and I respect you so much.” And my dad will sometimes either poke fun at me, or poke fun at the work I’m doing and I’ll try to talk to him about it, but I’ve just learned it’s better not to talk about it. So, now at family gatherings, we just don’t talk about my work.

Jury award shows discrimination crosses party lines


America has a black women problem. The president of the United States told two congresswomen to go back to Africa. And not one elected Arizona Republican has denounced him. They have not even mustered a half-hearted and insincere rebuke of the head of their party within the first 48-hours of this racist screed.

The Republican black woman problem is overt, hostile, and intentional. When the former chief of staff of the president lies to the nation about a black congresswoman and Arizona’s elected officials do not correct him, that is by design. When another black congresswoman’s hair is mocked, ridiculed and derided and once again all of Arizona’s elected Republican officials fail to condemn this bullying.

Eric Brock Jr.
Eric Brock Jr.

To paraphrase Kanye West, the Arizona Republican Party does not care about black women.

However, we write about the Democratic Party and its black woman problem – and it does not arise from the party’s default strategy to sell the most milquetoast Democratic candidate to black women. This problem is far more pernicious; and it only reveals itself when a black woman demands respect.

On July 12, 2019, a jury delivered a verdict that would declare Talonya Adams, a former black staffer of the Arizona Senate, the survivor of racial discrimination.

In fact, Ms. Adams would be discriminated against in the office of a party that we believed its mission was to defend her, and others, from the violence of discrimination. With the face of said injustice being the then-Democratic Senate minority leader and now secretary of state, Katie Hobbs.

Seven white men and women and one Latino comprised the jury, and they deliberated over the evidence: pertinent documents, emails, data, and testimony — including from Secretary Hobbs. Ultimately, the jury determined that the only way to redress the injury that the Democrats had inflicted upon Ms. Adams was to compensate her $1 million.

This jury repudiated the party that we belong to. The party that black people in Arizona support 91 percent of the time at the ballot box. The party that we knocked on tens of thousands of doors for. The party that we tweeted for, posted for, phone-banked for.

Garrick McFadden
Garrick McFadden

We raised the black voter turnout in this state from approximately 26 percent in 2014 to 44 percent in 2018. It was done with no money, no support, no resources, and it was all powered by the collective industry or our minds and sweat of our brows.

Realize, black voters were the margin that elected Secretary Hobbs, Superintendent of Public Instruction Kathy Hoffman, and U.S. Senator Kyrsten Sinema.

We can count on our fingers the number of black persons who staff the offices we decisively elected.

To date, Arizona’s federal delegation only has one black staffer. To date, only one Democrat has signed on to HR 40. To date, the Secretary of State’s Office has zero black staffers.

How are black people, who are the most loyal members of the Democratic Party, going to get experience when we cannot even get a call-back? And if we do get the job, we have to suffer the violent indignity of racial discrimination.

When we look at who controls the levers of power, we fail to locate any black people. If anything, we have systematically been rendered invisible, invaluable and inconsequential.

This verdict is a stain on our party: the physical manifestation of a racial slur or epithet. The living, breathing incarnation of the N-word hurled at the black community.

Here’s our default strategy: black people voted Democrats into office. And, if Democrats’ actions do not change, our labor and votes will go elsewhere.

This jury’s verdict demonstrates that discrimination crosses party lines.

Garrick McFadden is a Phoenix-based attorney and Eric Brock Jr. is with the Black Voter Initiative.

Lawmakers resort to tricks, bullying to undo Prop 208

Shawnna Bolick
Shawnna Bolick

Amid last month’s lighting-rod controversies around vaccines, the border, and election recounts, an under-reported and dangerous abuse of power was taking place at the Arizona Capitol.   

We were front row witnesses to this blatant display of muzzling public debate and attempting to subvert a voter approved ballot initiative.  

Hunter Ruffin
Hunter Ruffin

The scene was the House Ways and Means committee, and the legislation in question was SB1783, which effectively guts the recently approved Proposition 208-Invest in Ed.  Sen. JD Mesnard of Chandler authored the bill, which creates a massive new tax loophole for the wealthiest Arizonans, allowing them to shield earnings that would have been taxable under Prop 208, including capital gains and investment income. The bill purports to protect small business, though Prop 208 did not tax businesses. Only the wealthiest Arizonans, including large business owners who choose to pass their business earnings to their personal income, earn enough individual taxable income to qualify.   

At this committee hearing, Rep. Shawna Bolick, the committee chairwoman, did her best to shield the true intent of the bill and prevent any factual testimony. In fact, when one of us, an Episcopal parish priest, offered public testimony and mentioned the damage to be inflicted on Prop 208 and our state’s one million school aged children, he was rudely chastened by Bolick. She outright forbade further mention of “Prop 208” in the hearing by both lawmakers and the public.  

The Ways and Means committee deteriorated into simply a mean committee. Rep. Bolick and other committee members testily interrogated Fr. Ruffin, as if he were the villain on trial. As some committee members protested that behavior, Bolick silenced further public testimony. The bill passed on a party line vote, during which Rep. Bolick explained her vote by praising how SB1783 undermines Prop 208.    

Rebecca Gau
Rebecca Gau

So why all the drama? The committee vote was predictable, but legislative leaders knew that authentic deliberation would show the bill to be the illegal sham that it is. No matter that Prop 208 passed in November with 1.7 million votes – they see their real constituency to be the narrow band of wealthy elite who are coalescing tighter to undermine the will of the voters.   

Even the Joint Legislative Budget Committee analysis (which was also banned from discussion) shows that this is a specific attack on Prop 208.  Its report details how SB1783 would carve out revenue only from Prop 208, cutting Arizona schools by over $377 million. Meanwhile, 6,000 millionaires get a $35,000 per year tax break. That’s more than Arizona’s average starting teacher salary.   

It also violates the Voter Protection Act, which “requires three-fourths vote to supersede the measure, or to transfer funds designated by the measure,” and only if those actions “further the purpose” of the will of the voters.  

Some 1.7 million Arizonan voters passed Prop 208-Invest in Ed because they were tired of waiting over two decades for the state’s leaders to exhibit real leadership. Absent a meaningful and constructive way to restore funds from decades of tax cuts, parents worked tirelessly to place it on the ballot and then to ensure its passage. And they did so during a pandemic.   

 And now legislators are thumbing their noses at those voters, resorting to tricks and bullying to try to undo an election – whether through SB1783 or under cover of the state budget. It is unacceptable for elected officials to play games with the future of our students.   

 Legislators, voters are watching.   

Rebecca Gau is Executive Director at Stand for Children Arizona. Rev. Hunter Ruffin is the Rector of at Church of the Epiphany in Tempe and a leader with the Arizona Interfaith Network.   


LD17 – thin victory margins and a tie

The interactive map above shows precinct-level results of the 2020 election in Maricopa County.

Out in the Southeast Valley, the Loop 202 freeway is often seen as a political compass. To the north of it is dense with Democratic voters; to the south, suburbs that start with a kiss of GOP pink but soon deepen to a solid red.

Political eyes were on the area this election to see whether Democrats had the chance to flip Arizona’s Legislative District 17 blue. In the end, with all votes tallied and certified, the district narrowly chose Democrat Joe Biden for president by 3.7%, or 5,000 votes, but no seats shifted in the state Legislature.

In the aftermath, candidates and community members wait to see what this year’s results, a precinct patchwork of red and blue, spell for the future.

Paula Feely
Paula Feely

Paula Feely is a Democratic precinct committeeperson in Chandler. It was President Donald Trump’s win in 2016 that pushed her, out of frustration, to become more involved with campaign efforts in her community. She represents Germann Precinct, part of a widening stretch of blue bleeding south of the Loop 202.

“I’ve become more aware of the Democrats around here,” Feely said. “They’re less shy now.”

Biden won a handful of precincts around Feely’s turf this year that previously went for Trump, including Lantana Canyon, Laredo and Dobson Park with margins ranging from .6% to 2%, or 10 to 110 votes. Voters in Germann Precinct supported Biden, too, after giving Hillary Clinton a 1% lead in 2016.

Since becoming a committeeperson, Feely has written hundreds of letters, dropped party literature on doorsteps and made phone calls to people throughout LD17. And she has become more comfortable talking about politics with non-Democrats, she said, although “close to the election, I did have to cut myself off from some people.”

Her counterpart in Germann Precinct might be Anne Kirkham, a longtime Chandler resident who is precinct committeeperson for the Republican Party. With new housing going up in the district and people moving in from out-of-state, Kirkham said she sees the ground shifting in the city.

For her, maintaining Republican leadership will depend on finding the right messaging.

“There’s been a lot of outreach to what are called ‘soft Democrats’ and all the independents,” she said. “It all comes down to policies and platforms.”

Despite partisan tensions in Arizona, and the ongoing, if largely dismissed, concerns about the election’s integrity — concerns that Kirkham shares — she refrains from villainizing Democrats. Many of them are her neighbors in this battleground district.

“I have dear friends who look at things differently than I do politically, and I don’t let that get in the way of our friendship,” she said.

To the east of Kirkham and Feely’s precinct is Layton Lakes, a precinct that neither Biden nor Trump could claim. At 253 votes each, they were tied.

Raghu Srinivasan
Raghu Srinivasan

The triangular stretch of land near Queen Creek and Lindsay roads became a precinct in 2017, and is home to 576 registered voters. Raghu Srinivasan, vice chair for District 17 Democrats and an engineer with a penchant for analyzing election data, said Layton Lakes was carved out of Appleby Precinct as a result of new housing in the area.

It wasn’t long ago that the area was mostly farms, empty land and single family homes, he said. But as neighborhoods grow and newcomers arrive, “they’re probably bringing their outlook with them,” Srinivasan said.

Layton Lakes is one of three precincts in the county where Biden and Trump faced a draw. Steven Slugocki, chair of the Maricopa County Democratic Party, said the ties illustrate the closeness of elections here, and how much of the county is “up for grabs.”

One of the most closely watched races in LD17 was for the state Senate seat held by J.D. Mesnard, a Republican.

Democratic challenger A.J. Kurdoglu lost the race, but said he had no doubts that the district is changing. Still, it will take work to decide the political future of the East Valley, he said – liberal and conservative leaders can’t simply wait for the demographics to change.

“I always believe it is our job as candidates or as a party to reach out to your neighbors, your constituency and explain what you stand for,” Kurdoglu said.

Mesnard comfortably won his Senate seat, but doesn’t deny the potential of the region turning blue in years to come. He lost his own precinct to Kurdoglu by 5.3% of the vote, or 277 votes. Biden carried it by a wider margin of 15%, or 827 votes.

The senator said he has no plans to change his policies in response to a constituency that is becoming more liberal.

“I ran for office in the first place under a certain set of principles. I maintain those principles,” Mesnard said. “And if there’s an avalanche of people that come in with different principles, it’ll probably just mean that I’ll lose, eventually.”

He said he hopes to convince newcomers that his policies – and the Republican platform more broadly – have helped make Arizona an attractive place to live.

Even as pundits make predictions for the next election, the competitive status of LD17 could soon recede into history when officials begin redrawing legislative districts next year.

Feely, the Democratic precinct committeeperson, said she thinks the liberal tilt in her neighborhood is a credit to people engaging with the issues more than any sea change in political beliefs.

As a retired school district employee, she said she thinks candidates who are focused on education will find supporters in the East Valley, just as Democrat Jennifer Pawlik did when she ran for the state House two years ago and won. Pawlik was re-elected last month.

“It’s not just a red and blue thing,” Feely said of the political map. “It’s what people think you can do to improve our community.”

Political experts ponder Franks endorsement – boost or baggage?

Sen. Steve Montenegro (R-Litchfield Park)
Sen. Steve Montenegro (R-Litchfield Park)

After resigning amid scandal, Trent Franks called on Sen. Steve Montenegro to run for his 8th Congressional District, a call the state senator embraced wholeheartedly in announcing his candidacy.

Franks’ support may not have been the big win Montenegro needed to carry him to victory, but under other circumstances, it would have at least been easily considered a gold star for his campaign, political consultants said.

After two former staffers reported Franks had discussed surrogacy with them – apparently leaving open the possibility that he intended to impregnate them himself and reportedly offering millions in exchange – the value of his endorsement was called into question.

Constantin Querard, Montenegro’s consultant on the special election campaign, said while Franks’ endorsement may not be quite the hot commodity it used to be, he didn’t know whether his backing could hurt Montenegro.

Some people will have concerns about the Franks endorsement, he said, but other CD8 voters will still consider it a good thing.

Besides, there’s no escaping their ideological similarities, and Montenegro was already tied to Franks after working for him for years.

“I don’t think there’s anything to be gained by pretending otherwise,” Querard said.

Republican consultant Chuck Coughlin said he doesn’t think the endorsement does much to give Montenegro an early boost because of the unique circumstances of Franks’ resignation.

Beyond that, Coughlin said he doesn’t think an endorsement from Franks is enough to actually win over his core constituency.

He expects the most impactful endorsements to come from President Donald Trump and former Gov. Jan Brewer. Phil Lovas, former state legislator and Trump campaign chairman, is likely to get the president’s support.

One endorsement Montenegro won’t get is Gov. Doug Ducey’s, but neither will his fellow Republican candidates – the governor said December 12 he doesn’t get involved in primaries.

Ducey said whether Franks’ endorsement would help or hurt Montenegro was a “question for the electorate” to decide.

With or without Franks, Coughlin said he doesn’t think Montenegro is a real contender in the district anyway.

“Quite frankly, and I want to put this carefully, the political reality of an ethnic name in a heavily Republican district is not really helpful,” he said, adding that challenge to what he sees as a lack of name recognition for Montenegro to begin with.

Still, former House Minority Leader Chad Campbell said touting the endorsement was a smart calculation for the primary.

Whether it ultimately has lasting, negative effects  in the general election, he added, won’t matter when the Democratic challenger likely doesn’t stand a chance.

“Quite frankly, I don’t think Steve Montenegro or any Republican in that primary is even thinking about the general election,” Campbell said. “They’re not concerned about it in the least because the numbers are so favorable to them. So, I’m sure Steve’s calculation is, ‘This gets me through the primary, and in the general election, who cares. The Democrats can’t catch me.’”

Yellow Sheet Report Editor Jeremy Duda contributed to this report. 

Poll: Schools chief race tied, many independents undecided


The General Election race for superintendent of public instruction is a dead heat, according to a poll released by OH Predictive Insights.

The poll puts Republican Frank Riggs ahead of Democrat Kathy Hoffman by just 1.2 percentage points. Nearly 600 likely voters were surveyed, equally split between cellphones and landlines. The poll has a margin of error of plus-minus 4.01 percentage points.

The poll also found that nearly 20 percent of those surveyed are undecided heading into November, leaving either candidate ample opportunity to jump ahead.

“[It’s] shaping up to be a barn burner” said pollster Mike Noble.

The polling results mirror the equally close race in 2014. Current Superintendent Diane Douglas, who placed third in the Republican primary contest in Aug. 28, defeated Democrat David Garcia by just 1 percentage point.

Riggs is enjoying a slight edge among male voters, but Hoffman’s advantage among female voters is slightly more pronounced.

And Hoffman appears to have rapidly consolidated the support of her party; more than 80 percent of Democrats surveyed said they would vote for her. That’s a significant changed since the Primary Election when she defeated David Schapira by a margin of just about 6 percentage points, or roughly 22,000 votes. Additionally, she’s winning the crucial battle for independents’ votes. Roughly 42 percent said they would vote for Hoffman over Riggs, with just about 27 percent leaning in his favor.

Democratic consultant Chad Campbell has told the Arizona Capitol Times that independents may be especially important to Republicans in this cycle, especially in races like this. Whereas Democrats are enjoying a higher turnout rate nationwide, he said Republicans do not have a clear path to increased turnout from their own voters. So they’ll have to appeal to independents and folks across the aisle.

Riggs also seems to have unified his party, with 74 percent of Republicans surveyed saying they’d vote for him. That’s despite a split vote in August. Riggs claimed victory by just 249 votes, or less than 1 percentage point, out of roughly 572,000 votes cast.

Maricopa and Pima Counties are effectively split evenly between the two candidates, with Hoffman getting a modest advantage in Maricopa County. But Riggs is ahead in rural areas by about 5 percentage points. Twenty percent of rural voters surveyed were undecided.

Campbell said those rural voters, and rural democrats in particular, will be interesting to watch and could have a sizeable affect similar to independent voters in this election.

He said knowing how urban and suburban folks will vote is fairly easy to predict, but rural voters are not necessarily attached to the same issues and cannot be counted on to vote along party lines.

That may prove particularly challenging for Hoffman. Campbell said the divide between urban and rural Democrats can sometimes be just as significant if not greater than the partisan divide.

Rationalize your vote – go with someone who will get things done


I am a politically engaged, moderate, young voter and really excited to vote for the first time this November. I am underwhelmed by the options for president and am not sure if I can confidently vote for either candidate. National politics are getting more partisan and more polarizing by the day and I think it is a major reason why we see such low turnout from younger voters. I think having to choose between two extremes has disaffected a lot of my generation, who often just want to see real change in our everyday lives.

Instead of focusing on the intensely politicized national elections, I believe we should turn our attention to the areas of government that more directly affect us – namely, local government. On a purely statistical basis, the most active voters are older, which is doubly true for local government elections. As a demographic, I think that the younger voters forget, or are even ignorant, of how crucial local government is. While these bodies are responsible for a broad range of services, the most important, in my opinion are these: economic and community development.

Pablo Torres-Lopez
Pablo Torres-Lopez

This brings me to a further point: coronavirus. Phoenix is already the fifth largest and fastest growing city in the country. With a population of 1.66 million, the allocation of public funds is ever important in our attempts to alleviate the crisis (both economically and socially). Small businesses, which were impacted deeply by the pandemic, are especially in need. While the federal government aids, of course, it is ultimately up to local politicians to fix our local economic crises, and to make sure that the communities most in need aren’t forgotten. This means we need effective and rational decision-making in our local government. We need trusted leaders, backed by experience, to weather the storm.

And on leadership —  let’s focus on the realists. When I cast my ballot in the upcoming elections, I’ll be voting for the candidates who I know have a history of doing good for my community. An able leader experienced with the intricacies of passing legislation is more valuable to me than an idealistic, naive, and ineffective candidate.

Yes, we need people with experience, that is certain. But I think we also need people who work with everyone, Republican or Democrat. I don’t care about the party. I want my voice to be heard, but even more so I want leaders who will put the labels aside and actually talk to each other and solve these problems. How DO we get through a pandemic? How DO we get our lives back to normal? How DO we help people who have lost their jobs and businesses? I’m worried about the impact of coronavirus on my family members, my classmates, and the local businesses that I’ve had the pleasure of patronizing. I’m worried about my community, first and foremost.

So I’ve had some time to think about what all this fighting accomplishes when we are all affected. I see a lot of blaming and finger pointing, but no real solutions. I want our politicians to work together and actually solve the problems we are facing, instead of just voting along party lines. The fact that I see more bipartisanship in my local government gives me hope that American democracy isn’t dead.

A clear example, in my opinion, is state Senator Kate Brophy McGee. I’m proud to call North Central Phoenix my home. I am, after all, a lifelong resident. I have seen the great leaps and strides that my community has made in such a short time. In all of this, Kate has lent a helping hand. In the Madison School District, where I was a student for eight years, and where my 12-year-old sister attends, my former teachers were able to enjoy a 20% pay raise. Proposition 301, which provides $670 million to K-12 education regularly, helped to revamp school programs and facilities there, too. These policies were emphatically supported, sponsored, and nurtured by Kate. Even further in my scholastic career, I see the effects of Kate’s policies. Mental health is especially important to my generation right now, with everything going on in the world. Jake’s Law, which has expanded access to behavioral health services in schools especially, established an $8 million fund for those in need of help with insurance. Now, my classmates can get the help they need without worry. I can honestly say I’ve never met anyone who has had the safety of her constituents more in mind than Kate.

In my opinion, and I think in the opinion of most rational voters, I like to see my vote being used effectively by effective politicians. We need our politicians to solve problems instead of arguing. I get that people dislike President Trump. I also hear people say that the Democrats are too liberal. What I will be looking at is who will work on problems that directly affect me and my friends, and actually get things done. That is who I am going to vote for.

Pablo Torres-Lopez is a resident of Legislative District 28.

Reagan denial of voter records could open state to lawsuit

Michele Reagan at her 2015 inauguration (Photo by Evan Wyloge/Arizona Center for Investigative Reporting)
Michele Reagan at her 2015 inauguration (Photo by Evan Wyloge/Arizona Center for Investigative Reporting)

People on both sides of the political aisle applauded Secretary of State Michele Reagan’s decision to deny a request from the Trump administration to turn over voter data.

But First Amendment experts say the legal reasoning behind the denial is dubious and could leave the state vulnerable to a lawsuit.

Kris Kobach
Kris Kobach

Reagan’s office received a request on July 3 from Kansas Secretary of State Kris Kobach, the vice chair of Trump’s Presidential Advisory Commission on Election Integrity, asking for various types of “publicly available” voter information.

President Donald Trump set up the commission by executive order as a way to investigate his repeated, unsupported claims of rampant voter fraud during the 2016 election.

Critics of the request for voter data claim it was an effort aimed at voter suppression, something Democrats say Kobach is known for.

Reagan denied the request on July 3, saying turning over the voter rolls wouldn’t be in the “best interests of the state,” an exemption to public records statutes set up by case law in Arizona.

She said she couldn’t see how the information would help the commission achieve its purpose and that the request would create a major cybersecurity risk by centralizing the nation’s voter data into one location.

And she had heard from about 1,000 people over the weekend who called or sent emails saying they were concerned about their voter information being sent to Trump. That’s in addition to the many tweets and Facebook posts deriding the records request and calling on Reagan to refuse it.

At first, before Reagan received the letter but after the news about its contents become known, she said she would turn over any information that’s ordinarily available to the public.

But by July 3, when she actually got the request, she had changed course.

Multiple Arizona Supreme Court cases upheld an agency’s ability to deny the release of public records if releasing the information “would have an important and harmful effect on the duties of the officials or agency in question,” according to the Arizona Ombudsman’s public records guide.

But if a public official uses the “best interests” exemption, the official has the burden of showing exactly what harm could come from releasing the information. The duties of a given agency would need to be “significantly impaired” in order to justify withholding information that would otherwise be publicly available.

And a public body can’t withhold records simply to “save an officer or agency from inconvenience or embarrassment,” the ombudsman’s guide says.

David Cullier
David Cullier

David Cuillier, a First Amendment expert who teaches at the University of Arizona’s journalism school, said the bar is purposefully high for agencies to use the “best interests of the state” exemption. Reagan’s explanation for denying the request didn’t appear to be adequate, Cuillier said.

He said it’s “really dangerous” for public officials to start picking and choosing who has access to public records based on how the information might be used. If other groups can access the information, Kobach’s commission should be able to as well, he said.

“Public records can be used for good or bad, for reasons that people disagree with. But the records should still be released. It isn’t the records’ fault. They should not be held hostage,” he said.

Kobach asked for voters’ names, addresses, dates of birth, political party, the last four digits of Social Security numbers, voter history from 2006 onward, felony convictions, registration in other states, military status, and “overseas citizen information,” should such information be publicly available in a given state.

In Arizona, various parts of voter registration are public information, including names, party preference, address, date of registration, birth year, telephone number (if given), occupation (if given), voting history and ballot returns.

Other parts of the voter rolls, including Social Security numbers, full dates of birth and mothers’ maiden names are not public records and cannot be released.

For political parties, the publicly available information is free. For other requesters, it costs about $500 to get the state’s voter database, thanks to a recent settlement with voting rights group Project Vote.

If the state truly believes the voter data could be used to do bad things, then it shouldn’t be released to anybody, including the political parties that routinely use the data to target voters for campaigns, Cuillier said. He called the denial in this case “bogus.”

People shouldn’t be worried about voter data being public, Cuillier said. They should worry that public officials want to pick and choose who should have access to them based on political reasons, he said.

“We should not start closing that information down because someone suspects someone might do some shenanigans with it. Attack the shenanigans, not the records,” Cuillier said.

Dan Barr
Dan Barr

First Amendment attorney Dan Barr said that some types of voter data included in the request could have been released to Kobach’s commission. He said the decision to cite the “best interests of the state” when withholding the data seemed like more of a political decision than a legal one, especially as other states lined up to deny the request.

The worry, Barr said, is that the same exemption could be used for other requests in the future.

“Is Kris Kobach’s request made for legitimate reasons? No, it’s all bullsh**. It’s all about trying to make a bogus case for something that doesn’t exist,” Barr said.

But by the same token, the response to deny the request because of the state’s best interests wasn’t kosher either, he said.

“It’s a bullsh** response to a bullsh** request. It’s somehow fitting,” he said.

Barr said he’s never seen the “best interests of the state” justification used for not producing documents when the same documents are routinely produced for other parties. And, he said, he keeps seeing newspaper columns praising Reagan’s decision, which is ironic considering reporters use voter data for stories frequently.

“If they start applying this rationale to deny other requests that are public records, and they’re denying it because it’s politically inconvenient for them, it’s going to be a problem,” Barr said.

When the Secretary of State’s Office was hacked last year, one of the reasons the hackers didn’t gain access to voter data was because it wasn’t all aggregated in one place but was instead held separately by all the counties, Reagan told the Arizona Capitol Times on July 5.

Kobach’s request was “unprecedented” and didn’t include any details on how the data would be secured, Reagan said. The letter he sent called for the secretary of state to email the voter information to an address set up for the fraud commission or to upload the publicly available voter roll data onto a secure server.

Reagan said everyone she spoke to and stories she read said it was a “bad idea” to aggregate all of the country’s voter information into one place without any plans or details on how to secure it.

“To us, it’s complete common sense, and the attorney general agrees with us,” Reagan said.

She said she hasn’t heard back from Kobach or the commission since she sent the denial.

Ryan Anderson, Attorney General Mark Brnovich’s spokesman, said attorney-client privilege rules prevent the AG’s office from discussing any specific advice that may or may not have been given to Reagan.

But, Anderson said, Reagan is an independently elected official, and access to voter rolls is controlled by her office and the state’s county recorders. Unless an official is doing something clearly outside of what the law permits, Anderson said, deciding whether to release the information is a policy decision.

“From the beginning the attorney general has believed that confidential information can’t be released, and the initial request may have exceeded the limits of what’s permitted by Arizona law,” Anderson said.

The Trump administration isn’t giving up on getting voter data. While CNN reported 44 states refused to at least in some way to turn over their voter rolls, Kobach pushed back saying only 14 states have refused the request. The rest are complying to some degree or considering how to respond, Kobach said in a statement.

“Despite media distortions and obstruction by a handful of state politicians, this bipartisan commission on election integrity will continue its work to gather the facts through public records requests to ensure the integrity of each American’s vote because the public has a right to know,” Kobach said in a statement.

Perhaps the Trump administration could file a public records lawsuit against the state of Arizona to try to get the request fulfilled, Barr and Cuillier both said.

State’s attorney: Initiative law challengers’ claims are ‘not genuine’

Attorney Roopali Desai
Attorney Roopali Desai (Photo by Katie Campbell/Arizona Capitol Times)

Attorneys for the state are trying to block challengers to newly enacted initiative restrictions from telling their story to a judge.

The lawyers contend that the claims of those who contend the new law will harm future petition efforts are “fanciful and not genuine.” And attorney David Cantelme, who is leading the defense on behalf of Republican legislative leaders who pushed through the change, said that makes anything the challengers have to say in court legally irrelevant — and legally inadmissible.

But Cantelme is not the only one seeking to limit what Maricopa County Superior Court Judge Sherry Stephens will consider at a hearing next month.

Attorney Roopali Desai, representing the challengers, has filed her own motions to block efforts by the state and Republican legislative leaders to have the judge hear from another lawyer and a campaign consultant.

Both want to tell Stephens they believe the new law won’t make it harder for initiative organizers to qualify for the ballot. And that, Cantelme is arguing to Stephens, means there’s no basis for the challenge and she should dismiss the case.

The legal fight is over what standard a judge must use in determining whether an initiative petition proposing a new law or constitutional amendment can be placed on the ballot.

Current law requires only “substantial compliance” with election statutes. Courts have repeatedly interpreted that to mean that measures can go to voters even if there are inadvertent errors by organizers or circulators, or mistakes that do not affect the ability of voters to determine what is at issue.

That has led to courts giving the go-ahead for voters to consider some things not favored by the GOP legislative majority, including a proposed one-cent hike in sales taxes to fund education and transportation. That 2012 measure failed anyway.

Earlier this year lawmakers approved HB 2244 requiring judges to void initiatives not in “strict compliance” with all election laws. That could mean disqualification of petition drives based on technical errors.

In the lawsuit, Desai contends the legislature violated the constitutional rights of voters to propose their own laws by erecting the new hurdle. And she wants Stephens to block the law from taking effect as scheduled on Aug. 9.

But Cantelme hopes to quash the lawsuit even before Stephens gets to hear that constitutional argument. He argues that only those who suffer a “discrete and palpable injury” from a law are entitled to challenge it.

In this case, Cantelme said, the plaintiffs have suffered no injury because they are not currently circulating initiative petitions and are only speculating about how they might be harmed in the future. That, he said, means “they lack personal knowledge to testify to such fanciful injuries,” making anything they say “hearsay or speculation.”

Desai said Cantelme is ignoring a key fact: The plaintiffs are not just people off the street.

They include Matt Madonna, former president of the regional division of American Cancer Society, which got voters to ban smoking in public places; Sandy Bahr of the Sierra Club which helped convince voters to ban leg-hold traps on public lands; and the Animal Defense League which got voters to outlaw “gestation crates” for calves and pigs.

“These folks have run initiatives, lots of initiatives in fact,” she said, crafting language, forming legally required committees and hiring paid circulators.

“They know what goes into that,” Desai continued. “They know what kinds of risks are going to increase as the result of a stricter standard of review.”

And there’s something else.

“It affects the way we raise money,” Desai explained, with initiative organizers having to explain to would-be donors the risk that a petition drive could get the necessary number of signatures — 150,642 for a statutory change and 225,963 for a constitutional amendment — only to be barred from the ballot because of a technical error.

Other plaintiffs include those weighing future initiatives like the Friends of ASBA, a group aligned with the Arizona School Boards Association that can get involved in politics. According to the challenge, that group is “seriously contemplating sponsoring a statewide initiative related to education that would appear on the ballot in November 2018.”

Cantelme, for his part, contends none of that matters.

He said if initiative organizers follow the law and gather a “cushion” of 30 percent more signatures than they need they should have no problem getting their issue to voters. And to prove his point, he wants testimony from attorney Kory Langhofer, who has been involved with Republican political causes and litigation, to tell the judge how he believes the change won’t affect the ability of groups to get their measures on the ballot.

Desai, however, said what Langhofer has to say has no bearing on the belief of the challengers, based on their own experience, of how the new law will affect them.

“He doesn’t represent any of them,” she said.

“He hasn’t advised any of them,” Desai continued. “These are all red herrings and distractions.”

She had a similar assessment of Gibson McKay, a campaign consultant who has been aligned with GOP causes and worked on some initiatives, saying he should not be allowed to testify because he’s not an expert on the law.

Supreme Court considers education tax arguments

A federal appeals court rejected Todd Fries' argument that his conviction on chemical weapons charges should not have been taken into account when he was sentenced for bomb possession.

The fate of a tax on the rich to help fund education could come down to whether the Arizona Supreme Court believes the money raised will provide “grants” to schools.

During a hour-long argument Tuesday, Andy Gaona, representing the organization that crafted Proposition 208, told the justices that the dollars the new tax would raise are earmarked for special purposes. These range from teacher salaries to funding career and technical education programs.

That, he said, makes it different from the basic aid given to schools each year by the state and any dollars they raise locally, all of which districts are free to allocate as they wish.

What makes that crucial is that the Arizona Constitution puts a cap on how much can be spent on education each year. And even Gaona admits that the $800 million or more that the tax will raise is likely to exceed that cap.

But if the new dollars are considered grants, as he contends, those are specifically exempt from the limit. And that, he told the court, makes the levy legal.

With some of the justices questioning that claim, Gaona had two fall-back positions.

First, he pointed out that the constitution allows lawmakers every year, on a two-thirds vote, to let schools exceed that cap. And Gaona said the court should not void the voter-approved measure before giving legislators a chance to have that vote and honor the will of the people.

And if the court wouldn’t buy that argument, he said that about a third of the money that would be raised with the levy still could be spent without bumping into that cap. So he told the justices they should leave the levy in place.

All that drew a skeptical response from Justice Bill Montgomery who pointed out the measure was promoted based on a promise that there would be all these additional dollars flowing into education.

“Weren’t voters then told something that can’t happen? he asked.

And Justice Clint Bolick pointed out that the full tax would still be collected, “regardless of how much of the money can or can’t be spent” if the court accepts Gaona’s argument that the levy should be upheld. That, he suggested, made no sense.

Hanging in the balance is a 3.5% surcharge being placed on the incomes of people whose income is higher than $150,000 a year, or $300,000 for married couples filing jointly.

Voters narrowly approved the measure despite stiff opposition from the business community. Now some of those same interests have combined with Republican legislators who also opposed the initiative to try to have it declared unconstitutional.

One claim by foes is that a voter-approved constitutional provision requiring a two-thirds vote by the legislature for new taxes also applies to taxes sought by voters at the ballot box.

“This is the people acting in their capacity as amenders to the constitution to bind themselves so that bare majorities can’t grow the size of government and impose new taxes,” said Dominic Draye, representing the challengers. That argument was rejected earlier this year by a trial court judge who said voters never intended to tie their own hands but only those of legislators.

The potentially stronger argument for foes goes to that constitutional question of whether the voters, in enacting a law enacting a new tax surcharge, have run afoul of the constitutional spending cap.

“Proposition 208 is a statutory initiative that needed to be a constitutional amendment,” Draye told the justices. And he said proponents can’t simply declare that the measure’s tax hike is exempt from what’s in the Arizona Constitution.

What that leaves, Draye said, is that claim that the new money is a grant or gift to schools and therefore specifically exempt from that spending cap.

“But no court, and no ordinary user of the English language, would think that a dedicated revenue stream with mandatory spending, no qualification, no discretion, no applications, would qualify as a grant, gift, aid or contribution,” he said.

Justice Ann Scott Timmer said even if that is true — a point she is not conceding — there is an escape clause. That is the ability of the legislature, on an annual basis, to override that spending cap to allow the will of the voters to be enacted and the money collected to be spent.

Draye conceded nothing, saying even that exemption provision itself is unconstitutional.

But the issue goes beyond that.

He said the measure was sold to voters based on the premise that the legislature itself was failing to properly fund schools, which is why they needed to enact this new levy to boost the available dollars. Now, Draye said, supporters of the levy are arguing that the measure should be declared constitutional because those very same legislators — the ones that proponents told voters weren’t providing enough cash for education — could, if they wanted, authorize an override.

“That’s not the bargain that was presented to voters,” he said. “All of the ballot materials were oriented toward the ability to spend $827 million right now on education.”

Gaona, however, said the court should not assume that lawmakers, faced with the prospects of all those new dollars coming in, will not honor the will of the voters and approve an override to allow the cash to be spent as laid out in Proposition 208.

He pointed out that the actual constitutional limit won’t be known until May of 2023. And by that time, Gaona said, the makeup of the legislature will be different, not only because of the 2022 election but because the lines for the state’s 30 legislative districts will be redrawn.

If the court leaves the levy intact, that could provide new impetus for a proposal by Sen. J.D. Mesnard, R-Chandler, to help some people escape paying the new levy. His measure would create an entirely new 4.5% tax category for certain small businesses, a category that would not be subject to the 3.5% surcharge because it did not exist when Proposition 208 was approved last year.

The justices did not say when they will rule.





Thorpe seeks to triple lawmakers’ salary

A Flagstaff Republican is seeking to nearly double lawmakers’ daily allowance and triple their salary.

Rep. Bob Thorpe (R-Flagstaff)
Rep. Bob Thorpe (R-Flagstaff)

Rep. Bob Thorpe, R-Flagstaff, also wants to remove the public’s say on future changes to legislators’ salary.

But Thorpe said constituents shouldn’t take his proposals as a sign that lawmakers are just “doing it for the money.” Lawmakers’ daily allowance rate hasn’t been adjusted in nearly 30 years, and they also have not seen a pay raise in 20 years, he noted. That, he argued, has made it difficult for lawmakers who aren’t retired, self-employed or independently wealthy to make ends meet.

Thorpe’s bill, HB2275, would tie the Legislature’s per diem rate to the federal rate.

In addition to their salary, lawmakers who live in Maricopa County receive a daily allowance of $35, while lawmakers who reside in other counties get $60. The current per diem rates, Thorpe said, aren’t enough to cover a “reasonable” room and meals at a hotel.

Under his proposal, which is co-sponsored by several Republican representatives, his colleagues from Maricopa County would get 25 percent of the federal per diem rate for Arizona, and those who live elsewhere would receive 75 percent of the federal rate.

The federal rate, which is determined annually by the U.S. General Services Administration, changes every few months in certain cities and counties, so the amount lawmakers would get under the proposal would fluctuate.

Thorpe said for lawmakers who live outside of Maricopa County, the new rate would work out to roughly $110 per day for meals and lodging, nearly doubling the current rate.

Thorpe also introduced HCR2016, which seeks to amend the Arizona Constitution to increase legislative pay beginning in 2020 to equal the annual salary of a supervisor from a county with a population of 500,000 or more. That would more than triple lawmakers’ salary – from $24,000 to $76,000 a year.

Only voters can increase lawmakers’ pay. Lawmakers have sought a pay raise six times since the public approved their last pay raise from $15,000 to $24,000 in 1998, but voters have rejected the measures each time.

Thorpe said his approach of judging their work against those of supervisors in larger counties is “reasonable.”

“I don’t want to disparage our county supervisors, but I think state legislators have a greater responsibility, and wouldn’t it be nice if we had the same level of pay?” he asked.

Thorpe added that a pay hike would give more people the opportunity to run for office. Unless an individual is retired, self-employed or “self-sufficient financially,” it’s hard to make ends meet on $24,000 a year, he said.

Still, Thorpe knows his proposals will be a hard sell not only to his colleagues but also to voters.

“The voters are pretty fickle, so I don’t know if they would support it or not,” he said. “People in my district might disagree with me. It’s a political gamble, but it’s the right thing to do.”

Voters shatter state record for turnout in primary election

More Arizonans voted in the 2018 primary election than in any other primary in the state’s history, a surge that was in part fueled by strong gains from Democrats at the polls.

The record-setting 33.26 percent turnout in August broke the previous high from 2010, when 30.09 percent of eligible voters cast ballots in the primary election, according to unofficial results from the Arizona Secretary of State’s Office.

That’s more than 1.2 million ballots cast, exceeding raw voting in 2010 by more than 215,000 ballots.

Seven of Arizona’s 15 counties set their own voter turnout records, too, led by a dramatic increase in voters in the most populous county, Maricopa.

In terms of raw votes, Maricopa County ballots accounted for most of the record-setting increase – the nearly 700,000 ballots cast were a more than 140,000 vote bump from the county’s previous high in 2010.

Maricopa County was also where a Democratic show of force, long expected in the wake of President Trump’s 2016 election, was most prevalent. Unofficial tallies from Maricopa County reveal that roughly 100,000 more Democratic ballots were cast in 2018 than two years ago. Republicans also boosted their raw voting numbers, but by far less, roughly 30,000 ballots, according to unofficial figures from the Secretary of State’s Office.

Even with those gains, Republicans still hold a distinct advantage in terms of raw voters among the 699,636 ballots cast in 2018.

Official splits in party turnout will be available after Secretary of State Michele Reagan certifies the statewide primary canvass on September 10.

Thanks to all those extra ballots, Maricopa County exceeded its highest ever turnout rate by 2.34 percent – 31.38 percent of eligible voters cast a ballot, exceeding the previous record of 29.04 percent in 2010.

Cochise, Gila, Mohave, Navajo, Pima and Yavapai counties also broke their turnout percentage records.

Pima County saw the highest gain over its previous record for turnout, with a 4.71 percentage point increase to 39.93 percent.

Yavapai County boasted the highest voter turnout of any county, setting a new county record with 47.17 percent of eligible voters casting ballots.

While not all counties set all-time voting records, turnout rates did increase compared to 2016 in all but three counties, Graham, Greenlee and La Paz counties.

*Unofficial results Source: Arizona Secretary of State's Office GRAPHIC BY PAULINA PINEDA/ARIZONA CAPITOL TIMES
*Unofficial results
Source: Arizona Secretary of State’s Office

Wanted: Candidates who will listen to what matters most to all voters

There are as many reasons to run for public office as there are candidates. Many are motivated by a particular issue or philosophy, which they emphasize in their election campaign. They tell us what they will do.

Too often overlooked, however, is what voters – at least a majority, not just the most zealous segments of a party — want to hear from the candidates. In a representative form of government, the voters’ collective desires should carry significant weight.

So why not start each election year by asking: What matters most to voters?

Sybil Francis

This is something we know about at the Center for the Future of Arizona, where our mission is centered on listening to Arizonans and learning what matters to them and prompting action on those issues. In late 2020, we commissioned our second decennial Gallup Arizona Survey, one of the most comprehensive surveys ever conducted in Arizona which asked Arizonans what they thought were the most impactful things we could do to create a stronger and brighter future for our state. One stunning revelation of this research is that we agree on much more than we disagree, contrary to the popular narrative of division and polarization of our state and country.

We found that Arizonans overwhelmingly agree on seven priority areas – shared public values – and more than 40 specific actions to advance our state. And three-fourths of Arizonans are willing to speak with others of differing views to solve problems.

A few examples of where Arizonans agree:

  • Arizonans overwhelmingly agree that educational attainment and a strong education system are vital to building a better future. Majorities of Republicans, Democrats and independents want more money spent on public education.
  • Arizonans believe that education and training are necessary for building their careers, but they worry that opportunities are limited. Almost half of employed Arizonans earning less than $60,000 say they do not have access to the education and training they need.
  • Arizonans overwhelmingly support sustainable practices that protect our air, land, water and wildlife. Seventy percent or more want cleaner air, protected rural water supplies, a transition to clean energy, expanded space for parks and recreation, more spending to prevent forest fires and steps to reduce the urban heat effect.
  • Arizonans support comprehensive immigration reform with a pathway to citizenship, including for Arizona’s DREAMers. A whopping 86% believe this is important.

What needs to change to put what matters to voters at the center of campaign rhetoric?

The news media can set aside horse-race reporting and press candidates to answer questions posed by their readers, listeners and viewers. Voters themselves can seek opportunities to question candidates and challenge them when they don’t give direct answers. The influential readers of the Capitol Times are ideally situated to do this.

But most refreshing would be candidates who step forward and embrace their role as representatives for all their constituents, not just a sliver of the electorate. Instead of commissioning polls to identify wedge issues that benefit candidates, they would ask their potential constituents, “What do you want to hear from me in this election cycle? What are the most critical issues to you and our state I should address?”

Imagine candidates who eschewed tossing mud in favor of talking about issues we know are important to Arizonans. Imagine candidates more interested in proposing solutions to our most important challenges than in portraying the other candidate as evil personified.

Suggesting this approach may sound naïve, because our current primary system rewards candidates who appeal to a party’s most partisan voters. But are any candidates brave enough to address the concerns of everyday Arizonans? If the answer is no, I’d like to suggest that the news media can play a powerful role in shaping the narrative and getting candidates to focus on what voters care about.

The Gallup Arizona Survey found that the partisan divide we hear so much about may not be all that it’s made out to be. As Arizonans we agree on far more than we disagree, including a shared hunger to come together to find solutions that drive our state forward to a brighter future.

Candidates who tap into that hunger, who listen to voters and understand what they truly care about and propose ways to give them the Arizona they want … those candidates are the ones we need in 2022.

Sybil Francis is president & CEO of the Center for the Future of Arizona, a nonprofit, nonpartisan organization that brings Arizonans together to create a stronger and brighter future for our state.