Warren Petersen | Arizona Capitol Times

A majority under pressure reveals legislative fissures

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ADOT fee double forecasted amount, angers lawmakers

That balanced budget that Gov. Doug Ducey said wouldn’t raise taxes is going to cost Arizona motorists an extra $32 a year for every car, truck and motorcycle they have.

And it’s more than 50 percent higher than Arizonans were told when the plan was first adopted earlier this year.

The fee is designed to have motorists pay directly for the costs of the Highway Patrol rather than having the agency funded out of gas tax and existing vehicle registration fees.

That is supposed to free up cash from the gas tax to instead be used for road construction and repair. And that, in turn, means that general tax collections which had been used for those purposes could instead fund other priorities of the governor and Legislature.

There’s a reason the fee, approved by lawmakers earlier this year, is a surprise. And it’s political.

The Arizona Constitution requires a two-thirds vote of both the House and Senate for any new or increased tax or fee. And there were not the votes in either chamber to do that.

So lawmakers and the governor used a loophole of sorts: They directed John Halikowski, the head of the state Department of Transportation, to figure out how much the Highway Patrol division of the Department of Public Safety costs to operate. And then Halikowski was directed to impose a new fee to cover that cost.

In passing the buck, so to speak, by refusing to set the fee themselves, lawmakers then needed just a simple majority.

But the fee that was announced Thursday surprised Rep. Noel Campbell, R-Prescott, who came up with the idea.

“That amount was not broached,” he told Capitol Media Services, saying “$17 or $18 was what the fee they told us we’d be dealing with.”

That’s also the number Campbell gave to colleagues when they approved the plan.

The Prescott lawmaker is not happy with Thursday’s announcement.

“We gave him the authority,” he said of Halikowski.

“We hope that he does the right thing,” Campbell continued. “I’m certainly going to talk to him about that and find out why.”

It’s not just Campbell that got a surprise when ADOT set the fee.

In preparing the plan earlier this year, legislative budget analysts figured that Highway Patrol would need about $135 million a year. Even with a 10 percent buffer, that would come to just $148 million.

And that, they figured, would cost vehicle owners just $18.06 a year.

So what changed?

ADOT spokesman Doug Nick said it turns out the Highway Patrol budget will be $168 million. Add 10 percent to that and the fee needs to raise to $185 million.

And there’s something else. Legislative budget staffers figured the cost would be divided up among 8.3 million registered vehicles.

But Nick said the owners of many of the vehicles on the road have prepaid their registrations for two or five years. So they can’t be taxed until they renew.

Add to that vehicles that are exempt from the levy, like government vehicles and those owned by nonprofit entities, and that $185 million has to be raised from the owners of just 5.8 million vehicles.

Do the math and you come up with $32.

The whole money-making maneuver – including the decision to leave the fee up to the ADOT director – is the culmination of a multi-year effort to find new dollars to help build new roads and repair existing ones.

That is supposed to be financed largely through a gasoline tax. But that 18-cent-a-gallon levy has not been raised since 1991 when gasoline was in the $1.20-a-gallon range.

And while there are more vehicles on the road, they also are more fuel efficient, with the number of road miles driven – and the wear and tear on the roads – increasing faster than new revenues.

What’s made matters worse is that the current and former governors and lawmakers, looking to balance the budget, have siphoned off some of those gas tax revenues to pay for the Highway Patrol. That left fewer dollars for both urban and rural transportation needs.

There were several lawmakers who were less than pleased with how the fee increase was crafted.

“Sen. Warren Petersen, R-Gilbert, called it “the worst kind of tax increase” because it was being done without any idea of what it would cost motorists.

“We’re going to tell an unelected bureaucrat to go ahead and raise these fees to whatever he wants to,” he said.

Sen. Sylvia Allen, R-Snowflake, also balked at approving a yet-to-be-determined fee.

“I just can’t in good conscience pass something I don’t know what it is exactly,” she said.

After criticism from left, budget passes with bipartisan support

A $17.8 billion budget package cleared the Arizona Senate early Wednesday morning as lawmakers fast-track a fiscal year 2024 plan that would pour money into housing and education, while providing a one-time tax rebate and letting the state’s universal school voucher program continue to expand.

And after Democrats spent the morning complaining about the content of the deal and the negotiating process behind it, more than half of the Democratic members of the Senate supported the deal in a series of middle-of-the-night votes.

The vote on the principal spending bill came at about 4:30 a.m. and passed 25-5, with all Republicans and nine Democrats voting ‘Yes.’

“There’s a lot of good stuff in here,” said Sen. Mitzi Epstein, D-Tucson, the Senate minority leader, who voted for the full budget package. But like others in her caucus, Epstein supported the deal grudgingly, criticizing both Republican lawmakers and Democrat Gov. Katie Hobbs for how they handled the budget process. Epstein also called the overall spending plan “irresponsible.”

Republicans were less vocal but sounded more satisfied by the outcome. Senate President Warren Petersen, R-Gilbert, praised the process and the product of the budget deal.

“25 ‘ayes,’ five ‘nays.’ Bipartisan. Got our priorities in. That sounds like a success to me,” he said.

The package delivers major spending on issues important to Hobbs and Democrats, like $150 million for the state’s Housing Trust Fund and more than half a billion dollars for education and schools. It also includes provisions requested by GOP lawmakers, like a $260 million one-time tax rebate and a slew of smaller projects hand-picked by individual legislators.

On Wednesday morning lawmakers approved some minor amendments to the deal including adding about 13 jobs in the Attorney General’s office, but they didn’t dramatically alter the deal that was made public on Monday.

The vote came amid a whirlwind week at the capitol. Lawmakers introduced the budget package late Monday afternoon and used rule changes to speed up the approval process and limit public debate about the deal, which had been hammered out in advance behind closed doors.

The House was set to return to session at 10 a.m. on Wednesday, meaning the budget could be sent to the governor’s office for approval later the same day.

Hobbs, Ducey, wildfires — Gov. Katie Hobbs

The bipartisan support for the budget on Wednesday morning came hours after Democrats in House and Senate appropriations committees opposed the proposals almost unanimously on Tuesday morning. They cited a negotiation process that didn’t give them a place at the table and concerns about the ballooning costs of the state’s universal school voucher program.

Sen. Christine Marsh, D-Phoenix, initially criticized the proposal for failing to place a cap on voucher program costs, but ultimately voted yes on some of the measures in the budget package, including the education bill.

“I wanted a cap” on ESA spending, Marsh said on Wednesday. “But the reality is, there still was a lot of other good stuff in there and ultimately it came down to my deep-seated belief that the alternative was going to be worse – blowing up this budget was going to be worse.”

The budget package was split into 16 separate bills. Republicans were united in backing the full package, but some Democrats voted ‘Yes’ for some bills and ‘No’ on others.

Sens. Lela Alston, D-Phoenix, Juan Mendez, D-Tempe, Priya Sundareshan, D-Tucson, and Anna Hernandez, D-Phoenix, opposed all the budget bills.

“This was not a budget built for all of Arizona,” Mendez said.

The budget deal was a surprise on a few fronts. For one, it came earlier than expected. Since the beginning of the year, state capitol observers have speculated that budget negotiations would drag into late June, given the publicly contentious relationship between Hobbs and Republicans in the legislature.

“What were all the pundits saying? ‘Oh, it’ll get done on June 30,’” Petersen said at one point. “They were wrong.”

It also represented an unusual kind of bipartisan compromise. Republican lawmakers hashed out the deal with Hobbs and Democratic lawmakers seemed to be blindsided by the proposal this week.

As Democrats vented their frustration with Hobbs’ budget on Tuesday, the governor took the day to leave the capitol and head to Tucson for a news conference on immigration policy.

On Tuesday morning, Christian Slater, a spokesman for Hobbs, didn’t directly say if the governor was willing to sign a budget that didn’t get any votes from Democrats, but he made it clear that the governor was happy with the package as it was introduced.

Then, early on Wednesday morning, Slater indicated the Hobbs had helped flip some of her fellow Democrats.

“The gov herself got those votes,” he said in a text message, as lawmakers voted on the first of the bills in the budget package.

AG rules Bisbee bag ban illegal

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

The City of Bisbee’s ban on plastic bags violates state law and must be rescinded, according to Arizona Attorney General Mark Brnovich.

The finding is the latest loss for Bisbee, which prohibited local retailers from providing single-use plastic bags to customers in 2014. State lawmakers then banned such local ordinances the following year, and now the attorney general has weighed in following a complaint from Sen. Warren Petersen, a Gilbert Republican.

City officials now have 30 days to tell the attorney general how they’ll resolve the violation — likely by rescinding the plastic bag ban — or risk losing Bisbee’s portion of state-shared revenue provided by the state treasurer.

Brnovich found that the city’s bag ban specifically violated state law that prohibits cities and towns from regulating “auxiliary containers” such as disposable bags. Bisbee City Attorney Britt Hanson even acknowledged the discrepancy between state law and city ordinance in a letter to the Attorney General’s Office, Brnovich wrote.

Hanson argued that regulating the use of plastic bags is a matter of “purely local interest,” an argument Brnovich rejected.

By adopting a state law that prohibits cities and towns from regulating plastic bags, legislators staked their claim that the matter was of statewide interest — to avoid regulations that burden small businesses, and to ensure consistent regulations by cities, counties and towns, Brnovich wrote in his investigative report.

Petersen pushed for that law in 2015. At the time, Bisbee was the only city with a bag ban in place, but several other cities, including Tempe, were mulling similar bag bans before the law was passed.

Hanson told the Capitol Times that Bisbee officials would meet October 30 to determine if they would rescind their ordinance or take the matter to court, something city officials have expressed a desire to do.

“I’ve obviously had discussions with the council before about this, and the sentiments are very, very strong in terms of fighting this matter,” Hanson said Tuesday. “But of course, people’s calculations can change as the process moves forward, so I need to check with them to see where they’re at.”

The ban on plastic bags in Bisbee, where paper bags from recycled material can be provided with retailers required to charge a nickel, has resulted in a cleaner community and lower costs for retailers. The result, Hanson said, has been a cleaner community and lower costs for retailers.

Brnovich said there’s nothing wrong with that goal, and that he’s “very sympathetic” to what the city wants to accomplish.

“I think it’s laudable,” Brnovich continued. “In fact, in their response to us there was literally dozens and dozens of local businesses in Bisbee that liked this ban.”

But Brnovich said there’s nothing to be done as long as state law bars cities from enacting such rules.

The odds of the city winning a challenge to those state laws appear slim. Earlier this year the Arizona Supreme Court looked at a Tucson ordinance which required police to destroy weapons that are seized or surrendered. Officials from that city argued that it, too, is a charter city and that what happens to guns is none of the state’s business.

But the justices unanimously noted that the Legislature had approved various laws declaring the regulation of guns to be a “matter of statewide concern.” And that, they concluded, overrode the city ordinance. The justices strongly suggested they believe that the right of charter cities to ignore state laws applies only in two areas: how and when cities conduct local elections and how they decide to sell or otherwise dispose of land.

Still, Hanson said he believes there’s a winning argument to be made in court if Bisbee officials decide to pick a fight with the state.

“I can say that I think the plastic bag ban ordinance is very distinguishable from the City of Tucson’s gun destruction ordinance. And there would be ample ground for a court to look at it quite differently than the Supreme Court looked at the City of Tucson’s ordinance,” Hanson said.

Hanson said the city will need help to fund such a lawsuit, citing rising pension costs for cities across Arizona and the recent fire that caused substantial damage to Bisbee’s historic city hall.

In the meantime, Brnovich noted there’s nothing stopping from Bisbee retailers from voluntarily sticking to the city’s ordinance, even if it was rescinded.

“If the businesses in Bisbee and the folks in Bisbee want to voluntarily not use plastic bags, no one is stopping them from doing it,” he said. And nothing in state law requires businesses to offer paper or plastic bags — or any bags at all for that matter — to their customers, Brnovich said.

Howard Fischer of Capitol Media Services contributed to this story.

Arizona House to resume work despite Senate vote to adjourn

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

Arizona Legislature sends transportation tax proposal to voters

The longest legislative session in state history came to an end Monday after 204 days as lawmakers in both chambers succeeded in adjourning sine die shortly after 5 p.m., finally addressing a transportation tax extension they’d wrestled with for months.

Both the House and Senate passed a bipartisan proposal asking Maricopa County voters to extend Proposition 400, a half-cent transportation sales tax that’s funded highways, roads and major transportation projects in the county for nearly 40 years.

House members voted 43-14 to approve the measure, which Republican legislative leaders had been negotiating with Gov. Katie Hobbs for weeks since she vetoed a partisan Prop 400 attempt on July 6.

During that time, the legislature hadn’t convened as a whole.

Toma, House, Senate, per diem, Senate Democrats, longest session, sine die — House Speaker Ben Toma, R-Peoria

“Elections have consequences to state the obvious. We have a split government situation. Anything that we do has to be negotiated between both parties and that’s what you saw here,” said Speaker of the House, Ben Toma, R-Peoria. “It was very similar to the budget.”

Similar to the previous attempt, the measure prohibits Prop 400 tax revenue from being used for light rail expansion. But now the proposal keeps the question posed to voters for funding highways, roads and public transportation as one question instead of two questions – which Democrats and Hobbs opposed.

Under the proposal, 40.5% of revenue will be allocated to freeways and state highways, 22.5% will go to arterials and streets and 37% is directed to public transportation.

The final vote in the Senate was 19-7 with four members not present. Senators T.J. Shope, R-Coolidge, Juan Mendez, D-Tempe, Christine Marsh, D-Phoenix, and Janae Shamp, R-Surprise, were gone and did not vote.

All House Democrats voted to pass the bill. Rep. Marcelino Quiñonez, D-Phoenix, said the legislature had a responsibility to continue some form of the tax that lawmakers first passed in 1984 due to the projected population growth of Maricopa County in the coming years. The tax is set to expire in 2025. The tax extension will last 20 years if voters approve.

“It is imperative that we as a Legislature, as a governing body, respond to the infrastructure that is going to be needed,” Quinonez said.

Maricopa Association of Governments Chair Kate Gallego said in a statement from MAG that the bill is a “win” for voters. Prior to the vote, several business leaders also signed a letter voicing their support of the plan.

“While Maricopa County is the only county that requires legislative approval to take an initiative to the ballot, we were resolute in ensuring that we put forward a plan that had the unanimous support of 32 cities, towns, counties, and Native nations,” Gallego said in a statement provided by MAG. “Though the current bill does not provide us with the flexibility we originally sought, it allows us to wholly implement our planned multimodal projects, setting the foundation for a stronger, more accessible region.”

The Republicans who voted against the proposal were mainly members of the Freedom Caucus. Many of them said during floor speeches they weren’t happy with the process that Republican leaders took to get the bill read Monday, nor were they happy for the funds directed to public transit.

Rep. Jacqueline Parker, R-Mesa, said she was informed by leadership as of July 25 that the House wouldn’t be voting on Prop 400 when lawmakers convened on Monday. Rep. Justin Heap, R-Mesa, also said members received a draft copy of the bill on Saturday and the bill was still being amended through Monday.

“We allow public transit to send our roads hostage when we send it to the voters,” Heap said of keeping Prop 400 posed as one question for voters.

Freedom Caucus Chair Sen. Jake Hoffman, R-Queen Creek, commended Senate President Warren Petersen, R-Gilbert, on negotiating a conservative bill, even though he couldn’t get behind it.

“It’s yet another rolling of Katie Hobbs, it simply wasn’t conservative enough. I believe that voters deserve the opportunity to choose between whether they want to support transit as a standalone item or whether they don’t and whether they want to support freeways and roads or whether they don’t,” Hoffman said.

Other Republicans said they supported the bill because of the guardrails that were negotiated to fund highways and roads. The bill prohibits tax funds from being used to reduce existing highway and street lane miles.

“This plan will ultimately require voter approval and taxpayers will have the final say. In my view, this bill moves Legislative District 4 ahead,” said Rep. Matt Gress, R-Phoenix.

Rep. Selina Bliss, R-Prescott, said she voted to pass the bill because she didn’t want legislative districts like hers having to compete with Maricopa County for federal transportation tax dollars if the bill failed to pass.

“Let’s get over ourselves, let’s get out of the way and let’s let Maricopa County voters decide for themselves what’s best for Maricopa County.”

Another piece of the bill is prohibiting any light rail project from being built around the Capitol in Phoenix from 17th Avenue one the east, Adams Street on the north, 18th Avenue on the west and Jefferson Street on the South.

Toma acknowledged cities may get creative with expanding light rail by freeing up bus funding with Prop 400 revenue, and going forward with light rail projects as they choose. But no projects will be around the Capitol.

In exchange for passing Prop 400, some Republicans anticipate Hobbs will sign a bill they sent to her earlier in the session that would repeal cities from implementing a rental tax for apartments. This was one of the major policy goals GOP leaders outlined before the session started and Toma said Hobbs signing the bill was part of his agreement with her.

“We highly encouraged her to sign it if we sent her Prop 400, and she said she will,” Rep. David Livingston, R-Peoria, said of the rental tax.

Republican Senators Hoffman, Anthony Kern, R-Glendale, Justine Wadsack, R-Tucson, Shawnna Bolick, R-Phoenix, J.D. Mesnard, R-Chandler, and Wendy Rogers, R-Flagstaff, voted ‘no.’ Sen. Sally Ann Gonzales, D-Tucson, also voted ‘no.’ Gonzales expressed concern that light rail can’t be expanded under the bill and that there wasn’t enough dialogue.

Mesnard said he was only a “not yet.” “I needed a little more time,” Mesnard said. “To the extent there’s any correlation between a signature on a rental tax bill and this, I obviously am glad about that if that happens.”

Senate Minority Leader Mitzi Epstein, D-Tempe, said her caucus is glad to have a plan and that they’d been in communication with MAG about the proposal this past weekend. However, over the past several weeks, legislative Democrats were left out of meeting between the governor, House speaker and Senate president.

“On the one hand the Maricopa Association of Governments is a very important and a key stakeholder in this, and a lot of the goals that MAG wanted to accomplish are the things Democrats wanted to accomplish. Would we like to have been in the room and involved more? Always,” Epstein said.

Petersen argued that there have been years of dialogue on the bill and time for members to consider late changes. “I’m proud that we could accomplish this together in a bipartisan way,” Petersen said during the vote. He outlined the Republican friendly changes made to the bill including more legislative appointments to MAG and keeping light rail expansion from the Capitol. “This is a good product,” Petersen said.

Attorney: GOP lawmakers want to give AZ voter information to Giuliani to examine

Former Mayor of New York Rudy Giuliani, a lawyer for President Donald Trump, speaks at a hearing of the Pennsylvania State Senate Majority Policy Committee, Wednesday, Nov. 25, 2020, in Gettysburg, Pa. (AP Photo/Julio Cortez)

The attorney for Maricopa County is accusing state senators of demanding access to voting equipment and records to turn them over to an attorney for President Trump.

At a hearing Monday, Steve Tully pointed out that Kelli Ward, chair of the Arizona Republican Party, sent out a Twitter message last month saying that the materials sought by the Senate were going to be given to Rudy Giuliani. Tully said that would include ballots and passwords and other materials in the two subpoenas issued by Senate President Karen Fann and Sen. Eddie Farnsworth who chairs the Senate Judiciary Committee.

Giuliani, in turn, is quoted as saying he wants to “start forensically examining the voting machines in Arizona,” part of his efforts to question the Biden victory and deny the Democrat Arizona’s 11 electoral votes.

Tully told Maricopa County Superior Court Judge Timothy Thomason said if that is the plan, it provides yet another reason for his client to refuse to turn over the requested information. He said it would violate both the state and federal constitutions and be an “improper legislative purpose.”

Tully also said the county has questions about whether the review the senators want of the equipment and voting materials will be conducted by people who are legally certified.

But attorney Kory Langhofer who is representing the senators, told Thomason to ignore those objections as “legally irrelevant.”

“That is not the county’s concern,” he said.

Langhofer said the only issue for the judge to decide is whether the legislature is entitled to demand the documents and whether Thomason will enforce that subpoena. What happens once the materials are in the hands of lawmakers — lawfully, Langhofer contends — is strictly a legislative concern.

Farnsworth, who was not at Monday’s hearing, later told Capitol Media Services that the whole purpose of the subpoenas is so legislators, who he said have absolute authority over elections, can examine the materials and determine if the results reported were accurate. He also said what lawmakers learn from their review can form the basis for proposed changes in state laws on how future elections are conducted.

“This issue that’s in court is not being coordinated at all with anybody on the outside, AZGOP, the Trump campaign or anyone else,” Farnsworth said

But the senator acknowledged that the Trump campaign — and in fact, everyone else — will be entitled to whatever final report is issued by the committee as that likely will be a public record.

It won’t, however, be Farnsworth who presides over issuing that report.

His term as a legislator ends at noon Jan. 11. At that point, current Rep. Warren Petersen moves to the Senate and becomes chair of the Judiciary Committee.

And Thomason has scheduled the next hearing for the middle of next week.

But even with a revamped panel, the legal fight over the legislature’s access remains.

The subpoenas issued last month demand access to copies of all of the early ballots cast in Maricopa County in the Nov. 3 general election, and for access to the equipment used to tabulate those ballots and the software that runs the equipment.

The county chose to sue rather than comply amid stated concerns that what was being demanded would expose private information on voters. They also raised questions about whether the county has the legal right to give that information to outsiders.

On Monday, Langhofer told Thomason there’s no reason the Senate should still be fighting for the materials.

“This lawsuit is an effort to delay compliance with a validly issued subpoena,” he said. Even now, Langhofer said, Tully wants another week to respond to the legal briefs.

“Meanwhile, they know the clock is ticking,” he said. And Langhofer said Tully, a former lawmaker himself, is aware that the new session begins Monday and that there already are multiple bills filed seeking to make changes in election laws and procedures.

On top of that is the fact that Congress meets on Wednesday to count the electoral votes with the threat by some federal lawmakers of not including the votes from Arizona amid questions of accuracy. And both state GOP legislators as well as Ward herself have tried to get what they say is evidence of misconduct and fraud in Arizona before Congress to fuel those efforts.

“They have already succeeded in running out the clock,” Langhofer said.

“It’s impossible for the legislature to issue a report to Congress saying ‘the results are, in fact, reliable’ or ‘we have concerns about them based on our audit,’ ” he said. “They’ve made that impossible already.”

And Langhofer told Thomason that if he orders the county to comply with the subpoenas the case will end up going to the state Court of Appeals and, ultimately, to the Arizona Supreme Court.

“This could drag on for many weeks, if not months,” he said.

Thomason said he is aware of the time constraints. But he also said that Tully is entitled to time not only to respond to the Senate’s latest filings but also to efforts by other parties to intervene in the case.

Attorneys clash in court over Cyber Ninja records

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bodney said there are reasons for him to do that.

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

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

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

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

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

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

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

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

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

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

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

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

Behind the Ballot: Riding the wave

Democrats are fielding a candidate in nearly every federal, statewide and legislative race this year, using a strategy of saturation that has been successful elsewhere.

But there’s no guarantee the much-anticipated “blue wave” will lead to victory in Arizona.

Still, novice candidates like Lynsey Robinson have learned one thing over the years – they’ll never know whether they can win if they don’t even try.

Robinson’s road to candidacy has not been easy. And she’s hoping her narrative will resonate with voters who share in her concerns for Arizona and the state of politics in the era of President Trump.

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

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

Bill gives wrongfully convicted new chance at freedom

Arizonans who contend they were wrongfully convicted could get a new way of trying to exonerate themselves.

Without dissent, members of the House Committee on Criminal Justice Reform approved legislation Wednesday that sets up procedures by which an inmate can seek forensic examination of items that were not tested at the time of the trial because the technology was not available at the time. SB1469, already approved by the Senate, now goes to the full House.

There is precedent for the proposal by Sen. Warren Petersen, R-Gilbert.

In 2010 lawmakers agreed to allow someone who has been convicted to ask a court to conduct DNA testing of evidence from a crime scene. That same law also allows a judge to put that evidence into a national database to see if there are any “hits.”

But Timothy Sparling with the Arizona Attorneys for Criminal Justice said that doesn’t cover a whole host of evidence that now can be examined with current technology, ranging from forensic analysis of fingerprints and hair to gunshot residue. And that, he told lawmakers, could provide new evidence that someone is wrongfully imprisoned.

The testing is not automatic.

First, an inmate would need to convince a court that there is a “reasonable probability” that the individual would not have been prosecuted or convicted if tests would have shown that person was not the guilty party. The court could appoint counsel for those who are indigent.

SB1469 also requires that the evidence still exists and is in a condition to allow the new forensic testing to be conducted.

Prosecutors would have an opportunity to object.

And if testing is ordered, who pays for it would be up to the court.

Hope DeLap of the Arizona Justice Project said the kind of testing that would be done here is the same that police already are using to solve “cold cases.” But in this situation, it could end up leading to someone’s exoneration.

She told lawmakers the change in law should not lead to a flood of requests.

DeLap estimated that her organization gets about 400 requests a year for help by inmates who say they were wrongfully convicted. That out of nearly 37,000 inmates behind bars in the state.

Beyond that, she said, the number of instances where the evidence remains available — and where it was not already examined — is even smaller.

Sparling is hoping for at least one change when the measure goes to the full House.

He pointed out that the bill, as worded, would allow testing only if the technology did not exist at the time. But Sparling said that leaves out cases where there was the technology but the testing was just not done.

Bill puts Arizona on track to end public financing of pro sports stadiums

Chase Field, home of the Arizona Diamondbacks and owned by the Maricopa County Stadium District. (Photo by Justin Emerson/Cronkite News)

Arizona is at the forefront of a new legislative effort to outlaw public dollars from financing private stadiums for professional sports teams.

Led by the conservative Americans for Prosperity, bills are being introduced at state capitols across the country to block money at the state and local levels from being used for new stadium construction, maintenance or promotions of existing facilities that house professional football, basketball, baseball and hockey teams or other non-amateur sporting events.

In Arizona, that would mean no public money for the possibly $187 million in stadium repairs the Arizona Diamondbacks are seeking for Chase Field. The team has threatened to leave if Maricopa County officials don’t provide money to repair a stadium they argue is deteriorating.

That’s exactly the sort of threat that Sen. Warren Petersen, R-Gilbert, wants to neuter.

Owners and league officials, whether it’s Major League Baseball, the National Football League or the National Hockey League, often leverage cities and states against each other, threatening to leave one in favor of another that offers more public financing to build newer facilities.

“You always have this argument that we have to subsidize because everybody else is subsidizing, and if we don’t subsidize then we don’t get any sports teams,” Petersen said. SB1453 and bills like it in other states take that negotiating tactic off the table, he said.

“You say, none of us, we all agree not to participate in these subsidies, and now you have a level playing field,” Petersen said.

Petersen noted that the bill does nothing to current agreed-to subsidies for stadiums, but would ban such agreements in the future.

Even if Petersen’s bill becomes law, it won’t take effect until at least 24 other states join the cause.

The bill – being circulated by Americans for Prosperity with the help of the American Legislative Exchange Council, a nonprofit that writes model Republican legislation – works as a compact between states.

“The goal is to get enough states to hold hands and move forward on this so that they can’t be picked off one-by-one by sweet-sounding offers from professional sports teams,” said Tom Jenney, senior legislative adviser for Americans for Prosperity Arizona.

Similar bills have also been introduced this year in Indiana, Virginia, Missouri and Florida, according to Eric Peterson, senior policy analyst for AFP.

AFP officials argue that building stadiums for privately-owned professional sports franchises isn’t a core function of government. And beyond that, they argue it’s not a good investment.

Peterson cited a 2015 study by the Mercatus Center at George Mason University, which found little evidence that building stadiums or arenas leads to significant economic benefits for the cities or states in which they’re built.

There’s a “cottage industry” of economists who try to convince governments of the benefits of a stadium or arena, Jenney said, but they don’t look at what would happen if taxes aren’t levied to help finance stadium subsidies, or what alternate uses a government may have for those dollars.

“If you look around the country, billions of dollars in public money has been spent on professional, private sports stadiums and facilities, and a huge amount of this money has been wasted, and the promises of economic development and economic activity are often overstated and they frequently never materialize,” Jenney said.

Petersen said SB1493 is scheduled to be heard in the Senate Commerce and Public Safety Committee on February 12.

Bisbee to AG: keep state’s nose out of bag ban

The Bisbee city attorney told Attorney General Mark Brnovich Tuesday that his community’s regulations on plastic bags are none of the state’s business.

In a sometimes sharp worded letter, Britt Hanson detailed the city’s problem with blowing bags and the eyesore and expense they caused prior to adoption of a 2013 ordinance. That law prohibits retailers from providing free single-use plastic bags to customers; paper bags from recycled material can be provided with retailers required to charge a nickel.

The result, he said, has been a cleaner community and lower costs for retailers.

Hanson said there was no reason for the Legislature to approve a 2016 law preempting local governments from regulating these bags. In fact, he took a slap at those lawmakers who voted for the law to overturn the Bisbee ordinance without ever having actually been to the community.

“Although the law prohibiting Bisbee from banning plastic bags declares that it is a matter of statewide concern, it doesn’t say what that concern is,” he told Brnovich. And without any legal basis, Hanson said that law cannot be used to force Bisbee to scrap its ordinance.

The letter sends the issue back to Brnovich who had gotten a complaint last month from Sen. Warren Petersen, R-Gilbert, accusing the city of violating the preemption law he had pushed through the Legislature.

A separate 2016 law requires Brnovich to investigate any legislator’s complaint that any city ordinance runs afoul of state laws. If he determines a city is acting illegally, he must move to withhold that community’s state aid.

There was no immediate comment from the Attorney General’s Office to Hanson’s letter.

Brnovich recently got the Arizona Supreme Court to rule that state laws prohibiting city ordinances dealing with weapons overruled Tucson’s right to order the destruction of guns which had been seized by or surrendered to police.

But Hanson, in his letter to Brnovich, said the Bisbee ordinance is different. He said the only basis cited for Petersen’s preemption was language added to the bill claiming that small businesses are sensitive to costs of local regulation and that allowing cities to each have their own laws “hinders a small business from benefiting from free and open competition.”

Hanson sniffed at that excuse.

“You would be hard pressed in the legislative proceedings of either the House or Senate to find any testimony or alleged facts on which to base such findings,” he told Brnovich. And he said no lawmaker ever even asked about the Bisbee ordinance already in existence that they were moving to quash.

“If they had, they would have found that Bisbee’s retailers have embraced it,” Hanson said. He attached a letter from Pam Rodriguez, the owner of Acacia on Main Street, who said she is saving between $500 and $600 a year on bags.

And he said that Safeway, the city’s largest retailer, provided the language for the model ordinance on which Bisbee’s regulation is based.

“Just because the Legislature decrees something is ‘statewide concern’ … does not mean it overrides the local concern,” Hanson said.

That goes to Hanson’s main argument that there is no basis for lawmakers saying they know what’s best for Bisbee and other local communities.

“If the businesses in Bisbee that the Legislature is supposedly protecting with HB 2131 have no issue with the bag ban, does the state really have an interest in prohibiting Bisbee from doing so?” he asked. “And really, who should decide how best to combat Bisbee’s blight and litter: the citizens of Bisbee and their representatives, or state legislators most of whom probably have never even visited Bisbee and have no clue as to its local concerns?”

That, however, still leaves the legal question of how far cities can go in enacting their own rules when state lawmakers say otherwise.

Hanson pointed out that Bisbee is one of 19 cities that has taken advantage of a state constitutional provision allowing it to have its own charter. Those cities have generally been empowered to write their own ordinances on matter of strictly local concern, regardless of conflicting state statutes.

For example, the Arizona Supreme Court has upheld the ability of charter cities to decide how to elect members of their councils and on what days to have those elections despite legislation to the contrary.

But in its August ruling on the Tucson gun ordinance, the justices unanimously concluded that charter provisions and the law enacted by charter cities must be consistent with both the Arizona Constitution and general state laws.

Hanson conceded the breadth of that ruling. But he told Brnovich — and essentially prepped for what could be his argument to the Supreme Court if Brnovich sues — that it makes no legal or logical sense to have a blanket rule that lawmakers can do whatever they want to cities.

“If Bisbee’s exercise of its charter powers to eliminate local litter and blight can’t survive, it’s hard to imagine what possible could,” he wrote.

“The notion of charter cities would become a joke,” Hanson continued. “The Legislature could crush any independence of charter cities, and thus override the (Arizona) Constitution, simply by declaring anything to be a matter of statewide interest, as they have attempted to do here.”

Borrelli badgers woman over ballots, ridicules Republicans

File photo of Rep. Sonny Borrelli, R-Lake Havasu City (Cronkite News Service Photo by Jessica Boehm)

The Arizona Senate’s Republican whip attempted to pressure a woman who went dumpster-diving for ballots into handing documents she found over to him instead of law enforcement and implied both of them could be killed for trying to expose fraud.

During the 30-minute conversation, a recording of which was shared with the Arizona Capitol Times, Borrelli called multiple other Republican politicians “corrupt cowards,” said he was the sole senator pushing to investigate the 2020 election and repeatedly told Staci Burk, a plaintiff in an losing lawsuit to overturn election results, that she could be arrested or killed.

“I might get arrested or whatever,” Borrelli said. “I’m going to get ridiculed in the press. I don’t give a damn. I wanna save this fricking country.”

Over the weekend, Burk posted photos of two men, one of whom has since been identified as Vietnam veteran Earl Shafer, climbing into a set of dumpsters outside the Maricopa County elections department, removing a yellow trash bag of shredded paper and piecing together documents that appeared to be completed 2020 ballots.

Maricopa County Recorder Stephen Richer said the county’s 2.1 million completed 2020 ballots were still locked in a vault, as required by state law, adding that the shredded papers could have been ballots cast by deceased voters.

“I have no explanation for how a voted ballot could be there and we do not believe there were voted ballots in there,” he said. “We’re 100 percent confident that they’re not part of the 2.1 million voted ballots.”

Upon learning about the incident — which was first published in right-wing websites that did not give the county a chance to respond — the Attorney General’s Office tried contacting Burk and Shafer to obtain the shredded papers. So far, they have not handed over the documents, a spokesman said.

Borrelli did not return multiple phone calls about the recording.

Burk, after speaking to Borrelli, created a GoFundMe account asking for $20,000 to cover her legal costs and saying senators warned her that she would be killed or arrested on false charges. So far, she has raised just $200.

Burk is also self-funding a lawsuit against Gov. Doug Ducey, Secretary of State Katie Hobbs, all five Maricopa County supervisors and former Maricopa County Recorder Adrian Fontes. Her lawsuit, dubbed the “Arizona Kraken 2.0” made claims that ballots were delivered from South Korea.

A Pinal County judge threw out her lawsuit because Burk was not a registered voter. It’s pending appeal to the Arizona Supreme Court.

During their call, Borrelli repeatedly warned Burk that she was in danger. Arizona is the “domino” that will expose corruption across the country and overturn the election, he insisted.

“This is so high level that they want this to go away,” he said. “They can try to silence you – you’re a private citizen. They can’t do anything to me. They can bully me all they want but they know they can’t take me out except if they whack me or I have a suicide.”

“If anything fricking happened to me, if I got hurt, if I got killed, this whole thing would go away because there’s nobody in the Senate that would push,” he added.

During the call, Borrelli called multiple fellow Republicans, including the Maricopa County Board of Supervisors and new county recorder Stephen Richer “corrupt cowards,” said he was “really disappointed” in former lawmaker and new Maricopa County treasurer John Allen.

He also mentioned Senate Judiciary Committee chairman Warren Petersen, R-Gilbert, and criticized Sen. Paul Boyer, R-Glendale.

“Warren? Heh. I don’t want to go on and on about Warren. He’s the chairman of the judiciary committee, he inherited this and he reluctantly got involved.” Borrelli said.

It was Boyer’s “no” vote on a contempt resolution that stopped the Senate from sending its sergeant at arms to arrest the county supervisors for not turning over ballots and election equipment they contended they could not legally provide.

“He stabbed us all in the back,” he said.

And he let his feelings known about the Maricopa County supervisors, who fought the senate subpoenas.

“They’re the corrupt bastards that I want to go — I want them in freaking jail,” Borrelli said. “I want them in jail, you have no idea how much.”

He also repeatedly claimed that Attorney General Mark Brnovich, also a Republican, would let the election materials “evaporate” if Burk shared them.

“Do you turn it over to the attorney general that’s been turning his back and not lifting a finger?” Borrelli asked. “By the way, they probably have an incentive to make it all go away. I don’t.”

Later in the conversation, he said he couldn’t get other senators, including Senate President Karen Fann, to commit to investigating and protecting Burk as a whistleblower.

“I don’t trust any of those people,” he said. “The reason why we are where we are is because I’ve been a pain in the ass in the Senate and wasn’t going to let this go. Trust me, there are people who would fold like a lawn chair if I let this go.”

Borrelli said he has been in touch with Sidney Powell and Kurt Olsen, two attorneys who worked on multiple lawsuits filed by Trump allies trying to overturn election results. Olsen told him about new technology that would piece together shredded documents, which Borrelli compared to Iranian rugmakers reassembling shredded CIA documents after seizing the U.S. embassy in Tehran in 1979.

At other points in the conversation, Borrelli lost his temper with Burk, who insisted that the Senate wouldn’t do anything to help her and claimed to have heard two weeks before the Senate’s failed contempt vote — and therefore more than a week before the Senate drafted its contempt resolution — that lawmakers had a secret meeting in which they decided to stage a 15-15 vote.

“You don’t think this is part of a cover-up?” Borrelli asked her at one point.

“Oh, I think it’s a cover-up,” she responded. “But I think the whole legislature is involved.”

Borrelli has insisted that the election was fraudulent since early November. On Nov. 10, he caused callers from across the country to flood a fellow senator’s legislative office, campaign phone number and personal cell phone with irate messages interrogating whether his race was proof of fraud — all because incumbent Republican Sen. J.D. Mesnard won his East Valley swing district when Trump lost it.

More recently, he has made multiple appearances on conservative podcasts and radio shows complaining that Boyer “betrayed the caucus,” contributing to a rash of threats against Boyer that got so bad he briefly moved his family out of their home.

Borrelli’s comments also run in opposition to what other Senate Republicans have tried hard to argue: that their attempts to audit the 2020 election have nothing to do with changing the results.

Senate Majority Leader Rick Gray said in a floor speech he and others were never trying to overturn the election. The Peoria Republican said he was “inundated with people’s input” and it was mostly about an audit.

“You didn’t see any of us trying to change electors,” Gray said on Feb. 4.

Fontes, the former Democratic Maricopa County recorder who lost his re-election bid, said Borrelli should apologize.

“Mr. Borrelli’s suicide jokes during this incredibly stressful pandemic are irresponsible and lack the maturity, empathy and leadership we should expect from our public officials,” he said.

Boyer kills Senate bid to force supervisors to comply with subpoenas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

County election equipment deemed free of tampering

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

An audit of the Maricopa County voting equipment came up absolutely clean according to county officials.

But it’s not going to deter the demands by Republican senators to conduct their own review and get a court order to enforce their own subpoena. In fact, the lawmakers are going back to court Feb. 25 in their bid to get access to the equipment, the software — and the actual ballots.

The county report, released Tuesday, concluded that there was no evidence that:

– Votes were switched from one candidate to another;

– Equipment was using modified software;

– Voting machines were connected to the internet;

– Malicious software or hardware had been installed on tabulators or the system.

“These audits are an affirmation for everyone’s hard work and prove what my colleagues and I have been saying all along: Our elections were run with integrity and the results we canvassed were accurate,” said Supervisor Clint Hickman, one of four Republicans on the board.

Steve Gallardo, the lone Democrat supervisor, agreed.

“The audits clearly dispel the notion that somehow the November election was rigged,” he said.

The results of the audits — three of the four areas were reviewed separately by two different companies — come just days before the supervisors face off in court again with the Senate.

Attorneys for lawmakers contend they are entitled to have their own auditors have access not only to the equipment but also the 2.1 million ballots actually cast.

So far, though, their efforts have failed. And on Feb. 25, attorneys for the county will ask Maricopa County Superior Court Judge Timothy Thomasson to quash the legislative subpoenas and permanently bar Senate President Karen Fann and Sen. Warren Petersen, who chairs the Senate Judiciary Committee, from taking any further action to enforce their subpoena.

All this is part of the leftovers from allegations that the returns reported from the Nov. 3 election were inaccurate and that Donald Trump actually won Arizona and should have received the state’s 11 electoral votes.

A series of lawsuit complaining of everything from improper procedures and the use of wrong marking pens to outright fraud all have so far been rejected by courts. And at this point the issue is legally moot as Joe Biden has been sworn in as president.

But Fann told Capitol Media Services more needs to be done.

“When there are this many questions that people are questioning our electoral system, I think we owe it to them to say ‘We’re going to get those answers for you, and we’re going to show that our system is good and secure,’ ” she said. “And if we find any irregularities, we are going to prove to you that we’re going to fix those irregularities.”

More to the point, Fann said, what the county performed doesn’t get to those questions.

Some of it, she said, is because the companies they hired are not certified forensic auditors.

Beyond that, Fann said there are other questions that the audit never addressed.

“I do know that they did not do an in-depth forensic audit enough to help us figure out how many mail-out ballots went out to people that do not live in Arizona any more,” she said. Then there are allegations about ballots that went to dead people or a large number of ballots showing up at a house where only two people live.

All that, Fann said, leads to questions about what happened to all those ballots.

But a key point in what Fann and her colleagues want is access to the actual ballots to determine if the count reported actually matches the votes counted.

A Dominion Voting ballot scanner is delivered to a polling location in Gwinnett County, Ga. outside of Atlanta on Monday, Jan. 4, 2021, in advance of the Senate runoff election. (AP Photo/Ben Gray)

The audit done for the county does look at some of that — but only indirectly.

Auditors from Pro V & V looked at the question of whether the Dominion Voting Systems equipment or software was switching votes from one candidate to another, one of the charges leveled by Trump supporters, using what a “test deck” of ballots pre-marked with known results. All totaled, they said the tally of more than 1.5 million specific ballot positions came out 100% accurate.

Only thing is, these were not the actual ballots voted in November, in keeping with the county’s position that they have to be locked up.

The audit produced other results.

Pro V & V and SLI Compliance, the other firm hired by the county, also said they looked for evidence that the tabulation system was transmitting information outside what they said was an “air-gapped system” within the county. They said they found no issues.

Both also conducted what they called a “full forensic clone” of the hard drive on the equipment which allowed them to examine not just what was there but also look for evidence of deleted files or hidden data. Here, too, they said they found no issues.

All that, however, is not good enough as far as the Senate is concerned. And Fann said the only way the questions of constituents will be answered is if there is an actual examination of the equipment and the ballots by someone chosen by the Senate.

Whether lawmakers are entitled to that is exactly what Thomasson is being asked to decide.

The county’s refusal to turn over access is based on several arguments.

“The (Arizona) Constitution commands that ballots be kept secret,” attorney Steve Tully who represents the county told Thomasson in his legal filings. And he said Arizona law spells out that after the formal canvass of votes, the ballots are put into an envelope and kept unopened for up to 24 months, after which they must be destroyed.

None of this has stopped the Senate from issuing a subpoena for access to them.

But Tully said subpoenas are permissible only when there has been a vote of the full Senate to investigate the 2020 general election. That, he said, did not occur.

Instead, he said, the subpoenas all result from “months of conspiracy theories rejected by the courts and debunked by the press.”

There are provisions for a judge to decide whether to enforce a subpoena. But he said that first requires a vote of the Senate to hold the supervisors in contempt.

But that failed when Sen. Paul Boyer, R-Glendale, refused to go along with his GOP colleagues.

County supervisors to approve audits of election equipment

Maricopa County elections officials count ballots behind boxes of counted ballots, Wednesday, Nov. 4, 2020, at the Maricopa County Recorders Office in Phoenix. (AP Photo/Matt York)

Maricopa County supervisors are set to approve two separate audits of election equipment Wednesday in a bid to satisfy questions about security and the 2020 results — and avoid further litigation with the state Senate.

Chairman Jack Sellers said Tuesday he still believes that the tally showing more votes for Joe Biden than Donald Trump correct. He said that was shown through a series of court rulings and a statutorily required hand count of a sample.

“However, a significant number of voters want the additional assurance that a full forensic audit of election tabulation equipment might bring, especially given all the misinformation that spread following the Nov. 3 general election,” Sellers said. So the board will vote on Wednesday to authorize two audits.

“It is my belief these audits will prove our machines were not vulnerable to hacking or vote switching,” he said.

But Senate President Karen Fann acknowledged that may not be enough to satisfy legislators who believe the November election was rigged.

Several senators told Capitol Media Services they’re not convinced that an audit supervised by the county will be adequate.

“The Senate is moving forward with our own audit,” said Sen. Kelly Townsend, R-Mesa, one of the Arizona legislators who has expressed doubt about the reported election returns. And Sen. Warren Petersen, R-Gilbert, said the Senate still intends to do its own examination.

In both cases, they said that was being done with Fann’s approval.

Fann, however, said it’s yet to be determined whether the Senate will do its own review. She wants to see exactly what the supervisors approve and the extent of the proposed audit.

“I’m waiting for a copy of that so I can see if that scope is everything that we were looking for,” she told Capitol Media Services.

“And if it is, great,” she said. “And if it’s not, we’ll have to have a conversation about what do we need to do to make sure we can truly put this thing to bed and answer all of these questions that so many of our constituents have.”

Some Republicans have raised questions about the results of the presidential race where Democrat Joe Biden got Arizona’s 11 electoral votes by beating incumbent Republican Donald Trump by 10,457 votes statewide.

The focus has been primarily on Maricopa County where Biden beat Trump by 45,109 votes, with many of the attacks based on unproven allegations that the Dominion Voting Systems hardware and software used there was either programmed or hacked in a way to move Trump votes into Biden’s column.

Several lawsuits challenging the results were thrown out.

One challenge filed in federal court resulted in a ruling by U.S. District Court Judge Diane Humetewa that “the allegations they put forth to support their claims of fraud fail in their particularity and plausibility.” And a different state court judge tossed out a separate claim of irregularities after a random review of early ballots found the error rate was so small that it would not have changed the outcome of the vote.

That did not satisfy some lawmakers, with the Senate issuing a pair of subpoenas demanding access to everything from the raw ballots to access to the voting equipment. That landed the parties in court as the Senate sought to enforce those subpoenas and attorneys for the county argued that it would violate the law to give legislators access to everything they want.

Both sides agreed last week to shelve the litigation and see what they can work out.

What the supervisors are supposed to vote on Wednesday is designed to address that, but without losing control of the documents and the machinery.
“We are going to send an invite to the Senate and ask them to participate and give us feedback,” said County Supervisor Steve Gallardo.

“We’re doing one audit,” he said. “But in terms of us turning over ballots and turning over machines, it ain’t happening.”

Fann said that, for the moment, she’s satisfied with what the county is proposing without the need for the Senate to do its own audit.

“The whole reason we’re doing this is to reinstill voter integrity and confidence,” she said. “And so we have to make sure we do it right, do it independently, so that voters — hopefully 95% of them — will say, ‘Yes, you have proven to us that it was done correctly and you have answered our questions.’ ”

A draft of the proposal before the supervisors shows a multi-pronged approach.

First, it would determine that the county’s tabulation equipment is state and federally certified. There also would be a check for malware on the system and a verification that the tabulation equipment was not connected to the internet during the general election.

Second is a “logic and accuracy” test to verify that the results being reported by the machinery match the votes on the submitted paper ballots. There were similar tests already performed before and after the November election.

Finally, auditors would verify that the Dominion software was leased according to state and county procurement regulations.

Fann said she has been doing extensive research on what it takes to verify accuracy of election equipment, even reaching out to her counterpart in Georgia, another state where the results for Biden were questioned, to determine how they verified the results there.

The Senate president acknowledged that goal of satisfying 95% of voters is probably the best that can be hoped for.

“You know, in this world not 100% of people agree on everything,” she said.

“If it comes back that there are no problems, I’m going to have 5% that said, ‘I don’t believe that,’ ” Fann explained. “And if it comes back and there are problems, I’m going to have at least 5% that come back and say, ‘I don’t believe that.’ ”

Gallardo said he and his colleagues are willing to contract with outsiders for the audit if it will reinforce voter confidence and blunt the criticism of GOP legislators who have made repeat allegations of fraud and misconduct.

“I think it’s upon us to really push back to show that, no, our system is secure, it’s accurate, it’s safe,” he said.

“We had a good system, we had a great election,” Gallardo continued. “I’m sorry they don’t like the results of it but, nonetheless, the results are what the results are.”

County: Senate making ‘mockery’ of audit

Maricopa County Supervisor Bill Gates, surrounded by other county elected officials, explains why he believes the results of the 2020 election were correct and everything else pushes "the Big Lie." (Photo by Howard Fischer/Capitol Media Services) — Maricopa County Supervisor Bill Gates, surrounded by other county elected officials, explains why he believes the results of the 2020 election were correct and everything else pushes “the Big Lie.” (Photo by Howard Fischer/Capitol Media Services)

Maricopa County supervisors on Monday accused Senate President Karen Fann, of allowing a “mockery” to be made of the election process with her audit.

On one hand, the board and County Recorder Stephen Richer prepared a 14-page letter responding to specific questions — they called them accusations — about everything from handling of the ballots to whether a database had been deleted after the election but before files were delivered to Senate-hired auditors. In each case, they said either that the information is false or that they cannot or will not provide what she wants.

But, one by one, each official lashed out at Fann and the Senate for perpetuating what several said amounts to a hoax on the public. And they said she has effectively given over the Senate’s powers to Cyber Ninjas, an outside group that not only has no election audit experience but is now using it to raise money.

And if the message of Monday’s meeting is lost on Fann and other senators, board Chairman Jack Sellers put it succinctly.

“As chairman of this board, I want to make it clear: I will not be responding to any more requests from this sham process,” he said.

“Finish what you’re calling an ‘audit,’ ” Sellers continued. “Be ready to defend your report in a court of law.”

In doing so, Sellers and the Republican-dominated board confirmed what had pretty much been clear since last week; Board members will not show up at the Senate Tuesday, as requested by Fann, for a televised question-and-answer session with her, Sen. Warren Petersen, R-Gilbert, who chairs the Senate Judiciary Committee, and Ken Bennett, a former secretary of state who Fann tapped to be her liaison with the outside contractors.

In fact, Supervisor Bill Gates said there’s good reason to stay away.

“This board was going to be part of a political theater broadcast on livestream on OAN,” he said, a reference to One America News Network, a pro-Trump cable news outlet which not only has fueled the theories that somehow the former president did not lose the election but also is helping to raise money to fund what is supposed to be an official, government-conducted audit.

Monday’s response now leaves it up to Fann on how to respond.

The Senate has gone to court before to force the supervisors to surrender the 2.1 million ballots and the election equipment. But a maneuver to actually hold the supervisors in contempt — a move that could have allowed the Senate sergeant-at-arms to take supervisors into custody — failed when Sen. Paul Boyer, R-Glendale, refused to go along with his other 15 GOP colleagues.

Boyer in recent days has indicated even more hesitancy about pursuing the issue. And Richer, a Republican like Fann and the majority of the Senate, said he thinks the tide is turning.

“I guarantee you, there are Republicans in the state Senate … that do not believe a word of it,” he said.

And with Democrats firmly against the whole process, that could leave Fann with few options to force further compliance.

There was no immediate response from the Senate president as to what, if anything, she intends to do now.

Political charges aside, there was a response to what Fann asked.

For example, Fann — working with questions provided to her by Cyber Ninjas — said there are “a significant number of instances in which there is a disparity between the actual number of ballots contained in a batch and the total denoted on the pink report slip accompanying the batch.”

“They don’t know how to read transmission slips,” Richer said of the auditors.

For example, he said some ballots out of any batch of 200 might be pulled out because they can’t be read by the tabulators. And that, said Richer, creates a duplicate ballot.

As to claims of deleted databases, he said “that’s just fundamentally not true.”

“If they were professional, certified auditors they wouldn’t be asking those questions,” Sellers said.

Ditto, Richer said, about the demand for the county’s routers, the computer equipment that acts like traffic directors for data between computers.

“We do not know why Cyber Ninjas would need the routers, as they have no election information,” Richer said. Aside from the $6 million cost of pulling them out and putting in temporary replacements, he said Sheriff Paul Penzone is concerned that what is on them could provide a “blueprint” of computers used by law enforcement that could allow someone to compromise the system.

Richer also said that Cyber Ninjas has no need for internal passwords to get at the source code for the tallying machines. Anyway, he said, that information belongs to Dominion Voting Systems. And he said Dominion gave them directly to the two certified auditors the county hired — again, Cyber Ninjas is not — and does not share them with election officials.

Sellers said he sees a pattern in the requests.

“It’s become clear that some of these people are only going to be happy when they get the results they want,” he said — meaning a finding that somehow Trump won the election, regardless of whether there is actual evidence to back that up.

Gates said it is possible that the Senate at one time had a legitimate reason to review the ballots and equipment. He noted that Fann said the whole purpose was to review the process and determine whether changes are needed in state laws on how elections are run.

But Gates said that stopped being the driving force long ago now that “outside forces” have taken control. That, he said, has become obvious because everyone admits the audit can’t be completed for the $150,000 the Senate allocated.

“Tell us where the money is coming from,” Gates said. So far, though, neither Cyber Ninjas nor Bennett has provided details. And Fann, who is supposed to be in charge, said she doesn’t know.

Gates acknowledged that he and his GOP colleagues are in some ways bucking the partisan tide.

“We recognize … that a large percentage of Republicans believe that the election was stolen in 2020 and that Donald Trump actually won,” he said. But Gates said he does not share that belief.

“And the reason that I feel confident in saying that, particularly in Maricopa County, is that we overturned every stone,” he said. “We asked the difficult questions.”

Now, said Gates, is the time to say that enough is enough.

“It is time to push back on the Big Lie,” he said. “Otherwise we are not going to be able to move forward and have an election in 2022 that we can all believe the results, whatever they may be.”

Richer said there’s another reason people should believe his assurances that the 2020 results are accurate.

He pointed out that he wasn’t even running the office at that time. Richer took over in January after defeating Democrat Adrian Fontes who did run the election.

“Why would I stand here beside these gentlemen to say, ‘It was a good election’ if it wasn’t?” he asked.

“Why wouldn’t I just throw the guy that I spent the past 12 months criticizing, Adrian Fontes, under the bus and say, ‘Don’t worry, there’s a new sheriff in town’ ”? Richer continued. “So it’s just facially asinine.”

Court considers Senate records dispute

Arizona Senate Republicans hold a hearing review of the 2020 presidential election results in Maricopa County at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

An attorney for the Senate warned the Court of Appeals Wednesday that if the judges force public disclosure of records related to the audit of the 2020 election it will undermine the ability of lawmakers to do their jobs.

Kory Langhofer told the court it should void a ruling by Maricopa County Superior Court Judge Michael Kemp who rejected broad claims that “legislative privilege” shields communications between and among Republican lawmakers and others involved in what was billed as a “forensic audit” of the election results.

Langhofer argued that it would open up to public scrutiny the discussions that lawmakers had about the audit. And that, he said, would undermine what he said is a constitutional recognition that legislators are entitled to have private conversations and communications because that is part of their job.

But attorney Keith Beauchamp said the flaw in Langhofer’s argument is that the records he is seeking on behalf of American Oversight — the ones that the Senate has refused to disclose — have nothing to do with the role of legislators in crafting laws.

He said the record shows that Senate President Karen Fann, R-Prescott, said she ordered the audit and contracted with Cyber Ninjas not to consider proposed new laws.

Instead, Beauchamp said, Fann said she was responding to concerns of Arizona residents about the accuracy of the tally where Democrat Joe Biden outpolled incumbent Donald Trump in Maricopa County. That margin of victory in the state’s largest county was enough to give the state’s popular vote — and its 11 electors — to Biden.

More to the point, Beauchamp said, is that the audit was not part of some investigation launched by lawmakers to review the adequacy of state election laws or craft new ones.

Even after it was produced, Fann turned it over to Attorney General Mark Brnovich to see if any existing laws had been broken. And it was only at that point, Beauchamp said — after the audit was produced and after all of the communications sought by American Oversight — that there was a discussion of whether existing statutes need to be amended.

Beauchamp told the judges there is a role for legislative privilege. For example, he said if Fann now wants to communicate with colleagues about changes to state law based on audit findings, that would be protected.

But what’s at issue here, he said, are the communications that Fann and others had with Cyber Ninjas and others both in deciding to conduct the audit and then on how the review was being done. None of that, Beauchamp said, is related to the business of legislators, which is crafting laws.

“They can’t make a showing that there was any deliberative or communicative process underway, much less of any impairment of that process,” he said.

Hanging in the balance are perhaps tens of thousands of emails, texts and other documents possessed not only by the Senate itself but also those in the possession of Cyber Ninjas, the private firm Fann retained to conduct the review.

In his earlier ruling, Kemp acknowledged that lawmakers are entitled to certain constitutional protections. He said that is part of ensuring that the “deliberative and communicative process” about proposed laws or other matters within the jurisdiction of lawmakers is not impaired by public disclosure of their deliberations.

The problem, said Kemp, is the Senate wants to extend that to all the communications involving Fann, Sen. Warren Petersen who chairs the Judiciary Committee, the liaisons Fann chose to interact with Cyber Ninjas and even communications with that company and its own sub vendors. And none of that, he said was “an integral part of deliberations or communications regarding proposed legislation.”

“Under such an expansive view there are few activities in which a legislator engages that could not be somehow related to the legislative process,” the judge said. “And the privilege does not extend to all things in any way related to the legislative process.”

Langhofer told the appellate court Wednesday that Kemp was off base in saying that only communications related directly to proposed legislation are exempt from the state’s public records law. The key, he said, is whether public disclosure would impair the ability of the legislature to do its job. That, Langhofer said, includes “the chilling effect that would have on the body.”

And he told the judges that upholding what Kemp ruled and accepting his narrow definition of what lawmakers can keep secret would not be fair.

“That dismissive approach to privilege is not consistent with the way the judiciary has treated its own privilege or executive privilege,” he said. “And these exist for a reason: to encourage candor and, frankly, improved results in what is supposed to be a deliberative body.”

Beauchamp, for his part, said any effort to shield all those documents the Senate does not want to disclose ignores the fact that they are public records.

“There’s no dispute about it,” he said. “There’s a strong public policy favoring disclosure of records.

And when there’s a dispute about whether something can be withheld, Beauchamp said the burden is on the agency holding the records to prove that they are exempt from being made public, not on the person seeking the documents to prove they are public.

“And here, the public’s right to know under the public records law to know what their legislators are up to would be restricted by a broad application of legislative privilege,” Beauchamp said.

More to the point, he said if there is a dispute the court has to weigh the interests of the public against claims of privilege.

Beauchamp told the appellate judges there’s another reason they should reject the Senate’s bid to shield the documents from public view. He said that the Senate, having not only conducted the audit but having a public hearing on the results, waived any claims of privilege.

Whatever the court rules is likely to affect not just the bid by American Oversight for the records but parallel litigation being pursued by Phoenix Newspapers Inc., the owners of the Arizona Republic.

In that case, Maricopa County Superior Court Judge John Hannah also rejected Langhofer’s claim that the documents are subject to disclosure.

“The legislative privilege does not apply to everything a legislator says or does that is somehow related to the legislative process,” Hannah wrote. “The shield extends only as far as necessary to preserve the integrity of the legislative process.”

And Hannah, like Kemp, said it isn’t up to lawmakers to determine which of their own records are public and which they can withhold.

“The courts, not current members of the legislature, are responsible for defining the scope of legislative privilege by balancing the public interest in legislator confidentiality against the robust disclosure policy of the public records law,” Hannah wrote. And he said that in close or doubtful situations, “the public records law prioritizes public access over legislative secrecy.”

The judges gave no indication when they will rule.

Court reluctant to enforce Senate subpoenas

Jack Sellers, left, chairman of the Maricopa County Board of Supervisors, and Deputy County Attorney Tom Liddy show up at the Senate Wednesday morning after getting less than 24 hours to respond to a new subpoena which Liddy is holding demanding a trove of documents and access to voting equipment. They brought none of that along as litigation continues. (Capitol Media Services photo by Howard Fischer)

State senators won’t get the trove of election materials they are demanding, at least not yet – if ever.

Maricopa County Superior Court Judge Timothy Thomason said January 13 that it appears the original subpoenas issued by Senate President Karen Fann and then-Sen. Eddie Farnsworth, R-Gilbert, are probably moot. That’s because they were issued in December as part of the 54th legislative session which technically ceased to exist on January 11.

In fact, Farnsworth is no longer a state senator.

But Thomason noted that Fann and Sen. Warren Petersen, who succeeded Farnsworth as chair of the Judiciary Committee in the new 55th legislative session, issued a new subpoena on January 12 demanding not just the same documents but even more, including access to “all original paper ballots.” And the subpoena wants access to the county’s voting equipment and software.

Jack Sellers, the new chairman of the Maricopa County Board of Supervisors, did show up at 9 a.m. January 13, at the Senate, as the new subpoena ordered. So did newly elected County Recorder Stephen Richer and new County Treasurer John Allen.

But they brought none of the materials with them.

Thomason said that new subpoena likely requires the county to file new legal briefs. And he set a hearing for January 20 to consider the matter, saying he hopes the two sides can work things out.

But the prospects of that happening are unclear.

The big problem for the Senate could be convincing the judge he actually has the authority – and should – order the county to comply.

“If timing is an issue, why can’t the senators simply enforce their own subpoenas?” Thomason asked. “They have the statutory power to do that.”

“They can,” conceded Kory Langhofer who is representing the Senate. “And I will tell you, there’s a real possibility of that.”

That, however, raises different legal and practical issues.

State law empowers either the House or Senate to hold someone in contempt. But that requires a vote of the full chamber, meaning that it would take all 16 Republican senators to go along if Democrats refuse to support the move.

If they can get a contempt vote, the law allows the Senate president to send out the sergeant-at-arms to physically arrest the person who has refused to comply.

In fact, disobeying a subpoena is as crime.

But even with that, it still doesn’t guarantee the Senate actually would get what it wants, even if someone is jailed. That’s why Langhofer wants Thomason to order the county to comply.

Thomason, however, notes that Langhofer is relying on a section of Arizona law that allows a public officer “authorized by law” to issue subpoenas and demand production of evidence. That same law allows the official to then ask a judge to intercede to compel compliance.

Only thing is, Thomason said he’s not necessarily convinced that applies to legislative subpoenas or that he has the power to enforce them.

Legal authority aside, Steve Tully, who represents the county supervisors, told Thomason they still believe there is no “valid legislative purpose” behind the subpoenas and the whole Senate inquiry.

Langhofer acknowledged that one reason for the original subpoenas – there were two at the time – was to audit the equipment to send information to Congress ahead of its January 6 vote on whether to certify the results from Arizona giving the state’s 11 electoral votes to Joe Biden.

“That’s water under the bridge,” Langhofer said, given that Congress did accept the Arizona results and Biden will be sworn in January 20.

But Langhofer said that’s not the end of the discussion.

“Always, separate from that, was an independent reason of performing their oversight function to see how elections in the state were run and whether additional legislation is necessary,” he told Thomason.

Langhofer said lawmakers want to see what happened to determine if there are changes needed in state election laws, something that is strictly the purview of the Legislature.

For example, he said lawmakers want to know if there were tabulation errors, unlawful ballots cast or security vulnerabilities in voting devices.

“Could legislative reforms decrease the risk of mistakes or anomalies in future elections?” Langhofer asked in a separate legal filing. “Is the Maricopa County Board of Supervisors a competent administrator of elections in Arizona’s most populous county, or should the Legislature consider assigning these vital responsibilities to a more qualified regulatory authority?”

Tully, however, said the Legislature tipped its hand when it admitted it wanted the materials and access to the equipment to see if it could affect the outcome of the vote.

“He issued those subpoenas to audit the election,” Tully said of Farnsworth. “And that is not a legal power that is granted to the chairman.”

Beyond that, there are legal questions.

Deputy County Attorney Tom Liddy said one of these involves the security of those 2.1 million actual original paper ballots. He told the judge they can’t simply be turned over to senators as there are legal constraints on who has access to them.

There also is the issue of who will be doing the examination of the voting equipment.

The new subpoena, served on the supervisors, the county recorder and the county treasurer at 4:10 p.m. on January 12, “commanded” that they appear at the Senate by 9 a.m. January 13, and provide the materials sought as well as provide testimony to the Judiciary Committee.

That 9 a.m. deadline also was the time that the hearing before Thomason began two miles away.

“That’s bush league,” said Liddy.

Only thing is, there was no meeting of the committee on January 13.

“Either they don’t know what they’re doing or somebody’s playing games,” said Liddy. But he said the officials showed up because “we respect the power of the Senate.”

What resulted, Liddy said, was a brief meeting with Senate staffers – and no questions.

Dem election plan puts candidate in nearly every race

Queen Creek resident Lynsey Robinson has hit many roadblocks on her way to becoming a Democratic candidate for the House in Legislative District 12.

Robinson, 41, came to the United States from Haiti in 1985 on a visitor visa with her grandfather. However, the pair, who were visiting Robinson’s aunt in New York for the summer, overstayed their three-month visas after her grandfather became sick.

When the grandfather died, Robinson, who was 8 at the time, said her parents and her aunt debated sending her back to Port-au-Prince, Haiti’s capital, but instead her aunt took her in.

The decision opened up doors for Robinson that she said she may have never had back home. But without permanent legal status in the United States for nearly two decades, Robinson said she became stuck in a pattern of starting something but never finishing, not because of her abilities but because of her immigration status.

That all changed when she became a legal permanent resident in 2004 and a U.S. citizen in 2010.

Even though her background may not resemble that of the constituents in LD12, Robinson attributes her success to perseverance and a good education, and she said that’s something that will strike a chord with voters in the historically conservative district.

Robinson is one of the 114 Democratic candidates vying for a seat in the Arizona Legislature.

This year, the Democratic Party is by design fielding a candidate in nearly every federal, statewide and legislative race, with the exception of one, a strategy that has paid off in other states.

It’s the first time since at least 1998 that so many Democrats have jumped into the race, and it’s a 41-percent increase from 2016 when 81 Democrats qualified for the ballot. The second highest number of Democrats who have run for the Legislature in the past 20 years was in 2002 when 101 filed for office, according to the Arizona Secretary of State’s Office historical election results database.

Charles Fisher, executive director of the Arizona Democratic Legislative Campaign Committee, said the group’s goal is to saturate the ballot in hopes of getting as many Democrats elected as possible.

Fisher calls it the “reverse coattail effect.” Rather than having a big-name candidate at the top of the ticket drawing in voters, which can have a down-ballot impact, he said he hopes that by having a candidate in almost every legislative race, even in overwhelmingly red districts, it will drive up voter turnout on an off-year election and possibly lead to success at the statewide level and in the U.S. Senate race.

The strategy worked in Virginia where the large pool of Democratic candidates in 2017 led to the election of a Democratic attorney general and governor, he said.

Fisher said the party is also banking on strong showings in federal and state legislative races nationwide, and candidates are inspired by what they saw this year with the “Red for Ed” movement.

But the candidates don’t see themselves as being just sacrificial lambs in the party’s grand scheme.

They are providing a voice to those who may not have had anyone to support in prior elections and to those who are tired of what they’ve seen happening at the Legislature, Robinson said.

While Robinson and Democratic LD12 Senate candidate Elizabeth Brown acknowledge that they’re the underdogs in their respective elections, they seem unfazed by the fact that there are almost 40,250 more active registered Republicans in the district than there are Democrats.

Brown, a two-time candidate who ran for the Senate in 2016, said she thinks she has a better chance of being elected this year than she did two years ago, and she added that the teacher strike and the “Red for Ed” movement boosted her confidence.

Brown said she has spoken with constituents on both sides of the aisle and independents who are less interested in partisan politics and are looking for candidates who will be effective and get work done.

Michelle Harris (Photo by Paulina Pineda/Arizona Capitol Times)

That’s something first-time candidate Michelle Harris, of Buckeye, has also heard for years. She’s running as a Democrat for the Senate in Legislative District 13, which spans parts of Yuma and Maricopa County.

Harris said she first became interested in running for office after she and her neighbors’ wastewater rates skyrocketed. She said she reached out to her state legislators and asked them to send a letter to the Arizona Corporation Commission asking that the commissioners meet with residents and reconsider the rate increase, but she never heard back from them.

“I just kind of got the stiff arm from them and that really spurred me to look into the Legislature and was really one of the reasons I decided to run,” she said. “I just thought we deserved better representation, someone who will be out in the community helping people in the district.”

Harris said while meeting with constituents she has learned that many care less about whether there’s a “D” behind her name and are just excited that she’s taking the time to meet with them.

Chandler resident Jennifer Pawlik, who is running as a Democrat for the House in Legislative District 17, said when she ran for the House in 2016 people told her she wasn’t a viable candidate. But that sentiment has changed among constituents she has spoken with this time around, she said.

And Pawlik said that while candidates in very red districts may not win, their candidacy is helping move those districts a bit to the left.

But several long-time Capitol insiders disagree on whether the surge in Democratic candidates and the party’s momentum can translate to real success in 2018.

Democratic lobbyist Barry Dill said while having good quality candidates is more important than having a large number of candidates, in a state like Arizona that has historically had a large drop off in the number of Democrats who vote in off-year elections, fielding a candidate in almost every race can lead to wins if it draws people who normally don’t vote.

“If that trend can be either reversed or mitigated to some degree, then Democrats have a great opportunity of having some success and gaining seats in the Legislature,” he said.

Republican lobbyist and former lawmaker Stan Barnes said in the 30 sessions since he was first elected in 1988, Democratic confidence has never been as high as it is today, even in the 1990s when Democrats were in the majority in the state Senate or in the early 2000s when Janet Napolitano was governor.

Barnes said the key to Democrats’ success is that they believe they can win.

“Democrats believe this is their year and that confidence translates into better candidates coming forward and more candidates coming forward translates into more resources coming into the campaigns of better Democratic candidates. And so it becomes sort of a self-fulfilling prophecy because it starts with genuine confidence by Democrats that they have something significant to gain and that it’s possible,” he said.

He said Republicans are on the defense, a bit demoralized, and there is a so-called “Jeff Flake constituency” of moderate Republicans that are unhappy with what they’re seeing at the federal level.

If you combine that with the number of Democratic candidates running this year and the possibility of national funding flowing into the state because of the U.S. Senate race, Barnes said Democrats could very well win additional seats in both chambers of the Legislature, and either tie the Senate at 15-15 or regain a majority.

And that’s a thought that keeps Republicans awake at night, he said.

Republican political consultant Chuck Coughlin is less convinced that Democrats will see greater success this year. He said one of Democrats’ key issues is education funding, but it was the governor and Republican lawmakers who delivered on the issue this session.

“We’re seeing in data that we’re collecting now that people are giving credit to the governor for delivering on the education package and Democrats walked away from that at the end, which I thought was a mistake because it was the pressure of the teachers that delivered it and that’s a sign of partisan disfunction,” he said. “The credit was theirs to take and they chose to walk away.”

That will make it harder for Democratic candidates in more conservative districts to make their case to voters, he said.

Longtime Capitol lobbyist Barry Aarons said Democrats have to make sure they don’t spread themselves too thin, focusing on a handful of seats they can actually seize instead of on all 90.

Fisher, of the Democratic Legislative Campaign Committee, said while past efforts to gain seats in the Legislature have failed because Democrats tried to bite off too much, this year the caucus is much more organized. The Senate, he said, is the top priority.

Aarons said the momentum could also backfire, waking up a dormant Republican majority that has for decades coasted through the election without a primary or general foe.

He said he has spoken with incumbents in what have typically been considered safe districts and they aren’t taking anything for granted this year, ramping up campaign efforts to ensure they are re-elected.

“Democrats have to be careful that they don’t wake up the beast and wake up after the election and find that they’ve lost some seats,” he said.

Sen. Warren Petersen, R-Gilbert, who is seeking election to the House, said he’s running a strong campaign this year in response to what he sees as a Democratic base that is fired up and energized.

“There’s a saying in politics that you always run scared no matter what and that is especially true this year,” he said, adding that while he doesn’t think his seat is vulnerable, there are others that are.

Democrat with little political experience becomes most effective in 2019

State Superintendent of Public Instruction Kathy Hoffman asked the House Education Committee in February to repeal laws that govern how homosexuality can and cannot be taught in high school. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES

Democrats won big at the ballot box in 2018 with gains in the state House, two statewide offices and a U.S. Senate seat.

But even with the 17-13 split in the Senate, the 31-29 split in the House, the Democrat who accomplished the most during the First Regular Session of the 54th Legislature is the one who was criticized for her lack of political experience during the campaign – and she wasn’t even a lawmaker.

Arizona Superintendent of Public Instruction Kathy Hoffman accomplished a majority of her legislative agenda and was directly responsible for Gov. Doug Ducey signing three bills into law; more than any other Democrat in the House or Senate. Sen. Sean Bowie, D-Phoenix, got two bills signed into law, while eight other Democrats each got a single bill passed and signed.

Hoffman said her first session exceeded her expectations and credits her new policy team for making that possible.

“We got more done than expected. … Overall we were really proud,” she said.

Stefan Swiat, Hoffman’s spokesman, said her approach to advancing departmental initiatives is the biggest difference he can think of compared to Superintendent Diane Douglas, his former boss.

“Superintendent Hoffman prefers to create task forces and invite stakeholders affected by the program or policy to the table to govern by consensus,” he said, giving as an example the handling of the menu of achievement tests the State Board of Education was charged with selecting. “Stakeholders from all sides of the political spectrum all weighed in on how to proceed before the superintendent brought a solution to the State Board.”

He said in contrast, when Douglas, a Republican, felt passionately about an issue she would proceed based on her beliefs, even if there wasn’t a consensus from stakeholders.

Hoffman highlighted her biggest accomplishment as the repeal of a 1991 law barring the promotion of a homosexual lifestyle and safe homosexual sex in mandated HIV and AIDS education in public schools, known as the “no promo homo” law.

“I would not have predicted that would pass so quickly,” she said adding that LGBTQ issues are not as controversial as they once were.

She said the Legislature likely balked at repealing this in recent sessions because it prevented legislators from having to vote on it.

“They may not support the issues, but they didn’t want to vote against something in the best interest of kids.”

Even though her support was crucial in the repeal, Hoffman does not take sole credit. She said this wouldn’t have happened without the help of Republican Arizona Attorney General Mark Brnovich, who made it known to lawmakers that he would not defend a legal challenge to the law filed two weeks before the April 11 vote to repeal it.

“I helped propel it forward and then [Brnovich] helped propel it forward. It was a snowball effect that got it rolling in Lege.” she said.

Hoffman addressed this issue as a top concern in her State of Education speech to the House Education Committee in early February and it got the immediate attention of Rep. T.J. Shope, R-Coolidge.

Shope credited Hoffman’s speech as the reason he became aware of the law that needed to be repealed, so he sponsored a floor amendment to the only education bill available and it passed 55-5 before the Senate would approve it 19-10.

In addition to the repeal that was years in the making, Hoffman’s support was pivotal in reducing the English Language Learners time block from four to two hours.

Educators have pushed lawmakers for years to revise the mandate, which requires English-learning students to take four hours of English immersion every day, where they are separated from their peers.

Though it wasn’t always pretty, Hoffman was still able to cross party lines to achieve her goals on divisive topics such as a bill that holds harmless some Navajo families in the Window Rock area from reimbursing the state after unintentionally spending their Empowerment Scholarship Account dollars illegally.

Hoffman said she was proud of how it came together in the end. It passed unanimously in both chambers and Ducey signed the bill on June 8.

Working across party lines was a priority for Hoffman coming into the session she said, going as far to figure out who the moderate Republicans are and the legislators on the Education Committees.

“It was strategic,” Hoffman said.

All three of the bills Hoffman pushed to become law had Republican sponsors. The ELL bill had Sen. Paul Boyer, R-Glendale, “no promo homo” would not have made it to the floor without an amendment from Shope, and Rep. Warren Petersen, R-Gilbert, sponsored the ESA bill.

Hoffman said she did not work with Petersen or Sen. Rick Gray – who pushed a mirror bill in the Senate – on the ESA solution for the Navajo students in Window Rock.

After just one session, one where politicos applauded Hoffman for her “upset” wins over her political opponents, she accomplished a lot she set out to do, but she still has three years left.

“There is still more to do,” Hoffman said.

Dissension over masks returns in Senate, House

FILE - In this March 16, 2021, file photo, an usher holds a sign to remind fans to wear masks during a spring training baseball game between the Oakland Athletics and the Arizona Diamondbacks in Scottdale, Ariz. The Republican-controlled Arizona Senate voted Monday, March 29, to rescind its mandatory mask policy, and the House speaker made the same move on his own authority. (AP Photo/Ashley Landis, File) — FILE – In this March 16, 2021, file photo, an usher holds a sign to remind fans to wear masks during a spring training baseball game between the Oakland Athletics and the Arizona Diamondbacks in Scottdale, Ariz. The Republican-controlled Arizona Senate voted Monday, March 29, to rescind its mandatory mask policy, and the House speaker made the same move on his own authority. (AP Photo/Ashley Landis, File)

Around the time Senate employees swapped out paper signs saying masks were “required” with signs saying they were “encouraged,” new signs popped up outside the office suite shared by Sens. Rebecca Rios and Victoria Steele.

Laminated yellow papers featuring a mask-wearing emoji and the words “please wear a face mask inside this office” are taped under their nameplates and on the door itself. After the Senate voted along party lines to eliminate its mask mandate on March 29, those pleas are all Democratic lawmakers and Senate staff say they have left to protect themselves from the airborne illness.

“Unfortunately, now it’s every man for themselves,” said Rios, the Senate minority leader. “People will have to stay masked up and avoid people who refuse to wear masks.”

In this Thursday, July 9, 2020, file photo, Gov. Doug Ducey speaks about the latest coronavirus update in Arizona. Ducey ordered cities and counties to scrap their mask mandates, but he will not take any action to curb their decisions to ignore the order. (AP Photo/Ross D. Franklin, Pool, File)

A week after Gov. Doug Ducey abruptly announced that he would stop local governments from enforcing mask mandates, except in their own buildings and public transportation – Arizona never adopted a statewide mask mandate – Republican majorities in the House and Senate have done away with mask requirements but left restrictions that limit public access to the government in place.

In the House, where a mask mandate existed solely on Speaker Rusty Bowers’ orders, enforcement stopped immediately. House Government and Elections Committee Chairman John Kavanagh, R-Fountain Hills, said during his afternoon meeting on March 26, scant hours after Ducey’s announcement, that Bowers, R-Mesa, had told him masks were now optional.

“I have no power to mandate mask wearing, especially when the actual rule is you don’t have to,” Kavanagh said in response to a complaint from Rep. Raquel Terán, D-Phoenix, about some Republicans not wearing masks.

Across the mall, Sen. Kelly Townsend, R-Mesa, took the news that the governor was blocking city mandates as a sign that she could finally leave her office, where she had been sequestered and voting by video call all session because she refuses to wear a mask.

Townsend walked on to the floor on March 26, causing a commotion. Senate President Karen Fann told her to wear a mask “at least one more day,” and Townsend moved to the doorway, prompting Sen. Lupe Contreras, D-Avondale, to insist that she needed to be escorted back to her office.

A few days later, Townsend returned to the floor once again, this time for good. After a frequently emotional debate on March 29, the Senate voted to do away with the mask mandate entirely, but keep other Covid restrictions.

Senate President Pro Tem Vince Leach, R-Saddlebrooke, tore his mask off with a flourish as soon as the vote ended and gestured for a senior Republican staffer to do the same (the staffer refused). One row in front of him, Sen. Warren Petersen, R-Gilbert, fired off a tweet using language from Martin Luther King Jr.’s “I Have a Dream” speech. “Free at last! I just removed my mask at the legislature. Looking forward to seeing more faces and fewer masks,” he wrote.

No vote was required in the House, where only four Republicans showed up with masks on March 29. By March 31, most Republicans had removed the plexiglass barriers separating their desks, though Democrats kept them up.

Masks are still mandatory in the chief clerk’s office and the rules office, and are encouraged wherever else social distancing is impossible, under the House’s new policy.

“We are basically asking people, if they come to see people who are wearing masks, they show respect and maintain social distancing,” Bowers said.

Fann, likewise, encouraged senators to show respect for each other. She swapped floor seats with Sen. Sine Kerr, R-Buckeye, and the only Republican who sat on the left side of the chamber, creating an invisible line between mask-wearers and non-mask-wearers. Fann is rarely at her desk because she presides over the chamber, and she vowed to wear a mask whenever she was there.

It was a nice gesture, said Sen. Martín Quezada, who sits behind Fann, but it had the unintended consequence of bringing even more barefaced Republicans to his side of the room because they want to talk to Fann.

“It’s like animals to a watering hole,” said Quezada, D-Glendale. “It just attracts more of those members over to her.”

Quezada said he is particularly concerned about Senate staff, including the many young and not yet vaccinated pages who sit next to lawmakers on the floor and run errands for them. While Senate rules still explicitly allow employees to leave any room in which CDC guidelines are not being followed, he said no staffer in their right mind would challenge an elected official.

One junior employee, the legislative assistant for freshman Sen. Wendy Rogers, R-Flagstaff, was abruptly forced to resign earlier this year after talking back to Rogers about office décor and working while sick. That former employee is preparing to sue the Senate.

“They can’t come out and give interviews,” Quezada said about Senate staff. “They can’t come out and be quoted in the newspaper, but I hear from them.”

In this May 19, 2020, photo, then-Rep. T.J. Shope, R-Coolidge, listens to debate in the House while wearing a protective mask. Shope, now a state senator, is one of few Republicans who continues to wear a mask after the Legislature dropped its mask mandate. (AP Photo/Ross D. Franklin)

All legislative Democrats and employees but only a few Republican lawmakers have continued covering their faces this week. Sen. T.J. Shope, R-Coolidge, said he decided to stay masked until after he gets his second dose of a Covid vaccine and waits the recommended number of days for the vaccine to fully take effect.

Even after that, Shope said he’ll keep a mask in his pocket and be ready to put it on as needed.

While the House and Senate have changed their mask policies, other Covid restrictions remain in place. As senators finished their work on the Senate floor on March 31, a masked-up custodial worker sanitized the bottom rung of a stair railing – continuing an intense cleaning regimen that began with Fann having pages scrub doorknobs every hour in March 2020.

Lawmakers are still allowed to vote remotely in committee hearings and on the floor. Public access to both buildings is still limited, though Bowers said he will begin allowing a limited number of guests in the gallery.

And in the Senate, Republicans and Democrats alike continue huddling in private rooms behind locked doors to hold caucus meetings that are legally required to be open to the public. Fann blocked Democrats from continuing to share video links to their caucus meetings and never offered the option for Republican caucuses, leaving lobbyists, reporters and interested citizens in the dark.

Fann has blamed Covid – or, more precisely, critical coverage of how Republicans have handled Covid – for shuttering the building.

Staff writer Nathan Brown contributed reporting.

Ducey signs legislation to limit executive emergency power

Gov. Doug Ducey hosts a panel of Republicans at the Republican Governor’s Association conference November 18, 2021, at the Biltmore Hotel in Phoenix. (Photo by Nick Phillips/Arizona Capitol Times)

Gov. Doug Ducey signed a bill Friday to limit the governor’s power to implement a state of emergency for “public health” reasons.

Resulting from frustration over Covid regulations, the bill would require the governor to get permission from the state legislature to extend a state of emergency past 120 days if it pertains to a public health emergency.

“This bill restores the balance of power between the executive and legislative branches by limiting the length of time a state of emergency can be declared. All across the country, governors invoked their emergency powers, many times in perpetuity, to unilaterally make decisions that would have otherwise had to go through the legislative process. Sadly, this abuse of power was arbitrarily used to take peoples’ liberties from them. I sponsored this bill to make sure it never happens again,” said bill sponsor Sen. Michelle Ugenti-Rita, R-Scottsdale, in an emailed statement.

Ducey called a state of emergency to address Covid on March 11, 2020, which lasted two years and finally ended on March 30 of this year. The state received billions of dollars in federal relief funding which were poured into virus mitigation and various large projects.

Ugenti-Rita introduced a similar bill last year that did not pass through the House but was signed into law as a part of the state budget. It was later thrown out with the budget bills because of a Supreme Courtt decision that voided the bills for “logrolling” too many unrelated pieces of legislation together.

This year, the standalone bill, SB1009, made it all the way in the Legislature on party lines and arrived at the Governor’s desk on its own.

Under the new law, the Governor can extend the state of emergency every 30 days until 120 days, at which time the Legislature can continue the state of emergency through concurrent resolution as many times as they like, but only by 30 days each time.

A joint committee of the Health and Human Services committees in the House and Senate must provide the Governor and the full Legislature with a review on the health emergency after the first sixty days it continues.

Since 2020, conservatives have argued that the Governor and federal government were overreaching with mask mandates, vaccine requirements, social distancing rules and other pandemic measures. The closures of private businesses and school shutdowns were met with resistence from communities across the state.

Liberals criticized the regulations as insufficient given the severity of the pandemic.

“I am a little bit confused about this bill because we are in a pandemic,” Sen. Sally Ann Gonzales, D-Tucson, said in the bill’s Senate government committee hearing, getting a laugh from the Republicans in the room.

Sen. Theresa Hatathlie, D-Coalmine Mesa, noted that the state of emergency allows Arizona to receive federal funding.

Republicans were not swayed. “In my opinion it doesn’t go far enough. I don’t know how many people can stay in business after 120 days,” said Sen. Warren Petersen, R-Gilbert. “The great thing that we have learned about COVID-19 is that if people want to protect themselves they can. If people want to self-quarantine, go ahead and do that.”

In a state of emergency, the Governor has total power over state agencies including the right to use police in any manner of ways.

Ducey stands by $32 vehicle-registration fee

The first piece of legislation filed for the 2019 legislative session may already be doomed.

Gov. Doug Ducey hinted on Tuesday that he will not sign any legislation repealing a new vehicle-license registration fee, despite the fee coming in higher than anticipated.

“That’s not on our priority list,” Ducey told reporters, when asked if he would support such a repeal.

Ducey’s comments followed the filing of the first bill for the upcoming legislative, which aims to undo the fee the governor signed into law this year. Rep. Michelle Ugenti-Rita, R-Scottsdale, introduced legislation last week to repeal the fee that is anticipated to bring in $185 million from state motorists in order to fund highway patrol.

Rep. Michelle Ugenti-Rita (R-Scottsdale)

When lawmakers passed the legislation earlier this year, they were told the fee assessed would likely be about $18 per motorist per year and would be charged when residents renewed their vehicle registration. The fee is set by the director of the Department of Transportation. And when the final number for the vehicle fee was announced late last month, it came out to $32 per vehicle — a 77 percent increase from what lawmakers anticipated.

The vehicle-license fee had strong support from Ducey during the legislative session because it halted the need for lawmakers to sweep funds earmarked for road construction and repair to fund the highway patrol. Beyond that, the measure was pitched as way to free up other dollars in the state budget in order to fund the governor’s legislative priorities — specifically, to help fund teacher pay raises.

Ducey did not outright say he would veto any bills repealing the fee, but he dismissed the public safety fee as a done deal.

“That’s been passed,” he said Tuesday.

ADOT Director John Halikowski was tasked with calculating the cost of operation for the Department of Public Safety’s Highway Patrol division. The new fee would cover the total, including a ten-percent buffer.

The Highway Patrol budget will be $168 million, or $185 million with the buffer, which was higher than what legislative budget analysts predicted earlier this year.

Couple that with fewer motorists to charge than state budget analysts projected, because some drivers already prepaid their registrations for two or five years, and that’s how ADOT arrived at the $32 figure.

Although the actual fee was higher than projected, Ducey expressed no regrets in signing the bill enacting the new vehicle-registration fee earlier this year.

“There is a fee and we will leave it to ADOT to set the fee,” Ducey said.

Ugenti-Rita, who voted against the fee in February, fundamentally opposed the way lawmakers approved it — via a work-around the Legislature used to avoid a two-thirds majority vote to pass the fee. It was the “worst way to govern,” she said.

A 1992 voter-approved constitutional amendment requires a two-thirds vote from both legislative chambers to pass a tax increase. Ugenti-Rita called the Legislature’s actions in allowing the ADOT director to set the fee “sneaky.”

The maneuver allowed lawmakers to pass the measure with a simple majority instead of a two-thirds vote.

“The process was violated,” Ugenti-Rita said. “It cut the public out of the discussion by introducing it with the agency director setting a ‘fee’ and not having it introduced the traditional way, which is to put the dollar amount in statute.”

As legislation implementing the fee was advancing through the Legislature, opponents cried foul, calling the fee a tax increase. Ducey, who promised not to raise taxes while in office, maintains that it is a fee and not a tax. Passing the fee through the Legislature by a simple majority instead of a two-thirds vote gives the governor more ground to stand on his argument.

Some other Republican lawmakers are also irked the new fee came in higher than expected, and similar to Ugenti-Rita, are mulling over the idea of introducing legislation to repeal or cap the fee.

While he hasn’t filed any legislation to that effect, Sen. Warren Petersen wants to cap the fee at $18 — the amount budget analysts originally projected.

But Ducey’s comments today indicate any such legislation may be a lost cause.

Staff writer Ben Giles contributed to this report.

Ducey to decide on first 2022 election bill

Arizona Gov. Doug Ducey, front, gives his state of the state address at the Arizona Capitol, Monday, Jan. 10, 2022, in Phoenix. (AP Photo/Ross D. Franklin)

The first election bill of the 2022 legislative session made its way to Gov. Doug Ducey’s desk, setting up a test for the governor, who has largely avoided talking about what election-related measures he supports.

House Bill 2492 would codify requirements for proof of citizenship when registering to vote and would make federal voter registration forms insufficient as proof of citizenship. It would also make any county elections officer or recorder who fails to establish a voter’s citizenship status guilty of a felony if the person turns out to not be a citizen.

The bill passed the Senate on Wednesday, sending it to the governor.

Election-related legislation has dominated the schedule of many Republican legislators this session and they’ve introduced 139 bills dealing with elections. Ducey has maintained that he’s open to new election laws but hasn’t committed to specifics.

He reiterated that stance in an interview with Fox 10 this week. “Where we can put reforms forward that increase trust and voter integrity, those are policies I’ll sign. … I will sign good policy and you can count that I will veto bad policy,” he said.

The governor has been willing to break with his own party when it comes to some of the bolder attempts to rewrite Arizona’s voting system. He shot down a lawsuit from the state GOP that seeks to end mail-in voting and hasn’t leaned into claims of election fraud. But he’s also avoided vocal criticism of the GOP legislators who want to rewrite state election laws while raising questions about the validity of the 2020 election.

Ducey now has five days to sign or veto the bill – if he does neither by early next week, it becomes law by default. On Wednesday, a spokesman for the governor declined to comment on what Ducey was going to do, noting the decision will come soon anyway. “You will know then,” spokesman CJ Karamargin said.

The bill passed the House 31-26 and the Senate 16-12, with both votes split along party lines. It was sponsored by Rep. Jake Hoffman, R-Queen Creek, who has disputed the results of the 2020 presidential election and supported the Senate audit.

Sen. Warren Peterson, R-Gilbert, described the bill as a commonsense measure: “The issue is making sure that citizens of this country are voting, and if you’re not a citizen of this country, you’re not allowed to vote.”

Arizona Democratic Party Chair Sen. Raquel Terán, D-Phoenix, connected the bill to the audit and claims that the 2020 election was stolen.

The bill also got a critical thumbs-up from the Republican legislator who has single-handedly killed a dozen election laws this session that had the support of the rest of the caucus. Sen. Paul Boyer, R-Glendale, said he voted “Yes” because the bill deals with voter identification, and he doesn’t think it will create problems for election administrators.

“The (election bills) that I haven’t supported have primarily made the elections process unworkable for those who have to implement the policies,” Boyer said on Thursday.

Paul Bentz, a pollster with the GOP firm HighGround, said there’s widespread support for measures around voter identification and voter proof of citizenship, even if Democrats attack them as amounting to voter suppression. But, Bentz added, there are also policies being “cloaked in the guise of election security.”

“I think that’s where we’ll see the line that some of these leaders will take,” he said. “Which of these items really do have to deal with security, and which ones really are borderline voter suppression?”

Geoff Esposito, a progressive consultant whose firm Creosote Partners lobbied against the bill, said Ducey could separate himself from members of his own party by rejecting the bill.

“I think thus far, the governor has shown instances of not falling in line with those conspiracy-minded folks within his party. And I think if he wanted to draw a clear distinction between that wing and him, this is a great opportunity to do so,” he said.

If Ducey does sign the bill, it will probably draw a legal challenge from opponents. In a Senate Judiciary Committee hearing, a representative for the American Civil Liberties Union cautioned that the bill will bring lawsuits against Arizona if it becomes law.

Senate Rules Attorney Chris Kleminich said on March 14 at the Senate’s Rules Committee meeting that the bill is “unconstitutional” and likely opens the states up to lawsuits for violating the National Voter Registration Act. “There are constitutional concerns with the law at least as the federal law is currently interpreted and implemented,” he told the committee.

According to federal law, states are required to accept federal voter registration forms for federal elections, including presidential elections. The form requires voters to check a box verifying they are U.S. citizens. States are allowed to make their own laws regarding state elections, but for federal elections, voter registration forms must always be accepted. Hoffman’s bill would make the form insufficient as proof of citizenship.

Arizona Association of Counties Executive Director Jen Marson spoke against the bill in the judiciary committee and said it puts counties in the “terrible position” of either violating federal law or violating state law and becoming felons.

Ethics chairman says Stringer not entitled to hearing before committee

Rep. David Stringer (Photo by Howard Fischer/Capitol Media Services)

The Capitol shouldn’t hold its collective breath for a House Ethics Committee hearing on Rep. David Stringer as Ethics Chairman T.J. Shope wants to avoid that kind of “circus” and thinks he’s legally justified in doing so.

The House hired outside investigators to determine the veracity of the multitude of complaints against the beleaguered lawmaker, who stands accused of not only making racist comments, but of possessing child pornography in the 1980s, and Shope anticipates a final report from the investigator by the end of the month.

But Shope, R-Coolidge, said he does not believe Stringer is entitled to a full-blown hearing where he would be allowed to present and examine evidence, cross-examine witnesses and be represented by counsel before any potential action to expel him.

“I’d like to avoid that kind of circus if possible,” Shope told Yellow Sheet Report, sister publication of the Arizona Capitol Times. .

Rep. Reginald Bolding, D-Laveen, attempted to trigger a vote to expel Stringer on Jan. 28, but that effort that failed as House Republicans opted instead for an investigation by the Ethics Committee first.

Bolding filed the second of two ethics complaints against Stringer the next day, but he did not entirely abandon the notion of expelling the lawmaker before the results of the investigation come in. He warned that if the Ethics Committee investigation appears to be wasting time, he may try again to expel Stringer.

“I want us to get to a place where we actually have the information. The end of the month seems like a long time when this conversation has been happening for weeks and months,” Bolding said Wednesday. “I’m still reserving judgement.”

Whether Stringer is entitled to a hearing before judgement day comes boils down to a question of whether expelling a member of the Legislature is a legal issue or a political one, Shope said. The courts have already said it’s the latter, he said.

That leaves the report to guide what happens next.

The report produced out of Ballard Spahr attorney Joe Kanefield’s investigation will cover all allegations made against Stringer, including interviews with sources who have reached out to Shope in addition to the original complaints filed by Bolding and Rep. Kelly Townsend, R-Mesa.

Neither Kanefield nor Stringer’s attorney in the ethics case, Carmen Chenal, commented for this story, citing the ongoing investigation.

Shope expects to release the report once it is completed.

“My intention is to be as public as possible about this when the appropriate time comes,” he said.

But the report’s findings alone may not be enough for some of his Republican colleagues who insisted the House should afford Stringer his right to due process.

Townsend won’t challenge Shope on his decision, but she was surprised by his preference to avoid a full hearing.

“I did expect a public hearing, but I also respect the chair of the committee to make that decision,” she said.

The report makes sense as a tool from which to build a hearing, she said. But if that is not Shope’s intention, Townsend said she’ll want more information on what went into it.

“I don’t know enough about this report and how they got to the report to make a comment,” she said. “I just don’t know what their goal is with the report.”

Republicans unanimously turned down Bolding’s motion to expel, with lawmakers repeatedly citing Stringer’s due process rights as they opted to recess and avoid that vote in January.

Rep. Warren Petersen, R-Gilbert, made the motion to recess to avoid the expulsion vote and urged his colleagues to let the Ethics Committee take the lead.

“An ethics complaint has been filed. We have an ethics committee for a reason. And I look forward to their work and their results,” he said at the time. “We have a process, so let’s follow the process.”

And Rep. John Fillmore, R-Apache Junction, passionately opposed holding the expulsion vote, harkening back to his defense of former Rep. Daniel Patterson, a Democrat from Tucson who faced similar proceedings.

“We need to look at this and put it all out there before we destroy a man,” he said. “We need to know that we are doing the right thing.”

Fann threatens Maricopa County with more subpoenas

Doug Logan, CEO of Cyber Ninjas, answers questions Tuesday at a hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns.

Senate President Karen Fann said lawmakers may have to take new steps — including new subpoenas and possibly going back to court — to get information that Maricopa County election officials are refusing to provide about their ballots and equipment.

The move by the Prescott Republican comes after county officials, as promised, refused to show up at a hearing she had called for Tuesday where they were supposed to answer the questions posed by Cyber Ninjas. That’s the firm she hired to conduct a review of the 2020 election returns, including the 2.1 million ballots.

County supervisors did submit written responses on Monday. But they also made it clear they were not going to attend on Tuesday. And they said they were done answering questions related to what several consider a “sham” audit being conducted by a firm run by Doug Logan, who had previously said he does not believe that Donald Trump lost the election.

In the end, that just led to Logan and others involved with the audit telling Fann and Sen. Warren Petersen, R-Gilbert, who chairs the Senate Judiciary Committee, what they still don’t know and why they still believe they need to know it to finish their report.

Tuesday’s hearing did produce one new piece of information.

Ben Cotton, founder of CyFIR, one of the subcontractors hired by Cyber Ninjas, told lawmakers he was able to locate files in election equipment that the auditors initially claimed the county had deleted. He said it turns out there were duplicates in the system.

Less clear is what happens now given the county’s refusal to answer more questions.

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

Ken Bennett, the Senate’s liaison with the auditors, said work will resume Monday at Veterans Memorial Coliseum.

The plan had been to have the audit done by the end of last week. But when that didn’t happen, the auditors needed to pack up all the ballots and equipment and store them in another building at the State Fairgrounds because the coliseum had been promised for high school graduation ceremonies.

Fann said the auditors, denied additional answers from Maricopa County, will proceed as best they can with the information they have.

“At that point we’ll figure it out,” she said.

“We may need to take it to another level and see if we can get them to please sit down with us,” Fann said. That opens the possibility of yet another subpoena beyond the earlier ones that eventually forced the county to surrender the ballots and election equipment.

And that could lead to new litigation, with a judge asked to decide what questions, if any, the county needs to answer so the Senate can complete its examination.

But that’s not the only option.

“Or the auditors will issue a report to say, ‘Here’s what we’ve found and here are the questions that we have but we can’t seem to get answers for them,’ ” Fann said.

In any event, she said, the next step following completion of the audit would be changes in election laws to deal with any issues that senators believe are weak points in the election process. But that may not happen this legislative session as the completion deadline has now moved to June.

One question that neither Fann nor Petersen asked of Logan is where he is getting the money to conduct the review.

Logan has long since acknowledged the audit is costing more than the $150,000 authorized by the Senate. And outside interests tied to efforts to discredit the election results have been engaged in fundraising efforts.

One site, Fundtheaudit.com, claims it already has raised more than $1.7 million towards its $2.8 million goal. That site is being operated by The America Project, started by millionaire Patrick Byrne, the former CEO of Overstock.com, who has said it was “a fraudulent election.”

Fann told Capitol Media Services Tuesday she does not know who is providing the extra cash.

“They have told me I will get a list at the end of the audit,” she said. And Fann said once she gets it, she will make that public.

Much of what else emerged Tuesday was already known, such as the refusal of county officials to provide Senate auditors with the password for the highest-level access to the vote tallying machines.

“We cannot give you a password that we do not possess any more than we can give you the formula for Coca Cola,” they wrote Monday in their response. “We do not have it; we have no legal right to acquire it; and so, we cannot give it to you.”

Cotton told Fann and Petersen he has been told those passwords remain in the exclusive custody of Dominion Voting Systems which owns the equipment leased by the county.

Dominion did provide them earlier this year, not to the county but to two firms hired by the county to conduct their own forensic audits. County officials said those firms — unlike Cyber Ninjas — are both certified by the U.S. Election Assistance Commission as voting system testing laboratories.

And county officials said even if they did have the passwords they would not turn them over.

“Your chosen ‘auditors,’ the Cyber Ninjas, are certainly many things,” the supervisors wrote. “But

accredited by the EAC’ is not one of them.”

But Cotton, under questioning from Petersen, said he has been certified as an expert witness in court hearings. And he said he has done highly confidential security work for private corporations.

Cotton also disputed a contention by the county that providing Senate auditors with the highest-level password access would allow them to see Dominion’s proprietary “source code” for how the machine operates.

What it would allow them to do, he said, is determine if any of these tabulators had the capability of being connected to the internet. And Cotton said Pro V & V, one of the companies hired by the county for its own audit, said there was no such connection.

“The county, however, cannot validate or verify that there were or were not Verizon wireless cards inside those tabulators which would have, by definition, touched the internet,” he said. “They can’t validate that their own policies and procedures are being carried out without the ability to validate the configurations of the systems.”

Nothing in Tuesday’s hearing cleared up the questions about access to the routers, essentially the equipment that directs messages and other traffic between computers.

Bennett again insisted that he was told earlier this year by Joseph LaRue, a deputy county attorney, that the routers had been removed from the system and were ready for delivery. The current county position is that providing the routers would provide a “blueprint” of the county computer system which could direct criminals where to stage their hacking attacks to access confidential information and compromise law enforcement.

But Cotton said if that is true, that means the election equipment which was connected to the routers also had to be exposed to the internet.

“That’s certainly something that we need to explore given the inconsistencies in the public statements and reports,” he said.

Tuesday’s event was hardly a hearing, at least in the traditional sense. Only Fann and Petersen got to participate. And Democrats who are members of the Senate Judiciary Committee, on whose behalf the initial subpoenas were issued, were not invited.

GOP lawmaker urges colleagues not to end Covid restrictions

Arizona Republican Gov. Doug Ducey talks about an executive order as he speaks about the latest coronavirus information at a news conference, Thursday, July 9, 2020, in Phoenix. (AP Photo/Ross D. Franklin, Pool)

As a Senate panel prepares to vote on legislation that would immediately end Gov. Doug Ducey’s Covid-caused state of emergency, an influential House Republican and legislative attorneys are warning it would have unintended consequences.

In a letter sent to all 90 lawmakers Saturday, Rep. John Kavanagh, R-Fountain Hills, urged his colleagues to hold off on any attempts to overturn the emergency order, at least until they know whether Attorney General Mark Brnovich would agree with legislative attorneys. Those lawyers told Kavanagh that an end to the statewide emergency declaration could just result in more patchwork local emergency declarations.

“Those who believe that terminating the governor’s Covid-19 state of emergency and consequential executive orders will end all restrictions and mandates on individuals, schools, organizations and businesses, eliminate mask mandates, cancel limits on public gatherings and nullify all other mitigating steps are wrong,” Kavanagh wrote in his letter to lawmakers.

The Senate Government Committee is scheduled to vote on a host of bills meant to overturn Ducey’s emergency declaration and prevent a repeat. Most pressing is Sen. Michelle Ugenti-Rita’s SCR1001, which would immediately terminate the emergency order declared on March 11, 2020.

According to an opinion legislative attorneys provided to Kavanagh, overturning Ducey’s executive order would just give local leaders — some of whom have long advocated for greater restrictions — more power to control Covid restrictions because their states of emergency will remain in effect.

In cities like Tucson, Phoenix and Flagstaff, mayors and city councils could close businesses, install curfews and block public gatherings. In areas like Yavapai County, where local mayors have continued to hold events and refused to mandate mask-wearing, all restrictions could be lifted.

“Were Arizona to become a mosaic of jurisdictions with conflicting restrictions ranging from nonexistent to draconian, residents and visitors seeking relief from the tedium of restricted areas would flock to the packed restaurants, bars and public events in the laissez-faire jurisdictions where they might become infected with covid-19 and, most ironically, bring the disease back to those jurisdictions that tried the most to control it,” Kavanagh wrote.

As a resolution, Ugenti-Rita’s measure would require only a majority vote in the House and Senate, and not a signature from Ducey. Ugenti-Rita did not return a phone call Monday morning.

While the opinion Kavanagh received from Legislative Council – and the one he has requested but not yet received from the Attorney General – only gets into what cities and the governor can do if the Legislature ends a statewide emergency, there are other concerns about what such a move could mean for access to federal relief funding and free vaccinations. All 50 states now have public health emergencies in place, and ending the emergency declaration could risk losing federal aid.

Sen. Warren Petersen, one of the Republicans on the Senate committee, said he hadn’t yet read Kavanagh’s email and planned to vote for SCR1001 anyway. Petersen, R-Gilbert, is also the sponsor of another measure on today’s agenda, SCR1003, which would ask voters to approve a constitutional amendment declaring that a state of emergency ends 14 days after it begins unless the Legislature extends it.

Petersen’s referendum, and a similar one from Ugenti-Rita that would set a 21-day time limit, couldn’t take effect unless voters approved them on the 2022 general election ballot, making it extremely unlikely they’d have any bearing on the current state of emergency. Nor would another resolution on today’s agenda, Sen. Kelly Townsend’s SCR1010, which, if approved by voters, would require the governor to call a special legislative session concurrent with the state of emergency.

Sen. J.D. Mesnard, another Republican member of the committee, said Monday morning he hadn’t yet read Kavanagh’s email and was still dissecting the differences among the many emergency-related bills filed. For now, he said, he plans on voting for the vast majority of them in committee to advance a legislative conversation about how to handle executive power.

“We’re at this early stage, and the further these get in the process, the conversation will become more focused,”said Mesnard, R-Chandler. “Unless I’m philosophically opposed to the outcome that one of these would cause — which might be the case, I don’t exactly like what I’m hearing (Legislative) Council was saying with one of them — I probably will defer to move these along.”

The three Democrats on the committee plan to vote against the emergency measures, though they’re outnumbered by the five Republican members. Ranking Democratic Sen. Juan Mendez of Tempe said he was surprised Ugenti-Rita scheduled bills that appear to contradict each other.

“We were definitely worried about second-scale repercussions that they hadn’t anticipated,” Mendez said.”It definitely felt like they were just trying to throw everything against the wall and see what would stick, and that’s never a healthy way to do policy.”

A spokesman for Gov. Doug Ducey’s said the office does not comment on pending legislation.

GOP lawmakers push bill to force hand of supervisors

Facing defeats in court, Republican lawmakers are moving to change the law — retroactively — in a bid to eventually get their hands on voting equipment and ballots, even if it takes months.

SB1408 would spell out in statute that county election equipment, systems, records and other information “may not be deemed privileged information, confidential information or other information protected from disclosure.”

More to the point, the measure approved Thursday on a party-line 5-3 vote by the Senate Judiciary Committee declares that this information is “subject to subpoena and must be produced.” And it empowers judges to compel production of the materials and records.

Sen. Warren Petersen, R-Gilbert, who chairs the panel, made it clear the legislation has one purpose: to force the hand of Maricopa County officials who have so far refused to comply with a subpoena the Senate has issued.

They have produced various records.

But the supervisors contend the county is precluded from surrendering access to voting machines and the actual ballots to senators or the auditors they hope to hire. And so far the Senate’s efforts to get a court ruling compelling disclosure have faltered.

“They continue to hold the position that we don’t have the authority to investigate,” Petersen said. He said the authority already is there but this makes it “crystal clear.”

That point, however, remains under debate.

The first subpoenas — there were two at the time — were issued in December. The county filed suit contending the machines and ballots were not subject to disclosure.

Maricopa County Superior Court Judge Randall Warner never reached that issue. Instead he concluded there is nothing in the Arizona Constitution which specifically allows him to enforce a legislative subpoena.

A new subpoena and cases before two other judges have failed to get a clear ruling, with one judge suggesting that it would first take a contempt citation by the Senate before he could act. But that bid fell apart earlier this week when Sen. Paul Boyer, R-Glendale, refused to go along with GOP colleagues, leaving the effort one vote short.

Petersen said Thursday his new bill should resolve the matter once and for all.

“This can resolve our pending litigation,” he said. “This can give the county comfort in handing over what we already believe they can do.”

No one from the county was at the hearing to testify on the measure.

Petersen also said he was not deterred by the prior court rulings against the Senate.

“Just because a judge rules something doesn’t mean a judge is right,” he said.

“That’s a big problem here,” responded Sen. Martin Quezada, D-Glendale.

“There’s a small segment of our population and a large segment of elected officials across the nation who are refusing to accept the results of these judicial challenges,” he said. “That’s the furtherance of ‘the big lie’ that there was some sort of election fraud.”

He said there were more than five dozen election challenges filed across the country, virtually all of these ruling against Donald Trump and his supporters. The kind of efforts like what the Senate is trying to do with its audit of the election, Quezada said, simply adds to the narrative that people should not trust the election system.

The outcome of those lawsuits did not impress Sen. Sonny Borrelli, R-Lake Havasu City.

“Judges don’t want to get involved in political issues,” he said, which is why cases get dismissed on “technicalities” like whether the person has a right to sue in the first place. “This is clarifying language so there’s no other interpretation I think is warranted.”

Petersen called the legislation an “insurance policy” designed to blunt any future arguments by supervisors that they don’t have to surrender what the Senate wants.

“So if they come out and say the law doesn’t allow it, this ensures that it does,” he said.

Even if the measure becomes law — and even if county officials agree that it requires them to surrender the equipment and ballots — that does not portend a quick end to either the legal fight or the questions about whether the results of the November vote were accurate.

It takes a two-thirds vote of both the House and Senate to adopt any law with an emergency clause, allowing it to take effect immediately on the governor’s signature. And without the support of Democrats, Petersen can’t get that margin.

That means the earliest the bill could take effect is 90 days after whenever this year’s session ends. And that could push the whole issue into the summer. And Petersen said he’s willing to wait as long as it takes to pursue the equipment and ballots.

GOP lawmakers ready budget to send to Hobbs

Legislative Republicans are gearing up to send a budget to Gov. Katie Hobbs soon, which will likely be met with a hasty veto.

Speaker Ben Toma, R-Peoria, said on Monday Republican leadership was going to send a continuation of last year’s budget to keep the government from shutting down “very, very soon.”

“As for what the governor is going to do, that’s up to her,” Toma said Monday.

Staff at the governor’s office have indicated Hobbs will not entertain a continuation budget while Republicans have called Hobbs’ proposal “dead on arrival.” Josselyn Berry, a spokeswoman for Hobbs, took a shot at Senate President Warren Petersen, R-Gilbert, for threatening to sue Hobbs over not promptly sending several new directors for Senate confirmation in a tweet.

“We’ll be sure to keep an eye out on Twitter for this newest ‘budget,’” Berry said to the Capitol Times.

Shortly after Hobbs’s staff unveiled the budget proposal to Republican leadership, Rep. Teresa Martinez, R-Casa Grande, said Republicans are “prepared for war” with Hobbs.

“The Republican legislature is not going to be an easy roll. We’re not just going to roll over and give her everything she wants. I don’t want to fight, but I’ll tell you what – I’m not afraid of one either,” Martinez said on Jan. 13.

Republicans have objected to several items in Hobbs’ budget proposal including the repeal of universal empowered scholarship accounts and a $40 million proposal for tuition assistance to students living here illegally, among other items.

The decision to send Hobbs a budget this early in the Legislative session is unprecedented. The House canceled its Rules Committee hearing on Monday but Toma said other House business will continue.

“It was a relatively light rules agenda anyways so in that sense it’s not a very big difference,” Toma said.

Rep. David Livingston, R-Peoria, said on Tuesday he expects to see budget bills appointed to House Appropriations sometime before the end of the month. Livingston is the chairman of the committee and said members are currently in the process of creating the first drafts of the budget bills, which will then be sent to committee staff for review.

Senate Pro Tempore T.J. Shope, R-Coolidge, wrote in a text to the Capitol Times on Tuesday that he also expects to see budget bills next week.

Chuck Coughlin, a GOP consultant and the president and CEO of HighGround Public Affairs, said he thought it was smart that Republicans would send a budget proposal to Hobbs this early since the caucus was not fully on board with the majority proposal from last session.

Sen. Jake Hoffman, R-Queen Creek, voted against a Republican skinny budget proposal when he was a state Representative in April 2022 during a House Appropriations hearing. Hoffman, the leader of the Arizona Freedom Caucus, said he preferred a budget that cut spending, and other Republicans felt a similar way. With only a one-member majority in both chambers in 2022, this led to Republican leadership seeking votes from Democrats on the budget in 2022.

Coughlin said the early budget proposal was a strategy to get the Republican caucus unified on a budget and avoid a situation from last year.

“You’ve got to give them their day on the floor and show it’s not going to work,” Coughlin said. “Then you can begin to have realistic discussion with your caucus about what another budget is going to look like,” he added.

Longtime lobbyist Barry Aarons said he couldn’t remember a budget proposal being sent to the governor this early in a session, and said the move was an attempt to establish Republicans’ parameters and negotiate from there — likely up until June 30, he said.

Aarons said it was possible Hobbs could call a special budget session sometime near the beginning of March like previous governors have.

“The problem is once she signs a budget, if there’s any remote possibility that she would sign something like this, it’s game over. Then the Legislature can just dally around. They don’t have to worry about getting something done by June 30,” Aarons said.

But there is value to the nearly guaranteed veto coming to the Republican budget from Hobbs, Coughlin said.

“She’s going to send a veto letter,” Coughlin said. “Hopefully if that letter is written well, there’ll be a lot of information in there.”

GOP leaders enter Hamadeh fray over vote count

As attorney general candidate Abe Hamadeh seeks to send his failed motion for a new trial directly to the Arizona Supreme Court, he’s met with stark opposition from the sitting attorney general and the secretary of state, and veiled support from the legislative leaders.

In an Aug. 16 filing, Hamadeh claims he seeks “to expeditiously count all valid votes and determine the constitutionally elected Attorney General with finality.” His attorneys decried the “dilatory conduct” of the trial court and implored the justices to expedite his appeal as “time is of the essence.”

Attorney General Kris Mayes claims the special action fails to meet the criteria as Hamadeh’s team has “an equally plain, speedy, and adequate remedy” in a standard appeal, and they fail to cite any “‘extremely unusual circumstances’ that could justify leapfrogging over the court of appeals.” Mayes, a Democrat, beat Republican Hamadeh by 280 votes in the 2022 election.

Senate President Warren Petersen, R-Gilbert, and House Speaker Ben Toma, R-Peoria, claimed they take “no position on which candidate received the highest number of votes” in their amicus brief, but took issue with Mayes’ and Secretary of State Andrian Fontes’ “litigation tactics,” which the lawmakers’ attorney described as, “afflicted with a barrage of indignant fulminations and obstructive machinations.”

Mohave County Judge Lee Jantzen, a Republican, denied Hamadeh’s motion for a new trial on July 19, but failed to sign a final appealable order.

Hamadeh filed a standard appeal, noting the absence of an appealable judgment. But he then filed a special action and asked the Arizona Supreme Court justices to reverse the trial court’s decision.

Hamadeh’s attorneys, Jen Wright and Rep. Alexander Kolodin, R-Scottsdale, claimed in the special action filing that there are “hundreds, if not thousands, of uncounted votes, that once counted, will prove that Abraham Hamadeh – not Kris Mayes – is the constitutionally elected Attorney General for the State of Arizona.”

Both Mayes and Hamadeh agree on the need for a final order, but Mayes and Fontes claim Hamadeh does not meet the criteria to fast-track his appeal.

Toma, House, Senate, Prop 211, court filing, dark money — House Speaker Ben Toma, R-Peoria

Alexis Danneman, Mayes’ attorney, picks at Hamadeh’s “litigation strategy,” noting a failure to expedite review of rulings “about which they now complain.” She writes Hamadeh and his legal team “have sat on their hands for the last eight months” and notes Mayes, not Hamadeh, asked the court for a final order.

Hamadeh’s attorneys argue they were hamstrung from the start and claim they were, “completely deprived of access to the evidence necessary to prove their case” in limited ballot inspection and discovery.

They also challenged the “conflicting and inconsistent interpretations” of election contest statutes.

In their amicus curiae brief, Petersen and Toma align the Legislature with Hamadeh. Their attorney Thomas Basile argued the election contest timelines in statute are “directory, not mandatory.” And they further contend the law governing ballot inspection is “supplementary not exclusive of other discovery.”

Basile notes the Legislature’s intent was, “to secure a robust fact-finding process,” and “(i)f left uncorrected, the trial court’s misconception of these statutes would effectively disable mechanisms the Legislature established to ensure a rigorous verification and vetting of the vote count when, as here, there are genuine and good faith questions concerning the accuracy of the final tabulation.”

The legislative leaders further took issue with the litigation tactics of Mayes and Fontes, which Basile writes “have obstructed any searching judicial examination of the election’s administration.” Basile further wrote Fontes’ “frenzied opposition to this prospect is perplexing,” and said his attorney Craig Morgan’s “rhetorical assault is gratuitous and abusive.”

Mayes asked the court for attorneys’ fees incurred in responding to the special action petition as she claims the attempt, on top of a separate standard appeal, unreasonably expands or delays proceedings.

She claims Hamadeh made at least two misrepresentations in claiming he requested final judgment from the Superior Court and a nonexistent stipulation from Mayes. Fontes asked for fees and sanctions on similar grounds.

Hamadeh characterized the two misrepresentations as an “unintentional error.” And he further argued his legal team did try to prompt a ruling by “nudging the court” in filing supplemental authority and requesting a scheduling contest.

The justices now take the matter under advisement and plan to issue a ruling without oral argument.

GOP senator starts contempt proceedings for county supervisors

The chairman of the Senate judiciary committee is drafting a resolution that could end in Maricopa County supervisors being held in contempt and frog-marched to the capitol.

After the Maricopa County Board of Supervisors decided Wednesday afternoon to reject the Senate’s latest request to hand over 2.1 million ballots, Sen. Warren Petersen, R-Gilbert, announced on Twitter that he was drafting a resolution of contempt for the board.

“It is truly unfortunate that today Maricopa County has refused to comply with the subpoena and allow the Senate to conduct a forensic audit of the election,” Petersen tweeted. “There is no legal consequence if they allow us access to the machines and ballots. However there are serious legal consequences for failing to comply with the subpoena.”

Because Monday was the Senate’s deadline to introduce bills, Petersen will need permission from the Senate Rules Committee to introduce his resolution. That committee, the only one that doesn’t broadcast its meetings, is inaccessible to anyone but senators and staff because of Covid restrictions.

If a majority of the Senate approves Petersen’s proposed resolution, state law would allow the Senate to send its sergeant at arms to arrest the board of supervisors. That is, however, a huge if — all 14 Democrats are guaranteed to vote against the resolution, so a single Republican opposing it would spell defeat.

The Senate Republican caucus contains members like Sens. Paul Boyer, R-Glendale, and T.J. Shope, R-Coolidge, who have called for their fellow Republicans to acknowledge that the election is over. And others who may support the Senate’s audit plans could balk at the idea of arresting fellow elected officials.

Petersen’s call to hold county officials in contempt is the latest salvo in an ongoing battle between the county board and the Senate, both of which are controlled by Republicans and both of which wanted a forensic audit of the county’s election equipment.

The county began its audit today, with the first of two independent firms the county selected analyzing equipment to ensure it didn’t switch votes, wasn’t connected to the internet and isn’t vulnerable to hacking. But the county’s plans didn’t go far enough for Senate Republicans, who have been pushing to do their own audit.

Senate Republicans have demanded, through multiple subpoenas, that the county turn over election equipment and ballots for the Senate to run its own audit. On Jan. 29, Petersen and Senate President Karen Fann, R-Prescott, announced that they had hired an “independent, qualified, forensic auditing firm,” though they declined to provide basic details including the name of the firm.

Prescott eNews, a conservative site operated by disgraced former Rep. David Stringer, reported that the Senate’s chosen auditor was retired Army Col. Phil Waldron, who traveled to several of former Trump attorney Rudy Giuliani’s unofficial meetings with Republican legislators and shared claims of fraud that election officials in multiple states were able to easily disprove.

GOP senator wants to cut, cap vehicle registration fee

Angered that a new charge for Arizona auto owners will cost double what was forecasted, a Republican lawmaker has proposed reducing and capping the fee.

Sen. Warren Petersen, R-Gilbert, said a public safety fee charged when Arizonans register their vehicles should be cut from $32 to at least $18, the amount state budget analysts estimated the fee would cost as lawmakers voted on it in February and April.

The fee is intended to fully fund the state’s Highway Patrol within the Department of Public Safety, but is set by the director of the Department of Transportation.

Essentially, ADOT Director John Halikowski is tasked with dividing the Highway Patrol budget, plus a 10 percent buffer, by the number of vehicles that need to be registered this year. With a budget of roughly $168 million and 5.8 million vehicles to register, Halikowski arrived at $32.

Petersen, who voted against the bill granting the fee-setting authority to the ADOT director, said the higher-than-advertised charge is “exactly what people feared.”

“We always have these estimates and people make their decisions off of estimates, but how often are those predictions accurate?” Petersen said.

Capping the fee at $18 would at least reflect the terms that lawmakers thought they were agreeing to when they voted for the fee, he said.

“I think a lot of people based their decision off that $18 number, so I would hope we could get enough people to agree to that,” Petersen said. “I’d like zero, but the lower the better.”

Capping the fee would have a ripple effect that threatens Gov. Doug Ducey’s spending priorities.

When the House approved a bill to create the fee in February, it was pitched as a way to ensure that Highway Patrol operations were fully-funded, thus eliminating the need for a longstanding practice of sweeping funds earmarked for road construction and repairs. Lawmakers had recently begun to allocate money from the General Fund to the Highway User Revenue Fund, which receives money from various gas taxes and vehicle fees and was the source of the swept funds.

But as the Senate took up the bill for a vote in April, the fee was sold as way to help pay for Ducey’s proposal to give teachers a 20 percent pay bump.

Like Petersen, Senate President Steve Yarbrough, R-Chandler, was fundamentally opposed to granting another agency director the authority to set a fee. For most Republicans, the maneuver is no different than a hospital assessment approved by the Legislature in 2013. That fee, which was essential to funding then-Gov. Jan Brewer’s push for Medicaid expansion, was pilloried by Republicans who viewed it as an illegal bypass of the Arizona Constitution’s limitations on generating new revenue.

It takes a two-thirds vote of both the House and Senate to adopt new taxes or fees. The bill to create the fee, and give the authority of setting it to an agency director, was approved by just a 17-13 vote in the Senate.

But even Yarbrough said he was willing to vote for the bill, had it been necessary to get the 16 votes needed for its approval, despite his personal objections.

“I also realize that, if we’re going to accomplish certain other vital objectives, sometimes you have to make those kinds of decisions,” he said in April.

The day after the vote, Yarbrough said that “other vital objectives” was obviously a reference to fulfilling Ducey’s vow of a 20-percent raise. The fee was then estimated to free up $107 million annually, he added.

“The commitment is to get to the 20 percent in 2020 and to do so without taxes,” Yarbrough said. “That, of course, with me, involves a couple of winks over what we did yesterday on the (vehicle registration fee).”

Petersen is banking on buyer’s remorse from some lawmakers who voted for the bill, like Rep. Noel Campbell, the Prescott Republican who sponsored the measure. But Petersen’s got a headstart when it comes to support from his fellow Republicans, a majority of whom voted against it.

Only four of the Senate’s 17 GOP lawmakers voted for the bill. In the House, 10 Republicans voted for it, and 24 voted against it.

Patrick Ptak, a spokesman for the governor, warned that capping the fee now would upset the balance of funding that was freed up for road maintenance – and left unsaid, the General Fund dollars essential to funding other areas of the budget, like education.

“The fee was intended to fund 110 percent of the highway patrol budget to protect public safety, and free up resources for infrastructure, including in rural areas of the state where resources our especially needed,” Ptak said. “Any reforms to the fee should be responsible and keep those priorities in mind.”

GOP senator wants to let Arizonans pay taxes in bitcoin

Arizonans could soon pay their taxes with bitcoins if a state senator gets his way.

Sen. Warren Petersen, R-Gilbert, wants to require the state’s Department of Revenue to accept cryptocurrency as payment for personal income taxes. Eventually, he hopes that any tax could be paid with cryptocurrency.

“It’s an emerging industry and technology, and going along with the governor’s efforts to lead the country in business and industry, we want to make sure that people who want to use cryptocurrency will be able to use it to make their tax payments,” Petersen said.

The Department of Revenue would have 24 hours after receiving payment to convert the cryptocurrency, be it bitcoin or other new forms, into U.S. dollars. Then DOR would credit an individual’s account for the dollar amount they paid in cryptocurrency. Petersen said it’s his understanding that cryptocurrency can easily and “immediately” be exchanged into U.S. dollars, and insisted it would be no burden to the agency.

It’s unclear if similar bills have been considered in other states, but there’s at least one place in the world that’s already venturing into using cryptocurrency for government collections: Switzerland.

Chiasso, a Swiss municipality, announced in September they’ll let residents make small tax payments – up to $261 U.S. dollars – in bitcoin. The move follows that of another Swiss municipality, Zug, which has started to collect bitcoin payments for municipal services, Fortune reported.

Governor, House, Senate: three political parties?

Arizona’s Legislature and Governor’s Office will go from mainstream Republican control to three separate ideologies.

Control of the Governor’s Office flipped to Democrat, control of the Senate shifted to Republican control that is more in line with former President Donald Trump and control of the House remains relatively the same for the upcoming session.

Republicans kept their majorities in the state House and Senate but did not gain any seats.

In the Legislature’s most recent session, Republican Gov. Doug Ducey, Senate President Karen Fann, R-Prescott, and Speaker of the House Rusty Bowers, R-Mesa, controlled the branches of state government. The leaders are from the same sect of establishment Republicans with some middle-of the-road conservative views. Ducey, Bowers and Fann did not work to decertify the results of the 2020 election – although Fann permitted the 2020 Maricopa County election audit – and they support some social justice issues.

This year’s elections ousted several “moderate” Republicans in the primaries, including Bowers, in favor of opponents endorsed by Trump, who claims the 2020 election was stolen.

The Trump-endorsees did not perform as well in the general election in statewide races, but the Legislature has more “MAGA” Republicans than ever before. In the Senate, those same Republicans are now in charge. Sen. Warren Petersen, R-Gilbert, was narrowly elected Senate president on Nov 10. Although Petersen has never said that the 2020 election was stolen, he also never said it was secure and was instrumental in pushing the Senate’s 2020 Maricopa County presidential election audit.

In the House, Petersen’s “running mate” Rep. Joseph Chaplik, R-Scottsdale, lost the speaker election to establishment Republican Rep. Ben Toma of Peoria.

“Chaplik would be the total MAGA guy,” said attorney Tom Ryan. “And the problem for Toma, the difference in style between him and Petersen is, he’s got a tough row to hoe, especially with some of the MAGA people that did get elected. So, the way I look at it, I think more appropriately is he’s going to be more handicapped than Warren Petersen. Petersen will keep this group together. Toma is gonna’ be herding cats.”

Toma, ESAs, vouchers, Save Our Schools Arizona, private schools, tuition, charter schools, public schools, AEA — Rep. Ben Toma, R-Peoria

Toma and Bowers’ views are closely aligned, and the lawmakers are friendly. So much so that Bowers recused himself from running the House leadership election to avoid accusations of favoritism for Toma. Toma’s win suggests that the House will be run similarly to the past two years.

After House Republicans chose Toma as Speaker-elect, Toma said he doesn’t believe there is a significant difference in how conservative members of his caucus are and members are unified in their goals for the state.

Petersen and Chaplik tried to decertify Arizona’s 2020 election results. Petersen signed onto a resolution supporting “alternative” electors who declared that they were legitimate and worked with other Trump supporters to try to get the former president elected for a second term after he lost to Joe Biden. The actual Arizona electors cast their votes for Biden. Petersen was one of several Republicans who signed the resolution asking Congress to accept the alternative electoral votes instead of the legitimate ones.

Chaplik was not elected at the time, but he concurred on the alternative elector document.

Petersen and the other Republicans were unsuccessful in taking their claims to court.

How onboard Republicans are in unity remains to be seen. Rep. Jacqueline Parker, R-Mesa, said “get ready for shitshow round two” as she left the House Republicans leadership meeting.

Another incoming Republican representative from Chandler, Liz Harris, recently said on a Cause of America podcast that she will refuse to vote on any bills until a new statewide election is held because she thinks Republicans should have performed better in legislative and statewide races. She also criticized Toma and said it wasn’t likely he would let election reform bills pass in the House.

Sen. Sean Bowie, D-Phoenix, said of Harris’ threat, “They wouldn’t have 31 votes anymore. How many more bipartisan budgets do we have to pass before they realize that strategy?”

Harris holds a small lead for the second Legislative District 13 House seat over Republican Julie Willoughby and they are headed for a recount. Rep. Jennifer Pawlik, D-Chandler, has secured the other seat, but Harris said she and Willoughby should be the district’s rightful winners.

Legislative District 4 Rep.-elect Matt Gress said there may be some institutional tension between the House and Senate, but that’s the point of having those two chambers.

“Republicans, we largely agree on a number of these pressing issues,” Gress said. “But I think it’s going to entail a lot of communication so that the right hand knows what the left hand is doing.”

Candidates Kari Lake and Katie Hobbs fought a bitter race for control of the Governor’s Office. Both candidates were far away from Ducey in their ideologies.

Republican Lake was Trump-endorsed and campaigned against Democrats and establishment Republicans, famously stating that she would drive a “stake through the heart of the McCain machine.”

Hobbs, a Democrat and secretary of state, defends the results of the 2020 election and pulled through by about 17,000 votes out of 2.6 million cast.

The state’s three political units must find a way to work together next session. Hobbs’ priorities of codifying Roe v. Wade and abolishing the aggregate expenditure limit on public school spending will have to get past Petersen. But his priorities will have to pass Hobbs, too. It’s not clear what will or won’t get by Toma.

“Experience matters and really that’s it,” Toma said about the speaker’s working relationship with Gov.-elect Hobbs.

Democrat Janet Napolitano served as governor of Arizona from 2003-2009 with a Republican Legislature. As governor, Napolitano broke the record for highest number of vetoed bills at 180.

Without Republicans like Bowers, Sen. Paul Boyer, R-Glendale, Sen. Tyler Pace, R-Mesa, Rep. Michelle Udall, R-Mesa, Rep. Joel John, R-Buckeye, and Rep. Joanne Osborn, R-Goodyear, all of whom have shown a tendency towards being moderate or bipartisan, policy discussions could be much more discordant. There will also be dozens of new lawmakers joining the Legislature who could be anywhere on the spectrum of cooperative to obstinate when it comes to bipartisanship.

Boyer speculated: “I think that House and Senate Republicans are going to be in for a rude awakening because they’re just not used to coming into work” with a Democrat as governor.

Boyer did not run for re-election and was the only Republican who routinely stood in the way of the 2020 presidential election audit. He voted against arresting the Maricopa County Board of Supervisors, shut down dozens of Republican election reform bills and worked with Bowie to pass a bipartisan budget in the last session.

Bowie often worked across the aisle and didn’t run for re-election either.

“Actually, I’m optimistic,” Bowie said of the upcoming session. “I think they could get quite a bit done. … Obviously, they might have fights on abortion or more controversial social issues, but most of the work that we do, like 85% of the bills we pass, are pretty non-controversial. So, I think there are some issues where you could see Governor Hobbs and the House and the Senate work together on meaningful policy.” He pointed to water, education and workforce development as bipartisan opportunities.

Some Republicans, including Matt Gress, also said there’s room for bipartisan solutions to issues Arizonans are facing.

“We have some commonsense policies that I think both Republicans and Democrats should be able to get behind,” Gress said. “I personally want to work in a collaborative way, and I think it’ll just depend on the kind of tone that (Hobbs) wants to set.”

Bowie said he believes there are “still folks there that want to govern.”

“I think T.J. Shope is in that category,” he said. “I think Ken Bennett is in that category. I think David Gowan would be in that category. Not to say that they’re moderate in terms of policy, I just think they’re more moderate in terms of approach, and more pragmatic in terms of approach,” Bowie added.

By that metric, he draws a line between Toma and Petersen. “I think Toma is probably a little more pragmatic in terms of his approach, whereas Peterson is probably a little more ideological,” Bowie said. “I mean, they’re both conservative. But I think it’s more about how they approach the job. Do you want to get things done or do you want to obstruct?”

Boyer said that the difference between the Republican groups is not “establishment” versus “MAGA” because all the Republicans are conservatives. The biggest divisions are over election certification and personality.

“I really think it’s more of a style issue, where Chaplik’s more of a bomb thrower and Toma’s much more about getting things done,” Boyer said. He referred to an argument between Toma and Rep. Jake Hoffman, R-Queen Creek – an alternative elector who says he believes that Biden stole the 2020 election.

Hoffman attempted to push another abortion restricting bill on one of the last days of the session. Toma yelled at Hoffman and accused him of not following the process to introduce a new bill, not getting the votes needed to pass the bill, and not considering that the bill would potentially overlap with existing abortion laws. Toma also emphasized that he is pro-life.

“Toma was like, ‘I’ve done more pro-life legislation that you have.’ It’s just their style is a lot different,” Boyer said.

Consultants expect to see some leveraging on both sides next session.

Hobbs has Democratic priorities like codifying the state’s 15-week abortion ban instead of the more restrictive 1864 near-total abortion ban. But to make that change, she’ll need to support of at least two Republicans. In exchange, the Republicans will likely ask for a conservative favor such as a tax cut.

Incoming Republican House Whip Rep. Teresa Martinez, R-Casa Grande, said there’s plenty of room to work with Democrats to ensure the state’s business is taken care of.

“It’s not ‘Thunderdome’ for Pete’s sake, you know, where two men enter and one man leaves,” Martinez said. “We’re going to debate like adults.”

If the two (or three) parties refuse to make trades, then the Legislature is in for a long session that won’t produce any substantive policy.

“It’s not really ideology. It’s more about approach,” Bowie said. “Do you want to build bridges? Or do you just want to throw bombs?”

Half of this year’s bills died unceremoniously

Covid and increased Capitol security aside, this January at the Legislature started like almost every one before it.

Lawmakers and their assistants scurried between the House and Senate, passing bill folders back and forth to collect signatures and promises to support legislation. Grand ideas to dramatically change state government, tiny technical corrections fixing apostrophe placement, bills that took up two sentences and bills that ran for hundreds of pages all landed in hoppers in the House and Senate, ending with a record 1,708 bills — and another 115 memorials and resolutions — ready for hearings.

Six weeks later, more than half of them are legally dead.

Some bills gain new life, others born with ‘strikers’
By Julia Shumway and Nathan Brown

For every rule in the Legislature, there’s a maneuver to bend it. When it comes to session deadlines, strike-everything amendments buy another chance for seemingly dead bills.

This year, strikers on electronic cigarettes, unemployment and elections surfaced after deadlines for them to be heard in committee.

Vaping: For years, health care professionals and smoke shop owners have waged war over proposed regulations of vape products and electronic cigarettes. This year, Sen. Paul Boyer, R-Glendale, championed the health care side of things, with a now-dead bill that would have classified vaping products as tobacco and allowed municipalities to require tobacco retailers to obtain local licenses. Sen. Vince Leach, R-Tucson, sponsored the now-dead vaping industry bill that would have preempted local regulations. Senate Commerce Committee chair J.D. Mesnard, R-Chandler, held both bills but introduced a strike-everything amendment to SB1103 with parts of both bills. Mesnard won committee approval of SB1103, which he described as a way to buy the two camps more time to negotiate. Its future depends on whether Boyer and Leach can strike an agreement.

Unemployment insurance: Senate President Karen Fann, R-Prescott, used a strike-everything amendment to introduce a sweeping set of changes to the state’s unemployment system. Her SB1411 would raise the maximum weekly benefit to $320 from the current $240, reduce the number of eligible weeks to 20 from 26 and gradually increase unemployment taxes paid by employers. Fann said she has the votes to pass her bill.

Gambling: Gov. Doug Ducey and the state’s Native American tribes are negotiating a new gaming compact before the current one expires, and they reached agreement on allowing sports betting, as represented in a pair of mirror bills introduced by Sen. T.J. Shope, R-Coolidge, and Rep. Jeff Weninger, R-Chandler. But Sen. David Gowan, R-Sierra Vista, declined to hear Shope’s bill in the Appropriations Committee, which he chairs, and instead used a strike-everything amendment to attach the language to his own bill on historic horse racing. While the amended bill passed in committee, the tribes consider the historic horse racing component a “poison pill.” And it appears unlikely that Gowan’s bill could pass the full Senate.

Overturning elections: Gowan also drew national attention for a strike-everything amendment that would have asked voters to approve a constitutional amendment in 2022 to give the Legislature the sole authority to appoint presidential electors. After taking testimony near the end of a 12-hour hearing, Gowan announced that he would hold the resolution, saying he just wanted to start the conversation.

Checking Biden: Strike-everything amendments on both HB2310 and SB1119 would give the attorney general the power to review the constitutionality of federal executive orders. In 2014, Arizona voters approved an initiative that would prevent the state from using its resources to enforce unconstitutional federal laws. The process laid out in the two amended bills would allow the state to determine the constitutionality based on the attorney general’s opinion without waiting for court rulings. HB2310 passed the House on a 31-29 vote and SB1310 is awaiting a hearing in the Senate.

Conversion therapy: After fellow Republican Sen. Tyler Pace killed Leach’s bill prohibiting bans on conversion therapy or professional punishments for therapists who practice it, Leach reintroduced his bill as a strike-everything amendment to SB1325. The bill was on the February 23 Appropriations Committee agenda, but Gowan held it with no discussion, killing the bill for a second time.

Legislative consultant Beth Lewallen, who has closely tracked the Legislature for a decade, said this year’s dead bills mostly just show how a typical session goes.

“There were such a massive number of bills,” Lewallan said. “It’s normal for that many to die and I think it’s why we all take a deep breath and can’t wait when we get to crossover week.”

While some, such as a Senate resolution to hold Maricopa County’s supervisors in contempt, publicly failed to garner enough votes to pass, most of the bills that die in the House and Senate do so quietly. By the February 19 deadline to hear bills in committees in their chambers of origin, more than 950 measures were left to die.

Most were sponsored by Democrats, who struggle to have their ideas heard when Republicans still control both chambers. But some Republican bills also struggled to find a foothold.

Among the most notable were election bills, including ones sponsored by Sen. Kelly Townsend, R-Mesa, and Reps. Shawnna Bolick, R-Phoenix, and Kevin Payne, R-Peoria, that would have overturned the 2020 election results, given legislators the power to choose future electors and ended the Permanent Early Voting List, respectively.

Lewallen, who founded her own consulting firm, Italicized Consulting, works for many clients and spends a lot of time analyzing and tracking bills. She said she noticed a larger number of duplicate bills this year, which she speculated could be why there were so many that died.

It’s a case of different people sharing the same ideas, she said, and the short window of time to be heard in a committee causes them to die.

The Pandemic and Vaccines

The Covid pandemic upended the 2020 legislative session and dominated the entire interim period through the election cycle, but most Covid bills from Democratic sponsors are now dead, as are bills downplaying vaccines.

Outside of bill sponsored by Aaron Lieberman, D-Paradise Valley, to give grants to small businesses that were closed due to Covid, none of the dozens of Covid bills targeting unemployment, rental assistance, wage increases or residential eviction moratoriums from Democratic sponsors received a committee hearing.

It’s a fight Democrats have wanted since early in the pandemic, and a reason why they would have been in favor of a special session if the Republicans would have agreed to work with them on legislation. But while Democratic bills are not moving forward, efforts to raise the unemployment cap are not dead. Bipartisan efforts are making their way through each chamber.

Criticisms from the left that Gov. Doug Ducey was not effectively combating the virus or helping the people who needed it the most prompted bills like Paradise Valley Democrat Rep. Kelli Butler’s HB2788, which would increase the amount of paid sick leave for eligible employees in schools, and Glendale Democrat Sen. Martín Quezada’s SB1607, which would have prevented landlords from increasing the price tenants must pay for the duration of a state of emergency plus 30 days.

On the flipside, while Ducey and Arizona health officials push the safety of receiving one of the available vaccines that have been administered to at least 1 million people so far, at least two Republican lawmakers see the pandemic as a new reason to push an anti-vaccination agenda that has come up in consecutive sessions.

The vaccine is not mandatory, but state and federal leaders strongly encourage getting it. Sen. Nancy Barto, R-Phoenix, still wanted to remove a potential condition for employment to receive the Covid vaccine. Barto has a history of anti-vaccination efforts against the advice of health experts, but has yet to get any passed — though her bill to exempt dogs and cats from rabies vaccinations is moving in the Senate. Her Covid vaccine bill SB1648 never received a hearing in the Senate Commerce Committee.

An effort from Rep. John Fillmore, R-Apache Junction would have removed school immunization requirements, though it was not limited to the Covid vaccine.

Abortion

A bill from Rep. Walt Blackman, R-Snowflake, would have allowed women who get abortions and the doctors who perform them to be prosecuted for homicide, but it didn’t go anywhere after national attention at the start of session.

HB2650 would have given counties and the Attorney General’s Office the power to prosecute abortions while directing officials to enforce the law regardless of any federal laws or court rulings – such as the landmark 1973 case Roe v Wade – to the contrary. It contained an exemption for cases where the mother’s life was in danger, but not in cases when a pregnancy resulted from rape or incest. It was never assigned to a committee.

Other similar bills would legally classify abortion as homicide have been introduced in several other states over the past few years but have never gotten far. Blackman introduced another version of the bill, HB2878, a couple days before the House committee hearing deadline, which would allow abortion to be treated as homicide but doesn’t include the language directing the state to ignore federal courts that the other bill did. It died in the House Judiciary Committee without a hearing.

Rep. Athena Salman, D-Tempe, introduced a bill this year to repeal the unenforced pre-Roe v Wade abortion ban still on the books in Arizona. It was left to die after being referred to two committees – usually an ominous sign of a bill’s fate.

Responding to the Ballot

In clear response to the passage of 2020’s Proposition 208 (Invest in Education) Sen. Warren Petersen, R-Gilbert, introduced a ballot referral that would require voters to reauthorize tax increases every five years. Since Prop. 208 was a tax levy on Arizona’s highest income earners for the purposes of funding public education, it would go to the ballot again in 2024 – along with all other retroactive tax increases approved on the ballot. Petersen’s SCR1028 never received a hearing.

Rep. John Kavanagh, R-Fountain Hills, wanted to get a bill approved to crack down on marijuana impairments on the road – a provision that was not addressed when voters approved Proposition 207 (Smart and Safe Arizona), which legalized recreational marijuana for adults. Kavanagh’s HB2084 would set a blood level limit of two nanograms per milliliter to prove impairment, which experts say is not an accurate measure for marijuana intoxication. The bill died without a committee hearing.

Anti-Twitter

Conservatives have long complained that social media giants are biased against them, and two lawmakers who were particularly active in using social media to push conspiracy theories about the results of the 2020 election introduced bills to do something about it. Rep. Mark Finchem, R-Oro Valley, filed HB2180 in early January, a bill seeking to penalize social media companies that censor content for “politically biased reasons” by deeming them a “publisher,” not a “platform,” and holding them “liable for damages suffered by an online user because of the person’s actions.” And Townsend Introduced SB1428, which would have let anyone sue Twitter, Facebook and other social media sites if they delete or minimize the reach of posts.

Neither of their bills ever got a hearing. And neither of them are on Twitter anymore. Both deleted their accounts in late January although Finchem, like many other conservatives who decry Big Tech bias, is still active on Parler and Gab.

Freshman blues

Heading into the session, everyone expected a repeat of last year’s bitter fight over whether transgender girls should be allowed to participate in girls’ interscholastic sports. Similar battles are raging in legislatures across the country, as part of a nationwide push following a Connecticut lawsuit filed by female athletes who say they lost chances at athletic scholarships to two transgender girls who took top spots at track and field competitions.

Superintendent of Public Instruction Kathy Hoffman attempted to head off the potential bills with a prominent op-ed in the Arizona Republic arguing that students should be allowed to play on teams consistent with their gender identity — which, for transgender students, is different from their biological sex.

Sen. Wendy Rogers, R-Flagstaff, filed SB1637 early in the session to require only biological girls be permitted to play for girls’ teams, but Senate President Karen Fann never assigned it to a committee. Barto, the Phoenix Republican who led the charge last year, as well as ardent supporter Cathi Herrod, director of the influential social conservative organization Center for Arizona Policy, instead opted to hang back and wait for courts to rule on challenges to an Idaho law that would bar transgender girls from girls’ sports and a recent President Biden executive order that appears to require they be allowed.

SB1637 is just one of many Rogers bills that earned headlines in the national conservative media but won’t move forward. Fann also declined to assign her SCR1026, which would have removed Planned Parenthood founder and longtime Tucson resident Margaret Sanger from the Arizona Women’s Hall of Fame.

Senate Transportation and Technology Committee Chair David Livingston didn’t bite at Rogers’ pitch to rename State Route 260 the “Donald J. Trump Highway.” Barto didn’t hear Rogers’ SB1511, which would classify so-called “gender-affirming care” as criminal abuse, or her SB1383 to ban abortions after a physician can detect a heartbeat – typically six weeks into pregnancy or just two weeks after a woman misses her period.

Committee chairs also declined to hear Rogers’ bills creating harsher punishments for blocking roadways during protests and defacing monuments.

Lewallan, the legislative consultant, said she thought most of the bills from Rogers died because of her different approach than the typical freshman lawmaker.

“She tackled really big, high-profile issues her first year. There was no learning curve. A lot of people come in and especially into the Senate, and take a handful of issues and really kind of learn their way through the process, and she had a very different strategy than a lot of freshmen,” Lewallan said.

Hobbs vetoes 4 bills targeting drag shows, performers

Gov. Katie Hobbs vetoed four bills Friday designed to target “drag” shows and performers.

“Intolerance has no place in Arizona despite the Legislature’s frequent attempts to pass legislation that says otherwise,” the governor said in a single veto message on all four.

She said the four bills “are attempts to criminalized free expression and ostracize the LGBTQIA+ community both implicitly and explicitly, creating statutory language that could be weaponized by those who choose hate over acceptance.” And that, said Hobbs, won’t pass her desk.

Hobbs, Prop 400, light rail, freeways,transgender, veto — Gov. Katie Hobbs (Photo by Gage Skidmore via Flickr)

“I have made it abundantly clear that I am committed to building an Arizona for everyone and will not support any legislation that attempts to marginalize our fellow Arizonans,” the governor said.

Only one of the measures specifically mentions “drag shows.” SB 1026, sponsored by Sen. John Kavanagh, R-Fountain Hills, barred the use of public moneys or the use of state-funded institutions for a “drag show targeting minors.”

It defined that as any adult performers dressing in clothing and makeup of the opposite sex to exaggerate “gender signifiers and roles” and engage in singing, dancing or a monologue or skit to entertain a target audience under 18.

The breadth of that bothered Sen. Priya Sundareshan.

“This could include all sorts of beloved childhood movies and productions like ‘Mulan’ and ‘Mrs. Doubtfire,’ any other popular show that includes people dressing in clothing of the opposite gender,” said the Tucson Democrat.

And Senate Minority Leader Mitzi Epstein said it would preclude her from dressing up as Thomas Jefferson to read the Bill of Rights to a group of children at a school or municipal event.

Three other measures took different approaches in what proponents said where efforts to protect children from “sexually explicit performances.”

Kern, Republicans, pulsar manipulation devices, gas stations, Senate, House, gas stations — Sen. Anthony Kern, R-Glendale

Sen. Anthony Kern, R-Glendale, the sponsor of two of the measures, insisted he was not trying to limit what is available to adults. In fact, he stripped the words “drag shows” from his bills in an effort to show this was not about targeting transgender individuals.

But there already are laws keeping children out of adult-oriented businesses. And supporters made it clear that, with or without those words, the measures were aimed at those performing in drag.

“We all know what we’re talking about here,” said Senate President Warren Petersen.

“We’re talking about men wearing bikinis, dancing weird, sexually, strangely in front of children,” said the Gilbert Republican. “I imagine everyone’s seen the videos.”

Some of those videos available on social media show performances by men in drag with children in the audience

“Folks, if you’ve seen it, you know this stuff is gross, it’s disgusting, it’s perverse,” Petersen said. “And that’s what we’re talking about here.”

Sen. Anna Hernandez said there’s a big problem with expanding existing law that already govern not just who can view an adult-oriented performance but also protect minors from exposure to nudity and sex acts. What’s in these bills, said the Phoenix Democrat, is an expanded definition that could make criminals out of people performing activities that are now legal, even with children present.

She said it would have been one thing had the proponents sought to regulate obscene performances and access by minors. That, Hernandez said, would be a better and clearer test because courts have defined that to be materials that are not only “patently offensive” but that, when taken as a whole, lacks any serious literary, artistic, political or scientific value.

“The worry is that the language of this bill will be perverted in order to continue to be applied to drag shows because drag shows often focus on over-the-top humor, sometimes sexual in nature, and it may be offensive to some individuals that hear it,” she said.

But Sen. Justine Wadsack, the author of one of the bills and a supporter of all four, had a different take.

“We have absolute evidence that these drag performers are targeting to perform in front of children,” the Tucson Republican senator said during debate on the measures. And Wadsack said what they are doing itself is evidence of that targeting.

“Why, why do grown men want to dress up as women and read to young children?” she asked. “Why not just dress in jeans and a T-shirt and read to the children?”

What it is all about, Wadsack said, is “sexually grooming our children.”

But one of the measures sponsored by Kern had absolutely nothing to do with children.

SB 1030 would have required counties to adopt specific zoning ordinances for businesses that conduct “sexually explicit performances.”

“My intent of this bill is to regulate sexually explicit drag shows,” he said But he said other drag shows could remain.

“As we all know, drag shows have been around as long as human beings have been around,” Kern said during debate.

“Although I’ve never been to one, I have watched the movie ‘Tootsie’ and ‘Mrs. Doubtfire,” he said. “And I’ve enjoyed them.”

What’s behind this, Kern said, is protecting children from what the law would define as sexually explicit drag shows.

“Why a parent would even want to bring a child to one of these shows is beyond me,” he said.

Only thing is, his SB 1030 makes no mention of minors.

Instead, its provisions would regulate the location of any of what Kern sought to describe as sexually explicit performances. And that specifically included anything with an “intention to arouse or satisfy the sexual desires or appeal to the prurient interest.”

Sundareshan, however, called that particularly vague, saying what can arouse varies from person to person.

Kern’s 1028 took a different approach, seeking to bar “sexually explicit performances” on public property or anywhere the person knows or has reason to know it could be viewed by a minor. And it used the same definition of that phrase as the other measure about intent to arouse.

SB 1698, sponsored by Wadsack, also focused on minors. It sought to create a new felony of “unlawful exposure to an adult oriented performance.”

As originally crafted, the measure specifically included drag shows. But she agreed to remove it, instead making it a crime to bring a child into an adult-oriented business.

Sen. Christine Marsh, D-Phoenix, said that made the bill “much better.” But she said what remains still had “some pretty serious implications,” including that felony conviction.

“And this violation would apply to a parent or anyone else who brings a minor to any adult-oriented business,” Marsh said. And that same penalty would apply to the performer who would have to figure out if there was someone under 18 in the audience.

Sen. Juan Mendez, D-Tempe, said he sees a bigger problem with all of the measures – whether any of the bills use the words “drag shows” or not. He said the intent is clear.

“These attacks on drag performances and the trans community are a slippery slope toward authoritarian rule,” he said. “It should concern everyone when anyone becomes the punching bag of an ideology.”

And Mendez said that efforts like this won’t make transgender people disappear.

“This community will not back down from these kinds of attacks,” he said.

Hobbs, GOP lawmakers clash over new Prop 400 proposal

Gov. Katie Hobbs claims to have a deal backed by a majority of lawmakers from both parties to let Maricopa County voters decide whether to extend a half-cent sales tax for road and transit issues.

And now she wants the Republican-controlled Legislature to ratify it, saying failure to do so amounts to “holding our economy hostage.”

The only thing is, GOP leaders are planning to unveil their own proposal on Monday, one that divides up the $20 billion that the levy would raise in the next 20 years in a way different than what Hobbs wants. And while the details have yet to be revealed, House Speaker Ben Toma of Peoria told Capitol Media Services the governor’s plan, worked out with the Maricopa Association of Governments, is “inefficient.”

Hobbs, gubernatorial, election, Lake, debate, Clean Elections Commission, PBS, debate, Lake, Ask Me Anything, education, Chandler, election, gubernatorial, PBS, debate, interview, Lake, Mike Broomhead, gubernatorial, candidates, Ducey, border, abortion — Katie Hobbs

And Sen. Jake Hoffman, R-Queen Creek, who has taken the lead among Senate Republicans in crafting a plan, said it is Hobbs and MAG, made up of local elected officials, who should accede to what the GOP wants.

“It’s unfortunate that Katie Hobbs isn’t willing to join legislative Republicans to ensure this important highway and funding source continues,” he said. “It’s becoming apparent that Hobbs isn’t interested in solving complex problems or negotiating issues in good faith, but rather just wants to play petulant political games.”

Kenn Weise, the mayor of Avondale who chairs MAG, said the group has made major changes to the plan they submitted last year in response to demands from Republican leaders, with a frustrating lack of success. He said Hobbs started taking the lead in negotiations with the Legislature in recent weeks.

“We have compromised on I don’t know how many different levels here, whether it’s 25-year tax down to 20 years, whether it’s fare box monitoring, whether it is lowering the transit number, whether it is removing flexibility” in how the funds can be moved around, Weise said.

“What she offers is the best and final, he said. “There’s nothing else.”

MAG also has jettisoned any effort to use any of the Proposition 400 extension dollars to extend the light rail system beyond what already is built or funded, which was one of the key bugaboos for some Republicans.

The situation threatens to become a game of political chicken.

Hobbs is signaling to GOP leaders that the only measure she will sign is that deal she made with MAG.

“I’m calling on those legislators to put their partisan politics aside and accept this compromise so that we can keep our economy growing,” the governor said in a prepared statement.

But Senate President Warren Petersen said the Republicans who control both the House and Senate have little interest in what Hobbs and MAG have to offer. More to the point, he said that deal won’t get a vote.

“We will put up the plan that is best for the citizens, not the best for bureaucrats,” the Gilbert Republican told Capitol Media Services.

That drew a sharp response from House Minority Leader Andres Cano.

“Clearly President Petersen is paying attention to a slim minority of his caucus that apparently wants to hold our regionally approved transportation plan hostage,” said the Tucson Democrat. He called the Republican leadership “tone deaf” to what political and business leaders have worked out with the governor and say they want.

Weise said the governor is right when she says there are plenty of votes in the Legislature to approve the MAG plan.

“I think Republicans are being disingenuous, the few that are holding this bill hostage, when they say they don’t have the votes,” Weise said. “If they put it to the full vote of the Senate and a full vote of the House, the plan would pass overwhelmingly.”

But it’s not that simple: Even if he is correct – which is an assumption – House rules specifically prohibit any measure from getting a vote without the speaker’s OK.

Toma, budget, transportation, light rail, housing — House Speaker Ben Toma, R-Peoria

Toma said he remains willing to negotiate with Hobbs and MAG. But he said it is the governor and the regional planning agency, not the GOP, that is endangering a deal on the levy to finance the road and transit projects for the state’s largest county for the next two decades to spur economic development.

“Their take-it-or-leave it attitude is decidedly unproductive,” he said.

If neither side blinks, that leaves the future of the sales tax, first approved by voters in 1985 and extended for 20 years twice before, in limbo.

By law, Maricopa County needs legislative permission even to ask voters to extend the levy beyond its 2025 expiration date. No legislative approval means no vote and the tax goes away.

That creates a risk not only to Maricopa County projects but the chance that the state’s largest county, devoid of local tax revenues, would seek a bigger piece of the state and federal dollars that are now relied on heavily by other counties.

The heart of the fight comes down to how to divide up the cash.

What Hobbs insists is the done deal – the plan she worked out with MAG – devotes 40% of the $20 billion that would be raised over the next two decades to freeway construction. Another 22% would be earmarked for regional and arterial roads, with 38% for transit.

Not acceptable, said Toma.

“The governor has chosen to be an uncompromising conduit for an inefficient MAG proposal that does not have sufficient votes to succeed in the House,” he said.

What Republicans consider “efficient” is set to be unveiled Monday.

As recently as a week ago, Petersen was proposing just 33.5% for transit projects. That left 47.5% for freeways and 19% for local roads.

He said that is being changed but provided no details.

What has been a key sticking point is how much of the tax revenues raised from sales in Maricopa County should be devoted not just to buses but also operation of the light rail.

Even with no money to build more miles of track, GOP leaders are not willing to give their blessing to a levy that many believe taxes residents too much for the overall mass transit system, a system that doesn’t come close to paying its own way and that most people do not use.

It’s starts, said Sen. David Farnsworth, R-Mesa, with the fact that fares from riders cover just 7.5% of operating costs.

“When I heard that number, I was shocked,” said Farnsworth who chairs the Senate Committee on Transportation and Technology. “We just need to get better.”

And there’s something else.

Many Republicans want language that precludes MAG from advancing what are called “road diets.”

These are efforts to encourage people to drive less by installing light rail, lanes reserved for buses and even putting in bicycle lanes. But Farnsworth said that’s not what he would consider merely incentivizing alternatives to cars.

“You make it miserable to drive by taking lanes out,” he said.

“A perfect example of that is downtown Mesa,” Farnsworth said, where the streets were planned to be extra wide, enough to turn a horse- or mule-drawn wagon around. Now, he said, light rail has it down to one lane in either direction.

“And I avoid Main Street like the plague,” he said.

But even if there are no new light rail lines, the issue is not moot.

Scottsdale, for example, is weighing a plan to have “bus rapid transit” on Scottsdale Road from Thunderbird Road all the way to Tempe and Chandler. In essence, it’s like light rail but without the rails: Remove a travel lane and dedicate it just the buses.

Weise said MAG agreed to concessions, spelling out that if cities want to put in bus or bike lanes, they can’t apply to his organization for the funding.

And he said the agreement that MAG and Hobbs is advancing prevents his agency from shifting dollars among the pots of money set aside for freeways, major roads and transit services.

“The concern that the Senate has was they didn’t want to lose road miles, so they didn’t want funds being transferred from freeways to transit.

But he said it leaves in place about $2 billion earmarked for regional programs that could be used for various yet-to-be-defined projects. Weise said, though, there is language that sets some guardrails on how those dollars could be spent.

“There’s nothing untoward, there’s nothing sneaky,” he said, “It’s just a transportation and economic development plan.”

House advances resolution to increase representation

Arizona voters could have a say in how many lawmakers there are to represent them at the Capitol.

A resolution sponsored by Sen. Warren Petersen, R-Gilbert, would increase the number of state senators and representatives in Arizona by putting a cap on the population of legislative districts.

Petersen said the measure would ensure that Arizonans have their best interests appropriately represented. To accomplish that, he wants the Arizona Independent Redistricting Commission to divide the state’s population by 220,000 — the size of legislative districts by population during the last redistricting process — every 10 years. The IRC would then redraw legislative district boundaries in a way that ensures no district has more than 220,000 residents.

Arizona’s booming population growth means legislators will represent larger districts following the next redistricting process, which begins in 2021. That’s the year the IRC would have to do the math, and every decade after that.

Left untouched, Arizona’s legislative districts would exceed 233,000 residents per district, according to the latest available U.S. Census data.

With more Arizonans to represent, lawmakers won’t be able to serve their constituents as well, Petersen said.

“Arizona is, according to (the National Conference of State Legislatures), we have the third most populated House Districts. We each average close to 220,000 people per district,” Petersen told the House Appropriations Committee on March 28. “There is a principle of representing the people, being accessible, being close to the people, and I’m sure we’ve all failed it.”

There are currently more than 7 million people in Arizona. By applying Petersen’s math and dividing that number by 220,000 residents, Arizona would split into 32 legislative districts, two more than there are now.

That would mean another four representatives, two per district, and two state senators at the Capitol.

That was cause for concern among Democrats on the House Appropriations Committee, where the bill was approved on a 7-3 party line vote last week. Rep. Lela Alston, D-Phoenix, questioned if Arizona’s Capitol buildings had the capacity for another four representatives and two senators. Alston called the proposal impractical.

Rep. Ken Clark, D-Phoenix, voted against the resolution after arguing it didn’t go far enough. Making the cap on the population size of legislative districts even smaller would provide more focused representation, and it would also have the benefit of forcing the House and Senate to outgrow their current office space.

“My goal here is to have enough members so we can tear down these old buildings and have something nicer,” Clark quipped.

Clark also warned his Republican colleague that the measure would likely benefit Democrats. Urban population centers would likely be split into even more districts, meaning those new representatives and senators would likely vote with the minority party.

Republicans countered that the measure would also be popular for rural voters who feel like their districts are stretched too far and wide. Rep. Regina Cobb, R-Kingman, noted that “right now my district is exactly eight hours from top to bottom.”

The measure still needs a vote in the House, where Speaker J.D. Mesnard, R-Chandler, said he hasn’t decided if he’ll let the resolution advance.

If approved by the House, it would take another vote in the Senate to send the resolution to the ballot, where voters would get the final say over the proposed Constitutional change.

House Dem budget proposal aligns mostly with Ducey’s

Arizona House Democrats held a press conference to pitch their budget proposal. (PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES)

Democratic representatives took their budget pitch public on Wednesday morning in an effort to appeal to Republican Gov. Doug Ducey, while state senators in the minority party are keeping their plans close to the vest.

Their differing strategies reflect the political realities in the state Senate, where GOP leaders have pledged to work across the aisle on a roughly $11 billion spending plan, and the House of Representatives, where Republicans made no qualms about keeping Democrats out of the loop.

Rep. Charlene Fernandez, D-Yuma, said she’s tried and failed to engage with her Republican colleagues in budget talks, so instead, she took her case directly to the governor. Her sales pitch comes a week after leaked budget documents prepared by Senate Republicans showed a spending plan that vastly deviated from Ducey’s desires to invest in education and infrastructure, while also saving hundreds of millions of dollars for a rainy day.

Fernandez offered Ducey an alternative path. The House minority leader’s budget proposal accomplishes much of what the governor asked for in January by investing in KidsCare, Arizona’s health insurance program for children; funding a teacher’s academy at public universities; providing state employees a pay raise; and investing in new school construction, among many other areas of agreement.

All told, Democrats seek to spend roughly $200 million more than Ducey proposed, and save roughly $80 million less in the state’s rainy-day fund. With a little “leadership” from Ducey, perhaps House Republicans can be swayed to use those figures as a starting point to negotiate with Democrats, she said.

“They’re not talking to us,” Fernandez said of House GOP leadership.

That’s been the standard at the Arizona Legislature, where Republicans control the governor’s office, the House and the Senate, and historically use that advantage to pass budgets without meaningful input from Democrats. The process inevitably results in budgets that are approved mostly along party lines, save for a rare instance where one or two Democratic lawmakers vote for individual pieces of a spending plan.

“We’ve asked the governor’s staff to bring them to the table with us,” Fernandez said. “That’s the governor’s job – to talk to them and say this budget is good for Arizona and for us.”

As for the Senate, Democrats have been silent when it comes to their own priorities. That, too, is by design, said Minority Leader David Bradley, D-Tucson, as they’re trying to cooperate with Republicans to build a bipartisan budget.

“Everybody’s situation is different,” Bradley said. “Over here, we’re still trying to work it out.”

Bradley said Republicans were caught unaware when an early version of their budget draft leaked last week, and he expects Republicans to share an updated version with Democrats soon. Like their House colleagues, Senate Democrats supported most of the governor’s budget, which contains a lot of “Democratic priorities from bygone days,” he said.

Senate Democrats still differ from Republicans on some significant issues, including funding for KidsCare and universities, he said. But as long as Fann keeps those conversations going, Democrats have promised Senate Republican leadership not to broadcast their own budget priorities.

Unlike in the House, “we haven’t been cut out,” Bradley said.

That’s in line with Senate President Karen Fann’s ongoing vow to pursue what one GOP lawmaker called the “impossible dream,” a budget agreement that Republicans and Democrats alike will vote for.

In the opposite chamber, Rep. T.J. Shope, R-Coolidge, was unapologetic about the Republican’s approach.

“Fernandez and their leadership team, including the real minority leader, Rep. [Isela] Blanc, are the last folks I would reach out to on a budget or any other bill,” Shope said via text. “Doesn’t mean I won’t reach out to other members who are reasonable.”

The House Democrats’ olive branch to Ducey isn’t inclusive of their Republican colleagues either, Shope said. The Democrats crafted their proposal behind closed doors without input from the majority caucus, and in any case, he’s not taking their proposal seriously.

“I don’t pay much attention to desperate acts for attention,” Shope said.

Reps. Regina Cobb, chair of the House Appropriations Committee, and Warren Petersen, the House majority leader, were similarly left in the dark about the Democrat’s spending priorities, they said, though Petersen took no issue with them announcing their budget plan.

“They’re free to release their own proposal. That’s what they got elected to do, to try to get things done and make things happen down here,” the Gilbert Republican said.

House Republicans are working with Ducey on their own proposal, which they’ll release “as soon as possible,” he said. But if it’s anything like the budget documents that leaked from the Senate, Fernandez said Ducey would do better to engage with Democrats.

“Is he willing to accept a budget that thumbs its nose at most of his stated priorities? Or does he want a budget that moves Arizona forward? His budget, for the most part, will require the votes of both Republicans and Democrats to pass,” Fernandez said.

Fernandez heaped praise on Ducey for introducing a budget in January that was “pretty good” and highlighted the areas in which Ducey’s priorities align with those of House Democrats.

And she appealed to the governor’s sense of expediency.

“With just some minor adjustments to his plan, and some leadership, the governor could lift us out of this stalemate this week,” Fernandez said.

CORRECTION: This article previously identified Tucson Democrat David Bradley as the majority leader in the Senate. He is the minority leader.

House GOP caucus cold to gas tax proposal

A proposal to double the state’s gasoline tax is in trouble.

On Thursday, several Republican lawmakers told Rep. Noel Campbell, R-Prescott, they would not support his proposal for a three-step increase in the levy that eventually would bring it to 36 cents a gallon. Their comments came even after House Speaker Rusty Bowers, R-Mesa, urged support, telling them that the state’s road construction and maintenance needs exceed the amount of money the 18-cent-a-gallon tax now raises.

Campbell likely has the support of the 29 Democrats in the 60-member chamber. That, combined with his own vote and that of Bowers and Rep. Bob Thorpe, R-Flagstaff, gets him a majority.

But a state constitutional provision requires a two-thirds vote of both the House and Senate for any increase in taxes. And Campbell conceded he doesn’t have that now – and may not be able to get it.

Bowers said one option would be for Campbell to scale back the proposal, perhaps with a smaller increase spread over a longer number of years. And, if nothing else, the speaker said Campbell should at least pursue putting an automatic inflation index into the current 18-cent levy to ensure that its buying power does not erode further

There is another option: Take the issue directly to voters. Several GOP lawmakers said they might be willing to support that.

And there’s a procedural advantage in going that route. It takes only a simple majority of the House and Senate to refer any plan to the ballot.

But Bowers told Capitol Media Services there’s a flip side to that.

Most of the voters live in Maricopa County where residents already have approved a sales tax which has resulted in new dollars for both construction of an extensive urban freeway system and additional dollars for road maintenance.

And that, Bowers said, may result in voters in Maricopa County deciding that the state really doesn’t need additional road revenues, effectively overriding the votes from everywhere else.

“If it doesn’t bite you, you don’t feel it,” he said.

Political Will

Central to the issue is what Campbell contends – and many of his colleagues agree — is the poor condition of some state roads. He said doubling the levy and imposing new fees on hybrid and electric vehicles which also use the roads could raise an additional $600 million a year.

But convincing Republicans to actually vote for the increase has proven more difficult – and more frustrating for Campbell.

“What we lack in this body is political will,” he told fellow Republicans during a caucus on Thursday.

“What did we come down here for, to just keep getting elected?” Campbell said. “Is that all we do is elected and do nothing?”

That drew a sharp reaction from Rep. John Allen, R-Scottsdale.

“I disagree with the sponsor on this bill,” he said. “But that does not make me somehow only interested in my own interest, not that of the public.”

Campbell apologized. But he said that does not undermine the need for the additional dollars.

Rep. Bob Thorpe, R-Flagstaff, said the state is the victim of its own decision decades ago to set a flat gas tax, with no inflation indexing. He said if there had been an index the current levy would be 35 cents a gallon.

“This has been 30 years in the making,” Thorpe said of the issue.

Rep. Ben Toma, R-Peoria, did not dispute that. But his issue is the methodology.

“I would just suggest to you that you send it to the voters,” he said.

That’s also the belief of Rep. Walt Blackman, R-Snowflake.

“It is the public’s money,” he said. “They should have a vote in this.”

Rep. Mark Finchem, R-Oro Valley, also thinks voters should get the last word. But he’s not convinced that most Arizonans actually would go along.

“When I talk to my constituents, yes, roads and transportation comes up as an important issue,” Finchem said.

“But it’s like No. 5 on the list,” he said. “I think it’s wholly appropriate for us to take that to the ballot and say, ‘OK, just how important is that to you?”’

And Finchem suggested that the measure might gather more legislative support if it had a smaller price tag.

Even going the route of putting it on the ballot, however, will draw GOP opposition.

“I don’t think we should be doing anything at all here,” said House Majority Leader Warren Petersen, R-Gilbert.

Campbell was somewhat bemused that he has support from some Republican colleagues to put the issue on the ballot.

He tried to go that route in the past and have the issue referred to the 2018 ballot. But he could not round up the votes for that.

“You know what? It’s kind of like any way you want to go they want to block you and say, ‘That’s not the right way, we should go the other way, ‘ ” he told Capitol Media Services after the caucus. “They find a million reasons why they don’t do it.”

Still, Campbell said if he can’t get the 40 votes in the House he may ask Bowers to provide a way for him to try to refer the issue to the 2020 ballot.

House leaders offer teacher pay raise plan

Republican House leadership is backing a plan to give teachers a 6-percent pay bump next year at the expense of Gov. Doug Ducey’s proposal to restore cuts to K-12 school capital funding.

Buffeted by protesting teachers, who have threatened to strike if the Legislature doesn’t provide a sizable increase in funding for Arizona public schools to bankroll salary hikes, Republican lawmakers see the proposal as a means of changing the narrative that state legislators have failed to provide teachers a decent wage.

The plan boasts of a cumulative 24-percent pay raise for teachers over six years. To do so, the Legislature would renege on a pledge made by Ducey to restore cuts made to public school monies used for capital expenses, like new school buses, textbooks and facility maintenance.

Legislators would bypass the decision makers in school districts to ensure that all available dollars go to teacher pay, House Speaker J.D. Mesnard, R-Chandler, said on KAET-TV’s Arizona Horizon Wednesday evening.

“That was one of the reasons we put out a proposal yesterday that essentially did just that,” Mesnard said. “It took money where it was going to go in a pot where they could pretty much do what they want with it… and instead put hundreds of millions of dollars into something called the classroom site fund, which is dedicated to teacher pay.”

Mesnard said the proposal addresses the gripes of protesting teachers, who have asked for an immediate 20-percent raise.

“We don’t set teacher pay. That’s a district decision. We’re in the resource business,” he said.

The proposal from GOP leaders misses the point protesters are trying to make, said Dana Naimark, president of Arizona Children’s Action Alliance. There isn’t enough funding available to address all the needs schools have, be it salaries, broken air conditioning systems or old textbooks.

“To try to dangle that in front of teachers saying we’re promising you a 24 percent pay raise I think is pretty disingenuous,” she said. “They’re just moving the shells around the table. The point is, we need more revenues to invest in schools.”

Flanked by local school officials, Ducey in January announced the budget proposal to immediately put $100 million for the coming school year back towards “district additional assistance,” and to continue to increase those funds over the next five years.

The offer came as a coalition of school groups and educators have sued the state for failing to meet constitutional obligations for capital needs. Ducey’s plan convinced some to back away from the lawsuit.

The proposal from GOP leaders takes that $100 million away in the upcoming school year and places it in a fund designated almost exclusively for teacher salaries.

Sen. Warren Petersen, R-Gilbert, said the plan is popular among some legislative Republicans.

“There’s a narrative right now that the legislature dictates teacher salaries and how much money goes to teacher salaries. And you’re hearing people say that it is the legislature that does that. That is not the case,” he said.

But if that’s what people want to believe, Petersen said, “then maybe it is time for the legislature to do what people think is already the case and dictate salaries.”

Over the next five years, state budget analysts project the proposal would divert nearly $400 million from capital funds, as proposed by Ducey, to the classroom site fund, which primarily is used for teacher pay raises and merit pay increases.

That would kick start in 2018 with a $107 million appropriation to the fund, including the $100 million in capital funding Ducey proposed and another $7 million for schools that don’t receive state aid.

The GOP-led plan also accounts for the second year of a 2 percent pay raise, a two-year plan approved by the Legislature in 2017, and basic inflationary increases to K-12 funding — dollars that are controlled by law through funding formulas. But the plan assumes that, going forward, 48 percent of those inflationary budget increases would be used for teacher salaries.

Their proposal also accounts for a recent change to Proposition 301, the six-tenths of a cent sales tax extension approved by the Legislature weeks ago. That change would add another $64 million to the teacher pay, but not until 2021.

All told, budget analysts estimate the plan would boost teacher pay by $829.2 million by 2022, a 24 percent cumulative increase.

The proposal would still leave K-12 school districts with a $400 million budget hole for capital expenses in five years, said Chuck Essigs, a lobbyist for the Arizona Association of School Business Officials.

And it could threaten the governor’s efforts to settle a capital funding lawsuit.

“(Ducey) met with school districts, had a big press conference where all these superintendents from school districts stood behind him, and he said, ‘I’m restoring those cuts,’” Essigs said. “Obviously this is a slap in the face to him, because they’re taking what he had developed as a plan and got consensus and got agreement for and just throwing it out the window.”

House minority leader calls for special session on gun control

With two mass shootings fresh on people’s minds the top state House Democrat wants a special session to debate — and presumably enact — a series of gun control measures.

Minority Leader Charlene Fernandez, D-Yuma, is pulling out all of the proposals that the Republican-controlled Legislature refused to debate, much less consider, in the past five years. These range from universal background checks and bans on military-style rifles to limits on high-capacity magazines and making it a crime for adults to leave weapons where children can get them.

She told Capitol Media Services that the mass shootings this past weekend in El Paso and Dayton may finally provide enough impetus for lawmakers to consider these measures.

But the idea of calling all 90 lawmakers back to the Capitol in the wake of the incidents is not picking up any immediate support of Republican legislative leaders.

In fact House Majority Leader Warren Petersen, R-Gilbert, lashed out at Fernandez for even bringing up the subject.

“I find it disturbing that she will use a tragedy for political purposes,” he said.

Reaction from other Republicans was more measured.

Senate President Karen Fann said she has not had the opportunity to speak with her members since the incidents.

“When everyone returns from summer obligations, we will be meeting to discuss a number of items for next session,” she said. Finding common ground, Fann said, could be difficult.

“This is a very charged issue,” she said. “I’m sure we will have many ideas with polar opposites on how to fix it.”

But Fann said that finding a “good bipartisan solution” will depend on first “identifying where the problems actually lie.”

And House Speaker Rusty Bowers saw no purpose in calling in lawmakers, at least at this point.

“Without a clear idea of what we hope to pass, I have doubts that the Legislature can accomplish anything meaningful if we convene a special session,” he said. Instead, Bowers wants to develop what he called “pragmatic policy proposals that will protect our friends and families from violence, including gun violence.”

More to the point, the speaker said these have to be ideas “that can actually receive the support needed to pass out of the Legislature.”

Even Sen. David Bradley, D-Tucson, who is Fernandez’s counterpart in the Senate, questioned the wisdom of convening a special session before there is a plan that can get the necessary 16 votes in the Senate and 31 in the House, as well as the signature of Gov. Doug Ducey.

“The key would be the governor saying this is the No. 1 priority of his and convening the leadership of both sides to hammer something out,” Bradley said, before a session can be called.

As for the governor, press aide Patrick Ptak said his boss is “willing to work with legislators from both parties” and is “hopeful both sides can come together to advance common-sense policies that will make a meaningful impact.”

But no call for a special session, at least for now. And when Ducey came out with his own school safety plan in 2018 he specifically excluded the universal background checks that the Democrats want, a move they say will close a “loophole” in the law that allows people to buy weapons at gun shows without having to pass the same background investigation required if they bought a weapon from a licensed dealer.

Fernandez, however, said she believes that the state’s demographics have changed since the days when the GOP majority first began rejecting any gun-control legislation out of hand.

That’s not just an ethnic or racial thing, she said.

“I’m talking about women that are coming to the polls,” Fernandez said. “They’re challenging the status quo of the way men have been doing things at the state Legislature.”

That, she said, is reflected in the fact that Democrats picked up four House seats in the 2018 election, reducing the GOP edge to 31-29. And yet she said that Bowers, fearful of Democrat ideas picking up the occasional Republican vote, has populated the committees that hear the bills — the pathway to a full House vote — by stacking several committees to ensure that doesn’t happen.

The Judiciary Committee, for example, is 6-4 Republican. And there is no requirement for an even number of members on that panel through which most gun legislation would need to pass.

And the Appropriations Committee is stacked even more at 7-4.

She believes that if the Democrat bills made it to the floor that there is the public sentiment — and the votes — for at least some of them to become law, especially given the headlines.

“If you really want to hear what’s changed, it’s these mass shootings,” Fernandez said.

“I mean, you hear about them every day,” she continued. “We hear about a mass shooting, we go to bed and wake up the next morning and there’s another one.”

And Fernandez said these are not partisan issues.

“This is about our kids, this is about our schools, this is about the places we worship, this is about movie theaters and restaurants,” she said. “This has got to stop.”

Fernandez said she and Democrats are behind the idea of allowing judges to take away weapons from people found to be a danger to themselves or others.

The idea, first proposed by Ducey in 2018, made it through the Senate, but only after lawmakers jettisoned some provisions to make it acceptable to the National Rifle Association. Even at that point it could not get a hearing in the House amid concerns about personal rights.

There was no bill introduced this year.

“We’re not infringing on anybody’s rights,” Fernandez said. “But, by golly, if you own a gun and you’ve already threatened someone, then I think that gun should be turned in.”

Correction: A previous version of this story included a headline that left off the word “leader.”

House passes bill to cut red tape on border wall construction on private land

In this April 5, 2019, file photo, a U.S. Customs and Border Protection vehicle sits near the wall as President Donald Trump visits a new section of the border wall with Mexico in El Centro, Calif. A federal judge has denied a request by the U.S. House of Representatives to prevent President Donald Trump from tapping Defense Department money for a border wall with Mexico. (AP Photo/Jacquelyn Martin, File) — In this April 5, 2019, file photo, a U.S. Customs and Border Protection vehicle sits near the wall as President Donald Trump visits a new section of the border wall with Mexico in El Centro, Calif. (AP Photo/Jacquelyn Martin, File)

Calling it a matter of property rights and security, the state House voted Thursday to let those living along the border to construct walls without first getting local permission or building permits.

The 31-29 party-line vote came a week after it fell one vote short when Rep. Tony Rivero, R-Peoria, refused to go along with the Republican majority. Rivero, who has led trade missions to Mexico and elsewhere, told Capitol Media Services at the time that he was “not sure this was the right way to go.”

On Thursday, Rivero did not explain his change of heart.

But Democrats, in opposing the measure, said HB 2084 sends precisely the wrong message as Arizona seeks to build ties with its southern neighbor.

Rep. Diego Rodriguez, D-Phoenix, specifically mentioned a trip by state legislators to Guanajuato that Rivero recently organized.

“We were welcomed with open arms,” he said.

“We were treated with respect,” Rodriguez continued. “We were treated with friendship.”

This legislation, he said, does the exact opposite, sending the message “that we prefer a wall to friendship.”

But Rep. Gail Griffin, R-Hereford, had a different take.

“We respect our neighbors to the south,” she said.

“This is not about race,” Griffin said. And if there’s someone these walls are aimed at, she said, it is the drug cartels that operate along the border.

And she also said it has nothing to do with the wall being built by the federal government along stretches of the border, construction that already can take place without state or federal permission. What’s at issue, Griffin said, is what landowners living along the border build on their own property.

“This is an issue of private property and private money to move forward with safety of your property, of your and your family’s ability to keep people out,” she said.

Rep. Mitzi Epstein, D-Tempe, said she has “a firm conviction” to protecting private property rights.

“I also have a firm belief that building permits help us to keep buildings safe, help us to make sure that a plan for a building is a safe building,” she said.

“It is about building anything safely and not going around the permitting process,” Epstein said. “If there’s going to be construction it needs to be safe construction.”

Rep. Kelly Townsend, R-Mesa, said there’s a safety reason for exempting privately built border walls from local permitting. But she said it’s about the safety of local officials who, threatened by cartels that want open borders, would be loath to grant the necessary permits.

The proposal by Rep. Warren Petersen, R-Gilbert, is in direct response to problems faced by We Build the Wall, a private group that accepts donations to build barriers on private land along the border in places where there is no federally constructed fence.

That group ran into problems last year while building a 1,500-foot fence on private property in Sunland Park, N.M., near El Paso, Tx., without first getting city permission. That brought construction to a halt until We Build the Wall agreed to comply with city ordinances.

HB 2084 is designed to eliminate that possibility from occurring here.

Facing questions about safety, Petersen did agree to language requiring that the property owner must provide the local government with a statement by a professional engineer that the wall “was built according to the plan and safety requirements.” That filing, however, does not need to come until two months after completion.

But Rep. Kristen Engel, D-Tucson, said this is less about security than politics.

“This is obviously an ideological bill,” she said. “It’s designed to reach out to the base, the base of the Republican Party on immigration issues.”

House passes measure to thwart boycotts of Israel

Claiming boycotts are anti-Semitic, the state House voted Monday to deny public contracts to firms that refuse to do business with other companies that do business in Israel.

The 37-21 vote came over the often-tearful statements of Rep. Athena Salman, D-Tempe, who told her colleagues of how her family members, some now here, some still living in occupied territories, have been treated. She said the movement, formally known as BDS – for boycott, divest, sanction – is designed to put pressure on Israel to end what she said are “Israeli human rights abuses” and illegal settlements in the West Bank.

“People have a right to boycott,” said House Speaker Rusty Bowers, R-Mesa. And he said he did not doubt that there have been “immoral acts” on both sides of the conflict.

But he said these were decisions taken in the heat of battle and in the heat of self-preservation. And Bowers said that the state has a legitimate interest in using its economic power – the power to deny public contracts – to keep people from boycotting Israel and, to his way of looking at it, the right of that country to exist.

SB 1167 still needs final Senate approval of some minor House-made changes before going to Gov. Doug Ducey, who actually signed a virtually identical bill in 2016.

Last year, however, U.S. District Court Judge Diane Humetewa enjoined the state from enforcing the law. She said the state cannot use its economy power to deny people their right to speak out and act on their personal beliefs.

A federal appeals court is set to hear arguments in June.

This new version is virtually identical to the law Humetewa found flawed – but with one key difference: It applies only to companies with 10 or more employees with public contracts worth at least $100,000. That would mean that Flagstaff attorney Mik Jordahl, who filed the original lawsuit with the aid of the American Civil Liberties Union, no longer has a case because his firm and his contract with the Coconino County Jail are too small.

It would then be up to someone else to start the legal challenge over from scratch.

Salman spoke of how her father, as a child in the occupied territories, was detained and how such practices continue today. And she said that the ever-expanding Jewish settlements on the West Bank are cutting off access to family-owned land

“If that land is annexed it is no longer our land,” Salman said.

Rep. Jay Lawrence, R-Scottsdale, said he could not support putting pressure on Israel, saying the BDS movement is fueled by “its anger at Israel and its anger at the Jewish people.”

“Arizona will not be anti-Semitic,” said Rep. Warren Petersen, R-Gilbert. “We’re not going to discriminate against Israel.”

And Rep. John Kavanagh, R-Fountain Hills, said he sees the BDS movement as an impediment to peace, seeking to force terms on Israel rather than requiring both sides to recognize each other’s right to exist.

The House action comes as Israelis go to the polls to decide whether Prime Minister Benjamin Netanyahu gets another term in office. Netanyahu, facing a difficult campaign, has teased that he might annex the occupied territories – the ones at issue in the whole BDS movement – and make them permanently part of Israel, killing any chance of a two-state solution and a Palestinian homeland.

House Republicans choose Rep. Bowers to lead them

Rep. Rusty Bowers, R-Mesa. (Photo by Paulina Pineda/Special for Arizona Capitol Times.

Newly elected House Speaker Rusty Bowers, R-Mesa, inherits a chamber where he can’t afford to alienate a single Republican.

Bowers, chosen Wednesday by fellow Republicans to run the House for the next two years, finds the edge of the majority party clipped from 35-25 for the last two years to just 31-29 after Tuesday’s election as Democrats apparently have picked up four seats. And what makes that significant is it takes 31 votes for final approval of any measure.

What that does, Bowers acknowledged, is empower any individual Republican with the ability to hold out their vote on priorities of the GOP leadership until the measure is altered to address his or her concerns.

But Bowers,, a Mesa resident, said the reverse holds true for the Democrats who could find someone defecting to support a Republican bill if he or she gets something in return.

“Every member of either caucus has a great amount of authority and power,” said Bowers who has 10 years of legislative experience, including two as Senate majority leader.

“It makes leadership more sensitive to each member’s needs and wants,” he said. “And those we’ll just have to work through.”

And that presents challenges for House GOP leaders who also include Warren Petersen of Gilbert as majority leader and Becky Nutt of Clifton as majority whip.

“It’s going to be a wild ride just keeping the herd going,” Bowers said.

One area that could get more attention is on transportation funding.

Rep. Noel Campbell, R-Prescott, has been pushing for new sources of revenues to both fix existing roads and bridges and build new ones.

The situation is complicated by the fact that Arizona’s 18-cent-a-gallon gasoline tax has not been hiked since 1991, when 18 cents was worth more than now. And then there’s the fact that new vehicles are more fuel efficient, meaning that gas tax revenues are not increasing as fast as the miles driven.

With Campbell now a four-year veteran and the need for the GOP to hang on to every vote, the lawmakers who want new dollars – particularly those from rural areas – have additional political muscle.

“I know that more money is needed for transportation because I drive on it and you drive on it,” said Bowers. And he said that this can’t simply be seen as a rural problem.

“We all enjoy the rural parts of this state, whether we’re urbanized or elsewise,” he said.

What Bowers also inherits is a surplus that could be close to $1 billion when the new fiscal year begins. And while that creates opportunities for new spending, he said the state also finally needs to focus on really balancing the state’s books.

Bowers pointed out that the constitutional requirement for a balanced budget has been met now for years by deferring expenses due in one fiscal year to be paid in the next year. That practice, called a “rollover,” currently accounts for more than $930 million.

And when the state was in debt during the Great Recession, it sold off both the state House and Senate with an agreement to lease it back until paid off in 2030.

The amount still owed at the end of this fiscal year will be about $710 million, with interest being paid on what’s left.

“We need to start finally chipping away on this debt,” Bowers said.

One other big priority is water supply – and efforts to come up with a drought contingency plan in the likelihood that Arizona will lose some of its allocation of Colorado River water.

“There have been some wrinkles of late,” he said.

“We’re going to keep talking and keep listening and considering all the options on the table,” Bowers said. That also includes making sure that all sources of water are part of any deal.

House set to begin votes on bills Tuesday

House Speaker Rusty Bowers votes Monday in the Rules Committee on what bills will be heard this week. (Capitol Media Services photo by Howard Fischer)

The Arizona House of Representatives is set to hear potentially dozens of bills this week — including a measure to shield businesses from legal liability if a patron or employee gets COVID-19 — even as the Senate sits recessed, poised to finalize last week’s adjournment motion and end the session.

Work officially began this today with a meeting of the House Rules Committee, which gave party-line approval to ten Senate bills and voted to allow the late introduction of a liability bill sponsored by Rep. John Kavanagh, R-Fountain Hills. The Legislature has long passed the official deadline for the introduction of new bills, which can only be circumvented through a vote in the Rules committee.

In the coming days, 11 House committees will meet to hear a bevy of unamended Senate bills leftover from the first half of the session, according to an email House Speaker Rusty Bowers sent to members and staff obtained by the Capitol Times. These committees may consider more than 60 bills, House Majority Leader Warren Petersen told the Associated Press this weekend — though how many will actually make it to the floor is unclear.

And Tuesday at 1:15 p.m., the House will take to the floor for the first time in months to begin voting on some of the bills that will have by then made it out of committee.

Rep. Athena Salman checks messages as the House Rules Committee votes Monday on which bills will be considered this week by the Legislature. (Capitol Media Services photo by Howard Fischer)

House leadership is imposing a variety of safety protocols — members, staff and guests in committee hearings must wear masks and follow federal social distancing guidelines, for example.

The primary reason for returning to work is to pass that liability bill, Petersen, R-Gilbert, said in the Rules committee today. If passed, the bill would require those who sue a business as a result of contracting COVID-19 to prove gross negligence with “clear and convincing evidence,” a lofty legal standard. The legislation would also decriminalize violations of executive orders related to COVID-19 and stop the state from seizing the licenses of non-compliant businesses, churches and other entities.

Kavanagh had hoped Democrats would come on board, giving him the two-thirds supermajority necessary to pass the bill as an emergency measure that can be enacted quickly.

Kavanagh has yet to file a final version of the legislation, though Petersen today referred to it as a liability, enforcement and licensing bill, which could hint at its content. Kavanagh said the language is “up in the air,” as he had hoped Democrats would come on board, giving him the two-thirds supermajority necessary to pass the bill as an emergency measure that can be enacted quickly.

But if today’s Rules meeting is any indicator, the proposal has few fans in the Minority. Three of the committee’s four Democrats — Rep. Domingo Degrazia of Tucson was absent — voted against the motion to allow the late introduction of the bill.

They said they wouldn’t vote for a motion to only allow a single liability protection bill from one Republican, effectively preventing them from introducing their own version of the bill. Plus, they said, the language wasn’t yet publicly available.

“This is not a bipartisan process,” said Rep. Athena Salman, D-Tempe.

Democrats have been working on a similar proposal that would include protections for workers, said House Minority Leader Charlene Fernandez.

“We have to make sure … that if we’re going to hold a business harmless, they have to be doing everything they can to protect the patrons and the workers that are there,” the Yuma Democrat said. “You can’t protect a business that has everybody crammed in there.”

She said her caucus members might vote for the Kavanagh bill if he’s open to an amendment. But she said she hadn’t seen a copy of the bill yet, and as such, can’t commit to voting one way or another.

The liability measure, as Petersen said, is this week’s primary focus. The hope is that the chamber adjourns by Thursday night, prompting the Senate to get the votes together to come back to the Legislature — currently, it’s in a recess as it awaits the House’s approval on an adjournment measure passed last week — and hear the bill.

What might sweeten the pot is the dozens of other Senate bills the House will be taking up this week. In theory, these are non-controversial bills that passed out of their chamber of origin with broad bipartisan support. These range from symbolic resolutions to a bill that would facilitate adult adoptions.

“We have no plans to put up bills with amendments since the senate has indicated they won’t do anything but the liability bill and a couple bills that are ready for 3rd read on their side,” Petersen said to his fellow Republicans in a text obtained and verified by the Capitol Times.

But Democrats are poised to put up a fight, as they see these bills as extraneous distractions that are diverting time and resources from further coronavirus aid.

“My caucus has been and remains ready to work on COVID relief,” Salman said this morning. “But the time has passed to resume business as usual. As you can see, every person in this room is wearing a mask. We are not living in usual times.”

She continued: “This agenda does not reflect that.

If Democrats succeed in pushing back, Republicans will paint them as an obstinate opposition that’s stopping the state from returning to those halcyon pre-COVID days.

“We need to constantly push the narrative that the Ds are stalling and keeping AZ society from getting back to normal as needed,” Petersen said in the text.

Regardless, it’s not yet clear whether every bill that lawmakers debate this week will be as uncontroversial as promised.

Rep. Kelly Townsend’s House Elections Committee was on Tuesday set to hear SCR1018, a voter referral that would limit the ability of the Independent Redistricting Commission to draw legislative district boundaries, constitutionally prohibiting the population of the largest legislative district from exceeding the population of the smallest district by more than 5,000 people. But the committee meeting was abruptly canceled Monday evening.

As is often the case with the House, there are no guarantees. The tempestuous chamber has twice promised to return to the floor only to balk at the last minute. Ill-will between the parties has intensified during the break, and the Senate’s role in all of this is still an unknown variable.

“I don’t necessarily buy that this will go off without a hitch,” said Rep. T.J. Shope, R-Coolidge, who serves as speaker pro tempore. “Now we’re just waiting to see where the hitch is.”

Julia Shumway and Hank Stephenson contributed to this report.

House set to introduce bill to allow vouchers for out-of-state schools

The House Rules Committee on Monday granted permission for the late introduction of legislation to allow parents to use Empowerment Scholarship Accounts out of state.

Over the weekend, House Majority Leader Warren Petersen and Senate Majority Leader Rick Gray promised to introduce legislation in response to the Arizona Department of Education rescinding participation in the ESA program from families on the Navajo Nation because funds from the accounts were used at a private school in New Mexico.

“We will be introducing legislation as soon as possible to allow these kids to continue to utilize their ESAs,” the pair said in a press release. “While details are still being finalized, we have bipartisan support in both the House and Senate to correct this outrage.”

ESAs, or vouchers, allow parents or guardians to use taxpayer money that would have gone to a student’s public school on private school tuition, tutoring and home-school curriculum. The ESA program began in 2011 specifically for special needs students, and has since grown to allow an array of students – from failing schools and children whose parents are in the military.

Gov. Doug Ducey signed a bill in 2015 giving all Native children who live on the reservation ESA access.

Richie Taylor, the communications director for ADE, said the department only found out the funds from the accounts were being used out of state within the last few months while conducting a routine audit.

He said the funds were wrongly approved during the previous administration, but not directly by former Superintendent of Public Instruction Diane Douglas. Taylor chalked it up as an oversight “likely due to being short staffed.”

Taylor said things were approved “in bulk” and the approval happened in error.

Under state law, ESA funds cannot be spent on out-of-state tuition. ADE sent letters to the families most-affected telling them the situation in hopes they would get in touch with the department or that they could work out a solution, Taylor said.

Ducey tweeted Sunday to say he was working closely with Arizona Superintendent of Public Instruction Kathy Hoffman and the Legislature to resolve this issue.

Correction: A previous headline erroneously stated the House introduced a bill to allow vouchers for out-of-state schools. The House Rules Committee actually allowed for the late introduction of the bill, which at the time of publication had not been introduced.

Every Arizona student deserves access to a quality education. Parents: send your kids to school on Monday. We’re working closely with @Supt_Hoffman and legislators to resolve this issue for these #AZ students, this session. https://t.co/ljBpTFs77f

— Doug Ducey (@dougducey) May 18, 2019

In their court

Arizona Senate President Karen Fann, R-Prescott, right, is joined by Sen. Warren Petersen, R-Gilbert, prior to the Arizona Senate Republican hearing on the review findings of the 2020 election results in Maricopa County at the Arizona Capitol, Friday, Sept. 24, 2021, in Phoenix. The final report of the election review found that President Joe Biden did indeed win the 2020 presidential contest. (AP Photo/Ross D. Franklin)

Republican lawmakers will likely use results of the partisan Senate audit of the 2020 election in Maricopa County as a blueprint for changes to voting procedures and administration.

Audit contractors identified what they said were trouble spots, such as signature verification and people possibly voting from the wrong addresses, findings which county officials and election experts have disputed, saying there are innocuous explanations for things the audit report casts as possibly nefarious.

But some Republican lawmakers have made it clear they take the report’s findings, which were presented September 24 publicly, seriously and plan to act based on them.

“Arizona voters deserve an unimpeachable electoral process — and the State Senate is already working hard on new legislation to deliver that,” Senate President Karen Fann, R-Prescott, wrote in a letter to Attorney General Mark Brnovich on September 24.

It is not a foregone conclusion that Republicans can pass much even in 2022. With the GOP holding two-vote majorities in both the House and Senate and with Democrats unlikely to support any bills stemming from what they call the “fraudit,” any audit-inspired legislation will require unanimous Republican support to pass. This includes the handful of Republicans who have either publicly expressed skepticism about the audit or who balked at similar changes to voting laws during this year’s session.

While this year’s legislative session produced plenty of concern for progressives, some highly publicized measures, such as a bill to increase ID requirements for voting by mail, failed to pass because just one or a couple of Republicans opposed them.

Sen. Paul Boyer, R-Glendale, who has been one of the few Republicans to publicly criticize the audit, said he doesn’t think the report revealed anything that needs to be addressed legislatively.

“Some of the recommendations there are already done in practice, or it’s already state law,” he said. “Now don’t get me wrong, I do think my colleagues are going to probably introduce about 100 bills on election law reform, but there’s nothing pressing on my end that I’m looking at right now. I guess I’d have to be shown and given a good argument on what’s deficient and how we fix it.”

Boyer said he thinks early voting works well in Arizona and that lawmakers have done a good job of working out the kinks over the years.

“You wouldn’t know that having watched that godawful hearing last Friday, but as far as I see it, we run a tight ship here in Arizona. … I think it’s working just great, and you know what? Until (President) Trump lost, so did everybody else,” he said.

Senate Government Committee Chairwoman Michelle Ugenti-Rita, R-Scottsdale, sponsored SB1485, a controversial measure to remove some voters from the Early Voting List that became one of the few Republican “election integrity” bills to pass this year. However, she has been criticized by some in her own party for holding up some of Sen. Kelly Townsend’s elections bills, and she publicly criticized the audit in July shortly after being booed off the stage at a Trump rally.

Ugenti-Rita said she plans to reintroduce a bill she sponsored this year that would increase the margin that triggers an automatic recount of votes in a close race. Her proposal would set it at 0.5% across the board, which would have triggered a recount of the close 2020 presidential race in Arizona.

Asked if the report by Cyber Ninjas, the contractor hired by Senate leadership, raised any new concerns for her that needed legislative action, Ugenti-Rita said, “there are a lot of things that could be done.”

“The process hopefully will be utilized the right way, so that we can vet proposals in a transparent process, and I look forward to being a part of that,” she said.

Session Rerun

In some ways, the 2022 legislative session could be a reprise of 2021, which was marked by bitter partisan arguments over the audit and about new laws that Republicans said would guard against fraud, but Democrats called voter suppression.

Townsend, R-Mesa, who introduced numerous election-related bills this year only to see most of them stall, said in a Telegram message September 28, that she plans to revisit and resubmit all of them in 2022, along with some new proposals.

Fann and Senate Judiciary Committee Chairman Warren Petersen, R-Gilbert, have also proposed some specific changes to election law and administration in response to the audit’s findings.

Fann told reporters after the audit report presentation that two legislative committees – the Judiciary Committee and the Special Committee on the Election Audit – may meet before the 2022 legislative session to review the results.

The Special Committee on the Election Audit was created in an expansive budget reconciliation bill that a Maricopa County Superior Court judge found unconstitutional on September 27. That case is still working its way through the courts.

While some audit supporters hoped for a special session, this seems unlikely. The Legislature can call a special session with a two-thirds vote, although this would require some Democratic support. Gov. Doug Ducey can call a special session on his own, but he appears to have ruled out the possibility.

“Any meaningful policy recommendations identified should be addressed in the next session of the legislature,” he said in a Twitter thread about the audit results on Sept. 24.

Fann acknowledged she likely doesn’t have the votes to call a special session.

“The other side of the aisle, they have opposed this all the way,” Fann said. “They’re probably not going to jump right in to say, ‘Yeah, we’ll vote for a special session,’ but we’re hoping there’s some good common ground that we can find here to at least get started.”

Cyber Ninjas CEO Doug Logan, center, is flanked by Ben Cotton, left, founder of digital security firm CyFIR, and Randy Pullen, right, the former Chairman of the Arizona Republican Party, prior to the Arizona Senate Republicans hearing review of the 2020 presidential election results in Maricopa County at the Arizona Capitol, Friday, Sept. 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

Findings

The Cyber Ninjas’ final hand count came out very close to Maricopa County’s certified ballot count – in fact, President Joe Biden’s margin in Maricopa County over former President Donald Trump went up by 360 votes in the Ninjas’ tally.

Some of Cyber Ninjas’ findings included people who might have voted by mail from the wrong address, problems with signature verification on mail-in ballots, 10,342 voters may have voted in Maricopa County and in other counties because they shared the same full name and birth year as someone who voted elsewhere, and deleted data, which the county said was simply archived, not deleted.

Cyber Ninjas CEO Doug Logan drew cheers and applause from the mostly conservative crowd in the Senate chambers when, at the presentation of the audit report, he called for an end to voting by mail. And Fann, in her letter to Brnovich, said she wants “improvement and additional testing” to accept signatures on mail-in ballots.

“Signatures on mail-in ballots should not be accepted unless they closely match the voters’ authenticated signatures that are on file,” she wrote.

Fann also wrote that she wants to see “constant, unrelenting maintenance” of voter rolls, including correcting the registrations of people who move, die or are registered more than once. Some of the other changes she called for deal more with election administration than voting rights, such as requiring counties to preserve evidence of all elections and comply with future audits, and state-level oversight of election cybersecurity.

Fann accused the county of breaking laws in its handling of the election – something county officials deny – and said the Senate would look to see if its laws were strong enough, and if penalties should be added in.

“If you do not follow statutes, then you should be held accountable in one way or another,” Fann said.

Incoming lawmakers, governor-elect aim to tackle housing

New homes are under construction at the new master-planned community Reserve at Red Rock sits in Mesa, Arizona USA on November 30, 2022. Housing affordability has fallen to its lowest level in 33 years, and mortgage and home prices have surged. (Photo by: Alexandra Buxbaum/Sipa USA)(Sipa via AP Images)

Republicans and Democrats want to address housing in the upcoming legislative session, and some of their proposals overlap.

Everyone in and around the Capitol is aware of the housing shortage regardless of political affiliation but agreeing on solutions is a tricky issue that pits state and local control against one another.

Earlier this year, the Legislature approved a Housing Supply Study Committee that has been meeting for the past several months to learn about Arizona’s lack of affordable housing.

The committee members are now preparing documents on the issue and how they want to address it.

Rep. Steve Kaiser, House, affordable housing — Rep. Steve Kaiser, R-Phoenix

Committee chair Rep. Steve Kaiser, R-Phoenix, will present the report within the next two weeks or so. He will also likely sponsor some legislation that will come out of the committee as he did last year.

Democrat Gov.-elect Katie Hobbs has a very detailed housing plan that includes several proposed bills. She is a former social worker and legislator with an interest in housing problems.

Land costs and building costs have increased, more people are moving into Arizona, inexpensive housing is decreasing, and new housing isn’t being built as quickly as it did in previous years, but lawmakers already have possible solutions on the table.

Lifting Zoning Restrictions

Jake Hinman, Arizona Multihousing Association director of government affairs, said, “Zoning has made it extraordinarily difficult to get through the process. NIMBYISM is a result of zoning.”

He accused cities like Scottsdale of being “downright hostile” toward affordable housing while other cities like Tempe are taking the issue full-on and ending up housing the workforce and low-income residents.

Perhaps the most commonly repeated theme in the Housing Supply Study Committee is the need to cut back on zoning “red tape” that discourages developers from wanting to build homes in Arizona.

“Twenty years ago, you could take a property from dirt and build a house within six months,” Senate President-elect Warren Petersen said in an economic proposal he released earlier this year. “Those days are long gone as a litany of hurdles have been placed in obtaining approvals for land development and housing. Now, it can take as long as four years! Let’s increase the housing supply by shortening this window. One way to accomplish this is through administrative approvals for all projects that meet existing laws and requirements.”

Kaiser has made repealing zoning restrictions a priority over the past several meetings of the Housing Supply Study Committee, but the question that remains to be tackled is which zoning regulations must go.

This is not necessarily a partisan issue.

Hobbs offers some specific deregulation proposals in her housing plan.

“Examples of zoning changes that lead to more housing inventory include: building an additional dwelling unit, an accessory unit or a single-room occupancy unit on a residential lot; allowing higher density zoning that can accommodate more development of moderate-income housing; permitting higher density residential projects in or near commercial and mixed-use zones, major transit investment corridors, or employment centers; reducing restrictive requirements for affordable housing projects, such as minimum parking spaces, minimum unit sizes, or common area requirements; and providing zoning and financial incentives to developers who dedicate a certain percentage of units to market or below market rate housing,” she wrote.

Increasing density and allowing non-traditional homes also came up several times in the Housing Supply Study Committee.

Inclusionary Zoning

Inclusionary zoning requires developers to devote a certain percentage of the units in a project to affordable housing and it’s banned in Arizona. Theile included the idea as a recommendation to the committee and was met with pushback from Spencer Kamps, vice president of legislative affairs of the Home Builders Association of Central Arizona.

Kamps argued that inclusionary housing essentially taxes the very developers who are trying to create needed housing. He asked where in the United States inclusionary housing has been able to fix a housing shortage, and his question wasn’t answered. Kaiser said he’s not convinced inclusionary housing can do enough to help Arizona.

The idea got a more positive reception from Tempe Mayor Corey Woods who said, “I do think an inclusionary zoning policy would be tremendously helpful.”

Glendale Community Services Director Jean Moreno asked whether inclusionary zoning funded by low-income tax credits could be a solution that keeps developers incentivized and affordable housing coming in.

In this Dec. 4, 2019, photo, the main entrance is seen of a new apartment building opened for a ceremony at the Native American Connections Urban Living on Fillmore affordable housing unit in Phoenix. Republicans and Democrats want to address housing in the upcoming legislative session and some of their proposals overlap. The legislature approved a Housing Supply Study Committee in the most recent session that has been meeting for several months to learn about Arizona’s lack of affordable housing. (AP Photo/Ross D. Franklin)

Tax Increment Financing

Several states use tax increment financing or TIF, which incentivizes developers. A city sets aside the area to be developed and when property taxes in the region increase, the added revenue – separate from the base revenue stream – is diverted to the developer as a subsidy.

Arizona allows some forms of TIF but bans others. This issue has come up several times in the Legislature and is usually pushed by cities and towns that would get the benefit of more control over development.

Income Discrimination

In Arizona, developments often don’t allow people who use housing vouchers to rent at their properties. Tucson tried to stop developers from discriminating on income source, and it is now the subject of an investigation.

Speaker of the House-elect Ben Toma, R-Peoria, filed a complaint against Tucson on Nov. 16 for blocking income source-based discrimination, which he says violates state law.

“The Arizona Legislature … has explicitly prohibited municipalities from wielding their fair housing codes to continually exact more regulatory burdens on rental property owners,” Toma wrote. State law does ban municipalities with large populations from adopting fair housing ordinances.

Moreno, of Glendale, said discrimination is a problem because vouchers allow mixed income housing and so many communities won’t accept the vouchers. Cities only get a limited number of vouchers and a tight budget for them. Residents must be at the “very low” income level to qualify for them.

Blocking income source discrimination would be a good move in her opinion. “This would provide an opportunity to support households that are at a very low income,” she said.

Housing Trust Fund

Several legislators, including Sen. David Livingston, R-Peoria, Sen. Lela Alston, D-Phoenix, and Kaiser have sponsored legislation to fund the Housing Trust Fund with the Arizona Department of Housing, which can be used for projects like homeless shelters. The HTF got a significant allocation in last year’s budget, but Hobbs wants to increase it even more – as does Alston. 

Jobless benefits drop on Monday

Beginning Monday, more than 430,000 Arizonans who have lost their job will have to live on no more than $240 a week.

And Gov. Doug Ducey has no plans to revisit the cap on benefits which has not been altered since 2004 and which leaves Arizona jobless with less money to pay their bills than any state except Mississippi.

The announcement came Friday as the state Department of Economic Security reported it has been informed by the Federal Emergency Management Agency that all the funds allocated for the Lost Wage Assistance program have dried up after six weeks.

That was no surprise.

DES Director Michael Wisehart had warned a week earlier that the $44 billion earmarked by President Trump had a limited life. And he doubted there would be enough for a Week 7.

The news comes as the most recent report from the state Office of Economic Opportunity shows the number of people out of work actually increased between June and July by 19,500.

And the biggest losses came in employment in bars and full- and limited-service restaurants. The already beleaguered industry shed another 8,900 jobs — 4.2% — meaning there are now 28,500 fewer people working there than a year ago.

The losses in this sector are particularly attributable not just to COVID-19 but to the executive orders issued by Gov. Doug Ducey.

Under those directives, restaurants are limited to 50% capacity. And bars are shuttered entirely unless they live within not just those occupancy limits but also other restrictions on normal operations.

The monthly jobless report also showed continued losses of employment at amusement and theme parks and fitness and recreation centers, all businesses restricted by the governor.

Ducey on Thursday brushed aside questions of whether he could live on $240 a week.

On Friday, after the DES announcement that federal dollars are gone, Capitol Media Services asked gubernatorial press aide Patrick Ptak about what his boss thinks about the level of state benefits. He said that’s not been foremost on Ducey’s mind.

“The governor has had to make many tough decisions in order to protect public health,” he said. “Our focus has been on containing the spread of the virus and saving lives.”

But what does the governor think about the level of state benefits?

“We need Congress to step up and do its job,” Ptak responded, an issue having nothing to do with what Arizona pays its own jobless.

Ducey has previously been cool to the whole idea of raising the benefits — or even discussing it.

“It’s a hypothetical question because unemployment wasn’t really an issue before the pandemic,” Ducey said in late July.

The state, however, did have people looking for work before anyone ever heard of COVID-19.

Arizona’s jobless rate in December was 4.6%. That’s a full percentage point higher than the national average at the same time.

On a human level, that compares with the an average of more than 17,000 Arizonans who were collecting jobless benefits each week before the pandemic. These are people who had been laid off or fired through no fault of their own, a precondition to collecting the weekly checks.

A Morrison Institute survey conducted in late April and early May found that 52 percent want to permanently raise jobless benefits in Arizona. That includes 68 percent of Democrats questioned and 41 percent of Republicans.

There are Republican lawmakers who want to revisit the subject.

Rep. Warren Petersen, R-Gilbert, said he believes there’s a case to be made for an adjustment. His concern, though, is not setting up a system where collecting benefits for up to 26 weeks — the current statutory limit — becomes a disincentive to work.

Adjusting the benefits would not affect the state budget.

They are paid by a tax assessed against employers on the first $7,000 of each worker’s income, with the average employer charged $112 a year.

The actual levy depends on how often a company lays off workers who are eligible for benefits. Rates can be as low as $3.50 a year per employee and as high as $900 for employers with the worst layoff records.

Any increase in benefits would be reflected in a change in premiums.

There are other options being considered that could help the unemployed.

One is adjusting the law which says Arizonans start losing benefits once their earnings hit $30 a week. Raising that figure to $300, as has been suggested by Rep. Aaron Lieberman, D-Paradise Valley, could encourage people to at least get some part-time employment without fear of losing all benefits.

The outcome of the November election also could make a difference, particularly if Democrats manage to take control of the state House or Senate — or both.

They would still have to deal with Ducey. But it would put them in a better position to negotiate with with the Republican governor who would need their support to push his own priorities.

Judge orders pause in election audit

The Senate’s audit of Maricopa County election returns will continue, at least for the time being.

Maricopa County Superior Court Judge Christopher Coury on Friday ordered a halt to the process through at least noon Monday. He said there were sufficient questions raised about the procedures being used by Cyber Ninjas, the Florida firm hired by the Senate to do the work, and whether they complied with state law.

But Coury made his order contingent on the Arizona Democratic Party posting a $1 million bond. That would compensate Cyber Ninjas should they need to hire additional help to make up for lost time.

After the hearing, however, attorney Roopali Desai, who represents the party, said her client won’t be putting up the cash. She said the amount sought by the judge to cover the cost of the delay of a few days has no bearing on a project that, according to the Senate, was supposed to cost just $150,000.

And then, Desai said, Cyber Ninjas is “not trustworthy.” She said there is nothing to prevent the company from claiming it needed the entire $1 million for compensation.

“It’s a huge risk for the party to take,” she said.

But Desai said Friday’s hearing was not a loss or a waste of time.

She pointed out that, separate from the question of halting the work, Coury did order the company to comply with all election laws. More to the point, the judge wants to see copies of all of their procedures, including hiring and training, to ensure that the ballots and the election equipment now at Veterans Memorial Coliseum are protected.

“They’re going to have to come to court on Monday and explain that, Desai said.

Coury’s order came despite objections from attorney Kory Langhofer, who represents the Senate, that the judge really has no authority to intercede.

It starts, Langhofer said, with the fact that legislators are immune from civil suit while the legislature is in session. The lawsuit by the Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo names Senate President Karen Fann and Sen. Warren Petersen, the chairman of the Judiciary Committee.

And he said Cyber Ninjas, by virtue of having been hired by the Senate, is now and agent of the legislature and entitled to the same immunity.

The larger issue, Langhofer told Coury, is the constitutional separation of powers.

He noted that lawmakers have said the purpose of the audit is to determine if there are weaknesses in state election laws and whether revisions are necessary.

“How the legislature conducts its own investigations in determining whether new legislation is necessary and what that legislation might look like isn’t a question on which the judicial branch can opine,” Langhofer said.

But Coury said his overwhelming concern is the protection of both the integrity of the ballots as well as the secrecy of information turned over to the Senate — and now in the hands of Cyber Ninjas. So he scheduled a hearing to review all that on Monday.

Dissatisfied with that response, Langhofer late Friday asked Supreme Court Justice Clint Bolick to overturn the order. But Bolick, who is the duty justice, said he saw no reason to second guess Coury’s order to produce documents about hiring and training.

“I think that Judge Coury was overtly mindful of the fact that courts have to tread very carefully in this area,” Bolick said. “And I do not see anything in the order that makes me think that we ought to intervene at this point.”

But Bolick said he and his colleagues may be forced to take up the issue later of whether Coury ultimately has any power to intercede in the audit.

Desai said the lawsuit, filed late Thursday, is not about the authority of the legislature to subpoena the ballots and equipment to conduct an audit. That, she said was already decided by a different judge.

“The question here that we are raising is that the audit that the Senate and its agents are conducting violate many provisions of state law,” Desai said.

She told Coury that there need to be procedures in place to ensure that the ballots and equipment are protected. There also needs to be a “constant chain of custody of every single ballot and every piece of equipment.”

Then there’s the question of who has been hired by Cyber Ninjas to actually do the work.

That, she said, starts with doing background checks on the people who will be handling the ballots and getting access to the equipment, as well as providing sufficient training. To this point, she said, none of that information has been provided.

And there’s something else.

“There must be sufficient safeguards in place to ensure the audit is not biased, skewed or subject to tampering,” Desai said.

That goes directly to the fact that former Secretary of State Ken Bennett, named by Fann to be the Senate’s liaison with Cyber Ninjas, has admitted that the work cannot be done for the $150,000 the Senate has agreed to pay. That in turn has led to Christina Bobb who works for the conservative One America News Network announcing she had raised $150,000 through a web site called “Voice for Votes” to cover the additional costs.

Cyber Ninjas has declined to disclose any outside source of dollars. And the Senate, in response to a public records request by Capitol Media Services, said it has no information on money given directly to the company.

And Voice for Votes, set up as a social welfare organization under federal tax laws, is not required to disclose its donors.

Desai said if private money is, in fact, going to Cyber Ninjas, “there are serious questions about who is influencing, directing and controlling these workers.”

“The Senate has told us they’re running this so-called audit, that they have abdicated their duty entirely to rogue actors who are making a mockery, with all due respect, of our election laws and our procedures,” she said.

And then there’s the question of exactly who Cyber Ninjas has hired, a list that is not public. In fact, Bennett on Thursday even refused to allow reporters to film the review process at least in part because it would allow the recording of the faces of the workers.

“We continue to have no indication of who’s handling the ballots, whether they are known insurgents, representatives of recognized hate groups or on the FBI watch list,” Desai said.

That suggestion drew derision from Langhofer.

“When we start talking about the merits, let’s just first of all separate the hyperbole and the political arguments from what is cognizable in this courtroom,” he told Coury.

“There is no evidence that I have seen, and certainly that’s not been presented here, that there are hate groups running this audit,” Langhofer said. “And to intimate that, with literally no evidence, is a completely unfair smear and an attempt to prejudice your honor into thinking if you rule for the Senate, the sovereign Senate, the state, you’re somehow supporting hate groups.”

But the judge did pay specific attention to a statement from Joseph LaRue, a deputy Maricopa County attorney. He told the judge that there was evidence that people conducting the audit were using pens with blue ink — ink that could be read by ballot scanners and could be used to alter ballots from what the voter intended without necessarily leaving a trail.

The judge seemed convinced and said that only red pens should be used on the floor.

Lawmakers jockey for leadership roles in House, Senate

(Photo by Ellen O'Brien/Arizona Capitol Times) — (Photo by Ellen O’Brien/Arizona Capitol Times)

The day after the November 6 election will be followed by another kind of vote, as elected Arizona senators and representatives will meet with their fellow Republicans and Democrats to choose leaders for their respective parties.

Some of those leadership races are all but decided, but others may hinge on who gets elected, and who doesn’t, when voters head to the polls.

Those elected leaders of the House of Representatives and Senate will be responsible for shepherding policies through the Legislature in 2019, and just as importantly, will have the power to block the passage of bills they oppose. The House speaker and Senate president are responsible for assigning bills to committees and scheduling bills for votes on the floor of each chamber.

And caucus leaders help set agendas for Republicans and Democrats, while also serving as a unifying force to keep their respective party members working in concert to back those agendas.

Republican and Democratic caucuses in both chambers will cast leadership votes on November 7, less than 24 hours after polls close on election night.

House GOP

Rep. Rusty Bowers of Mesa is considered a shoo-in to serve as the next House speaker, though he’s not running unopposed. Rep. Mark Finchem of Oro Valley claims he’s one of the “serious contenders,” while Rep. Noel Campbell of Prescott has flirted with running for the post.

Rep. Anthony Kern of Glendale is locked in a two-way race to serve as the GOP majority leader against Sen. Warren Petersen of Gilbert, who’s running for the House this election while also seeking a leadership post. Kern claims to have 18 votes in his favor, enough to win the chamber assuming the 35 member Republican Caucus doesn’t grow in size.

Reps. David Cook of Globe and Becky Nutt of Clifton are the two Republicans running to serve as majority whip. Sen. John Kavanagh, a Fountain Hills Republican running for the House, recently dropped out of the race for whip and threw his support behind Cook.

House Democrats

Reps. Reginald Bolding of Phoenix and Charlene Fernandez of Yuma are locked in a battle to lead the House Democratic Caucus. Bolding can boast of a slate of supporters, having teamed up with Rep. Diego Espinoza of Tolleson, who would serve as assistant minority leader, and Rep. Kirsten Engel of Tucson, who would serve as whip. Fernandez, the current whip, has the mutual support of Rep. Randy Friese, who would like to continue to serve as assistant minority leader.

Reps. Athena Salman of Tempe and Richard Andrade of Glendale are also running for whip, though Fernandez has not endorsed either candidate.

Fernandez said she’s expecting more legislative success from Democrats in the next session: “We had like six bills that went to the Governor’s Office, which is ridiculous. We have great ideas and we represent more than 40 percent of Arizona,” she said.

Bolding said the Democrats are assured a greater voice next session because they’ll have a larger caucus.

“It’s a foregone conclusion that we pick up seats in the House. The question is how many,” he said.

Senate GOP

The only contested leadership race among Senate Republicans is perhaps the closest of the year. Sen. Karen Fann of Prescott said the race for president is too close to call, especially considering several Senate races in traditionally Republican districts may be closer than usual. Her opponent in the leadership race, House Speaker J.D. Mesnard, is by his own words “running scared” to get elected to the Senate in Legislative District 17.

Assuming both are elected to the Senate, the winner may be decided by comparing the number of re-elected senators to the number of House members crossing over. Fann would presumably have the upper hand attracting votes from senators she served with the past two years, while Mesnard may have the loyalty of representatives who served under his leadership in the House.

Fann said it’s a “shame” Mesnard decided to run for leadership at all, noting that a freshman senator has never served as president, but Mesnard argued he’s the best choice because of his experience leading the House. He also cites his prior work as a Senate research staffer.

“This is a historically unique situation happening in the Senate, which makes it all the more important for someone who has both leadership experience at the highest level and intimate familiarity with the Senate… to step in,” Mesnard said.

As for the other GOP leadership posts, Sen. Rick Gray of Peoria is running unopposed to serve as majority leader, while Sen. Sonny Borrelli of Lake Havasu City is the lone candidate for whip.

Senate Democrats

Sens. David Bradley of Tucson and Martin Quezada of Glendale would like to lead the Democrats, but both are preparing for an even better outcome for the traditionally minority party in the Senate – the possibility of a split chamber, or perhaps the Democrats winning enough seats to hold a majority.

Bradley’s pitched himself as a seasoned legislator about to serve his last term in office, offering his guidance in a letter sent to all Democrats, and independents, running for the Senate. Quezada, who served as co-whip the past two sessions, said he’s “in great shape” to step up and serve as minority leader, though he’s also focused on how to negotiate a split chamber.

While Bradley acknowledged that he’d be happy to serve as Senate president, Quezada said he’s focused on other positions of power.

“My ultimate goal is a fair and equal division of power,” Quezada. “I don’t think the Senate president has to be a Democrat. It could be a Republican. But I think a Democrat should have a powerful chairmanship if that were the case.”

Rounding out the field of leadership candidates are Sen. Lupe Contreras of Avondale, who serves as co-whip with Quezada, and Rep. Rebecca Rios of Phoenix, who’s running for her second stint in the Senate. Those two would occupy the positions of assistant minority leader and whip, though it’s unclear who’d serve in which capacity.

Lawmakers look to 2020 as ink dries on this year’s bills

The legislative session wasn’t even done before lawmakers started announcing bills they planned to introduce next session.

In addition to pledging to continue working on major pieces of legislation that didn’t pass this year, lawmakers promised to tackle a host of new items, from making it easier to build a border wall to banning corporal punishment.

Here’s a look at some of the bills legislators have already promised to introduce:

BUILDING A WALL

Shortly after the Legislature adjourned, a GoFundMe-account-turned-nonprofit organization that’s trying to build sections of a fence along the U.S.- Mexico border hit a bureaucratic wall in New Mexico. Rep. Warren Petersen, R-Gilbert, said he was troubled by headlines about the city of Sunland Park, New Mexico, forcing the organization to halt construction because it didn’t have the necessary city permits.

Construction has since resumed on the New Mexico wall, and no one’s yet trying to build a wall on private border property in Arizona — where most border land is owned by state, federal or tribal governments.

But Petersen wants to make sure any construction in Arizona could move forward unimpeded by local zoning rules. He announced on Twitter that he plans to introduce a bill next session to make sure the organization, We Build the Wall, can construct one here.

“Hard to imagine government stopping people who simply want to be safe in their persons and property,” he told the Arizona Capitol Times in a text message.

Petersen added that he’s still working on language for the bill, but he believes the best path forward is a zoning pre-emption bill or a state general permit for private border wall construction.

VETERANS BILL OF RIGHTS

Sen. Jamescita Peshlakai, D-Window Rock, announced on Twitter that she’ll be an Arizona sponsor of the Veterans Bill of Rights, a piece of model legislation drafted by the liberal advocacy organization Future Now for lawmakers across the country to introduce in 2020.

The model bill calls for awarding college credit for relevant military experience, giving veterans more flexibility in registering for and attending college and expanding their access to health care.

Peshlakai, an Army veteran who served during the Persian Gulf War, said in a statement she plans to work throughout the interim to modify the bill so it meets the needs of Arizona’s veterans.

“By participating in this national effort, I hope to show other states how Arizona delivers on the promise to give veterans and their families the very best,” she said.

EXPANDING SURVIVOR PROTECTIONS

This year’s session ended with a hard-fought battle over expanding opportunities for survivors of childhood sexual abuse. Sens. Paul Boyer, R-Glendale, and Heather Carter, R-Cave Creek, secured a permanent 10-year increase in the age by which abuse survivors must file suit and a temporary window for older survivors to sue.

Before the ink of Gov. Doug Ducey’s signature was dry, Boyer and Carter were already thinking about what could be done next session to further help survivors of childhood sexual abuse. Creating a permanent window for older survivors to sue is a “no-brainer,” Boyer said.

Other revisions to law would result from a statewide task force Ducey plans to work on childhood sexual abuse.

“The good news is that there’s enough time for the task force to do its work to come up with legislative proposals that we can look at next year, and that is well before the window expires,” Carter said.

BANNING CORPORAL PUNISHMENT

The April death of former state Sen. Stan Furman reminded his former colleague, Sen. Lela Alston, of a piece of unfinished business Furman left behind when his Senate service ended in 1995. Furman tried unsuccessfully to ban corporal punishment in schools, and that’s a ban Alston, D-Phoenix, said she’ll bring up next year.

Arizona is one of 15 states, almost entirely in the South, that still explicitly permits teachers to strike students. But actual cases of corporal punishment are rare. In the 2013-14 academic year, the most recent year for which the U.S. Department of Education has data, Arizona schools reported hitting six students.

Still, Alston said she wanted to get the law on the books in Furman’s memory.

“My pledge to Stan and the family is to introduce that bill next year and hopefully we’ll do away with corporal punishment in schools,” she said.

Lawmakers move to limit emergency powers of governor

Gov. Doug Ducey explains Thursday how any decision he makes on signing bills to impose new voting restrictions will be based on what he considers "good policy" and not based on opposition from the business leaders -- or the sports community. (Capitol Media Services photo by Howard Fischer) — Gov. Doug Ducey (Capitol Media Services photo by Howard Fischer)

With some verbal slaps at how Doug Ducey has handled the current emergency, Republican lawmakers voted Friday to ask Arizona voters to give them the right to quash future declarations.

The 31-25 party-line vote in the House comes even as Ducey’s order, issued in March 2020 at the beginning of the COVID-19 pandemic, still remains in place. That, according to Rep. Mark Finchem, R-Oro Valley, is unacceptable.

Nothing in SCR 1003 can change that.

But Rep. Jake Hoffman, R-Queen Creek, said that, if ratified by voters, the measure will limit the chances that any future governor can follow suit.

“If this last COVID emergency taught us nothing else, it’s that the people have to be protected from the government, not protected from themselves,” he said. “They have to be protected from the power of force that is the government.”

This isn’t the only effort to restrain gubernatorial powers.

Sen. Michelle Ugenti-Rita, R-Scottsdale, got language inserted into one of the budget bills that limits future emergency declarations to 120 days unless the legislature agrees to one or more 30-day extensions.

But Sen. Warren Petersen, R-Gilbert, said this measure, which would become part of the Arizona Constitution, ensures that lawmakers have pretty much immediate power to overrule a gubernatorial decision.

It requires them to be called to the Capitol within 10 days if they are not already in session. Potentially more significant, it spells out that any special session does not end until the state of emergency is terminated, whether by the governor or the legislature.

That’s important because the measure, if approved by voters, says lawmakers can do more than simply vacate the emergency declaration.

They also can leave the declaration in place but can terminate, modify or continue any individual executive order. It even would permit the legislature to issue its own executive orders which would have the same force and effect as if handed down by the governor.

Finchem said it restores the balance of power to where it should be: with the folks closest to the people.

“Where there is a tyranny, whether it’s petty or massive, we are the ones that our constituents turn to,” he said.

“I can guarantee you that if you were to pick up the phone and try and call Gov. Ducey you would not reach him,” Finchem told his colleagues. “But if your constituents call you, I’m pretty sure you’ll pick up the phone and speak with them.”

Rep. Pamela Powers Hannley, D-Tucson, said she understands the frustration — and why lawmakers are unhappy with the governor.

“People on both side of the aisle didn’t necessarily like what was going on and how Gov. Ducey was conducting the emergency declaration and how all of his emergency orders came out,” she said. And Powers Hannley said both Democrats and Republicans wanted a special session last year when Ducey issued various directives.

In many cases, the reasons were different, with Democrats saying he was not doing enough to protect public health while many Republicans accused him of overreach with stay-at-home orders and business closures.

But Powers Hannley said what’s in SCR 1003 amounts to having the legislature micromanage any emergency.

“I think this is another example of the legislature trying to run different parts of the government,” she said. “We don’t get to run everything.”

Finchem, however, said what’s happened during the past 15 months proves to him there needs to be an option for legislative intervention.

“It is our job to represent the people and stand in the way of an abusive behavior,” he said. “And that’s what this has been.”

And Finchem said the fact the emergency remains in place “is the best reason in the world to pass this bill, this day.”

Hoffman agreed.

“It is time for this emergency order to end. Period. Stop all. End of story. Turn it off,” he said.

The measure does give a governor whose orders are overridden a right of appeal of sorts.

If he or she challenges the action of lawmakers, they have to reaffirm their action — and have to do it with the backing of at least 60% of the House and Senate. Failure to get that margin allows the gubernatorial powers to continue.

But there’s also a provision to keep the governor from playing games.

It spells out that if the legislature terminates the state of emergency, the governor can’t turn around and simply declare another one “arising out of the same conditions for which the terminated state of emergency was proclaimed.”

State senators already have approved the measure, albeit with slightly different wording. They now need to ratify the changes made in the House.

Lawmakers pass bill to give bureaucrat authority to set vehicle registration fees

This Nov. 9, 2017, photo shows that even in the middle of the day, the I-10 often has heavy traffic. Vehicle emissions are a main contributor to ozone air pollution in Phoenix, a city built around the use of cars. (Photo by Jenna Miller/Arizona Capitol Times) — (Photo by Jenna Miller/Arizona Capitol Times)

It could soon cost more to register your car or truck in Arizona.

On a 17-13 vote Monday, the Senate gave final approval to allowing the director of the Department of Transportation to levy a fee on each vehicle.

But HB 2166, already approved by the House, does not spell out how much that fee would be. Instead, it tells the agency chief to raise enough to fund the Highway Patrol and a little bit more for good margin.

Legislative budget analysts say the amount ADOT would need to raise is $148.9 million. And that translates out to $18.06 for every vehicle, above and beyond the normal registration fee.

The measure, which now goes to the governor, also will mean a sharp hike in the minimal fee now imposed on those who purchase alternate fuel vehicles. Beginning in 2020, the levy will be based on the price of the vehicle, just as it is now for cars and trucks powered by fossil fuels.

The legislation — and the decision to leave the fee up to the ADOT director — is the culmination of a multi-year effort to find new dollars to help build new roads and repair existing ones.

That is supposed to be financed largely through the gasoline tax. But that 18-cent-a-gallon levy has not been raised since 1991when gasoline was in the $1.20-a-gallon range.

And while there are more vehicles on the road, they also are more fuel efficient, with the number of road miles driven — and the wear and tear on the roads — increasing faster than new revenues.

What’s made matters worse is that current and former governors and lawmakers, looking to balance the budget, have siphoned off some of those gas tax revenues to pay for the Highway Patrol. Sen. Bob Worsley, R-Mesa, said that has left fewer dollars for both urban and rural transportation needs.

And given the unwillingness of lawmakers to hike the gas tax, Worsley said funding the Highway Patrol out of a fee on all vehicles using the roads seemed to be the most politically palatable.

But the method of raising the money drew catcalls from several lawmakers.

The Arizona Constitution spells out that any increase in taxes and fees can be approved by only a two-thirds vote of both the House and Senate. And that margin is not there.

So the measure crafted by Worsley along with Rep. Noel Campbell, R-Prescott, leaves the actual amount to be raised to the ADOT director. And a recent Arizona Supreme Court ruling concluded that such agency-raised fees are not subject to that two-thirds vote.

Sen. Warren Petersen, R-Gilbert, suggested to his colleagues that there’s something sneaky about that.

“Don’t kid yourselves,” he said.

“This is a tax increase,” one he said should require a two-thirds vote, Petersen said. “But, unfortunately, this is a nice little loophole to get around it, a loophole that should be closed.”

He called it “the worst kind of tax increase” because the levy will be determined not by elected legislators but an official appointed by the governor.

“We’re going to tell an unelected bureaucrat to go ahead and raise these fees to whatever he wants to,” Petersen said.

What’s even worse, Petersen said, is that there is no guarantee that once the new vehicle fee funds the Highway Patrol that the money saved will be used for transportation needs.

“How is this happening?” he asked.

Sen. Sylvia Allen, R-Snowflake, also balked at approving a yet-to-be-determined fee.

“I just can’t in good conscience pass something I don’t know what it is exactly the amount I passed,” she said.

But Sen. Martin Quezada, D-Glendale, said the lack of specificity on how the saved dollars would be used does not bother him. In fact, he said that’s a key reason he’s supporting it.

“We’ve shown the political will here today that we can raise revenue to take care of all of the other issues,” Quezada said.

Worsley said he presumes Gov. Doug Ducey will sign the measure as the governor had made a similar proposal several years earlier, albeit with a fee in the $7 to $8 range.

Editor’s note: This story has been revised to correct the bill number.

Lawmakers send bill to ban rental tax to Hobbs

A bill repealing a tax on home and apartment rentals that has been a key issue for Republicans in the Legislature for two sessions was sent to Democratic Gov. Katie Hobbs on Monday after sitting on the Senate president’s desk for seven weeks.

House Speaker Ben Toma said Hobbs has agreed to sign it as part of negotiations between her and Republicans legislative leaders to approve an extension of a transportation tax in Maricopa County.

The rental tax repeal was vetoed by Hobbs earlier this year after she said it suffered from “defects.”

One of the biggest, she said, is there is no “enforceable mechanism” to ensure that landlords who remit the tax to the cities will pass along the savings to their tenants.

This new version is billed as having a better enforcement mechanism to protect tenants. It also has a delayed effective date of 2025.

Still, the legislation would take away more than $230 million a year in revenue that a majority of the state’s 91 cities and towns collect, according to a lobbyist for the League of Arizona Cities and Towns.

“The 75 cities that are going to be directly impacted by this, they’ve only got two options should this bill be signed,” the League’s Tom Savage said. “They’re going to have to either cut services, or they’re going to have to increase local taxes to make up for this loss.”

But Senate Republicans who called a news conference to crow about the bill said cities were flush with cash and criticized them for not voluntarily eliminating the rental tax. And they said they wanted to help low-income renters during a period of high inflation by getting rid of the tax, which is levied on top of rents, at rates that average 2.4%.

“This is (money) to help people put food on the table, give them an extra tank of gas in the car,” said Senate President Warren Petersen, R-Gilbert. “And we are ready to provide relief.”

Former state Sen. Steve Kaiser, a Republican who resigned in June after championing the rental tax cut this year, criticized cities and the League for fighting the repeal.

“Multiple mayors came to the Capitol armed with their special interest lobbying group to kill this bill, a lobbying group ironically, that is paid for by the citizens of those cities,” Kaiser said at the news conference. “They did not come to the Capitol to advocate for their citizens but instead for their coffers.”

Neither Petersen nor Hobbs spokesman Christian Slater would confirm a deal to sign the tax repeal in return for legislative action on the transportation tax.

But it was an open secret at the Capitol in recent days. And Toma’s confirmation made it official.

Kaiser said the mayors who came to lobby against the repeal failed to mention “they had surpluses in the millions of dollars.”

But Savage, the League lobbyist, said those cities are spending that money to pay for services that benefit renters. And he said the small cut from eliminating the rental tax will not provide meaningful relief for those residents.

“Instead, what it does is take away the critical revenue that we have to pay for all the services that we provide to the same renters,” he said. Cities will either have to cut services or raise their general sales tax to make up the difference.

If signed by the governor, cities will be forced to stop collecting rental taxes in January 2025.

The bill got final legislative approval on June 13 but Petersen sat on it despite a 2009 state Supreme Court ruling that says legislation must be transmitted to the governor promptly after passage.

Asked at the news conference about ignoring the high court, Petersen said “there’s been no controversy on that.”

Lawmakers to take on Prop 400 upon return to the Capitol

State lawmakers will consider legislation to extend a Maricopa County transportation half-cent sales tax when they return to the Capitol on Monday.

The House is scheduled to move a bill that would extend the tax, Proposition 400. A House Rules Committee agenda was posted Friday afternoon and the House is set to modify it during floor session later that day.

Senate President Warren Petersen, R-Gilbert, said Friday afternoon that Gov. Katie Hobbs and legislative leaders still haven’t come to an agreement.

House Speaker Ben Toma said the House put the legislation on the calendar so they can vote if a final deal is reached and the votes are there.

“Either way, we will sine die on Monday,” Toma said.

Before adjourning for more than a month, Republican lawmakers sent a Prop 400 proposal to Hobbs that passed on party lines as the bill would have split light rail funding into a separate question on the ballot for Maricopa County voters.

Hobbs vetoed the bill on July 6 and Democrats have preferred a proposal approved by the Maricopa Association of Governments that allocates about 41% of the tax revenue to public transit, 37% to freeways and 22% to arterial projects. That plan passed the Legislature last year with bipartisan support but was vetoed by former Republican Gov. Doug Ducey.

It’s the last issue that lawmakers consider a priority for this historically long session. Monday will be the 204th day of the Legislative session. Voters approved Prop 400 in 1984 and again in 2004. The measure will expire in 2025 and lawmakers are seeking to put a proposal on the ballot for the 2024 election.

Two pollsters, HighGround Public Affairs Consulting and Noble Predictive Insights, published surveys this week that indicate a strong majority of Maricopa County voters prefer a Prop 400 proposal with light rail funding.

In Noble’s survey, 48% of Republicans said light rail should be expanded and 22% said light rail is fine as is with current Prop 400 funding.

“That was the biggest surprise because, based on our research, there appears to be a disconnect between Republican leaders and Maricopa County GOP voters – they actually want light rail expansion even though Republican lawmakers are pushing to cut funding for them,” Noble Founder and Chief of Research Mike Noble said in a news release.

HighGround’s survey found similar results and 68% of respondents expressed support for extending Prop 400 with an extension to the light rail system. About a quarter of respondents said they opposed it.

“Not only does it earn support from all partisan and regional segments, it earned significant support among all age demographics as well. No matter what portion of the region a legislator represents, they can rest assured that their voters want an opportunity to vote on this issue,” HighGround Senior Vice President of Research and Strategy Paul Bentz said in a Friday news release.

Arizona Capitol Times Legislative Reporter Camryn Sanchez contributed to reporting to this article

Lawmakers winnow down sentencing bills

As the Legislature enters what are likely the waning weeks of the 2021 session, a few bills meant to make Arizona’s system of criminal sentencing more lenient have already been signed into law, while more ambitious measures have stalled.

A bill that has been in the works for years to require a criminal conviction before police can seize someone’s property through civil asset forfeiture passed the Senate this week and awaits Gov. Doug Ducey’s signature or veto. And supporters of a proposal to expand the state’s earned release credit system still hope to pass it this year, albeit with some amendments to appease law enforcement officials and lawmakers who worry its terms are too generous.

While Sen. J.D. Mesnard, R-Chandler, is still working on possible amendments to SB1064, the earned release credit expansion bill is expected to pass the House if a deal can be worked out – that same chamber easily passed an even more generous earned release credit bill earlier this year. The real question is whether it will pass in the Senate, which is where the previous bill stalled.

“I think it will have a better chance, but I will be candid, I don’t know how really in the loop my Senate colleagues are,” Mesnard said. He said he plans to talk to other senators, including Warren Petersen, R-Gilbert, who heads the Senate Judiciary Committee and who didn’t schedule a hearing on the House bill.

But while earned release credit expansion could still become law, a bill that would have created an independent corrections ombudsman won’t be moving forward, according to its sponsor.

“Haven’t heard, and it looks like it’s probably dead,” said Rep. Walt Blackman, R-Snowflake. “And that’s unfortunate.”

HB2167 passed the House 38-14 on March 1, and was assigned to Senate Judiciary, where it never got a hearing. Blackman blamed opposition from the Department of Corrections, Rehabilitation and Reentry for its demise.

“DOC says there are too many issues with the bill, and that they are not prepared to execute the provisions in the bill, and it died,” Blackman said.

Blackman, a longtime advocate for changes in criminal justice policy, chaired the new House Criminal Justice Reform Committee this year, advancing numerous bills with bipartisan support. What opposition there was usually came from a minority of other Republicans. However, some of the more-controversial bills stalled after passing the House, an outcome which has frustrated Caroline Isaacs, the program director of the American Friends Service Committee of Arizona.

“I don’t think it’s about the particular bills. … it’s about the obstructionism and the kinds of ridiculous distractions that our state leaders are more engaged in,” Isaacs said. She said Arizona has fallen behind many other states, including some very conservative ones, when it comes to criminal justice reform.

Caroline Isaacs (Photo by Katie Campbell/Arizona Capitol Times) — Caroline Isaacs

“This is not a radical concept, and so the kind of dialogue, ‘Oh, we’ve got to slow this down, and it’s too much, too soon,’ this is baloney,” Isaacs said. “If you look at states like Mississippi and South Carolina and Texas, this is old news. This is like a shrug. Why would you not do something that works better and saves money?”

Grover Norquist, who is best known for his anti-tax activism but who has become a criminal justice reform advocate in recent years, made a similar point during an Arizona Capitol Times Morning Scoop on Mesnard’s bill April 22. He noted that conservative states such as Texas passing legislation to reduce the number of people in prison can provide a model for Republicans in other states who might be leery of being seen as soft on crime. Norquist said criminal justice reform can be part of a conservative approach to government by reducing spending.

“You can step forward comfortably if you’ve seen other states do something and nobody died and nobody lost an election and the world didn’t end,” he said.

Mesnard’s bill would make earned release credits, which could be earned by taking part in programs such as drug treatment and some work and self-improvement programs, retroactive for drug offenders but not for others. Mesnard said there is “less consternation” about letting drug offenders get earned release credits retroactively, but “ultimately, the biggest issue is going to be outside of the drug side of the bill, the non-drug, non-violent offender side of the bill.”

While Mesnard’s bill would only let them qualify for earned release credits prospectively, and at a slower rate than drug offenders. He said “some folks have a general discomfort with touching that population at all” and would rather stick to the current requirement that they serve 85% of their sentences. Mesnard said this requirement merely incentivizes not breaking prison rules, without giving them a reason to improve themselves. He said discussions include narrowing the scope of which non-violent offenders qualify for earned release credits.

Rep. John Kavanagh, R-Fountain Hills, who voted against Mesnard’s bill in committee, said he fears going back to the days of less consistent sentences that preceded the ‘80s and ‘90s, when most states enacted the tougher sentencing laws that are largely still in force today.

“I don’t think that this is really close to what I could support,” he said. “I have real concerns about any bill that would allow a sentence to be cut pretty much in half.”

Another bill that appears to have stalled is HB2673, which would have let judges go below a statutory mandatory minimum sentence in some cases. It passed the House 50-9, but nothing has happened since it was assigned to Senate Judiciary in February.

However, not every bill that hasn’t gotten a hearing is dead. House Majority Leader Ben Toma, R-Peoria, said he expects his bill to let some felons get their records sealed, which passed the House with only one “nay” vote in February but hasn’t moved in the Senate, to be included in this year’s budget deal. The bill includes a $500,000 appropriation to set up the petition process.

Ducey, who typically does not comment on bills until they reach his desk and he signs or vetoes them, has in the past been supportive of proposals to reduce recidivism but skeptical of other more far-reaching efforts to change the system. On April 26, Ducey vetoed SB1261, which would have expanded the use of justification as a defense against any criminal offense.

“I appreciate the sponsor’s intent with this bill,” Ducey wrote in his veto message. “However, I have heard from several county attorneys that this bill could make the prosecution of DUIs nearly impossible. The safety of our highways and roads is of utmost importance, and I am concerned of the unintended consequences this bill may have.”

However, Ducey has signed a few other bills that went through the House Criminal Justice Reform Committee, such as ones relaxing the state’s repetitive offender sentencing law; creating new data collection requirements for police use of force; prohibiting most state agencies from denying people occupational licenses based on drug convictions; letting some low-level felons have their charges recorded as misdemeanors; and ending the requirement that a driver’s license be suspended for nonpayment of a fine. Isaacs said she was pleased to see these “baby steps.”

“These passed, the governor signed them, and lo and behold, the sky has not fallen and hopefully our elected officials will see that this is good policy and people support it and there are not negative consequences for supporting criminal justice reform,” Isaacs said. “In fact, it’s the opposite. This is what people want.”

Legislative leaders plan early budget to quell holdouts

The Arizona House and Senate plan to release their own budget proposals in the third week of January, creating two or three distinct spending plans as the Legislature begins its 2020 business.

And legislative leaders hope to reach a compromise between the plans and complete their budget by mid-February, even if that means a moratorium on all other bills, Senate President Karen Fann said.

“If need be, we will be stopping all bill action,” said Fann, R-Prescott.

By pushing the budget through early in the session, and threatening to halt individual lawmaker’s pet policy proposals if her caucus won’t play along, Fann can get out ahead of the danger posed by members who use razor-thin margins in both chambers to ransom their budget votes. Without Democratic support, Republicans can stand to lose one vote in the Senate and none in the House, and lawmakers frustrated GOP leadership by using that math last year to wrest concessions including expanded opportunities for survivors of childhood sexual abuse to sue their assailants, the repeal of a controversial $32 vehicle license fee and new trade offices in Israel and Mexico.

Appropriations Committee members in each chamber began this process with distinct budget outlines that are now nearing reconciliation. By the first or second week of the session, legislative leaders hope to present a budget proposal to the governor and his staff, said House Appropriations Chair Regina Cobb, R-Kingman. Gov. Doug Ducey is expected to introduce his budget proposal Jan. 17.

“A month ago, it would have been true that [the House and Senate] had separate proposals,” Cobb said. “We’ve had some conversations with the Senate. We did our version, they did theirs, now we’re trying to get a legislative budget.”

Fann described the rough spending plan Senate Republicans have pulled together thus far as the “backbone of the budget,” that will be refined with requests from individual members. In the House, Cobb has been holding small-group and individual meetings with rank-and-file Republican members to go over the plan. Fann intends to start similar meetings next week.

Leaders in both chambers declined to share specific priorities in their spending plans, saying it was too early to comment. But during interviews this fall, Fann and Cobb described funding for K-12 education and the Department of Corrections as priorities for all members.

“I want to make sure all the members hear about it in a group setting before it gets to the public,” Cobb said, though she confirmed that the basics of the House majority’s spending plan were hashed out.

After group and individual meetings wrap up, leadership will meet with appropriations committee members and then to the rest of their respective caucuses for feedback, said House Majority Leader Warren Petersen, R-Gilbert.

Beyond previously committed dollars, lawmakers will have about $170 million available for ongoing appropriations and $475 million in one-time spending, according to the Joint Legislative Budget Committee’s October budget update.

Total state revenue in fiscal 2020 is $325 million above where it was at this time in fiscal 2019, and $293 million above forecast, according to JLBC’s December monthly fiscal highlights.

Legislative budget staff reported that forecasting spring 2020 revenue collections was made difficult by the income tax cuts passed last session, but Senate Majority Leader Rick Gray, R-Sun City, said lawmakers know they’ll have additional revenue to deal with after passing their early budget.

“We are seeing growth, on a national level fortunately,” he said. “We will definitely see additional revenue.”

Gray said legislators will leave room to pass additional spending bills later in the session, to deal with the new revenue they expect.

There’s also an appetite among some in the Republican caucus, led by Sen. J.D. Mesnard, R-Chandler, to use some of the state’s excess revenue to cut property taxes for businesses and homeowners.

Mesnard is drafting legislation to reduce the commercial assessment ratio — which essentially counts the assessed value of a business property at 18 percent of its cash value, rather than the 10 percent that residential properties are valued at — and changing K-12 funding formulas so taxpayers aren’t picking up as much of the burden on their county property taxes.

Other Republican lawmakers are starting the session with ambitious plans to regulate short-term rentals, overhaul the criminal justice system, get electronic smoking devices out of public places and wrench authority over the state’s voucher program and election procedures from the new Democratic Superintendent of Public Instruction and Secretary of State.

But how long the session will last, and whether lawmakers get to their hot-button issues before fleeing to their districts to campaign ahead of an earlier-than-ever Aug. 4 primary election, depends on how quickly the budget passes, Fann said.

Legislature passes opioids package

State lawmakers voted late Thursday to adopt changes in laws on opioids despite what some said are flaws and concerns by others that the plan won’t do much of anything to deal with the drug abuse epidemic.

The unanimous approval came just hours after the Republicans who control both the House and Senate picked apart the package that Gov. Doug Ducey presented to them Monday and asked that they give final approval in three days.

It wasn’t just the rush to make massive changes in Arizona law that concerned a few lawmakers who pointed out that many of the key provisions do not even take effect until next year. The bigger fear is that some of what’s in the package has not been well thought out.

One complaint deals with a provision designed to ensure that doctors do not provide larger doses than appropriate.

It absolutely prohibits giving patients more than 90 “morphine milligram equivalents” a day unless they fall into certain excepted categories like cancer patients and those in hospice. Doctors can prescribe such doses in other cases — but only if they first consult a board-certified pain management specialist.

Sen. Sylvia Allen, R-Snowflake, said that raises all sorts of concerns, ranging from who picks up the cost of the consult for patients without health insurance to how long it might take to get that second opinion, especially if the specialist actually wants to see the patient.

“It’s probably going to be a long wait,” said Sen. Nancy Barto, R-Phoenix.

The bigger question, Allen said, is having the state looking over the shoulder of medical professionals.

“Here’s a doctor who’s practiced for years, knows that patient, and now they have to get a second opinion,” she said.

“It’s kind of an insult to them,” Allen continued. “So I don’t like that at all.”

Sen. Rick Gray, R-Sun City, worried over a provision that will require all prescriptions for opioids to be done electronically. That is designed to cut down on forged paper prescriptions.

But Gray questioned whether that’s technically feasible, particularly for rural doctors.

“Some of this software isn’t even developed yet,” he said. Gray said it took the state of New York two years to get a similar system in place.

Rep. Regina Cobb, R-Kingman, called the requirement an “unfunded mandate, saying that setting up the system could cost doctors up to $20,000.

Sen. Steve Smith, R-Maricopa, said he had a problem with the concept of imposing an entirely new regulatory scheme on all doctors. Smith said he believes there are just a small number of “bad doctors” who are causing the problem by overprescribing highly addictive opioids.

“If you’re going to overburden the doctors you’re still not going to solve the problem,” he said.

Sen. Warren Petersen, R-Gilbert, agreed, saying the state is pushing ahead with new regulations that don’t address the underlying reasons of why people abuse drugs.

“Whenever government solves problems it doesn’t seem to work out too well,” he said. “I hope we’re realizing there are some things government can’t solve.”

That question of regulation also got the attention of Sen. Sonny Borrelli, R-Lake Havasu City, who openly wondered whether all the new laws and restrictions might have an unintended effect.

“I don’t want to restrict the ability of good doctors to do their job and force that patient (who needs painkillers) to black tar heroin,” he said.

Borrelli also said the bill is lacking a crucial provision: a state-run needle exchange program to keep addicts from sharing needles and possibly spreading HIV, “and then we have another epidemic.”

Rep. Noel Campbell, R-Campbell, worried about provisions which require veterinarians to report to police if they believe clients are seeking opiates for themselves instead of their pets. That same section then allows police to demand reports, all, Campbell said, without a court order.

“This is what we call a fishing expedition,” he said.

All the concerns — and the unanswered questions — also go to the question of why Ducey called a special session, insisting that lawmakers go from their first real look at the bill on Monday and final approval by the end of the day Thursday. Sen. John Kavanagh, R-Fountain Hills, pointed out that many of the key provisions do not even take effect until next year.

“If we’re not implementing this until 2019 I don’t know why we’re voting on this this afternoon,” he said. Even Majority Leader Kimberly Yee, R-Phoenix, conceded the risks of such rapid action.

“Sometimes when we rush through legislation there are consequences,” she said.

Not everyone saw the issue that way.

Sen. Bob Worsley, R-Mesa, said there is evidence of a real crisis, citing figures showing there has been a 74 percent increase in opioid deaths since he became a lawmaker in 2013.

“It’s highly addictive and it’s killing people,” he told colleagues. “I don’t know why we’re suddenly getting weak knees.”

And Sen. Karen Fann, R-Prescott, said she has no problem with new state laws, saying that whatever kind of self-regulation that is supposed to be going on in the medical community isn’t working, “forcing the government to step in and save some lives.”

Senate President Steve Yarbrough, R-Chandler, did not dispute any of the concerns or contentions of his fellow Republicans. But he urged lawmakers to adopt the plan now, saying any flaws can be fixed next year.

Even Smith, despite his concerns, said he’s willing to push this through.

“I think it’s important to make a statement,” he said.

Lemonade legislation lands on Ducey’s desk

The state Senate on Monday gave final approval to legislation declaring lemonade to be the official state drink despite objections that the action sends precisely the wrong message to teens who want to affect state policy.

Proponents of HB 2692 pointed out that the measure was crafted by a Gilbert high school student who complained that Arizona lacks an official beverage. So he took his case to House Majority Leader Warren Petersen, R-Gilbert, who agreed to be the bill’s champion.

With that backing plus testimony from Garrett Glover, the Gilbert teen, the measure is now headed to Gov. Doug Ducey.

But Sen. Juan Mendez, D-Tempe, said that’s precisely why lawmakers should not go along.

“This is the most ridiculous standard to be used as an example of civic education,” he said.

Mendez said there was a march last year of about 15,000 high schoolers on the Capitol to advocate for gun safety legislation. That included a “die-in” demonstration at the House, Senate and governor’s office.

Ducey would not meet with the leaders of the March for Our Lives group.

And legislation to deal with access to weapons, including mandatory background checks for all sales, went nowhere.

“These students were not afforded the same privileges to help shape their legislation and learn about civics as some other people’s constituents are given that privilege,” Mendez said. “Yet this bill was shepherded through this process,” Mendez said.

“It’s really hard to stomach all of what’s going on,” Mendez complained.

But he did agree with colleagues on one thing: The fact that this “inconsequential” bill got all the way through the process and gun safety legislation did not is truly a “teaching moment.”

“I’m definitely going to take this to students all around the state,” Mendez said.

Sen. Lisa Otondo, D-Yuma, also complained that lawmakers were dealing with this question even as they have yet to tackle more serious issues like homelessness and the budget.

“But, yet, lemonade is the topic,” she said.

But Otondo ended up being one of the 18 votes in favor.

So what changed?

“In Yuma, in my hometown, there are very near, dear friends of mine who have groves and groves of lemons,” Otondo told colleagues.

Sen. Rick Gray, R-Sun City, had his own concerns when he voted against the measure two weeks ago.

“I have a personal bias against sugar,” he said. “I have come to realize that sugar is as bad for you or worse for you than tobacco.”

Gray, however, said he is now convinced that it sends the right message that an 18-year-old student can manage to not only propose legislation but get it through the process. And he couldn’t help but punctuate that point with some puns.

“Does lemonade as our state drink really put a bad taste in our mouth?” he asked. “No, most people would say it’s sweet.”

There was no immediate word from Ducey on the fate of the measure.

Move on to curb governor’s emergency powers

Two Republican lawmakers are moving to trim the powers of government during an emergency.

Rep. Mark Finchem of Oro Valley wants colleagues to rescind statutes that allow the governor to mandate vaccinations.

That’s not something Gov. Doug Ducey — or for that matter, any governor in recent history — has done. Finchem told Capitol Media Services, though, that just having such laws on the books is dangerous.

“Do you think the government should have the power to force you to take any ‘medication’ against your will?” he asked.

But Sen. Warren Petersen of Gilbert has his eyes on powers that Ducey has, in fact, exercised: Ordering certain businesses shuttered. So he wants to spell out in law that neither Ducey nor any local official has such a right.

The two measures are expected to be just the tip of a larger debate when the legislature convenes on Jan. 10 about when governors can declare emergencies, what powers they can exercise and, more to the point, how long they can unilaterally keep them in place.

Right now, there is no limit. In fact, the emergency that Ducey declared in March 2020 is still in effect.

“If anything’s been clear over the last year and a half, it’s that governors, whether they’re Republican or Democrat, are all too willing to abuse their emergency declaration powers,” said Sen. Michelle Ugenti-Rita, R-Scottsdale.

She already has introduced SB1009. It would limit emergency declarations to 30 days, with the possibility of three extensions.

But anything after 120 days would require the concurrence of the legislature.

Gubernatorial press aide C.J. Karamargin said his boss does not comment on legislative proposals.

While Ducey has voluntarily rescinded most of the restrictions he imposed in 2020, he retains the right to reimpose them. And it is that list of what the governor can do that is leading to some of what legislators want to debate.

Finchem points out that current law says that, during a state of emergency or war, the governor may mandate treatment or even vaccination of someone who has been exposed — or even may reasonably expected to be exposed — to any highly contagious and highly fatal disease, including smallpox, plague, viral hemorrhagic fever or any diseases with similar transmission characteristics. His HB2022 would repeal that language.

“No one has the authority to force you to accept something into your body that cannot be reversed,” Finchem said. And he said this is particularly true in situations like Covid where he says “there are other treatments that are more effective,” ones he said “do not change your DNA.”

Numerous medical sources say there is no evidence that Covid vaccines, which use messenger RNA to trigger an immune response, can alter genes or DNA.

Rep. Walt Blackman, R-Snowflake, has a related measure which is even broader. His HB2029 seeks to bar state and local governments from requiring someone to be vaccinated against Covid or any variant or to possess any sort of “immunity passport” or other evidence of vaccination or immunity.

But it goes beyond what government employers can do. The legislation would forbid state and local governments from entering contracts with any company that imposes a vaccine mandate on its own workers, whether there is a declared state of emergency.

“My goal is more to protect the employees from discrimination for not having the shot or having to carry a passport,” he said. Blackman compared this to the Jim Crow era where there were laws and policies in some states that enforced racial segregation.

“Folks were discriminated against because of their color,” he said. “I’m saying this is the same thing.”

Blackman said it is for that reason he wants to expand the protections against mandatory vaccinations to workers at private firms.

“I don’t believe that we need to fire people from their jobs or hold their jobs over their heads” for refusing to get vaccinated.

One potential sticking point could be the ban on the state doing business with those firms.

That might not be a problem in deciding to buy office supplies from a different firm. But it gets trickier when the state is dealing with the bank that handles its checks or the utility that provides electricity or gas.

“I hope it doesn’t go to that,” Blackman said. But he said he remains steadfast in his belief that no one’s job should be placed at risk for refusing to get inoculated.

Petersen’s proposal also deals with private business, but in a different way.

Arizona law allows mayors and the people who chair county boards of supervisors to declare local emergencies. His SB1048 would specifically rescind their ability during such an emergency to order the closing of any business.

But Petersen said the intent is to limit all levels of government — including the state — from forcing any business to shut down.

And this isn’t idle speculation.

Ducey closed all bars and restaurants in March 2020. And that followed decisions already made by the mayors of Tucson and Flagstaff,

Subsequent orders by the governor shut down gyms, water parks and even tubing along Arizona rivers. Ducey separately banned gathering of more than 50 people, though he exempted churches and political rallies. And swimming pools, including public, at hotels and even semi-private ones at apartment complexes, were limited to no more than 10 guests.

Petersen said all that is beyond the role of government.

“People have a fundamental right to work and to earn a living,” he said.

“It’s entirely possible to stay safe and keep businesses open,” Petersen continued. “And if people feel unsafe going to a business they can choose for themselves to stay away.”

Ninja report insinuates wrongdoing, Fann calls for probe

Senate election auditors provided no evidence of widespread fraud Friday but dangled enough insinuations of impropriety to give Donald Trump supporters an inkling of hope that future investigations will uncover wrongdoing in connection with the 2020 general election in Maricopa County.

The auditors’ presentation did not divert significantly from draft copies of their report obtained by the media the day before the presentation, which showed, among other things, that the Cyber Ninjas’ hand count of Maricopa County’s 2.1 million ballots found Biden won by a slightly larger margin than what is included in the official county canvass. The hand count added 99 votes to Biden’s total and took away 261 Trump votes.

In a statement, however, Trump said the audit “shows incomprehensible fraud at an election changing level.

“Arizona must immediately decertify their 2020 presidential election results,” he said, though no one, including Trump, has explained how that is even a legal possibility.

But the report also highlights various concerns the auditors have with the county’s elections processes, which drew criticism from election experts and Maricopa County officials.

Senate President Karen Fann said she turned over all audit reports to Attorney General Mark Brnovich, and it is now up to him to investigate the auditor’s claims to determine if further actions are necessary.

“He has access to a lot more rolls than we do; access to social security numbers; access to more death certificates,” she said, pointing to the legislature’s decision in recent years to fund the Attorney General’s election integrity unit.

“He’s got the staff; he’s got the money – I want him to do it,” she said.

Fann also did not rule out the possibility of a special session to draft new legislation based on recommendations from the auditors.

Arizona Senate President Karen Fann, R-Prescott, right, smiles as she is joined by state Sen. Warren Petersen, R-Gilbert, prior to the Arizona Senate Republican hearing on the review findings of the 2020 election results in Maricopa County at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

She said the Senate’s Judiciary and Government & Ethics committees will review the information and begin drafting legislation “so we can get it done as quickly as possible.”

“If there are some things that we can specifically get done that is reasonable – that we know we’ve got the votes on – we’ll reach out to our governor and say ‘would you mind calling a special session at least to get us the basic things in place before the next elections,’” Fann said.

It does not appear Gov. Doug Ducey, who would have to call the special session, would comply with such a request, though. Fann also does not likely have the votes to support calling a special session without Ducey, which would require the support of two-thirds of both chambers.

In a lengthy Twitter thread, Ducey wrote, “Any meaningful policy recommendations identified should be addressed in the next session of the legislature.”

The governor’s spokesman did not respond to a request to clarify his stance on a potential special session.

In his thread, Ducey said trust in the election system has eroded in recent years, but declared the audit and 2020 election are “over” and “there will be no decertification of the 2020 election…”

FINDINGS

The Cyber Ninjas’ report listed one finding as a “critical” concern and two as “high” concerns, but elections experts quickly refuted the claims.

The report’s recommendations, based on its findings, also largely overlap with practices already in use in the state. Amy Chan, Clean Elections commissioner and former elections director under former Republican Secretary of State Ken Bennett, noted the overlaps..

“It’s not that these are bad recommendations; it’s more that they’re telling on themselves that they don’t know we already do them,” Chan said.

The report’s recommendation to compare voter rolls to Electronic Registration Information Center lists, or ERIC lists, for example, is unnecessary because Arizona is already an ERIC member state, Chan said. ERIC is a nonprofit that helps states maintain accurate voter rolls. Thirty states and D.C. are members.

Elections in Arizona also already use paper ballots and create a paper trail for ballots cast by individuals with disabilities in an alternative format.

Cyber Ninjas said its finding regarding mail-in votes from previous addresses was “critical.” The report said they found 23,344 ballots that “may have met this condition.”

They claimed that the only way the correct person could return the ballot was if it was improperly forwarded or if the voter knew the current occupant of their previous address.

That’s not true, the county and elections experts said.

People wait in line before being allowed inside the Arizona state senate building to watch the election review hearing proceedings at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. The final report of the election review in Arizona’s largest county by supporters of former President Donald Trump found that President Joe Biden did indeed win the 2020 presidential contest. (AP Photo/Ross D. Franklin)

“Cyber Ninjas still don’t understand this is legal under federal election law,” the county’s Twitter posted. “To label it a ‘critical’ concern is either intentionally misleading or staggeringly ignorant. AZ senators should know this too.”

Chan said there are a few reasons someone may vote and the address tied to their registration is different from where they’re currently living. Military and overseas voters can cast federal-only ballots linked to their stateside address, and people move all the time.

The county added that it had 20,933 one-time temporary address requests for the November election. It also noted that snowbirds and college students may have forwarding addresses while they’re out of the county. Ballots are not forwarded.

The Cyber Ninjas came to their previous address voter number and other figures in their report by comparing the final voted file to a commercial database. Tammy Patrick, a former federal compliance officer for the Maricopa County Elections Department, said using commercial databases is problematic and that those products can be “some of the lowest quality” — outdated and inaccurate. Patrick is now a senior adviser to the elections program at the Democracy Fund, a nonpartisan foundation that advocates for the U.S. democratic system.

“One of the most critical, critical pieces of this is they are relying a lot on that commercial addressing service,” Patrick said. “Traditionally, that is not a path that most people go down.”

The Cyber Ninjas also labeled “high” their finding that 9,041 more ballots were returned than were received. But that finding and a finding that the official result totals don’t match the Final Voted File can be explained by protected voters, whose addresses aren’t included in the Final Voted File to protect their safety.

“Standard stuff from this camp,” Maricopa County Recorder Stephen Richer tweeted. “Conveniently ignores the fact that there are protected voters who aren’t produced in these reports. Because, you know, we care about law enforcement, judges, domestic violence victims, etc.”

Logan said his team asked the county about the discrepancy a week or so ago.

“The day before we were to present results, they decided to tell us that those were actually protected voters,” Logan said.

Logan said his team wasn’t able to determine if that was true before presenting its report, and he blamed Maricopa County for not cooperating sooner.

The Cyber Ninjas’ third top finding was that 10,342 voters may have voted in Maricopa County and in other counties because they shared the same full name and birth year as someone who voted elsewhere. The report acknowledged that some people share that information but said it was not common and that the list should be reviewed.

The county and experts disagreed.

Maricopa County ballots cast in the 2020 general election are being examined and recounted by contractors working for Florida-based company, Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum in Phoenix, Thursday, April 29, 2021. (Rob Schumacher/The Arizona Republic via AP, Pool)

“There are dozens of people with the exact same name,” Patrick said. “Every year you see what are the most common baby names this year. Well, in 18 years, that means those people with the common baby names are all going to be registering to vote.”

The county gave an example: There are seven active voters in Maricopa County named Maria Garcia who were born in 1980. There are 12 statewide.

“To identify this as a critical issue is laughable,” the county tweeted.

DELETED FILES

Despite the county’s criticism, audit supporters appeared elated with the presentation.

They burst into applause on multiple occasions, despite the fact the auditors never once uttered the word “fraud” or made claims the election was stolen from former President Donald Trump.

One of those moments occurred when CyFir CEO Ben Cotton mentioned they had photos of Maricopa County employees at computers when information was supposedly deleted.

Throughout his testimony, which focused on supposed cybersecurity issues with Maricopa County’s elections systems, Cotton alleged tens of thousands of security logs and other files containing election-related data were deleted from county scanners, servers and other machines.

“So, I’m going to assume at this point that it’s not available for us to look at or else they would have turned that over to us,” Cotton said, referring to some of the security logs in question.

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

He then told Fann and Petersen that the audit team obtained video footage of county workers using the machines at the time the logs and other files were deleted.

While Cotton did not accuse those unknown workers of fraud, the mere insinuation was enough to elicit cheers from most of the non-media attendees packed into the Senate gallery.

The celebrations died down considerably when Cotton said he would not reveal the identity of those individuals.

Maricopa County officials quickly refuted Cotton’s claim on Twitter, explaining that county elections staff archived the data that Cotton thought was deleted.

“Maricopa County strongly denies claims that (elections department) staff intentionally deleted data,” the county posted on its official Twitter account. “As we’ve stated, staff were conducting the March election & compiling info required to comply w/ Senate subpoena. We have backups for all Nov. data & those archives were never subpoenaed.”

Cotton also claimed he found evidence that multiple county elections devices were connected to the Internet – a point of contention for election fraud theorists who believe that connection could have allowed a bad actor to alter vote tallies.

To back up the claim, Cotton cited documentation he included in his presentation showing some devices he examined accessed outside webpages or IP addresses between January 2020 and February 2021.

Again, Maricopa County refuted the claims that those logs proved anything nefarious occurred.

“None of this is the election system. This is all the voter registration system. Sigh. This is so irresponsible,” Maricopa County Recorder Stephen Richer posted on Twitter.

For instance, one of the devices cited by Cotton – named “REWEB1601” – was connected to the Internet, the county said on Twitter, because it is the server for the Maricopa County Recorder’s website.

“Despite what Cotton is saying right now, none of this matters on an air gapped network,” the county posted.

The term “air gapped” refers to a network that is not directly connected to the Internet or any other device that is connected to the Internet.

Throughout the presentations, the audit team, Fann and Petersen repeatedly hedged allegations by pointing to the fact that the county did not cooperate with the audit, withholding items like routers and Splunk logs that the Senate subpoenaed.

The routers would show whether election equipment was connected to the Internet at any point during tabulation.

The Senate and county have since agreed to a settlement under which the county will provide those materials to a special master – former Congressman John Shadegg – and a team of IT professionals, who will then answer the auditor’s questions.

The third major prong of the auditors’ report focused on the validity of signatures on mail-in ballots.

Shiva Ayyadurai, a former Republican U.S. Senate candidate from Massachusetts who claims to have invented email, was hired by the Senate to review signatures on early voting ballots. In his presentation, he said he found numerous discrepancies, including possible duplicate voting, 9,589 ballots that should not have been counted due to missing or scribbled signatures and a too-low rate of ballots being rejected due to signatures. Ayyadurai called for an audit of the county’s signature verification process.

“Amazing report from Dr. Shiva,” tweeted state GOP Chairwoman Kelli Ward. “Many questions for Maricopa County as well as exposure of incompetence & possible malfeasance. A FULL SIGNATURE AUDIT IS ABSOLUTELY NECESSARY!”

Maricopa County officials dismissed Ayyadurai’s conclusions and said there were innocuous explanations for the discrepancies he highlighted.

“Reminder that — under court supervision (where you can’t lie willy nilly) as a part of 1 of 8 unsuccessful court cases — Kelli Ward’s handwriting expert looked at a sample of the signature affidavits and found … 0 signs of inaccuracy or fraud,” Richer tweeted.

FINGER POINTING

In her letter to Brnovich, Fann listed several changes to election administration she would like to see. Much of her letter criticized Maricopa County and its non-cooperation with the audit.

“Laws should require transparency and affirmative cooperation from every elections official,” Fann wrote.

Fann said elections officials must be required to preserve evidence so a “top-to-bottom audit” can be done.

“Arizona voters deserve an unimpeachable electoral process — and the State Senate is already working hard on new legislation to deliver that,” Fann wrote.

At the end of the hearing Sen. Warren Petersen, R-Gilbert, who is the chairman of Senate Judiciary and who presided over the hearing along with Fann, criticized the county for fighting the audit.

“How much money have they spent trying to stop our audit?” he asked. “Has to be in the hundreds of thousands of dollars.”

He listed areas he would like to see investigated further or addressed, such as cybersecurity issues related to election systems, unsigned ballot envelopes and reconciling the numbers in the various counts.

“I look forward to working with my colleagues and with the Attorney General in any way to resolve these issues,” Petersen said.

Fann said, if nothing else, the audit has taught us that we need more audits.

“We need to do audits to some extent, we need to do bigger audits on every election just to make sure people are following the rules,” Fann said.

Maricopa County Board of Supervisors Chairman Jack Sellers issued a statement after the presentation, noting that “the auditors buried this fact: their ballot recount was nearly identical to the County’s count, and the official results stand.”

He criticized the auditors and Senate leadership for “falsely” and “recklessly” accusing county workers and officials of potential crimes.

“Today’s hearing was irresponsible and dangerous,” he wrote.

Followers of Arizona Sen. Wendy Rogers on the alternative social media site Gab made death threats against county officials during the presentation.

“Drag them from their houses to the town square and hang them on every lamp post!!” user Jeffrey DeYoung wrote.

House Minority Leader Reginald Bolding, D-Laveen, said the audit was meant to “allow for really radical right, extreme members of the (Republican) Party to use as a fundraising tool,” to rally Trump supporters and to provide justification for more legislation in 2022 that, Bolding fears, would make it more difficult to vote.

“I imagine there’s a long list of pieces of legislation they’ll look at to make it actually more difficult for people to participate in democracy,” said Bolding, who is running for Secretary of State.

Rep. Mark Finchem, R-Oro Valley, who has been a loud proponent of stolen election conspiracy theories and who is one of three sitting GOP lawmakers running for Secretary of State, has been calling for a door-to-door audit of the voter rolls.

Bolding said he considers this voter intimidation and would be strongly opposed to it.

“When you look at the Voter Rights Act, when you look at our Constitution, when you also look at what we should be doing as elected officials, one thing is we should not be intimidating voters by having third-party individuals knock on people’s doors to intimidate them,” Bolding said.

Capitol Media Services contributed to this report.

Ninja report likely to spur election legislation

As the first reports of the Arizona Senate’s review of 2020 general election results in Maricopa County are released, progressive voting rights groups worry about how the findings will be used as the basis for legislation next session.

Emily Kirkland, executive director of Progress Arizona, said she expects Republicans to use the reports as justification to introduce a slew of voter suppression bills next year.

“We’re in a place now where we can be confident that the Cyber Ninjas’ report is going to be the starting point for a whole series of bills, such that we are just making law based on the right-wing conspiracy fever dream that is the Cyber Ninjas report,” Kirkland said.

Cyber Ninjas’ report is set to come out Friday – five months after the Arizona Senate’s review began at Veterans Memorial Coliseum. Some Senate leaders are scheduled to meet Friday with contractors and others involved in the audit in public on the Senate floor.

Kirkland said that while she has seen some Republicans look to restrict voting rights in the past – even before former President Trump won in 2016 – the 2021 legislative session was different. She expects much of the same in 2022.

“Now, it is the attempt to make elections illegitimate after they have happened and to overturn the results of elections that trusted local officials have conducted and have verified after they have happened,” she said.

Kirkland said the review wasn’t a one-time thing, but “a new reality” in terms of how elections are viewed in the future.

From the beginning, Senate President Karen Fann has said that the audit was “all about” checking to see if election officials are following current law and determining whether new legislation is needed.

“Do they (the laws) need to be tightened up? Do they need to be tweaked?” Fann asked. “Or, do we need to add some new laws because we’ve got things falling through the cracks?”

Alex Gulotta, Arizona state director for All Voting Is Local, characterized the Cyber Ninjas review as part of a bigger strategy to preserve political power, noting the Senate’s style of election review has been exported to other states.

“It’s a cancer,” Gulotta said.

He said that the best recourse is for audit critics – both Republicans and Democrats – to take “affirmative and serious action” to treat it, namely by voting out those promoting the idea the election was stolen.

“We need to think about, once the people who are in control change, how do we fix this? This can never happen again,” Gulotta said. “How do we fix our systems so that this arbitrary exercise of power can’t ever be allowed to flourish, the way it has been after this election?”

Kirkland said she doesn’t plan to go point-by-point through the report because she said it’s already known that Cyber Ninjas’ conclusions are based off a partisan process that didn’t follow “any kind of best practices.”

Gulotta said that when he looks at the report, his attention will be limited to what claims it makes that could be used in drafting legislation next year.

“Those will be the things that we will want to take a look at to be able to say, ‘Well, actually, this is not real, and this is why this is not real,’ ‘Maricopa County has already established that this is not real,’ etc., etc.,” he said. “We’re going to want to do those things to the degree they’re trying to take negative action that can impact people’s ability to vote.”

The Friday reveal doesn’t mark the end of Cyber Ninjas’ involvement.

The Florida-based contractor will also participate in the Senate’s review of Maricopa County’s routers and Splunk logs, though they won’t physically possess the county materials under a settlement reached between the Senate and the Maricopa County Board of Supervisors on September 17.

Instead, Cyber Ninjas and the Senate will pose questions about the routers and logs to be answered by former U.S. Rep. John Shadegg and a team of up to three computer experts he hires to assist him.

The county and Senate agreed to designate Shadegg, a Republican, as special master as part of their settlement.

As of September 23, there was no timeline or cost estimate for Shadegg’s work, a sore point for Supervisor Steve Gallardo, the board’s lone Democrat and the only one who voted against the agreement.

Under the settlement, the Board of Supervisors agreed to foot the bill for Shadegg’s services, whatever it turns outs to be.

“Normally when you agree to a contract, you know how much it’s going to cost you — you know the how, you know the length, the scope,” Gallardo said. “This is an open-ended contract where John Shadegg will be able to tell us what he is going to charge us versus the other way around.”

Supporters of the settlement noted that it keeps the routers and Splunk logs out of Cyber Ninjas’ possession – alleviating the security concerns the county brought up when the Senate subpoenaed the materials in January and July – and helps the county keep the roughly $700 million in future state-shared revenues it risked losing by ignoring those subpoenas.

Fann said that additional review will check and confirm the work of one of Cyber Ninjas’ subcontractors, CyFIR. Afterward, she said they will likely issue a supplemental report.

“We know that there’s no way we can get all that information from the routers and the Splunk logs by Friday,” Fann said.

Additionally, a couple of the subcontractors working under Cyber Ninjas have not completed their work, Fann said, so more information will trickle in from them as well.

“We finally just had to draw a line,” Fann said. “We have a lot of people that are just anxious to get this report out; they’ve been patient for a long time. To delay it another month waiting for the subcontractors to finish up the last bit on their reports, we just couldn’t do it.”

Cyber Ninjas’ report will come after months of delay. The company’s original statement of work said the final report would be delivered shortly after the completion of the other phases, originally expected to wrap up in May.

A handful of audit insiders received a final draft report on September 20, former secretary of state and audit liaison Ken Bennett told conservative radio host John Fredericks.

That group included Bennett, Fann, Sen. Warren Petersen, R-Gilbert, a group of attorneys and former Arizona Republican Party Chairman Randy Pullen, the audit laison.

Bennett said the group received bits and pieces of the final report over the past few weeks.

“We are vetting that to make sure that everything adds up, and we’re not withholding anything,” Bennett told Fredericks.

In addition to Cyber Ninjas CEO Doug Logan, subcontractor CyFIR CEO Ben Cotton was also scheduled to present the report on Friday.

Bennett said Pullen would discuss the Senate’s third count of 2.1 million ballots, which took place in the Wesley Bolin Building at the state fairgrounds this summer.

“Essentially we came up with the same number,” Pullen said.

Bennett said he would discuss instances in which he believes Maricopa County didn’t comply with state statutes and elections procedures.

Shiva Ayyadurai, who was hired by the Senate to review ballot envelope signatures, is also set to present.

Bennet also said Fann has requested to review the report that came from unsuccessful LD17 House candidate Liz Harris’ months-long “independent” canvassing effort. The report, quickly debunked by elections experts, claimed large numbers of “ghost” and “lost” votes affected the election results.

Canvassing was initially part of the plan for the Senate’s review, but Fann nixed the effort after the U.S. Department of Justice warned it may violate federal laws.

Fann said the Senate will turn over information from the review to the Arizona Attorney General’s Office.

Capitol Media Services contributed to this report.

Passage of resolution to overturn Ducey’s order a very long shot

Sen. Michelle Ugenti-Rita, R-Scottsdale, who with Rep. Kelly Townsend, R-Mesa, called for a resolution to overturn Gov. Doug Ducey’s emergency declaration, posted this photo on Twitter and called for the reopening of the economy by saying, “Let’s start with removing police tape from our children’s play equipment.” PHOTO TWITTER

The plan hatched by some of the Legislature’s most vocal conservatives to reopen the state’s economy hinges on a concurrent resolution that would overturn the governor’s emergency declaration.

Indeed, under statute, a state of emergency can only be lifted by a decree of the governor or by “concurrent resolution of the Legislature declaring it at an end.” The governor has extended his stay-at-home order until May 15, but whether it gets extended once more – and how long the emergency declaration itself lasts – is as of yet unknown.

The concurrent resolution is the brainchild of Rep. Kelly Townsend, R-Mesa. She and Sen. Michelle Ugenti-Rita, R-Scottsdale, have already drafted language, though if both chambers adjourned by May 8 as legislative leaders planned, it may never see the light of day.

The resolution cites the impact of quarantine on mental health and the economy, the personal responsibility of Arizonans in slowing the spread of COVID-19 and guidance from U.S. Attorney General Bill Barr stating that “if a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach.”

Already, the resolution has key supporters, including House Majority Leader Warren Petersen. But even Townsend has acknowledged that she may not have the 16 and 31 votes in each chamber to pass the resolution, which would go straight to the Secretary of State’s Office if approved by each body – in short, a bill overriding Gov. Doug Ducey’s authority doesn’t need his signature.

And Senate President Karen Fann and others have warned that if the resolution passes, the state could lose millions of dollars in emergency funding.

“[Passage] means Arizona will get to keep the Covid money we have received to date but will NOT be entitled to all the millions of FEMA or DEMA funds,” she wrote in an email to members. “In addition, all of the emergency declarations the governor has passed over the past few weeks will end immediately.”

Those declarations include the state income tax deferral to July 15, and protections from evictions.

There’s an argument that staunch conservatives might find more appealing as well: the executive order provides parameters for how strictly cities can enforce the stay-at-home order. It’s possible, some Republicans caution, that lifting the governor’s order could give the go-ahead to (largely Democratic) mayors like Regina Romero of Tucson who have called for stronger COVID-19 measures than the state as a whole.

Still, that’s all a long way away. The success of the resolution requires a lot to go right, and very little to go wrong. First, the Legislature needs to be in session, which was slated (though not guaranteed) to happen May 8.

There are two basic scenarios from that point. The first is that Townsend or Ugenti-Rita tries to introduce a new resolution. Because the Legislature has passed the deadline for the introduction of new legislation, they would need permission from the Rules Committee, which would have to meet to take a vote. In the House, the committee is controlled by Rep. Anthony Kern, R-Glendale – though Kern certainly knows that Speaker Rusty Bowers exercises a great deal of control over who sits on that committee.

Unless a motion is passed to lift certain House rules, that resolution would still need to follow the constitutional requirement that each piece of legislation is read on three separate days.

The second, more likely scenario (albeit not that likely), is that the resolution is introduced as a strike-everything amendment to existing legislation. Townsend was specifically interested in amending her HCR2016, which concerns term limits.

This wouldn’t require permission of the Rules Committee, but would still require suspending quite a few rules in order to allow for the late introduction of an amendment on the floor. House Rule 32, for example pertains to the timeliness of agendas and calendars. That would have to go. As would House Rule 12O, which prevents striker amendments on a bill available for final reading from being introduced in the committee of the whole. The same for 8F, which requires certain notifications to be made to the House clerk, and finally Rule 11, which also pertains to calendars.

And that’s all just in one chamber. It would still need the votes. In short, the concurrent resolution is an ambitious plan by a clearly frustrated faction within the Republican majority – but a plan that doesn’t look headed for success.

Passing bills means wise choices, gaining support

Gov. Doug Ducey signed and vetoed more bills than ever before, and almost one-third of the Legislature went home batting .000 for passing bills.

Only two lawmakers – freshman Reps. Quang Nguyen, R-Prescott Valley, and Joseph Chaplik, R-Scottsdale, ended the session batting 1.000, and they accomplished that rare feat by taking few risks. Nguyen introduced only one bill; Chaplik had four.

Among other lawmakers, Rep. Travis Grantham, R-Gilbert, led the pack. Five of his seven bills are now law, and four of those succeeded with broad bipartisan support.

Grantham said he’s judicious about what he chooses to introduce, and he tries to make sure his legislation addresses issues that affect Arizonans. This year, that included bills to protect people charged with crimes from losing property unconnected to the alleged criminal offense to civil asset forfeiture, and requiring district and charter schools to provide annual notices to every employee listing all pay and benefits.

“I’m not picking subjects laced with politics,” Grantham said. “I’m picking subjects that are important to people and that affect people, regardless of what their voter ID card says, and that’s why I’m always able to get that type of bipartisan support.”

Because of the narrow Republican majority, Grantham said he opted not to introduce one bill he tried to run in previous years and still feels strongly about: banning photo radar. The majority of Republicans support that measure, but Democrats do not.

“That’s always a Democrat versus Republican issue,” Grantham said. “I’m not going to fight that fight necessarily going into it knowing I am going to lose, so I just try to pick my battles wisely based on the lay of the land.”

His Senate seatmate, Sen. Warren Petersen, R-Gilbert, had the highest batting average in the chamber with a respectable .650. Petersen said his trick to getting 14 of his 20 bills signed into law wasn’t anything glamorous – he just tried to make sure they would have support before he introduced them.

“You don’t want to spend time on something that has zero chance passing, unless you’re trying to just make a statement,” Petersen said. “Sometimes you do that if there’s something you have to say.”

Before the session started and he introduced all of his bills, Petersen took time to analyze the two chambers and committee chairmen, and talked to chairmen to get a feel for their opinions on issues he wanted to address with legislation.

From there, he said, it’s important to get outside supporters who can testify in committees, lobby and make the case for why a bill is necessary.

“It’s not a perfect science, but I think everybody’s kind of doing that to some extent, to try to make sure they can be as efficient as they can and get as many of their bills passed as they can,” he said.

Both Grantham and Petersen said they limited their bill introductions so they had enough bandwidth to focus on the measures. Most lawmakers follow a version of this strategy – the median number of bills introduced this year was 17.

Others, including Nguyen, placed a singular focus on just one or two bills. That strategy helped Nguyen pass his bill requiring clergy be allowed hospital visitation, and it gave fellow freshman Rep. Beverly Pingerelli, R-Peoria, a .500 batting average by passing a single bill to exempt collectible cars from pre-sale emissions inspections.

The two most prolific bill authors, Democratic Sens. Martín Quezada and Juan Mendez, failed to get any of their measures signed into law, though Quezada did succeed in getting a hearing on one of his bills.

Most of the 28 lawmakers who failed to pass a single bill are Democrats, who historically have a hard time getting legislation passed in the Republican-controlled House and Senate. But House Speaker Rusty Bowers, R-Mesa, and Rep. Brenda Barton, R-Payson, also failed to pass any bills.

For Bowers, it was a matter of bad luck. Ducey vetoed one of the few bills he introduced as part of a late May veto spree meant to spur the Legislature to send him a budget. While a new version of the bill ultimately passed, it wasn’t in Bowers’ name.

None of Barton’s nine bills – four placeholders for future strike-everything amendments, three related to elections, one to pay student workers a lower minimum wage and one to let rural counties impose new transient lodging taxes – received hearings.

Sen. Nancy Barto, R-Phoenix, led in the total number of bills signed into law, with 39 of her 62 bills receiving a signature.

Of the Republicans who succeeded in passing legislation, Sen. Wendy Rogers, R-Flagstaff, and Rep. John Fillmore, R-Apache Junction, had the hardest time. Some of the social issues they sought to address, including banning trans girls from girls’ sports, prohibiting any state documents from recognizing nonbinary people, naming a highway after Donald Trump and banning abortions as soon as a fetal heartbeat is detected, proved too controversial for committee chairs to even grant a hearing.

Petersen asks Brnovich to probe Bisbee’s plastic bags ban

The City of Bisbee’s ban on plastic bags is still bothering lawmakers, who already passed a law to bar bag bans.

Rep. Warren Petersen (R-Gilbert) — Sen. Warren Petersen (R-Gilbert)

Sen. Warren Petersen, R-Gilbert, has filed a complaint with the Attorney General’s Office and asked if the City of Bisbee’s ban on single-use plastic bags violates state laws.

Bisbee prohibited plastics bags in 2014, and lawmakers responded with legislation banning such local ordinances the following year.

Cities across the country have banned plastic bags as a way to lessen environmental impacts associated with the disposable bags, like littering and recycling problems.

In 2015, lawmakers approved legislation sponsored by Petersen that made it illegal for local governments to impose a fee or deposit on plastic bags.

At the time, Bisbee was the only city with a bag ban in place. Several other cities, including Tempe, were considering a ban before the law passed.

Bisbee, along with Tempe City Councilwoman Lauren Kuby, sued the state over the law, arguing it is unconstitutional. Kuby was dismissed as a plaintiff because she lacked standing since Tempe did not actually have a bag ban. Meanwhile, Bisbee voluntarily dismissed the lawsuit earlier this month, the court docket shows.

Petersen told the Capitol Times citizens and businesses should be able to rely on cities to abide by laws, and keeping a bag ban on the books blatantly disregards the law.

“It may not be the most important law to some people, but it’s tyranny all the same,” Petersen said in a text message.

Petersen filed his complaint under SB1487, a 2016 law that allows lawmakers to ask Attorney General Mark Brnovich to investigate whether local governments are flouting state laws. There have been four such complaints investigated by the Attorney General so far.

Ken Strobeck, director of the League of Arizona Cities and Towns, which opposed both the plastic bags ban and SB1487, said Bisbee now has less litter because of the ban.

“Everybody seems to be getting along with that fine and they like doing it down there,” Strobeck said.

Strobeck said today’s complaint is further proof that the process spelled out under SB1487 is inappropriate. The Legislature shouldn’t be intruding on cities’ duties, and if legitimate differences of opinions exist as to what cities can or cannot do, the courts should iron those out, he said.

Instead, SB1487 can be “misused and abused,” and it allows the state to threaten cities with withholding state-shared revenues, which fund vital local government services, if a complaint is found to be valid by the Attorney General, Strobeck said.

“It’s killing a fly with a sledgehammer,” he said.

Calls to the City of Bisbee were not immediately returned.

The AG’s office has 30 days to investigate the complaint.

Petersen praises Hobbs for budget negotiations

Democratic Gov. Katie Hobbs took major heat from many Democrats for negotiating a state budget package with Republican legislative leaders that did not include any changes to the state’s new universal school voucher program.

But Republican Senate President Warren Petersen is heaping praise on Hobbs for the deal, saying she negotiated in good faith, kept her promises and made a rare bipartisan budget happen. And he pointed out that despite Democrats’ anger over school vouchers, “that wasn’t going to get on her desk” because majority Republicans would never vote to curtail the program.

“Kudos to her,” Petersen said about the governor’s direct negotiations with him and House Speaker Ben Toma, which unfolded with direct meetings multiple times a week over two months.

“She was reasonable,” he said.

Hobbs, Lake, election contest, court — Gov. Katie Hobbs (Photo by Gage Skidmore via Flickr)

“And she would keep her word,” Petersen said. “”Whenever she would say ‘I agree to that,’ she did it.”

The deal on the $17.8 billion state budget package for the fiscal year that begins on July 1 came much earlier than many observers expected. Hobbs is the first Democratic governor since Janet Napolitano left office for a Cabinet post in the Obama Administration in 2009, a shock for Republican lawmakers who have had 14 years of working with a GOP governor.

Petersen sat down with Capitol Media Services this past week for a wide-ranging interview as the yearly legislative session takes a virtually unprecedented one-month break called by Petersen and Toma. With the budget done and the only bills remaining needing major work before votes, they called a break in floor sessions to work on those issues.

“We literally have put everything up there that was ready,” for a vote, he said. “And now I’m not going to make people come down here if I don’t have any floor work to do.”

Happy People

He said he was the one who came up with the plan that doled out chunks of a big budget surplus to each of the 47 Republican lawmakers in the House and Senate. Minority Democrats got smaller amounts, and Hobbs also got a big chunk to control.

What that earned was individual buy-in from GOP lawmakers who for the first time had ownership of a slice of the budget, Petersen said. That’s a huge difference from the way the budget has normally been done, with Republican leaders hammering out a deal with the governor and then presenting it to rank and file GOP lawmakers as a done deal.

“It came from the difference between communism and capitalism and the way things normally go and why we always have problems,” Petersen said of his strategy.

“You normally have six people down here deciding how … all the money gets spent,” he said. “And then those six people try to convince everybody else to vote for the budget.”

Giving each lawmaker a portion of the budget — $20 million each for GOP House members, $30 million for each GOP senator – gave them control they did not have previously.

“This time when we passed the budget everyone was actually smiling and happy,” he said. “It was like literally the first time I’ve been down here where people were happy.”

Normally, he said, people are angry, having had to get “wrangled into it.”

“Everyone went in ready to vote for this budget. Why? Because I gave them all a piece of the budget. Everybody got their own piece, and they owned it,” Petersen continued.

Even many Democrats voted for the plan, although many grumbled about how it was presented to them. Petersen blamed Democratic leaders for not adopting his formula with their members and delaying giving him their budget “asks.”

Proposition 400

In this Jan. 24, 2020 file photo, early rush hour traffic rolls along I-10 in Phoenix. (AP Photo/Ross D. Franklin, File)

After the budget passed and was signed on May 12, what’s left is a series of top-tier proposals that currently don’t have consensus among Republican lawmakers, with the governor having the final word.

The biggest issue is the extension of a half-cent sales tax in Maricopa County which pays for transportation projects.

The 20-year, multi-billion-dollar tax expires in 2025 unless voters extend it. But the Legislature has to give its permission for the issue to be put on the ballot; it’s the only county that requires that step to ask voters to approve a transportation tax.

Last year, lawmakers passed the tax extension proposal but it was vetoed by then-Gov. Doug Ducey. With an even more conservative Republican caucus this session, it faces tough scrutiny.

Petersen said he and others have major problems with the proposal presented by the Maricopa Association of Governments, the entity that doles out the money for freeways, major roadways, buses and light rail and clean air programs.

And Petersen has little faith in the agency.

“MAG is completely unaccountable,” he said. “They’re very, very insulated.”

He said that, on paper, the agency led by mayors who are supposed to have some oversight.

“But not really,” he said. “These mayors are overwhelmed, busy.”

Petersen said the plan’s use of 44% of the funds for mass transit — versus new highways and road construction — is a non-starter. And he said it creates what he called a $2 billion “slush fund” that he worries would be used to extend light rail despite promises that’s not contemplated.

And then there’s the part that says air quality is a consideration in what to fund.

“If they’re just saying, we can use any measures we want, they need to define what air quality programs they want to do,” he said.

Without definitions, Petersen said MAG could potentially impose limits on gasoline-powered cars or adopt cap and trade programs or who knows what. If they want flexibility for future technologies, he said a mechanism for legislative oversight should be added.

“Believe it or not conservatives want clean air,” Petersen said, including for themselves and their children.

“But they need to define what it is,” he said. “And yeah, if it’s reasonable, we put that in.”

Petersen had just left a meeting with Hobbs when he sat for the interview in his office, and said it sounds like she may want to be directly involved in the negotiations over Proposition 400, the tax extension.

Miscellaneous Issues

Other remaining issues include a revamped proposal to ban city-imposed taxes on home rentals. Hobbs vetoed that bill earlier this session, saying there was no mechanism ensuring renters facing rising housing costs will see the money. She also opposed the $270 million appropriation to compensate cities for the lost revenue for the first 18 months of the ban, saying it came outside the budget plan.

Toma said recently that tying a signing of a rental tax ban and Proposition 400 in negotiations with the governor was a possibility. Petersen, however, said he’s not doing that.

“I don’t horse trade,” he said.

The other key battle remaining is a Republican proposal to override many city zoning laws to boost construction of lower-priced housing options.

That measure has failed once this year. And new versions pushed by Sen. Steve Kaiser, R-Phoenix, don’t yet have the votes to pass and the powerful League of Arizona Cities and Towns is strongly opposed, calling zoning a quintessentially local issue.

Petersen said he does not know if that will get enough support to pass, and if it does not, that’s OK.

“If he doesn’t have the votes, he doesn’t have the votes,” Petersen said. “It’s really that simple.”

Another handful of bills are also in the mix before lawmakers can adjourn for the year.

“We probably have at least 10 bills that are that have loose ends on them that are really important for Arizona,” he said. “And we’re looking at if we can negotiate what to do with those by June 12, and the rental tax is one of them.”

Petersen, who became Senate President in January after a decade representing Gilbert in the House and Senate, said the unusual long break in legislative action is by design.

He recalled frustration after years of coming in to work, saying the daily Pledge of Allegiance and prayer at the beginning of floor sessions and then adjourning for the day because nothing was ready for votes.

“And so I’ve just told my caucus, and they’ve appreciated this ・ that I don’t just bring people down here to pledge and pray,” he said. “We’re not taking a month off, OK. We just don’t have floor work.”

Petersen threatens lawsuit if state elections manual not revised

The top Senate Republican in Arizona is threatening litigation against Secretary of State Adrian Fontes over a proposed elections manual.

Senate President Warren Petersen, R-Gilbert, issued a warning to Fontes in a Monday news release following the public release of the 2023 Elections Procedures Manual draft.

The secretary of state must produce an Elections Procedures Manual every odd year before a general election. The document is intended to provide legal guidance to election administrators across the state for how to run elections.

The last time Arizona had a legal elections manual was in 2019. Former Republican Attorney General Mark Brnovich sued then- Secretary of State Katie Hobbs over her 2021 manual but Yavapai County Superior Court Judge John Napper tossed Brnovich’s lawsuit and said Hobbs “properly exercised her discretion” in drafting the manual.

Napper placed responsibility on Brnovich after the state didn’t have enough time to implement the 2021 manual and said Brnovich failed to negotiate with Hobbs or explain how the manual was unlawful.

Petersen and Speaker of the House Ben Toma, R-Peoria, sent a letter to Fontes outlining why they believe the 2023 draft manual is unlawful on Monday, a day before the draft’s two-week public comment period ended.

One of Petersen’s and Toma’s primary concerns was the manual failing to instruct county recorders to remove voters registered on the active early voter list who have not cast a ballot during two consecutive election cycles. A law was signed in 2021 that requires this practice.

“Our current Secretary of State has a history of distorting our elections laws and pushing the envelope on questionable procedures,” Petersen said in the news release. “My hope is that he will update the EPM with our corrections before submitting to the Attorney General and Governor for approval. Failure to do so will result in legal action.”

Fontes must submit his draft to the other executive officials of the state by Oct. 1. The deadline for approval following the draft submission is Dec. 31.

Republicans already had expressed frustration over the two-week public comment period for the draft manual. Reps. Michael Carbone, R- Buckeye, and Steve Montenegro, R-Goodyear asked Fontes to extend the deadline to Sept. 1 and said two weeks wasn’t an adequate amount of time to review the 259-page document.

Carbone and Montenegro also sent a letter to Fontes on Tuesday expressing their disappointment in his denial of their request with their comments on the manual. They also asked Fontes to publish all comments about the manual on the secretary of state website.

“We understand that you are not responsible for the errors of your predecessor. And we appreciate the work you have done so far to produce the draft 2023 EPM. Nonetheless, we firmly believe that because we all find ourselves in this unprecedented and preventable situation, we owe it to our constituents to provide them with as much transparency and participation as possible in this process,” Carbone and Montenegro wrote.

Paul Smith-Leonard, a spokesman for Fontes, told the Arizona Capitol Times Aug. 9 in an email the public comment process for the Elections Procedures Manual is not required by statute and was instead an effort from Fontes to demonstrate transparency.

Petersen and Toma pointed out in their feedback of the draft manual that government agencies in the state typically allow a 30-day public comment period for rulemaking.

Other issues Republicans raised with the draft manual include language that states counties lack the discretion to conduct a hand count of ballots cast at precincts or early voting centers. Petersen and Toma also stated language that gives the secretary authority to regulate voter registration procedures and authority to extend the early voting period for uniformed and overseas citizens must be corrected.

Voting rights groups praised the draft in a Tuesday press webinar held to discuss the manual.

Rosemary Avila, the senior Arizona campaign manager with All Voting is Local, said she believed Fontes’ draft was receiving more attention this year and in prior years because the 2021 draft manual failed to be administered by election officials.

“It feels like the 2023 version has been a long time coming so here we are – I think everyone is ready for it and we’re ready to make sure access is provided to all Arizona voters,” Avila said.

She said positives with the manual included provisions that ensure ballot drop boxes are accessible for people with disabilities, although she said there was room for the manual to improve such as including provisions noting voting rights for people in jail with guidance to counties on how to facilitate voting within jails.

Chris Gilfillan, the director of political strategies and development for Arizona Center for Empowerment, said the consensus from members of his organization was that the draft manual takes a step in providing access to other methods of voting that work for peoples’ schedules.

“Voters are busy, they have lives, they have jobs,” Gilfillan said. “Voting is not always the most important thing for them. They need to have access to every method of voting available.”

Another voting organization, Secure Democracy Foundation, noted guidance for counties to prevent voter intimidation and requirements to increase security for voting equipment and ballot drop boxes as some of its significant additions of the draft manual.

Petersen unveils inflation reduction plan, mirrors Lake’s

Senate President-Elect Warren Petersen, R-Gilbert, unveiled a new plan to mitigate inflation on Tuesday, like the one gubernatorial candidate Kari Lake presented, but the measure will likely face heavy opposition.

Petersen’s plan would be to eliminate rental and food taxes, reduce (or eliminate) occupational license fees and increase housing supply.

“Government has done extremely well over the last few years by adding a record amount of revenue. Unfortunately, hardworking taxpayers are reeling during this period of runaway inflation and are having a tough time paying for the most basic necessities,” Petersen said in a written statement. “There are at least four actions we can make as a Legislature to counter the effects of rising costs and help our citizens who are living paycheck to paycheck.”

Elements of his plan strongly resemble the economic plan published by Republican gubernatorial candidate Kari Lake, which also called for cutting food and rental tax.

“Arizonans can’t afford to wait for a change of leadership in Washington – they need relief now. That’s why I’ve pledged to eliminate all taxes on groceries and rent in the State of Arizona, putting almost half a billion dollars back into the pockets of Arizona families,” Lake stated in her plan earlier this year.

Governor-elect Hobbs opposed Lake’s plan at the time and said it would essentially defund law enforcement by taking away revenue that cities and towns use to fund public safety.

Petersen’ plans won’t become law without Hobbs’ support.

“Lake’s ‘plan’ would do nothing to actually put money back in the pockets of working Arizonans. Instead, Lake’s plan would get rid of the tax revenue that funds law enforcement in Arizona’s cities and towns, defunding local police,” Hobbs said in a statement at the time, citing an opinion piece by Arizona Republic writer Laurie Roberts to that effect.

The opinion piece cites Republican Glendale Mayor Jerry Weiers as opposed to Lake’s idea. City and town officials have historically opposed similar measures.

Arizona cities and towns get hundreds of millions of dollars in tax revenue each year. A large portion of that goes to police and firefighters. Not all cities tax rent or groceries, but most of Arizona’s 91 cities and towns do.

RENTAL TAX

A proposal to eliminate rental tax was introduced in the legislature last session by Rep. Shawnna Bolick, R-Phoenix, but died on the Senate floor when Sen. Paul Boyer, R-Glendale, and the Democrats voted it down.

The bill was opposed by the League of Arizona Cities and Towns.

Boyer said on Tuesday that the measure – Senate Bill 1116 – was a “$202M ongoing hit to cities. Essentially, defunding the police given how much cities spend on public safety.”

“Nothing justifies poor tax policy but the good news is cities are enjoying surpluses from wayfarer and expanding state shared revenue to 18%. However we can look at delayed implementation for a soft landing,” Petersen said in response.

Petersen argued in his statement that homeowners don’t have to pay taxes on their mortgage payments and tenants shouldn’t have to pay a rental tax.

FOOD TAX

Bolick introduced a bill to cut food taxes in 2019, but the bill was held in House rules and never made it to a floor vote. It was co-sponsored by Reps. Leo Biasucci, R-Lake Havasu City, Walt Blackman, R-Snowflake, John Fillmore, R-Apache Junction, Kevin Payne, R-Peoria, Ben Toma, R-Peoria, and Frank Carroll, R-Sun City West. The bill was opposed by the East Valley Chamber of Commerce, the Professional Fire Fighters of Arizona and the Arizona State American Federation of Labor and Congress of Industrial Organizations.

Bolick’s bill would only have eliminated food tax on groceries, not meals in restaurants. Petersen doesn’t specify his plans but writes that food is “not a luxury” and that the tax hurts “the poorest of the poor.”

In Arizona’s largest cities, there is no food tax, and statewide, families who use federal food subsidies do not pay food taxes.

HOUSING SUPPLY

In a proposal that could enjoy some bipartisan support, Petersen writes that he wants to “increase the housing supply,” something that Democrats and Republicans have been saying loudly for at least the past year. The question is, how Petersen wants to go about it.

A Housing Supply Study Committee has been meeting for the past few months and will discuss possible legislation to create more affordable housing in an executive session at their next meeting on Tuesday, according to the committee’s chair Rep. Steve Kaiser, R-Phoenix. Republicans on the committee, including Kaiser, want to “deregulate zoning” on housing projects to make it easier to build more homes, however nothing concrete is on the table.

Petersen writes that he wants to shorten the window of time it takes to get approval for land development and housing projects. “One way to accomplish this is through administrative approvals for all projects that meet all existing laws and requirements,” he said.

Kaiser will chair the commerce committee next session and said that he and Petersen have spoken and that he is on board but didn’t get into specifics.

When asked whether he will sponsor the bills to make these economic changes himself, Petersen said that he will defer to committee chairs first.

LICENSE FEES

Petersen’s last proposal is to “reduce or eliminate occupational license fees,” which many professionals must pay to stay in business. Petersen has battled occupational licenses in the past. He sponsored two bills that Gov. Doug Ducey signed into law, one allowing professionals moving to Arizona from other states to keep their existing licenses and not acquire new ones, and one requiring state agencies to post about the occupational licensing requirements, notifying professionals of their right to petition to repeal or modify the existing regulation.

“To create new opportunities for Arizonans, we have to make sure our economy is one of the most competitive in the country to launch or relocate a business. To get there, I plan to identify and roll back any cumbersome and unnecessary regulations that get in the way of Arizona’s appeal to attract new businesses and jobs,” Lake said in her economic plan.

Petersen noted that the state has full coffers, pointing to over taxation. Arizona has a surplus of more than $2 billion dollars this year.

Finance Chair J.D. Mesnard, R-Chandler, said in a text that he’s “generally supportive” of the concepts Petersen put forward but hasn’t gotten into the details.

Hobbs has not yet commented on Petersen’s plan. Her support will be hard to win on the removal of food and rental taxes. City and town lobbyists also likely make their opinions known.

Private landowners can build unregulated border wall under proposed legislation

In this March 30, 2017 file photo, Workers use a crane to lift a segment of a new fence into place on the U.S. side of the border with Mexico, where Sunland Park, New Mexico, meets the Anapra neighborhood of Ciudad Juarez, Mexico, As President Donald Trump's administration fights to fund a new, multibillion-dollar border wall, government lawyers are still settling claims with Texas landowners over the fence Congress approved more than a decade ago. (AP Photo/Rodrigo Abd) — (AP Photo/Rodrigo Abd)

A top Republican lawmaker wants to allow people who own property along the border to build a wall without first getting any building permits.

House Majority Leader Warren Petersen, R-Gilbert, said he fears that overzealous local officials will block construction by erecting procedural barriers.

The exemption in HB 2084 would mean that walls could go up without any requirement to comply with local building codes or safety inspection. But Petersen said it’s a question of balance.

“On the other side of the risk is dangerous drug cartels,” he told Capitol Media Services.

“We have every crime that you could imagine coming across these borders,” Petersen continued. “And people that live along these properties that don’t feel safe should have every right to protect themselves, including erecting a wall if they need to.”

The legislation has caught the attention of some county supervisors who question the need − or the advisability −to exempt private wall construction from local regulation.

Bruce Bracker of Santa Cruz County said there are processes in place for situations where the federal government desires to build a wall along the international border. He questioned why there needs to be any sort of additional exemption from local ordinances for individuals who want to erect their own barriers.

Yuma County Supervisor Tony Reyes called the proposal “pretty dumb.” He said he was concerned about “that liability issue about building something without a permit without anybody checking, making sure that the public is protected.”

The question, Reyes said, is what happens if the structure falls.

“This is not a property rights issue,” he said. “It’s a health and safety issue.”

And Cochise County Supervisor Tom Borer said he sees no reason to grant a blanket exemption from existing regulations governing construction of barriers and fences just because it would be erected on private land near the border. More to the point, he questioned why the Legislature would intercede.

“As far as I’m concerned, I would not support anything that took the county’s rights away to govern their own county,” he said.

Petersen, however, said any concerns about safety are addressed by his belief that those who do the actual construction will recognize that they remain financially liable if someone is injured due to improper construction or installation.

The Gilbert lawmaker acknowledged that, to date, no Arizona county or city actually has sought to block a landowner from building a wall along the border.

But he cited an incident last year in Sunland Park, N.M., near El Paso, Texas., where a privately funded group erected 1,500 feet of bollard-style fencing over the Memorial Day weekend along a tract of private property without first going through that city’s review process.

City officials issued a cease-and-desist order against We Build the Wall Inc. halting further construction.

The Texas Tribune reports the city ultimately issued permits for lighting and construction, along with a warning to have the company come into compliance with all city ordinances.

Petersen said his measure would protect Arizona landowners from similar delays.

“It’s a great property rights bill,” he said of the legislation.

“It’s something we want to prevent from happening,” Petersen continued. “Sometimes you don’t think cities will do something like this.”

But he said there is evidence of hostility to border security issues in Arizona, specifically citing the efforts by some to have Tucson declared a “sanctuary city.”

That proposal was rejected at the ballot. And Petersen acknowledged that, even if it had succeeded, no part of Tucson is adjacent to the border.

Bracker sniffed at the idea of enacting a new state law here based on what has happened elsewhere.

“That’s New Mexico, that’s not Arizona,” he said.

“So we haven’t had any issue in Arizona yet, we’re trying to put legislation into place,” Bracker continued. “That just doesn’t make any sense.”

Anyway, Bracker said, the federal government is busy building walls on its own property along the border. Petersen, however, said that privately constructed segments will help fill the gaps where there is no federal funding.

But Bracker, beyond the issues raised about Petersen’s bill, questions the whole premise for more border barriers built by anyone, including the federal government.

“The focus should really be on trade and commerce and tourism,” he said. “They should be putting the billions of dollars into ports of entry.”

Tom Belshe, executive director of the League of Arizona Cities and Towns said his legal staff is still reviewing the proposal. But he said that, in general, cities oppose any efforts by lawmakers to preempt local control.

Clarification: The 13th paragraph of this story has been rewritten to eliminate an erroneous statement attributed to Rep. Warren Petersen that he was unconcerned about safety.

Progressive organizers continue winning streak in truncated session

Alejandra Gomez, co executive director of Living United for Change in Arizona, discusses the political defeat of a sanctuary cities ballot measure and the other issues still facing the Hispanic community. (Capitol Media Services photo by Howard Fischer)

Six months ago – or an eternity, depending on how you count – before the coronavirus, before the most recent wave of public demonstration against police violence, before the David Cook scandal or talk of legislative leadership races, Gov. Doug Ducey set the tone of the fledgling legislative session with an immediately controversial proposal to enshrine a ban on sanctuary jurisdictions in the Arizona Constitution.

It was the political expression of a governor leading his party into electoral war. While he had been conciliatory with Democrats in the previous session, this year was already proving to be different.

But with that proposal – which would soon turn into a ballot referral carried by Rep. T.J. Shope, R-Coolidge, one of Ducey’s key legislative allies – the tactician in the Executive Tower made a key misstep. Within two months, he pulled the plug.

In those intervening months, Ducey apparently failed to predict the level of opposition that an effort to effectively enshrine one of the remaining provisions in SB1070 into the Constitution would engender, including from within his own party. And while it was the likely defections of heterodox GOP Reps. Tony Rivero and Noel Campbell that killed the sanctuary city referral, it’s crucial to examine another root cause of the initiative’s failure – the state’s community of progressive activists and organizers.

Indeed, though this year didn’t have anything that compares to the effort to recall then-Sen. Russell Pearce – SB1070’s legislative champion – the passage of a minimum wage initiative or the mass teacher walkouts of the Red for Ed days, the Second Session of the 54th Legislature served in its own way is proof positive that activists in Arizona form an increasingly effective vanguard of the state’s gradual leftward shift.

From raising the alarm about the sanctuary city initiative in the public eye to raising hell about controversial elections bills in committee meetings, the state’s cadre of activist groups showed this session that they’re not afraid to play ball in traditional halls of power, though they’re certainly not going to play under the rules that the political establishment sets.

“I think they’re maturing into their role as a force to be reckoned with,” said Democratic political consultant Ben Scheel.

If passed, HCR2036 would have asked voters to decide whether the Constitution should specifically prevent local entities from declaring themselves sanctuary jurisdictions – in other words, a statute or policy that limits cooperation with federal immigration enforcement officials. In practice, not much about current law would change, as state statute already prohibits political jurisdictions in the state from doing just that – an extant provision of SB1070, a divisive 2010 bill designed to give the state authority to control immigration.

But if voters passed a ballot initiative to the same effect, it would become much more difficult for a future Legislature to reverse the policy due to the Voter Protection Act.

Almost as soon as the proposal left Ducey’s lips in January, the opposition began to congeal, waging a public campaign against the bill and painting it as a revival of SB1070. By the end, a business boycott seemed like it could be on the horizon.

At the forefront of this opposition was the aptly named LUCHA, or Living United for Change in Arizona, a group that formed in the fallout of SB1070. Founders Tomas Robles and Alejandra Gomez were two among the thousands of people who came out for a 103-day vigil on the lawn of the Capitol in 2010 – several other of the state’s current legion of community organizers took part as well.

“In less than a decade, many organizers who first cut their teeth fighting that bill are now lawmakers, campaign managers and directors of civic engagement groups like Mi Familia Vota and the Arizona Dream Act Coalition,” Gomez and Robles wrote in a New York Times op-ed in December. “While it’s easy to dismiss mass protests as short-lived eruptions of anger, Arizona offers a model for how this energy can become real electoral power: It happens when people learn to work with one another, build deep connections and create something bigger than themselves.”

These groups followed a path established in the SB1070 days in pushing back against HCR2036, and its twin in the Senate, SCR1007: derive power from popular opposition, and convert that power, largely through non-electoral means, into results in traditional halls of power. In the early days, that same strategy helped to win the historic recall election against Pearce.

This time around, it meant a bruising public campaign that helped turn the business community against the proposal, raising the specter of a hit to Arizona’s economy. And it meant highly visible acts of disobedience during debate on the proposal. In a February meeting of the Senate Judiciary Committee, activists from LUCHA and other groups went toe-to-toe with Sen. Eddie Farnsworth, the Republican committee chair, after he cut off testimony from lobbyist Hugo Polanco when he called the proposal racist.

When the two started yelling back and forth, Farnsworth asked for the sergeant of arms to remove Polanco, prompting a quick response from Polanco’s allies.

“Whose house? Our house!” they began chanting. “Kill the bill!”

Farnsworth eventually recessed the committee, and troopers from the Department of Public Safety began escorting protestors out. LUCHA was quick to seize on the perception. It was just a preview of what the response would look like if the referral passed out of the Legislature, Polanco warned at the time.

“Our response has been swifter and greater in force,” Polanco said then, recognizing the growing power of activist groups. “That will push the business community and others to act more quickly.”

HB2304, Republican legislation that would have allowed immigration agents to check the citizenship status of people on voter registration rolls and limit the ability of voters to bring translators with them to the polls, faced a similar response. During a committee hearing on the bill, a LUCHA activist testifying against the legislation quarreled with Republicans on the committee, leading House Majority Leader Warren Petersen, R-Gilbert, to accuse “you and others like you who are disrespectful to the process” of setting a vitriolic tone at the Legislature.

Rep. Diego Rodriguez, D-Phoenix, became so frustrated that he walked out of the hearing without voting on the bill. After the hearing, Rodriguez wouldn’t say that Petersen’s statement was intended to be racist, but that the underlying perception – a lawmaker verbally attacking a group of minority activists who had been waiting for hours to speak on the bill – were disturbing nonetheless. Sidelined by the coronavirus, the bill never made it out of the House.

LUCHA and other groups have proved masterful at provoking negative responses from their political opponents. It’s an indication, it seems, that the grassroots have grown in the foundations of the Capitol. And it’s not just at the state level – at Phoenix City Hall, for example, where former Puente executive director Carlos Garcia won election to the City Council.

“Have they gotten stronger? Yes,” said House Minority Leader Charlene Fernandez, D-Yuma. “Have they made their presence known? Definitely. They’re our partners, they’re our stakeholders, and they represent the working class families here in Arizona.”

Republicans rail against all-mail elections, but they vote by mail

In this March 10, 2020, file photo, a King County Election worker collects ballots from a drop box in Seattle for the primary election in Washington State, where elections are all mail. In Arizona, where voters can ask for a mail-in ballot, Democrats and some Republican election officials are calling for an all mail election, at least for this year as the coronavirus causes anxiety for face-to-face contact at the least and sickness and death at the worst. PHOTO BY JOHN FROSCHAUER/ASSOCIATED PRESS

Saying it is ripe for fraud, many Arizona Republican lawmakers oppose the idea of sending mail ballots to all voters during the COVID-19 crisis, but 79% of the GOP caucus opts for the U.S. Postal Service to deliver their vote.

According to public records, 72 legislators are currently registered onto the Permanent Early Voting List, or PEVL — 37 Republicans and 35 Democrats (one Republican’s voting record is sealed).

Lawmakers like Sen. Michelle Ugenti-Rita, R-Scottsdale, Rep. Travis Grantham, R-Gilbert, Rep. Warren Petersen, R-Gilbert, Rep. Shawnna Bolick, R-Phoenix, and others have argued against election officials mailing all registered voters a ballot, even temporarily, saying either that it leads to voter fraud, or it disenfranchises voters by limiting their methods of voting.

Advocates for the switch argue that because there’s a pandemic that has already resulted in 27,000 deaths nationwide and 150 in Arizona, policymakers should send ballots to those who haven’t signed up for the PEVL to protect their health and safety while voting.

Election officials have also pointed out even if Arizona switches to an “all mail” election, they would still operate polling places to ensure everyone can vote.

Yavapai County Recorder Leslie Hoffman, a Republican, said polls in some precincts would still have to remain open for drop offs and ballot replacements.

Arizona already allows people to sign up for a mail ballot up to 11 days before an election, but Hoffman and others said that if you leave it up to voters to sign up, you’ll still have lines at the polls. April 15 was the unofficial deadline for the counties to plan for mail voting for the August primary, as election officials need to procure proper election materials. If the state wants to make the switch before the November election, policymakers will need to act by June 15, election officials say.

Some of the most ardent critics of universal voting by mail already receive their ballots in the mail, according to records from the Arizona Secretary of State’s Office.

Senate President Karen Fann, who has pledged that the Senate won’t take up any efforts to send ballots to all voters, gets her ballot in the mail.

Sen. Sine Kerr, R-Buckeye, who tweeted about how mail ballots are insecure, citing her husband’s alleged find of dozens of early ballots in 2019, apparently isn’t worried about hers getting lost on a rural highway – she gets her ballot in the mail.

Sen. Vince Leach, R-Tucson, who recently shared a Breitbart story about 16 million mail ballots going missing and warned that mail voting “invites” voter fraud and could lead to millions of ineligible voters casting votes, votes by mail. And so does Sen. David Farnsworth, R-Mesa, who warned back in 2019 that mail ballots are a progressive idea that leads to fraud.

Petersen, who warned recently that universal mail voting would lead to “universal ballot harvesting,” gets his ballot via mail and encouraged voters to use mail ballots to elect him back in 2016. Ballot harvesting is a practice in which a voter with a mail-in ballot gives it to someone else to deliver to a polling station. Some political and community groups have made it a practice to go door to door, especially in neighborhoods where they thought sentiment would run in their direction, offering to take unmailed ballots to polling places.

Arizona has outlawed the practice, but the 9th U.S. Circuit Court of Appeals found the ban on ballot harvesting unconstitutional.

Rep. Mark Finchem, R-Oro Valley, who warned that “forcing” voters to vote by mail would lead to more ballot harvesting, also gets a mail ballot. Grantham, who told Maricopa County Recorder Adrian Fontes that we should “stick to the constitution and rule of law” and not send ballots to all voters and that mail ballots make it “easier to cheat”, previously urged mail voters to support him and he gets his ballot in the mail.

Rep. Leo Biasiucci, R-Lake Havasu City, who repeated President Donald Trump’s claim that mail ballots lead to corruption, votes by mail.

And then there’s Rep. Bret Roberts, R-Maricopa, who called mail voting a “horrendously bad election integrity killing idea,” is living his ideals. He announced recently that he decided he will no longer vote by mail, and removed himself from the PEVL.

Though there are 90 total lawmakers in the state, only 89 of them appeared on the Secretary of State’s database, likely because one petitioned the court to keep her voting file secret. There may not be any way to find out if Bolick – who has been one of the harshest critics of all voters receiving their ballot through mail, and who penned two op-eds about how voting by mail is rife for fraud, which state election officials contend was riddled with inaccuracies – votes by mail herself.

That’s likely because she is married to Supreme Court Justice Clint Bolick.

State statute says any voter registered at the same residence as an “eligible person” may request that the general public be prohibited from accessing their personal information, such as their address, voting history and registration. Justices, judges (current or former), peace officers, and others are
eligible.

A spokeswoman for the court confirmed that that information is not a public record and therefore cannot be disclosed.

Bolick did not return a call for comment and Clint Bolick declined to comment on how he submits his ballot.

This battle extends beyond the Legislature to Gov. Doug Ducey, who on April 14 after a press conference on his latest actions in response to the coronavirus crisis, made it clear he’s not in favor of universal mail-in voting either.

“We’re not going to disenfranchise anyone from voting on Election Day,” said Ducey, who’s on PEVL. “We’re going to have more availability to vote, not less.”

Republicans sidestep expulsion vote of Rep. Stringer, ethics committee to probe allegations

David Stringer (Photo by Gage Skidmore/Flickr)

House Republicans today bypassed a motion to expel Rep. David Stringer in favor of an ethics investigation of recent allegations against their colleague.

Rep. Reginald Bolding made the motion to expel Stringer, citing the Prescott Republican’s past racist comments – words unbecoming of a member of the Arizona House of Representatives, Bolding said – and a report by the Phoenix New Times about charges for sex offenses in Stringer’s past.

Though Bolding, D-Laveen, acknowledged he did not know what had happened in 1983 that led to Stringer’s indictment on five sex offenses, Stringer had not been transparent with the House or voters about the allegations, Bolding said.

Instead of taking a vote on Bolding’s motion for expulsion, Republican lawmakers sidestepped the issue by voting to leave the floor of the House, a motion to recess. House Majority Leader Warren Petersen said that while even those representatives who voted to recess were horrified and shocked by the New Times report, the matter should be investigated by the Ethics Committee before members take action.

“There’s a lot of really horrible things that we’ve heard about, but there are also other sides of this story,” said Petersen, R-Gilbert.

Petersen’s motion passed by 31-28 party line vote over the protest of Bolding.

“We are enabling this behavior by voting to recess,” Bolding said. “We have the ability to move on to the pressing issues that matter in this state and get back to regular order.”

The ethics process has already begun.

Rep. Kelly Townsend filed an ethics complaint this afternoon, citing the report by the New Times, as well as an earlier report by the Arizona Daily Independent, as evidence that Stringer “has a potential criminal history involving child pornography.”

“By this conduct, if true, Representative Stringer has engaged in conduct that compromises the character of himself, members of the House and indeed holds the entire legislature up to contempt and condemnation,” Townsend, R-Mesa wrote in her complaint.

Townsend initially voted against Petersen’s effort to avoid an expulsion vote – it would’ve failed anyway, she said, since Bolding lacked the necessary two-thirds majority vote needed to oust Stringer.

She ultimately sided with her fellow Republicans after Rep. Anthony Kern, R-Glendale, urged her to reconsider.

In any case, Townsend stood against expulsion before allowing the Ethics Committee to investigate, and she expressed regret for having voted for the expulsion of former Rep. Don Shooter nearly one year ago before going through that process.

“I don’t want to continue to set the precedent… that if there’s something we don’t like about a member, it’s up to us to expel,” she said.

It was Townsend, then majority whip, who threatened to seek Shooter’s expulsion herself if he did not resign.

“In retrospect, it was the wrong process,” she said. “It should have gone through Ethics.”

Townsend said there are still questions, particularly regarding whether Stringer was required to disclose the charges while running for office, and the ethics investigation would give Stringer the time to make his case.

“[The allegations are] of such an egregious nature that it’s something that I feel needs to be known,” she said. “Whether it was expunged or not, whether it was a plea deal or not, I think… that it rises to the level that it needs to be referred to the Ethics Committee where these things need to go.”

This may not be the last time the House is faced with a motion to expel Stringer, though.

Bolding did not immediately return a request for comment regarding if and when he might attempt to bring his motion back to his colleagues.

School districts, lawmakers clash over teacher pay

A woman holds a sign that reads "Gov. Ducey... is this what you had in mind when you mandated the civics exam?". She joined thousands of protesters at Chase Field before marching to the Arizona Capitol on April 26. (Photo by Katie Campbell/Arizona Capitol Times) — A woman who holds a sign joined thousands of protesters at Chase Field before marching to the Arizona Capitol on April 26. (Photo by Katie Campbell/Arizona Capitol Times)

Arizona lawmakers, roundly criticized this year over poorly funded public schools, want to make one thing clear: They’re not the ones responsible for giving teachers raises.

“We don’t set teacher pay. That’s a district decision,” House Speaker J.D. Mesnard, R-Chandler, said in April. “We’re in the resource business.”

Both statements are technically true. For nearly four decades, Arizona legislators have mostly avoided meddling in the affairs of local school districts, where governing boards, superintendents and principals are given autonomy to spend the funding they receive from the state as they see fit.

That’s not by mistake. Arizona state statute clearly spells out the nature of how the state funds K-12 public schools. A section labeled “purpose” adopted in 1980 details that before, Arizona legislators were responsible for allocating revenues for specific programs such as special education or transportation to individual schools districts.

Instead, the state adopted a block grant system that provides school districts a lump sum, a pot of money that covers a school’s operating expenses. It’s up to district leaders to decide how much of that lump sum is needed for each expense.

And so it has been, at least until the last two years. As the debate over school funding peaked at the Capitol, beginning in 2017 and culminating in a historic teacher strike in May, some Republicans have expressed an interest in taking a more active role in dictating how dollars are spent in school districts.

Led by Gov. Doug Ducey a year ago, the state budget included a line item that bypassed the authority of local school officials to legislate roughly $34 million be spent on teacher pay.

The results were disastrous, and Ducey has since backed away from that maneuver. But as criticism continues to mount against Republican lawmakers, some are still angling for more say in local school spending matters.

Local control

A part of the problem is messaging. Ducey in April turned the budget upside down by proposing a 20 percent pay raise for Arizona teachers by 2020. The plan was marketed by the Governor’s Office and by Republican lawmakers as a spending package to boost teacher salaries.

But the nature of how schools are funded in Arizona means Ducey, nor any lawmaker, can legislate such a raise into being. It’s local governing boards that decide how to divy up the lump sum of state funding, and the $272 million is simply another part of that pot of money.

Chuck Essigs, a lobbyist for the Arizona Association of School Business Officials, said that was purposefully designed for two reasons. Arizona has traditionally favored “local control,” a belief that decision-making is best left to those who know best — local leaders at a level closest to where the decisions will have an impact.

“It had a lot to do with local control, but also — and this was never stated or written anywhere — but it allowed the legislature to not have to get into a fight over how the money’s being spent,” Essigs said of the funding formula adopted in 1980. “Now basically the Legislature can say, ‘That’s on your local governing board.’”

That’s exactly how Ducey and lawmakers responded in 2017, when criticism over school funding first began to peak.

Looking for a scapegoat, the governor accused school officials for the woes of Arizona teachers, whose average salary is among the lowest in the nation. Ducey claimed the problem was that school administrators weren’t budgeting properly, not that the state wasn’t giving districts sufficient funding.

The governor doubled down on that narrative with a Republican-approved budget deal that included a line item for teacher pay raises, a maneuver that bypassed the state’s budget formula for funding K-12 schools.

The plan flopped. School officials rightfully recognized the unreliableness of that funding mechanism. And while they followed the legislative directive to provide the money to teachers, they distributed those dollars as bonuses or stipends, not a raise.

That way, if the Legislature’s desire to fund the line item for higher teacher pay waned, schools wouldn’t be left holding the bag for higher salaries.

Teachers didn’t buy into Ducey’s narrative, either, Essigs said.

“(School officials) can’t spend money that doesn’t exist,” he said. “I think that’s what really changed, and that’s why 50,000 teachers went to the Legislature.”

Intent

In January, Ducey was already showing signs of change after chastising local school leaders the year before. His State of the State address praised school officials, and his proposed budget eliminated the line item funding mechanism, opting instead to fold the “raise” of 2017 into the funding formula for schools.

Future raises as part of Ducey’s plan to boost teacher pay 20 percent by 2020 will be funded through the formula as well, ensuring they’re protected from the whims of state lawmakers and boosted each year to adjust for inflation.

That meant giving up the legislative authority to dictate how the additional money for teacher pay is spent.

The budget includes a legislative intent clause, which states that lawmakers want the $272 million in Ducey’s plan in fiscal year 2019 to go to teacher pay. But there’s legally nothing to stop a school district from spending the money elsewhere, if it’s needed.

Ken Hicks, chief finance officer at Peoria Unified School District, said in April that despite the realities of state law, most school officials will try to honor the will of the Legislature.

“We normally try to follow laws and follow intent and follow funding,” Hicks said. “As business people in schools, we follow anything.”

At least one school district is carving a different path. Tucson Unified School District Superintendent Gabriel Trujillo told the Arizona Daily Star he’ll spread the money around to give raises not just for teachers, but all “educators,” including support staff and even janitorial workers.

That means teachers at TUSD won’t get the 9 percent raise that Ducey promised.

That’s why lawmakers like Warren Petersen, a Republican senator from Gilbert, wanted more than just legislative intent.

“There’s a narrative right now that the Legislature dictates teacher salaries and how much money goes to teacher salaries,” he said. “That is not the case.” But if that’s what people want to believe, “then maybe it is time for the Legislature to do what people think is already the case and dictate salaries.”

War

Along with Republican Sens. Steve Smith, Judy Burges and Sonny Borrelli, Petersen lobbied for language with more teeth. Intent was not enough, they said, to ensure the money would be spent by local officials as the Legislature saw fit.

Petersen said he doesn’t want to take away the executory functions of superintendents to make decisions at the local level, but given the circumstances — the teacher strike — he wanted to go further to make sure those dollars get into teachers’ pockets.

“The battle for teacher pay was won at the Capitol, but the war has to be won at the school districts,” he said, adding that TUSD is a perfect example of how that war may be lost. “The ultimate accountability is the voters of the TUSD. If the voters are OK with using money that was tagged for teacher pay for other things, and heaven forbid admin costs, that’s where the buck stops.”

Essigs said the war is already over. Enough legislators acknowledged the problem is funding provided by the state, not the decisions of local school officials.

And in Tucson, where the superintendent is bucking the Legislature’s intent while the ink on the budget is still drying, educators seem fine with the decision.

Democratic Sen. David Bradley, whose district includes parts of TUSD, said a recent trip to a TUSD kindergarten class leads him to believe that the school employees are OK with sharing the money allocated for teacher pay with other school staffers.

The teacher introduced Bradley to multiple school personnel who aren’t defined as a teacher by Ducey, and therefore wouldn’t benefit from the additional funds intended for teachers if TUSD officials followed the legislative intent.

Their response underscores the message from the #RedforEd movement, which wasn’t solely about teacher pay, Bradley said — it was about better funding for all sorts of educators.

“My initial sense is that because that was kind’ve the talking point, the fact that the superintendent is kind’ve heading in this direction, there seems to be some acceptance of that,” Bradley said.

Sen. Eddie Farnsworth to retire

Arizona Senate President Pro Tempore Eddie Farnsworth, the influential Republican leader who’s held an iron grip over criminal justice legislation for the better part of two decades, will not seek re-election.

Farnsworth announced at a Thursday night meeting of Legislative District 12 Republicans that he plans to retire, House Majority Leader Warren Petersen said. Petersen plans to run for Senate, while Queen Creek Town Council member Jake Hoffman will seek Petersen’s spot in the House.

Petersen, a former state senator who swapped seats with Farnsworth last year when Farnsworth hit term limits in the House, said Farnsworth told him he wouldn’t run for re-election weeks ago.

“I would not have run in a primary against him,” Petersen said. “Farnsworth is one of the best legislators we have ever had.”

Farnsworth was first elected to the House in 2000 and served for eight years, including a stint as majority leader from 2003 to 2004. He tried to switch to the Senate after hitting his term limits in 2008 but lost the GOP primary.

A bid to return to the House in 2010 was successful, and Farnsworth spent another eight years there before switching to the Senate in the last election. During his 17 years in office, he built a reputation as a conservative firebrand with a penchant for killing bills he deems “bad.”

Hoffman, who resigned his post as the chairman of the LD12 GOP when he filed his nominating paperwork for a state House campaign, told attendees at last night’s meeting that he chose to run to keep LD12 in Republican hands. In audio shared with The Arizona Capitol Times, Hoffman described the slim margin in the House, which has a 31-29 Republican majority, and the Senate, where Republicans have a 17-13 majority.

“We have Democrats in this state who are trying to legalize post-birth murder,” Hoffman said. “We have Democrats in this state who want to sexualize education for kids, who want to control the information that your kids hear. We have Democrats in this state, with Red for Ed, who are pitting families and neighbors against each other. 2020 is the fight of our lives.”

Hoffman is the president of conservative consulting firm Rally Forge and a contributor to the conservative news site Townhall. He’s served on the Queen Creek Town Council since 2017 and was a board member of the Higley Unified School District from 2013 to 2015.

In 2016, Hoffman founded a political action committee, RallyPAC, that collected $350,000 from a single Texas banker, funnelled the sum through Rally Forge and spent most of it on web ads supporting Donald Trump and attacking Hillary Clinton. A PAC supporting Arizona GOP Chairwoman Kelli Ward’s unsuccessful 2016 Senate campaign paid Rally Forge $120,000, and the company’s also done work for conservative nonprofit Turning Point USA.

Neither Hoffman nor Farnsworth responded to calls or text messages. Petersen said he and seatmate Travis Grantham, currently deployed in Afghanistan, are considering running on a slate with Hoffman.

“Jake is a solid conservative and would make a great legislator,” he said. “We are discussing running as a team and plan to decide soon.”

Hank Stephenson contributed to this report.

Correction: A previous version of this erroneously stated Warren Petersen left the Senate and ran for the House when he hit term limits. Petersen did not hit his term limit in the Senate.

Senate approves measure to curb governor’s emergency powers

Gov. Doug Ducey and Cara Christ, director of the Arizona Department of Health Services, answer questions at a press conference today in which Ducey announced a state of emergency to combat the spread of COVID-19 in Arizona. PHOTO BY PIPER HANSEN/ARIZONA CAPITOL TIMES — Gov. Doug Ducey and Cara Christ, director of the Arizona Department of Health Services, answer questions at a press conference March 11 in which Ducey announced a state of emergency to combat the spread of Covid in Arizona. PHOTO BY PIPER HANSEN/ARIZONA CAPITOL TIMES

Republican senators voted Wednesday to curb the emergency powers of the governor, but do it in a way he can’t veto.

SCR 1003, approved on a party-line 16-14 vote, would terminate any emergency declared by the governor in 30 days unless both the House and Senate agreed to an extension. And any extension could be for no more than 30 days, though there could be continued reauthorization.

The proposal now goes to the House.

Nothing in the measure would affect the current emergency that Gov. Doug Ducey declared in March.

That’s because the legislation requires voter approval. Sending it to the ballot skirts the normal requirement for gubernatorial approval.

But lawmakers may yet get a chance to pull the plug on the current emergency. SCR 1001, which would do just that, already has cleared two Senate committees and awaits floor debate.

Wednesday’s vote comes following months of complaints by many GOP lawmakers that the Republican governor has used his emergency powers to infringe on individual rights. That has included the closure of businesses he has declared to be “non-essential,” a moratorium on evictions, and what amounted to a stay-at-home order for people who do not need to be out.

Most of those are gone. But his orders still keep bars closed unless they operate like restaurants, with sit-down food service and no dancing. And restaurants can operate with only limited seating capacity.

“My constituents were banging down my door wanting me to do something and take action,” said Sen. Warren Petersen, R-Gilbert, who crafted the plan.

Existing law does allow the legislature to terminate an emergency order with a simple majority vote.

Only thing is, with the legislature not in session, there was no way for lawmakers to do that. And with Ducey unwilling to call them into a special session to override his order, that left only the option for lawmakers to call themselves in. That, however, takes a two-thirds vote, which the Republicans did not have.

Petersen said this measure, if approved by voters, ensures that the governor has to work with lawmakers if he wants his emergency powers extended.

Sen. Kelly Townsend, R-Mesa, was blunter in her belief that there needs to be legislative oversight and input, even in the case of a deadly disease.

“I hope we never again see something so fearsome that we give all power and control to one person and his bureaucrats who cannot be held accountable by the public,” she said. “There are severe consequences when we place that much power in the hands of one person indefinitely.”

Senate Democrats, who generally believe the governor has done too little with his emergency powers to curb the spread of the pandemic and its effects, found themselves in the curious position of defending the current law and speaking against efforts to allow curbs.

“The whole purpose is an attempt to remove politics from action during an emergency so that we can act swiftly to save lives,” said Sen. Juan Mendez, D-Tempe. And he suggested Republicans were making far too much out of the gubernatorial powers.

“This isn’t Star Wars,” he said. “The Senate didn’t turn Ducey into an emperor.”

Mendez said that now that legislators are back in session, there are things they should be doing, like dealing with housing and child-care issues of those who have been affected, whether physically or financially, by the virus, “instead of taking advantage of lathered-up constituents and their fears.”

If approved by the House, the measure will be on the 2022 general election ballot.

Senate argues against release of audit records

The Arizona Senate doesn’t have to produce records for its election audit because they aren’t in the physical custody of the chamber, the Senate’s attorney said Wednesday in court.

Maricopa County Superior Court Judge Michael Kemp heard oral arguments today in the public records lawsuit brought by liberal watchdog group American Oversight against Arizona Senate President Karen Fann, Senate Judiciary chairman Sen. Warren Petersen and the Arizona Senate.

The group sued in May, seeking a bevy of records from communications between Senate audit liaison and former Secretary of State Ken Bennett and people involved in planning and executing the audit, contracts between the Senate, Cyber Ninjas and other third-party vendors. They’re also looking for records related to the budget and funders of the audit, plans about the audit’s operations and plans for direct voter contact, but the group was met largely with responses that the requested records were not in the Senate’s possession.

Since then, the group has received some records – emails to-and-from Fann, service agreements with groups providing security and other communications. The Senate has released about 1,200 pages of records, attorney Kory Langhofer, who’s defending the Senate, said. He said that about 15,000 more documents are being reviewed for release as long as they’re not found privileged or confidential.

“That’s what the Public Records Act requires and that’s what the Senate is doing,” Langhofer said. “What we’re litigating here is additional set of documents: documents that are not in our custody and that are only available to the vendors.”

However, the Senate has released little more in regards to its contractors, nor does it intend to.

Langhofer said that because these other records are in the physical custody of the Senate’s third-party contractors, not the Senate itself, they’re not subject to public records laws.

Attorneys for American Oversight said that kind of interpretation would gut the statute.

“Those documents need to be produced; otherwise, the public record statute will have a gigantic loophole that agencies can drive a truck through that will shield them from permitting the public to know what the government is up to,” American Oversight attorney Keith Beauchamp said. “No matter which side of the political aisle you’re on, that’s a bad thing.”

Kemp noted the public doesn’t know the cost of the audit.

“Mr. Langhofer, isn’t the public entitled to know who was paying for this, what President Fann referred to as ‘constitutional and legislative function,’ this important constitutional duty, isn’t the public entitled to know who’s paying for this? Besides the $150,000 that the senators already appropriated?” Kemp asked.

Langhofer said that the public is entitled to “know the information that’s in records that the public records law requires to be produced,” adding that the Public Records Act is the only basis for the public’s claims to records, not the state constitution or common law.

“That’s a great political argument,” he said. “They should talk to the legislature about it.”

Kemp said he would have a written ruling in seven to 10 days.

Last week, The Arizona Republic filed a special action in Maricopa County Superior Court seeking financial records and communications about the audit. The Senate has moved to consolidate the two.

Senate leadership scramble, 3 eye presidency

From left are Sens. David Gowan, J.D. Mesnard, Warren Petersen

The Senate is preparing to select new leadership next year in both parties, and three Republicans seem confident that they can win the presidency.

Sens. David Gowan, R-Sierra Vista, J.D. Mesnard, R-Chandler, and Warren Petersen, R-Gilbert, have started campaigning for the position of Senate president.

President Karen Fann, R-Prescott, has held the position since 2019, but she is retiring after this year. Senate Majority Leader Rick Gray, R-Sun City, is also retiring, leaving a large opening in leadership.

On the Democratic side, Senate Minority Leader Rebecca Rios, D-Phoenix, and Senate Assistant Minority Assistant Leader Lupe Contreras, D-Avondale, are also leaving the Senate after this session.

The Republicans are a little further ahead in selecting new leadership. Gowan, Mesnard, and Petersen each say they are feeling good about their prospects, with Gowan and Mesnard both implying they’ve taken the lead.

Of the current 16 Republican senators, only eight besides Gowan, Mesnard and Petersen are running for their Senate seats again. At most, seven will return as Sen. Wendy Rogers, R-Flagstaff, and Sen. Kelly Townsend, R-Mesa, will run against each other in the Legislative District 7 Republican primary.

Gowan, Mesnard and Petersen are all Senate and House veterans who currently chair committees. Gowan chairs Appropriations, Mesnard chairs Commerce and Petersen chairs Judiciary. Gowan and Mesnard have also each served as speaker of the House, but none of the three have had leadership roles in the Senate yet.

Of the senators who hope to return to the chamber next year, no one will say who they are supporting in the race yet.

Sen. Sonny Borrelli, R-Lake Havasu City, and Sen. Sine Kerr, R-Buckeye, are both interested in being majority whip next session. Borrelli has held that title for the past four years and said on April 20 that he should have the votes. “I don’t know if Senator Kerr would want to give up the chairmanship,” Borrelli said, referring to Kerr’s role as chair of the Natural Resources Energy and Water Committee. Kerr is also the chair of the Ethics Committee, but it rarely meets. Usually, senators in leadership roles don’t chair committees, but there is no rule against it.

The Senate president has control over Senate proceedings, decorum and the signing of, “All acts, addresses, joint resolutions, writs, warrants and subpoenas issued by order of the Senate, and decide all questions of order.” The president also assigns members to committees, determines who chairs those committees and can cancel or reschedule the meetings. They also appoint their own “president pro tempore” who serves in the president’s place if need be.

Current pro tem Sen. Vince Leach, R-Tuscon, is gunning for majority Leader next year. Majority Leader Rick Gray, R-Sun City, is leaving the Legislature after this session.

No one has announced an interest in being pro tem, but that’s a good incentive that candidates for president can offer to members for their votes. As is the promise of committee chairmanships.

The Democrats haven’t gotten far in the discussion of Minority leadership, but eight Democratic senators will run for re-election. Sen. Martín Quezada, D-Tempe, is leaving but said that the Senate Democrats want a veteran in leadership, and not an incoming freshman.

Sens. Lela Alston, D-Phoenix, Raquel Terán, D-Phoenix, and Sally Ann Gonzales, D-Tucson, said they want to be in Senate leadership next year, but not necessarily in the role of minority leader.

In addition to the positions of minority leader and assistant minority leader, minority whip is also opening up. None of the other Democratic senators have voiced an interest in leadership or an endorsement of other senators who are interested.

Senate mulls next step in auditing 2.1M ballots

These are the 2.1 million ballots cast in November in Maricopa County, loaded onto a truck and ready for delivery to the Senate -- which may not be able to handle them. PHOTO COURTESY MARICOPA COUNTY — These are the 2.1 million ballots cast in November in Maricopa County, loaded onto a truck and ready for delivery to the Senate — which may not be able to handle them. PHOTO COURTESY MARICOPA COUNTY

Pallets of ballots sit on trucks in Phoenix as senators figure out what to do next, three months after they declared they wanted their own audit of the presidential election.

The 28 tons of paper packed in hundreds of neatly stacked boxes with nowhere to go serve as a visual representation of the Senate’s audit attempt, which has been full of setbacks and false starts since it began. Republican senators have alternately plunged ahead — drafting a resolution to arrest the Maricopa County supervisors who blocked their way and announcing they hired an auditor — and fallen back, losing a vote on their contempt resolution and denying they ever selected an auditor after public pressure.

The Senate won a court battle February 26, after a Maricopa County judge found its subpoenas could be enforced.

Now, Republican senators are like a dog that caught the car it chased and doesn’t know what to do, said Democratic Sen. Martín Quezada.

“I think from the very beginning this was all a big soapbox they were standing on just trying to make noise,” he said. “I don’t think they ever expected this was actually going to happen, but now they have it, and they don’t know what to do. And literally what are they gonna do? If I was the Senate president, I wouldn’t know what the hell to do with [2.1 million ballots].”

Subpoenas

Subpoenas the Senate filed in December and January make clear that the ballots and election equipment must be delivered to the Capitol. Accordingly, the county loaded ballots onto trucks March 1 with the intention of delivering them to the Senate, Maricopa County Board of Supervisors Chairman Jack Sellers wrote in a letter to each senator March 3.

Instead, Sellers wrote, Senate attorney Kory Langhofer — who also represented the Trump campaign in a lawsuit to challenge the administration of the election — sent the county an email at 5:08 p.m. March 1 saying the Senate was unprepared to receive any of the ballots. The county then learned from a statement the Senate GOP spokesman gave a reporter that the Senate claimed there was an “understanding” that the county would let the audit occur in the county’s election facilities – an understanding the county did not share.

In this November 6, 2020, photo, Arizona elections officials continue to count ballots inside the Maricopa County Recorder's Office in Phoenix. The Arizona Senate got affirmation from a court that its subpoena for Maricopa County’s 2.1 million ballots and election equipment for an audit of the 2020 election is valid. — In this November 6, 2020, photo, Arizona elections officials continue to count ballots inside the Maricopa County Recorder’s Office in Phoenix. The Arizona Senate got affirmation from a court that its subpoena for Maricopa County’s 2.1 million ballots and election equipment for an audit of the 2020 election is valid.

These back-and-forth letters between the clashing parties now raises the question of whether the Senate Republicans will even push forward with its own audit – something they have fought over for nearly four months. Municipal elections are ongoing and the county’s buildings are occupied, Sellers wrote.

“Please advise us when the Senate is ready to receive the subpoenaed materials and where they should be delivered. If the Senate no longer wants the materials delivered, the county stands ready to discuss next steps,” Sellers said.

Senate President Karen Fann could not be reached for comment, but the Senate said in a press release that the “best way to maintain the security of machines and ballots was to leave them at the county and have the independent auditors come to them, as was done with the first two audits.”

Of course, the county, not the Senate, conducted those two other audits. And Gilbert Republican Warren Petersen, the Senate Judiciary Committee chairman who signed the subpoenas alongside Fann, disputes whether the county’s audits were even audits.

Hobbs’ Advice

Democratic Secretary of State Katie Hobbs wrote a letter to county election officials and senators on the evening of March 3, instructing them how to best proceed with the audit – should it happen – and reminding them of her concern over this entire debacle.

“As you know, there is no credible evidence for any of the conspiracy theories that have abounded about the 2020 General Election, including those made by associates of Allied Systems Operations Group,” Hobbs wrote, urging Senate Republicans “not to waste taxpayer resources chasing false claims of fraud that will only further erode public confidence in our election processes and elected officials.”

But she still laid out what she views as a transparent and bipartisan process to audit the 2.1 million ballots from the county. Most of which are related to provisions in the Elections Procedures Manual.

Hobbs wrote that the senators need oversight, potentially from her office, the Governor’s Office or the Attorney General’s Office. Hobbs advised: Make sure the process is open, safe and secure; that senators they follow the law and suggest they only use red pens to mark ballots so as to not alter or add anything that could have the appearance of changing votes. And that should be done with a bipartisan group on live video feed, which should be retained for 24 months.

She made it clear again that she is not in favor of the audit and disagrees that it will help people “trust” the election results, after all this time.

“I believe we can agree that proceeding without clear procedures for the security of the ballots and election equipment when they are in your custody, and clear procedures to ensure the integrity, independence, and transparency of the audit itself and the auditors selected, will only open the door to more conspiracy theories and further erosion of voters’ confidence in Arizona’s elections processes,” Hobbs wrote.

Not in Our House

Maricopa County spokesman Fields Moseley said supervisors had no intention of allowing senators to use their facilities for an audit they never supported in the first place.

As Moseley sees it, the February 26 court ruling, which states that the Senate has broad constitutional power to oversee elections, would allow Republican senators to share ballots and equipment with anybody they deem fit – including Rudy Giuliani, as AZGOP Chair Kelli Ward said the Senate plans to do.

“We have to give them everything,” Moseley said “We don’t have any control.”

Giuliani was former President Donald Trump’s personal attorney and spent the weeks after the election holding unofficial hearings, including in Arizona on November 30, trying to prove Trump won the election. Handing materials over to him would likely mean Trump and his campaign team would have access to millions of Arizonans ballots.

County elections spokeswoman Megan Gilbertson saw it differently.

“There are many laws around the security and secrecy of ballots. Arizona’s Constitution mandates that the secrecy in voting be preserved,” she said, adding that the Maricopa County Attorney’s Office included some statutes in its legal briefings.

It’s illegal for anyone other than an election official, postal worker or the voter’s family or caregiver to possess someone else’s early ballot, and it’s illegal to show your completed ballot to anyone else — though “ballot selfies” are allowed.

Still up in the air are details such as when the Senate will get the materials, where Senate leaders plan to conduct the audit and what, exactly, those auditors will focus on – or who for that matter will even conduct the audit.

At the end of January, the Senate Republican caucus announced that it had selected an “independent, qualified, forensic auditing firm” to analyze the 2020 election results, but it didn’t name the firm in the announcement.

On February 2, the Senate’s attorney, Langhofer, informed Maricopa County’s attorneys via email that the Senate had selected Allied Special Operations Group, the firm that employs the “military intelligence expert” formerly known as Spyder.

Allied Special Operations Group has made a host of inaccurate claims, including mixing up voting precincts in Michigan and Minnesota, and pushed debunked conspiracies, such as claiming Detroit had a turnout of 139%.

Fann later said she did not plan to hire the group. She further denied picking an auditor in the first place, even when shown the Senate press release that says she hired one.

Langhofer said he expected the number of vendors with access to the ballots to be “very limited” and that the Senate is still working out logistics of where ballots will be stored and how many of the 2.1 million ballots will be reviewed. He said the Senate wants “a truly independent review of the election results in order to assess how well the processes in Arizona work” – and wasn’t planning to share the materials with Giuliani.

Langhofer said the Senate is still considering proposals from potential auditors and he had received several calls on the subject March 2.

“I expect they’ll have a firm plan soon, but as of now, nothing’s finalized,” he said.

County officials and Senate Democrats are hesitant to believe there will be a nonpartisan independent audit, saying the best firms have already conducted an audit through the county and came back with no evidence of fraud.

Sen. Kirsten Engel, D-Tucson, said she had not heard from either Fann or Petersen on whether Senate Democrats, or at least the Judiciary Committee, of which she is a member, would have any involvement in the auditing process. She said she would like to be involved, to make sure ballots and election equipment stay secure and there is oversight of the process.

“They certainly aren’t conducting themselves in a manner indicating that they have much of a plan,” she said. “But this isn’t a game. What’s at stake is the integrity of the very evidence of how thousands of voters voted in our 2020 election, so we need to take the subpoena seriously and figure out a plan as to how the audit can actually be conducted in a safe, secure and accurate manner.”

Arizona Capitol Times reporter Kyra Haas contributed to this report.

Correction: A previous version of this story erroneously reported that attorney Kory Langhofer represented President Trump in a lawsuit attempting to prove voter fraud. Actually, they lawsuit did not involve voter fraud.

Senate panel approves bill to allow loaded firearms on campus

It’s billed by proponents as a way moms can defend themselves from attackers while dropping their children off at school. But legislation that cleared the Senate Judiciary Committee Thursday on a 4-3 party-line vote also would permit high schoolers who are at least 18 to bring and keep loaded weapons in their vehicles. And that alarmed some foes of HB 2693 who said it creates the opportunity for what starts out as a spat among students to quickly escalate if one goes out to the parking lot to retrieve the weapon.

That possibility did not bother Sen. Eddie Farnsworth, R-Gilbert.

He pointed out that existing law already permits adults – anyone 18 and older – to drive on to public school campuses with a weapon in the vehicle. And if the person leaves the vehicle, the weapon has to be stored out of sight and the vehicle must be locked.

The only difference, Farnsworth said, is that current law requires that the weapon be unloaded before reaching the school, a requirement HB 2693 would eliminate.

Dave Kopp, lobbyist for the Arizona Citizens Defense League, said that the current law actually creates more possibilities for accidents by forcing people to unload a weapon before arriving on campus. He said the likelihood of a gun discharging increases every time it’s handled – including when it’s being loaded or unloaded.

That logic drew criticism from Sen. Martin Quezada, D-Glendale.

“In my opinion, I think the very last people we want to have carrying guns on a school campus are the ones that have difficulty with the most simple task of loading and unloading their weapons,” he said. “If you can’t handle that simple task, perhaps you should leave your gun at home before you drive to school.”

Rep. Warren Petersen, R-Gilbert, said he crafted the measure with the help of the National Rifle Association.

“It’s not practical for people to have to stop before they drop their kids off at school, unload their gun, park at the school, leave the school, reload their gun,” he said.

The bottom line, he said, is self-defense.

“We all know that criminals have no concern for the law,” Petersen said.

“They’re going to carry weapons wherever they want to carry weapons in any way that they want to,” he continued. “I want to make sure that a mother who needs to be in a position to defend herself that that will be afforded to her as well.”

Judith Simons, a retired teacher, had a different take.

“One of the reasons I retired when I did was increasing fear of gun violence at school,” she said.

Simons also said that the legislation, as worded, does not limit the ability to bring a loaded weapon onto campus to situations where a parent is simply dropping off a child. She said it covers things like conferences, disciplinary hearings, and after-school events.

What it also covers are those who are on campus all day like staff members and high school students.

“Can you imagine situations where tempers flare, people react in the heat of the moment?” Simons asked.

“Please don’t risk public safety in public places where most of the people there are children,” she testified. “Please prioritize not the NRA but your local PTA.”

Farnsworth, however, said he sees only a minor difference between allowing the gun to remain loaded or having it in the vehicle with the magazine next to it. Anyway, he said, there already are laws to address the situation that Simons fears.

“You can’t take it out of the car legally,” Farrnsworth said.

Kelley Ireland with the Tucson chapter of Moms Demand Action had another point. She said the legislation would conflict with federal laws that prohibit the possession of loaded weapons on school campuses.

Daniel Reid, lobbyist with the National Rifle Association, told lawmakers he could not immediately answer the question of the conflict between this bill and federal law.

The measure, which cleared the House earlier this month on a 31-27 vote now needs a vote of the full Senate.

Senate passes voucher expansion bill

Republican senators gave the go-ahead Monday for what could be a huge expansion in the use of tax dollars to send children to private and parochial schools.

The 16-14 party-line vote advances SB1452, which Sen. Paul Boyer, R-Glendale, bills as a measure targeted at giving new educational opportunities to students living in poverty. He said it is designed to ensure these children are not effectively trapped in neighborhood public schools that do not meet their needs.

It even allows parents to use their voucher dollars to finance transportation to get their youngsters to schools which are not nearby, including options like taxis and rideshare services.

And Sen. Warren Petersen, R-Gilbert, said there is a particular need in the wake of Covid, which has resulted in the closure of many public schools.

He said that has sent many parents looking for private schools that do have in-person instruction. What SB 1452 does, Petersen said, is make that a more realistic option for families who cannot otherwise afford it.

But Sen. Rebecca Rios, D-Phoenix, urged lawmakers to take a closer look.

“We’re going to do this under the guise of helping poor children and children of color,” she said. But that’s not necessarily the case.

Sen. Kirsten Engel, D-Tucson, said there are ways to “game” the system of vouchers, formally known as “empowerment scholarship accounts.”

She pointed out that eligibility extends to any student attending schools which have enough poor students to classify them as eligible for federal Title I funds. The income of any given child is irrelevant.

That potentially makes more than 700,000 students eligible for the vouchers out of the 1.1 million youngsters in public schools.

And she said it’s even worse than that

Engel pointed out that Boyer’s bill says that a student need be in a Title I school for just 30 days to qualify. And given Arizona’s open enrollment policies, she said, a parent of means who wants a voucher could put a child into a Title I school for a month, meet the requirement, and then be eligible for those state dollars to send the youngster to a private or parochial school.

The debate on the bill, which now goes to the House, took on racial overtones.

“This 100% furthers de facto, if not de jure, segregation,” said Sen. Martin Quezada.

That drew an angry reaction from Sen. J.D. Mesnard, R-Chandler. He pointed out that civil rights leader H.K. Matthews is a supporter of the bill and the whole concept of vouchers.

“If the system is failing a low-income child, you are not allowed to fund your system off the back of that child and cry ‘racism’ if the child has an opportunity to leave,” he quoted Matthews. “School choice is an extension of the civil rights movement because it gives parents, especially low-income and minority parents, the rights and resources to choose any school their child needs.”

Boyer put a finer point on it.

“A family choosing for themselves to be in any school that works best for their child?” he said. “That’s not segregation. That’s freedom.”

Rios, however, said the vouchers of about $6,400 are not enough to help those truly in need as it does not cover the full cost of tuition at a private or parochial school. The result, she said is that only the families who can afford the difference will be able to take advantage of this.

And Rios said no one is trapped in poorly performing schools. She noted that existing law makes vouchers available to any student in a school rated D or F.

Sen. Christine Marsh, D-Phoenix, a former teacher of the year, said she could support the concept. But that, she told colleagues, remains impossible until there are enough dollars for all education, including public schools.

Sen. Tony Navarrette, D-Phoenix, had a slightly different take. He said state lawmakers, in declining to add needed dollars, had created “a manufactured crisis” in public schools to then use as an excuse to say that students need vouchers of public funds to go elsewhere.

If the party-line stance in favor of expansion holds, the measure should clear the House where Republicans have a 31-29 edge. And Gov. Doug Ducey has signed other voucher bills that have reached his desk.

But the last time GOP lawmakers sought to expand eligibility foes gathered enough signatures on petitions to send the issue directly to voters. And they overrode the legislative decision by a 2-1 margin.

There also has been some discussion about a legal challenge should the measure become law. That is because Boyer’s legislation would divert money from the Classroom Site Fund, financed by a voter-approved 0.6-cent sales tax, into the voucher fund.

Senate sours on lemonade as official state drink

Deposit Photos — Lemonade will not be Arizona’s state drink.

Senate President Karen Fann was dumbfounded.

A bill to dub lemonade the official state drink of Arizona, the brainchild of a Gilbert teenager in GOP Rep. Warren Petersen’s legislative district, was about to fail a vote in the state senate.

“Members, does anyone want to change their vote before I close the board? I can’t tell if you’re being serious or not,” the Prescott Republican asked her colleagues.

They were very serious.

The bill failed today on a 12-18 vote to lighthearted applause and laughter among senators. As for why, the explanations varied.

“A lot of, I guess, the ‘opposition’ was in support of margaritas,” said Senate Minority Leader Rick Gray, R-Sun City, a callback to attempts by some Democratic lawmakers to amend Petersen’s HB 2692 in honor of an alcoholic beverage.

Not exactly, said Minority Leader David Bradley, D-Tucson.

“I heard that rumor as well, but actually Sen. Gray brought up a good point about sugary drinks and its effects on people,” Bradley said. “If you take it seriously, and you should, water should be the choice.”

Gray did acknowledge that’s why he voted against the bill – he was one of five Republicans to do so.

“Sugar is as harmful as tobacco, and yet it’s flagrant in our society, flagrant in lemonade,” Gray said. “For me, it was just a health issue.

So which was it?

“I don’t have an answer that can explain why every person voted no. But upon reflection, I think maybe the silliness of it was part of it,” Bradley said.

Senate won’t pursue more subpoenas – for now

Senate Republican leaders are not going to subpoena Maricopa County supervisors, at least for the time being in the ongoing battle over information they want to conduct their audit of the 2020 general election.

In a new letter to the board, Senate President Karen Fann is now inviting them and other county officials to a meeting on Tuesday at the Capitol. There, she said, they can sit down with her, Sen. Warren Petersen, R-Gilbert, who chairs the Judiciary Committee, and Ken Bennett who is the Senate liaison with the audit team.

A spokesman for the county said that, as of Thursday afternoon, the board had made no decision on whether to accept the invitation.

Meanwhile, the Senate made official what has now been obvious for weeks: It would not finish its work at the Veterans Memorial Coliseum by Friday as originally scheduled. And that means the Senate has had to extend its lease of the facility through the end of June — but only after storing the ballots and equipment for more than a week in another building because the coliseum is going to be used for high school graduation ceremonies.

The invite is a sharp departure from the threat issued last Friday by Kory Langhofer, the Senate’s attorney, demanding that the county provide access to its computer routers and passwords to some tallying equipment. In an email to county legal staff, he said unless the Senate got the materials that day, the Senate will issue subpoenas on Monday “for live testimony from Mr. (Scott) Jarrett (the county’s director of election day and emergency voting) and each of the supervisors personally, so that their positions and rationales can be better explained under oath.”

That produced no response — and no subpoenas that ultimately could have led to another court hearing.

On Thursday, however, Fann told Capitol Media Services that there never had been a firm decision to issue subpoenas.

“It was an option being discussed,” she said.

The dispute starts with whether Cyber Ninjas, the private firm Fann hired to review the ballots and equipment, should have access to all of the county computer routers. That could show whether any of the election equipment sent or received data on Election Day that might have changed the results.

Fann said she’s not satisfied with the county’s assertion that the machines were never connected to the internet.

Then there’s those passwords to some of the tallying equipment that the county leases from Dominion Voting Systems, passwords that would give auditors access to their programming.

The county says it doesn’t have them. And Dominion, in a statement Thursday, said it won’t provide access to its equipment to Cyber Ninjas which has not been accredited by the federal Election Assistance Commission.

And Dominion took a swipe at the auditors, saying “they have also already demonstrated bias and incompetence.”

Fann said Thursday, though, the issues have gone beyond the routers and the passwords.

She said that Cyber Ninjas has “become aware of apparent omissions, inconsistencies and anomalies” in how the county had handled, organized and stored the ballots.

For example, Fann said, the bags in which the ballots were stored are not sealed, though the audit team found some cut seals at the bottom of many boxes. And she said there are disparities between the actual number of ballots in each box and the paperwork that accompanied them.

What has gained more attention is that an entire database from one machine has been deleted.

“This removes election related details that appear to have been covered by the (initial) subpoena,” Fann wrote. Now she wants to know why those files were deleted and whether there are any backup files.

Fann has said the purpose of the audit is not to change the outcome of the 2020 election and the fact that the official tally showed Joe Biden outpolling Donald Trump, though she acknowledged there are members of her party who have that as their goal.

And Trump himself weighed in Thursday, sending out a message to followers, say the database “was illegally deleted after the subpoena to produce the information.”

In a brief response to the questions, the county recorder’s office said much of what is in Fann’s letter “is a misunderstanding of election operations.” The office promised more information to follow.

Fann, for her part, said all she wants is answers from the county.

“We are not trying to be hostile,” Fann said. “But they have tried their darndest to shut us down.”

And she wants them not just on the record but in public: That Tuesday meeting — if it happens — will be live streamed by the Senate.

“We want to get it on the record,” she said.

But Fann, in her invite, made it clear that she wasn’t going to let county officials off the hook if they refuse to provide her the information she wants.

“I am hopeful that we can constructively resolve these issues and questions without recourse to additional subpoenas or other compulsory process,” she wrote.

Session Wrap with Charlene Fernandez

House Minority Leader Charlene Fernandez came into the 2019 legislative session hopeful that the 31-29 split in the chamber would lead to more opportunities for her Democratic colleagues.

She still remains hopeful. That’s her nature and, in some regard, her job. And she believes perhaps now more than ever that Democrats have an opportunity to claim the majority in the House after the 2020 elections.

But there’s still another session before that, and the Yuma lawmaker leaves this session now describing it in one all too fitting word: Chaos.

What caused the chaos?

We really came in here expecting more along the lines of debate and discussion, listening… and it was quite the opposite. We didn’t have any more meetings with leadership on the other side after February. I don’t want to keep saying “this is the way it used to be,” but this is the way it used to be (under former Speaker J.D. Mesnard) – no matter what went on in the (weekly) meeting, how contentious it got, we were there the following Wednesday. And if something came up, we were there the next day. We thought it was very important to sit there and talk about the issues we saw, what our members were telling us. We’d get it addressed. And maybe sometimes we didn’t get it addressed, but we were able to talk about it to find out why. (Mesnard) listened. … We didn’t have that (this year).

Why didn’t those meetings ever pick back up? Was it Speaker Bowers or something else?

I don’t think it was Mr. Bowers. I think Mr. Shope also felt very strongly about having an open line of communication. I think Mr. (Warren) Petersen had an issue,that it had to be contentious, it had to be “us” and “them,” it had to be Rs and Ds. He gave off that vibe, and unless I hear differently, that’s what I’m going to think – that it was him and not Mr. Bowers.

What was the highlight of this session?

The Drought Contingency Plan. We worked on a Saturday on the drought contingency. We were right here on a Saturday, then went up to the Governor’s Office and sat with the governor. It was so bad that he had to sit there and babysit us so that we would talk to each other. That shouldn’t have happened, but it did and we finally came together.

What was the low point?

I think everybody would agree – the low point was Stringer. We thought we had hit rock bottom with what happened last year with Mr. Shooter and everything that surrounded it. But then to hear about Mr. Stringer. I can remember the day that Mr. Bowers came in here to tell me that he was going to have a press conference and he would like me to join him and this is what it’s about.

How do you crawl back from that? How do you gain the people’s trust again? I think we’ve grown from that. We’ve talked about a code of ethics. It hasn’t gone anywhere, but we’re going to continue. We should be held to a higher standard here, and it should be written down so there isn’t any question.

How did that conversation with the speaker go exactly?

The speaker at that time didn’t give me any background, just that they had more information, it wasn’t good and that there would be a press conference. I could tell it was serious. That’s not something where you say, “Ha ha! You’re a Republican!” No. We were in this together… so whatever he needed me to do, I was going to do.

What didn’t you accomplish this year that you want to tackle next session?

Charter school reform. We’re still seeing articles about mismanagement of money within charter schools and expenditures that shouldn’t have happened that are now being paid back. We know that if that was happening at a district school, people would be brought up on charges. … It is public money, our taxpayer dollars, and we owe it to our taxpayers to be transparent and accountable to them.

You extended an olive branch to Governor Ducey several times, and he didn’t accept it in the way that you’d hoped. What does that tell you now?

I’m still hopeful. We connected on some things. The year before it was opioids. Again (this year) with water. So, he sees a pattern. We’re there to work. We’re there to help build better legislation and make sure our members come on board. I’m very hopeful about this coming session. I think we’ll be working with the governor. I think we’ll be able to pass some legislation that’s very meaningful. Our proposal for the budget did align a lot more with his than the Republicans did, and I think he’ll be able to see that.

You’ve had some choice words for how the majority has handling things. How do you move forward to prepare for next session?

We’re in this together. I don’t give up. I’m here for the long haul. It’s important to have relationships. Are we going to be best friends? No. Are we going to go have dinner together? Absolutely not. I don’t even go out with lobbyists. But I definitely want to work together on some legislation. I truly believe that they know that we need some criminal justice reform, that we need charter school reform, that we do need to fund our public schools. They believe those things. All they need to do is give us two members, and we’re ready.

Speaker Bowers this week described your relationship as proceeding with informed caution. How would you describe it?

Informed caution? … If I had to describe my relationship with Mr. Bowers, gosh. I don’t want to say cautious. I don’t want to think that. I would say disengaged. But that doesn’t mean you can’t engage in it again. I think we can work together. I truly do.

Small group of Republicans buck their party, vote their conscience

The following story is the fourth of five to be published over two weeks based on voting data the Arizona Center for Investigative Reporting pulled for the 2017 legislative session. The nonprofit group analyzed the number of floor votes that each lawmaker cast the same as every other lawmaker. The result is a first of its kind look at voting patterns between Arizona legislators, revealing alike votes and disparities – some known anecdotally, others not seen before – between lawmakers, at times regardless of party affiliation. Arizona Center for Investigative Reporting set a minimum threshold of 230 alike votes in the House of Representatives and 435 alike votes in the state Senate to gauge how often lawmakers vote alike with one another.

The threshold could be expanded or shrunk, but think of the analysis like a microscope: zooming in too close, or not far enough, won’t reveal anything of interest. Finding the right magnification, or in this case, the right threshold of alike votes in each chamber, produces significant results and visualizes alike votes among legislators.

No man is an island, they say.

Tell that to Sen. Warren Petersen and Reps. Eddie Farnsworth and Rusty Bowers.

These Republicans certainly don’t vote alike with Democrats, according to an Arizona Center for Investigative Reporting analysis. They also have the distinction of being the most likely to buck their own party.

The three East Valley Republicans have an independent streak, the analysis shows, a tendency to vote no on bills that the rest of their Republican colleagues approve. In some cases, they’re the lone no vote on a bill, period, even when all Democrat and Republican lawmakers in both the Senate and House of Representatives approve of a bill.

That was the case with Bowers, who was the only lawmaker in either chamber to vote against HB2192, a bill that placed restrictions on the driver’s licenses of parents who aren’t making child support payments.

[Use the interactive data tool created by AZCIR to discover the alike votes between each representative HERE.]

Bowers, who represents Mesa, said he’s not trying to make a distinction as an outlier, or abide by some “strict code.” He’s just casting votes based on the knowledge at hand, like when he was the lone vote against HB2192 in the House – he heard from court officials how detrimental losing one’s license can be.

“To restrict a driver’s license, except in a case where somebody’s a danger to other people’s lives, how’s he going to fulfill obligations if he doesn’t have a car in order to get to work. Or, how’s he going to fulfill obligations if he can’t get to a court date or meet a probation officer,” Bowers said.

Bowers will sometimes get a few “eyeballs” – curious stares or glares, he said, when he’s the lone dissenting vote. The same could be said of Petersen and Farnsworth, who both hail from the same legislative district in Gilbert.

Petersen was one of only three lawmakers in the Senate to vote against a bill to lower the minimum age at which restaurant workers could serve alcohol from 19 to 18 years old, and was one of just two senators to vote against a measure to extend a window for Native American military veterans to recover income taxes withheld from their paychecks while they were on active duty. Farnsworth and Bowers voted against that bill, too.

[Use the interactive data tool created by AZCIR to discover the alike votes between each senator HERE.]

Farnsworth was the only representative to vote against a bill to make wulfenite Arizona’s official state mineral. He even voted against one bill in the budget – a package of bills that Republicans routinely approve.

Petersen and Farnsworth did not respond to multiple calls for comment.

Rep. T.J. Shope, R-Coolidge, wasn’t surprised. He said those lawmakers are part of a caucus of “no,” a cluster of Republicans who regularly don’t vote yes with their colleagues. But they’re not necessarily voting no for the sake of it – they’re just voting their conscience, according to GOP political consultant Constantin Querard.

There’s something of a luxury to being in the majority with votes to spare that makes it easier to vote against legislation knowing full well that a colleague’s bill will still get approved. Still, the lawmakers with independent streaks are also ones with strongly held beliefs and values that inform most of their votes.

“Those guys, that’s not artificial independence,” Querard said. “They take their oath very seriously, they have very critical eyes when it comes to legislation, and they do what they believe to be right.”

Find out more about your lawmakers’ voting patterns below:

Swing-district Dems use divergent vote tactics in Legislature

House Dem leader crosses aisle more often than party colleagues

Moderate GOP lawmakers exist in name only, study finds

Some GOP lawmakers vote solid red, support caucus bills

Teachers hope summer vacation comes before budget passed

(Photo by Carmen Forman/Arizona Capitol Times) — Democratic legislators speculate that Republicans are motivated to end the 2019 session to avoid a repeat of teachers and other demonstrators marching in large numbers and filling the spectator galleries of the Legislature.

The potential for red-clad teachers again descending on the Capitol could motivate legislators to wrap up budget negotiations before school is out for summer.

Many Arizona teachers already had plans to attend budget hearings and votes at the state Senate and House of Representatives. But legislators’ inability to adopt a spending plan sooner presents the Red for Ed movement with an opportunity to spend even more time at the Legislature’s doorstep.

The presence last year of tens of thousands of teachers on strike and dressed in red at the Capitol forced the hands of the Legislature and Gov. Doug Ducey to pass a 20 percent pay raise over three years. The Red for Ed movement has remained alive, but has not made a substantial presence during this year’s legislative session. That could change.

Classes end in the Phoenix Union High School District and Mesa Public Schools on May 22 and May 23, respectively, and other school districts across Arizona will soon dismiss their students, too, leaving teachers with ample free time to kick-start their summer vacation at the Capitol.

Jenn Huerta, an eighth grade math teacher at Coatimundi Middle School in Rio Rico, said a tweet from Rep. Kelly Townsend, R-Mesa, amounted to a challenge for teachers to show up in force.

“Townsend tweeted May 1 she was disappointed to see so few educators at the Capitol. So, we need to go to remind them that we still need to fund our schools,” Huerta said. “Our vital support staff didn’t get raises, our class sizes are the largest in the nation, and our students deserve fully funded classrooms.”

Huerta said her colleagues in the Santa Cruz Valley Unified School District, where classes end on May 23, share that view. Social media message boards show some teachers already making plans for carpools to the Capitol.

Dawn Penich-Thacker, communications director for Save Our Schools Arizona, said teachers were already planning to have a presence during budget votes. Organizers with SOS Arizona were keeping teachers in the loop to let them know when budget bills are introduced and when voting on those bills begins.

“We’ve been encouraging that, planning that since the beginning,” she said. “It’s not like it’s a reaction to something. It’s just, they’ve been taking so damn long to make any progress in the (Legislature). Sso why not take advantage of it and show up even earlier?”

House Minority Leader Charlene Fernandez, D-Yuma, said teachers’ presence would be more than welcome, at least as far as Democrats are concerned.

As for Republicans, Fernandez said she doesn’t think the majority party wants any part of another bout of Red for Ed protests.

“I think their goal is to get us out of here before Red for Ed gets here. They learned their lesson last time,” she said.

Democrats are in it for the long haul, Fernandez said.

“We’d love to see Red for Ed in the gallery when we’re debating the budget, so they can see what’s going on,” Fernandez said.

House Majority Leader Warren Petersen said his colleagues aren’t fazed by the end of the school year.

“You always welcome anybody to any budget discussions,” the Gilbert Republican said. “If people want to get more involved, that’s something we all should welcome and encourage. I don’t have any opposition to people getting involved.”

Penich-Thacker said teachers aren’t buying it.

“We absolutely know that they don’t want more of us there, and that’s exactly why we want to be there,” she said. “If school lets out before [a budget deal], then we’ll just say come down and be present in greater numbers.”

The Breakdown: #48

Arizona is on its way to joining 47 other states that have banned texting while driving.

It wasn’t easy, yet the Legislature also took the opportunity to go a step further.

And Arizona has a new statewide elections director. We’ll introduce you to Bo Dul and the incredible story of how she came to be a crucial part of our state’s democracy.

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

[divider]

Music in this episode included “Creative Minds” and “Energy” by Bensound.

Toma, Kavanagh, Kern gunning for House majority leader

A trio of Republicans are jostling to lead the GOP House majority next year – should a GOP House majority still exist, that is.

With Rep. Warren Petersen, R-Mesa, the position’s current occupant, moving to the Senate, the majority leader job is wide open, and Representatives Anthony Kern, John Kavanagh and Ben Toma all want a shot.

Getting the job will require victories in their general election races, victory for the House GOP and a vote from fellow members of the Republican caucus. But success means an opportunity to mold the party’s ideology and broker agreements between warring factions within the party and across the aisle.

If Republicans maintain their tenuous 31-29 majority, slim margins make the position especially important, said Kavanagh. He touted his relationships with other lawmakers, his oratory and his organizational capabilities – skills he’s honed in a 14-year tenure.

“I’ve been in every possible legislative situation – other than being in the minority,” Kavanagh said. “Republicans need to put their best image forward, a lot of outreach to the media, at events, newspaper columns.”

Kern, a Glendale Republican who serves as chair of the House Rules Committee, has twice failed at earning a spot in House GOP leadership – he’s hoping “the third time’s the charm.”

“I just keep losing by one vote, I don’t know why,” he said, referencing his 2016 bid as a freshman to become whip and his 2018 run for majority leader.

Kern said he sent letters to fellow Republicans asking for their vote, and has started giving likely incoming freshmen his elevator pitch, which includes conservative policy, caucus unity and supporting the agenda of House Speaker Rusty Bowers, R-Mesa.

“I thought Rusty did a good job,” he said.

Bowers himself is facing a challenge from Rep. Mark Finchem, R-Oro Valley, who’s running to boost the role of the caucus’ most conservative members.

His candidacy was borne out of frustration by Liberty Caucus-affiliated Republicans in the House who lamented the adjournment of the legislative session, who decried the governor’s stay-at-home order and in general who viewed the party’s establishment-wing as aloof and uncommunicative.

None of the three majority leader candidates have announced their support of either pick for speaker – even Kern, despite his stated support of Bowers. Kavanagh described himself as “running independently,” while Toma declined to answer.

Toma, a Republican from Peoria, said the majority leader job would be especially important if Republicans continue to hold a slim majority in the House.

“There are times when as a majority leader you have to take a hit for the majority, and that’s something I’m willing to do,” he said.

Toma, who generally eschews fiery floor speeches in favor of policy work, is a dedicated conservative, but earned goodwill with Democrats for his desire to pass sentencing reform legislation.

He’s the preferred majority leader of Rep. Regina Cobb, the House Appropriations chair and a Bowers supporter.

“Toma is the guy I think would be best suited for the position,” said Cobb, of Kingman. “I think that he’s able to work with all kinds of personalities and that’s what the majority leader needs to be. His temperament is even keel. He’s not antagonistic.”

If Democrats take the House, this all may be moot. Though the longstanding minority has no shortage of feuding factions with differing ideological visions, the leadership contest is still opaque. Moderate House Democrats have congealed around Rep. Diego Espinoza, D-Tolleson, as a candidate for speaker or minority leader, but neither he nor current House Minority Leader Charlene Fernandez are willing to discuss their ambitions publicly.

And the pool of applicants for leader of a loyal Republican opposition under a Democratic majority is shallow.

Toma said he’s “probably not” interested in the leadership job unless Republicans are in charge. Kern, on the other hand, didn’t want to acknowledge that a Democratic majority is even possible.

“I promise you they’re not gonna win,” he said, before adding that if Republicans want him to lead in the minority, he would consider it.

Kern, incidentally, holds one of the seats that Democrats covet most dearly. He and Rep. Shawna Bolick, R-Phoenix, must fend off a challenge from Judy Schwiebert, a teacher who Democrats hope can carry the district.

Kavanagh said he’d likely want to run for assistant minority leader if Democrats took over – especially if he can help orchestrate a reversion to the mean two years later.

He expects that Republicans will storm back to power in the midterms, buoyed by a favorable district map and a response to Biden from the right. Arizona Governor Doug Ducey has made creating the conditions for a map that benefits Republicans a priority, stacking the committee that vets Independent Redistricting Commission members with Republicans and right-leaning independents.

“I think that will make the next two years even more critical that Republicans put their best feet forward,” he said. “I think we would have a good chance of taking back the chamber.”

Townsend files ethics complaints over squabble against two Dem lawmakers

A Republican lawmaker is filing a pair of ethics complaints against two Democrats after conflict erupted in a committee Tuesday night between lawmakers and activists there to protest proposed legislation that would overhaul the state’s ballot initiative system.

Rep. Kelly Townsend, R-Mesa, said on the House floor Wednesday that she’ll file the complaints against Reps. Diego Rodriguez, D-Phoenix, and Athena Salman, D-Tempe. All three were involved in the heated debate during last night’s House Elections Committee hearing in which Townsend ended public testimony after an activist with Living United for Change in Arizona, or LUCHA, exchanged barbs with Rep. Warren Petersen, R-Gilbert.

The complaint against Rodriguez will hinge on his leaving the committee hearing in protest during a vote, she said. Townsend’s complaint against Salman seems to be more about protocol — she accuses the Democrat of speaking over her during committee.

Townsend announced her complaints during a tense floor session in which lawmakers from both sides invoked Rule 20, a House rule allowing lawmakers to enter protests into the record. Salman was the first to invoke the rule, which she used to recite the testimony that one activist, Francisca Gil of Our Voice Our Vote, had planned to give before the hearing was closed off to public comment.

Gil, an immigrant and recent citizen, had planned to speak on HB2304, which would allow federal immigration authorities to check the citizenship status of people on Arizona’s voter registration rolls and limit the ability of voters to bring translators into the ballot with them. She had waited her turn for hours – the committee was supposed to begin business at 2:00 p.m., but was delayed due to a late floor session. It was early evening by the time debate began on the bill.

The hearing Tuesday erupted during the testimony of Randy Perez, Democracy Director for LUCHA. He was testifying against HB2304 when Townsend, the bill’s sponsor and committee chair, warned him to “stick to the bill” before eventually ending all testimonies for the remainder of the hearing.

Townsend took issue with Perez intimating that the legislation is tied to largely unfounded claims of widespread voter fraud by undocumented immigrants espoused by President Donald Trump.

But Perez continued, and referenced last week’s Senate Judiciary Committee meeting in which Republican committee leadership threatened LUCHA activists with arrest after underlying tension gave way to verbal sparring. He blamed Senate Judiciary Chair Eddie Farnsworth, R-Gilbert, for setting a precedent of conflict and vitriol.

This didn’t sit well with Petersen.

“No, you and others like you who are disrespectful to the process,” Petersen said, causing Rodriguez to rise from his seat and call for a point of order.

Townsend called a brief recess and more shouting ensued. Video from the hearing shows Townsend approaching Perez at the microphone stand and pointing her finger at him.

“I’m not going to be a part of legitimizing this process so I will be removing myself from this committee,” Rodriguez said before leaving the room.

Reached by phone after he left, Rodriguez said he was infuriated by Petersen’s comments. He wouldn’t say that the statement was intended to be racist, but that the underlying optics – a lawmaker verbally attacking a group of minority activists who had been waiting to speak since the early afternoon – were disturbing nonetheless.

On the floor Wednesday, Democrats and Republicans who were in the committee or who have seen the video each offered their own versions of last night’s events, all under Rule 20.

“To me it was indicative of intimidation and disrespect,” House Speaker Rusty Bowers, R-Mesa, said. “To have people standing and confronting the chair, calling on her to cast her vote. I was very disappointed.”

Rodriguez criticized the presence of officers from the Department of Public Safety. Officers were asked to remove LUCHA activists at a Senate Judiciary hearing last week — something that has set the tone of debate in the ensuing days.

“I found it offensive that there were law enforcement officers…and that the doors were open to send a clear chilling message,” he said.

Rep. T.J. Shope, R-Coolidge, who chairs the Ethics Committee, said he’s received the complaints. He said that leaving the committee hearing during a vote is a serious, punishable offense, but that most likely he’ll just tell the lawmakers who are subject to the complaint to “read the damn rulebook.”

Reporter Dillon Rosenblatt contributed to this report.

Transgender girls can still play girls sports, appellate court rules

Two transgender girls will get to play on girls’ teams, at least for the time being.

In a brief order Monday, the 9th U.S. Circuit Court of Appeals rejected separate bids by Republican legislative leaders and state schools chief Tom Horne to delay the effect of an order issued last month by U.S. District Court Judge Jennifer Zipps blocking the state from enforcing its 2022 ban on transgender girls from playing with and against other girls.

That most immediately means that the girls will be able to participate in girls’ sports as this new school year begins, precisely what Horne, Senate President Warren Petersen and House Speaker Ben Toma had sought to prevent by seeking a stay of Zipps’ order. In fact, they argued to the appellate judges that, absent their intervention, one of the girls, an 11-year-old student at Kyrene Aprende Middle School, would participate in a cross-country competition on Monday.

The appellate judges apparently were not impressed by the arguments, turning down the requests for a delay in the ruling and instead setting a schedule for the attorneys for both the challengers and the affected girls to file legal briefs. And that means the court will not even consider their arguments until at least November, if not later.

Horne, ESA, data breach, Accurso — Arizona Superintendent of Public Instruction Tom Horne (Photo courtesy of Tom Horne via Cronkite News)

Horne, reacting to Monday’s order, said he was not alarmed.

He pointed out that, strictly speaking, the litigation affects only these two transgender girls whose bid to participate in girls’ sports was brought in federal court by the National Center for Lesbian Rights, the one attending school in the Kyrene district and the other a 15-year who is a student at The Gregory School in Tucson. While that is a private school, it is affected by the 2022 law because it participates in Arizona Interscholastic Association, which allows its students to participate in interscholastic sports with other schools.

But Horne told Capitol Media Services he needs to battle this particular lawsuit because he’s sure the legal fights won’t stop here.

“My view is that this is a first step towards letting males play in female sports in general,” he said.

“So this is a long-term fight,” he continued. “And I think it’s as important enough issue that we’ll win it in the U.S. Supreme Court.

Petersen was critical of the refusal of the appellate judges to step in and allow enforcement of the law.

“Bad rulings like this are just another reminder why the 9th Circuit is the most radical and overturned in the nation,” said the Gilbert Republican. In fact, the 6^th U.S. Circuit Court of Appeals, with a reversal rate of 81.5%, is the most reversed U.S. appellate court in the land since 2007, according to Ballotpedia. The 9^th Circuit comes in second in that time span with an 80% reversal rate.

A spokesman for Toma said he is “disappointed” by Monday’s ruling, saying the Peoria Republican is evaluating his next steps.

The 2022 law requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as male, female or coed. And, more to the point, it specifically says that teams designated for women or girls “may not be open to students of the male sex.”

In her ruling last month, Zipps, a 2011 appointee of President Obama, rejected claims by Horne and the legislative leaders that it would be unfair to allow those who were born as males to participate against females. The judge said the evidence Horne presented claiming that prepubescent transgender girls are stronger does not hold up under scrutiny.

U.S. District Court Judge Jennifer Zipps swears in before a Senate confirmation hearing in 2011. (Photo by Cristina Rayas/Cronkite News Service)

Zipps also said that the 2022 law violates Title IX, a federal law that bars discrimination based on sex in educational opportunities. She said it deprives transgender girls “the benefits of sports programs and activities that their non-transgender classmates enjoy.”

And perhaps the most significant, the judge said the two girls who filed suit, who otherwise would be participating this new school year in sports, would suffer irreparable harm.

In seeking to stay the order, Horne argued just the opposite. He said that allowing Jane Doe, the transgender girl attending school in the Kryene district, to compete in cross-country events with other girls would not be fair to them.

“Unless Doe finishes the race behind every biological girl participating in the race, Doe’s participation will necessarily displace a biological girl from finishing in a higher-ranked position,” the schools chief argued. “Those biological girls will be irreparably harmed in the absence of a stay.”

The attorney for Petersen and Toma had their own arguments, including what he said is the right of state legislators to set public policy and adopt laws like the one challenged here.

“Permitting a single transgender-female athlete to participate on girls’ teams permits and prolongs a continuing violation of law,” wrote John Sauer.

“The act, as a duly enacted law adopted by Arizona’s elected representatives, is itself a clear and authoritative declaration of the public interest in Arizona,” he continued. “The district court erred by disregarding these public interests.”

In her extensive ruling last month, Zipps relied heavily on the concept that transgender girls are, in fact, girls.

She acknowledged that children are “assigned” a sex at birth which generally matches physiology. But the judge said that is different than “gender identity.”

“For a transgender person, that initial designation does not match the person’s gender identity,” Zipps said. She also said that “gender dysphoria” – the distress due to incongruence between the person’s gender identity and assigned sex – is highly treatable.

“Attempts to ‘cure’ transgender individuals by forcing their gender identity into alignment with their birth sex are harmful and ineffective,” Zipps wrote. And the judge said efforts like the 2022 law to deny transgender girls the opportunity to participate in sports with other girls – and she does consider the plaintiffs to be girls – can be harmful, citing high rates of attempted suicide in the transgender community.

Veteran tax cut passes on second vote of Senate

It took two tries, but Gov. Doug Ducey’s proposal to cut taxes in 2018 was approved by the Arizona Senate.

The chamber voted 18-11 to approve a tax break for certain military veterans, days after the same measure failed on a 15-13 vote — one shy of the 16 needed in the Senate for approval.

Sponsored by Sen. Gail Griffin, SB 1167 would increase a tax exemption for military retirement pay to $6,250 in 2018 and $10,000 by 2019, up from the current $2,500 exemption. It would have applied to approximately 52,000 veterans out of roughly 600,000 veterans in Arizona.

The bill still needs the approval of the House.

Sen. Warren Petersen, who voted against the bill twice, made a motion Monday afternoon to reconsider the bill, despite the Gilbert Republican’s opposition to it. That allowed his colleagues another chance to vote yes.

It only would have taken one more “yes” vote to approve SB 1167, and that was supplied by Senate Majority Leader Kimberly Yee, R-Phoenix, who was absent during the first floor vote on Feb. 1.

But Sens. David Farnsworth, R-Chandler, and Sean Bowie, D-Phoenix, switched from “no” to “yes,” allowing the bill to easily pass.

If approved by the House, the bill would fulfill Ducey’s campaign promise to lower taxes every year he’s in office. Budget analysts estimate the tax break would cost the state $15 million.