NEW: AZ Attorney General Brnovich Dips Toe In Post-Election Disputes, Pushes Validity of Legislative Subpoenas For Ballot Envelopes, Etc; Status Conference On Monday Morning (READ: Pleadings)

 Arizona Attorney General Mark Brnovich's office - including its Election Integrity Unit - has not indicated that its investigation has found any reason to seize ballot images/envelopes/software/equipment - from Maricopa County or any other county. However, it is today telling a Superior Court judge that he should let State Senate President Karen Fann and Sen. Eddie Farnsworth take such action against Maricopa County.

Meanwhile, Superior Court Judge Timothy Thomason has set a status conference for Monday morning (11:00am). 

The AG's Office asked to be allow to file an amicus ("friend of the court") brief in the heating-up battle between the lawmakers and their Republican colleagues dominating the Maricopa County Board of Supervisors. After issuing the subpoenas to the County, the County filed the current case asking the Court to find them unlawful. (Fann and Farnsworth filed a separate suit, but that was dismissed.)

The AG's argument that the legislative subpoenas are lawful rests largely on the premise that Fann and Farnsworth have said they need to have the information to inform any new legislation that might be necessary in the future. Even though they also want the materials to prove alleged fraud and undermine the results in last month's Presidential election, the valid purpose of helping craft legislation, ahem, trumps that and the court should be deferential to the legislature's powers.

Yesterday, we pointed out that Fann/Farnsworth's attorneys ironically used the U.S. Supreme Court's decision in Congress's subpoenas of President Trump's accountants to support the current subpoena. The AG's proposed brief similarly reaches to the federal level, quoting the words of President Woodrow Wilson about Congress's broad authority to investigate, and noting that "One hundred and thirty-five years later, President Wilson's words still ring true."

Here are the Attorney General's filings:

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BREAKING: Arizona Election Audit Subpoena Battle Is *On Again*, As State Senate Pres. Fann Files For Injunction; Fun Trump Subpoena Twist

 After a Christmas weekend break, Arizona Republican lawmakers have resumed their court battle to force Maricopa County to comply with subpoenas for broad swaths of ballots, information and equipment related to the November 3 Presidential election.

State Senate President Karen Fann and Judiciary Committee Chair Eddie Farnsworth answered the suit filed by Maricopa County on December 18. Fann/Farnsworth also struck back with their own suit (aka "counterclaim") and a new Motion for a Preliminary Injunction to force compliance. Both pleadings are published below.

Attorney Tom Basile tells Arizona's Law that today's pleadings make their previous lawsuit unnecessary. Judge Randall Warner had dismissed that case but specifically allowed them to file an Amended Complaint based on an Arizona law that they had not previously cited.

The new injunction request is primarily based on that statute, as well as constitutional grounds. And interestingly and ironically, it cites a U.S. Supreme Court opinion from earlier in the year where the Justices determined that President Donald Trump's accounting firm (Mazar's) was required to comply with Congressional subpoenas. 

As the United States Supreme Court recently reaffirmed in discussing the cognate power of the Congress and its committees embedded in Article I of the federal Constitution: Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power to secure needed information in order to legislate. This power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function . . .The congressional power to obtain information is broad and indispensable. It encompasses inquiries into the administration of existing laws, studies of proposed laws, and surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020)

Given that “the power of the [Arizona] legislature is plenary . . . unless that power is limited by express or inferential provisions of the Constitution,” then the same prerogative must necessarily reside in Article IV of the Arizona Constitution.  (citations omitted)

While Fann and Farnsworth previously indicated that they wished to obtain the information and equipment from the County in conduct an audit before Congress convenes on Jaunary 6 to count the Electoral College votes - and, most Trump supporters are still talking about the need for the information before then - today's Motion is careful to stress that the reasons for the subpoenas are to help the Legislature make good laws for the future.

Superior Court Judge Tim Thomason has not yet set a hearing on the injunction request.

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"DANGEROUS TERRITORY": AZGOP Attorney Warns Judge Not To Show *More* Bias By Ordering Party To Pay State's Legal Fees For Election Audit Lawsuit (READ)

The Arizona Republican Party sent a warning to a judge last night, saying he is in "dangerous First Amendment territory into which the Court should not dream of treading". The AZGOP is trying to convince Maricopa County Superior Court Judge John Hannah not to order it to pay Arizona $18,000 in legal fees spent on the post-election lawsuit Hannah determined to be "futile" and "meritless".

The case alleged that Maricopa County had violated the law by hand counting ballots at 2% of the vote centers used on November 3 instead of 2% of precincts. (The difference in the number of ballots checked is minimal.) After hearing arguments from the parties, Judge Hannah found that the County (and several other counties) had properly followed the law and dismissed the case with prejudice.

Earlier this month, Arizona Secretary of State Katie Hobbs asked the Court to allow it to recover her attorneys' fees from the GOP, pursuant to an Arizona statute (A.R.S. 12-349) designed to discourage inappropriate legislation.

The AZGOP's Response (below) begins by attempting to demonstrate why the party and the attorneys had a good faith basis for filing the lawsuit. (Here is the article containing the Complaint.) Noting that he had to file the case within hours of learning of the possible legal problems with the audit and that neither he nor the party knew that the hand count audit had already taken place.

 "(U)ndersigned counsel cannot emphasize enough that he was first approached about this case, and had to write up the Complaint and Application for Order to Show Cause, on the same night in between 6 PM and midnight, on November 11, 2020. Counsel was extremely mindful of the (infamous) elections-law case of Lubin v. Thomas (2006), in which the Arizona Supreme Court found that a filing was untimely even though it was filed within the statutory time limits, simply because the Court felt that it had “a very short time in which to review and decide the matter.”. In spite of this, the Application showed a well-reasoned (and certainly “debatable”) argument, which the Court chose not to accept; but to even contemplate sanctions on the basis of lacking substantial justification is wholly unwarranted." (citations omitted)

The Response then takes a turn towards the dark side, warning the Judge that he may have shown bias in last week's Minute Entry, when he described the decision about sanctions in a stark way.

"But more troublingly, there is a degree of bias in the way that the Court frames this issue – to “cast false shadows on the election’s legitimacy.” The Court has apparently concluded, even though it was not an issue to be litigated in this suit, that it would be “false”—and even constitute harassment—to doubt the legitimacy of this election. This puts the Court at odds with around a third of the general population, and around half of the Republican Party in this State, according to polls conducted by NPR, Reuters and Politico among others."

Upon further review, however, the Judge's use of the "false shadows" term was only in the context of stating what the Secretary of State would need to prove, not expressing his conclusion.*

The AZGOP Response ends with a strident political appeal that the judge look to the larger picture - even if that picture has been largely drawn by the President, his supporters and the ongoing parade of lawsuits:

Public mistrust following this election motivated this lawsuit, and there is absolutely nothing improper or harassing about that. Courts are intended to be a forum for airing democratic grievances and safeguarding the integrity of elections. These goals are not well served when courts are openly hostile to anyone who dares to even question an election, much less when courts equate widely-held political beliefs to mere “harassment.” Because in this territory, one man’s “harassment” is another man’s crusade; one man’s heresy is another man’s religion. This is dangerous First Amendment territory into which the Court should not dream of treading, both in order to maintain the appearance of impartiality of the Court, and to encourage like respect in the citizens that it serves as well as other hard-working officers of the court. (emphasis added)

Wilenchik asks Judge Hannah to set a hearing on whether or not attorneys' fees should be assessed against the AZGOP (and/or its attorneys). 

The Arizona Republican Party has several other lawsuits active in both the trial courts and the appellate courts. Wilenchik has an election contest stalled in front of the U.S. Supreme Court, Arizona's Republican slate of electors has their Arizona Kraken case stalled in front of the 9th Circuit, and they just filed a new suit in Texas U.S. District Court with several of the same attorneys challenging the laws governing next week's counting of the Electoral College votes.

* From the Order: "This order explains why the Arizona Republican Party’s case was meritless, and the dismissal order filed November 19, 2020 was required, under applicable Arizona law. What remains is intervenor Arizona Secretary of State's application for an award of attorneys' fees. That application will require the Court to decide whether the Republican Party and its attorneys brought the case in bad faith to delay certification of the election or to cast false shadows on the election’s legitimacy."

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DOUBLE TAKE: All 4 Arizona Congressional Republicans Split With Trump On Covid Stimulus Checks, While Supporting His Veto Of Defense Measure

Arizona's Republican Congressional delegation made a rare split with President Donald Trump today. The foursome of Paul Gosar (CD4), Andy Biggs (CD5), David Schweikert (CD6) and Debbie Lesko (CD8) all opposed raising the Covid-19 Economic Stimulus payments from $600 to $2,000, which the House approved with 44 GOP votes after the President's surprising pre-Christmas announcement that he might veto the relief package and that the checks should be larger.

The House managed to get the 2/3 vote necessary to agree with the President, passing it this evening by a 275-134 margin. All of Arizona's five Democrats voted "aye", although two Democrats from elsewhere opposed it.

The measure faces an uphill battle in the Senate, where at least one Republican is expected to oppose an effort to pass it by unanimous consent tomorrow. That will put it into a lengthy process that will be difficult in the GOP-controlled body.

Arizona's 4 Republican House members were also in the minority this evening in opposing an override of the President's veto of the National Defense Authorization Act. The override passed by an overwhelmingly easy margin of 322-87, which included a clear majority of Republicans. 

The veto was based chiefly upon the President's anger that Congress did not include provisions limiting a shield protecting internet companies like Facebook (Section 230) and that it requires the Pentagon to rename military bases/facilities named for Civil War Confederate leaders.

In explaining his support of the veto, Arizona Rep. Biggs stated "it (the bill) serves foreign interests, not American interests."

Interestingly, Arizona Rep. Lesko voted FOR the NDAA less than three weeks ago. She has not yet made a public statement about the change of position. Arizona's Politics has requested an explanation and will update if warranted.

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BREAKING: Maricopa County Will Ask Court How To Comply With GOP Legislators' Election-Related Subpoenas

BREAKING: Maricopa County Will Ask Court How To Comply With GOP Legislators' Election-Related Subpoenas

UPDATE, 12/18, 1:10pm: The County Board of Supervisors voted 4-1 to file a legal action in Maricopa County Superior Court to determine what can and should be turned over to the State Senate in response to the election-related subpoenas. The vote came after approximately 7 1/4 hours of Executive Session deliberation time (Wednesday and today). (The Supervisors were not sequestered.)

UPDATE: Maricopa Supervisors Will Resume Considering Response To GOP Election Subpoenas Friday Morning (12/17/20, 10:00am)):

The Maricopa County Board of Supervisors will resume discussing their response to legislative election-related subpoenas Friday morning. The new meeting was posted Thursday morning after a 4 1/2 hour Executive Session on Wednesday failed to result in any agreed-upon action.

The special meeting will begin at 10am, and it is likely that the Republican-controlled Board will again quickly move into Executive Session. Any actions would be voted upon in public session, which will be live-streamed on their website.

We have now published a news analysis  about the existing election integrity-related laws in place which the County - and, the Legislature - have to abide by. However, it should be noted that one of the factors which could be complicating the Supervisors' decision-making process are the two legal cases brought by the AZGOP Chairwoman Kelli Ward. The AZGOP has appealed both of those cases.

Original article, 12/16/20, 10:00pm: "UPDATE: Maricopa Supervisors Meet For 4 1/2 Hours, Take No Action Regarding Election-Related Subpoenas"

UPDATE: After their 4 1/2 hour (approx) Executive Session, the @MaricopaCounty Bd of Supervisors took NO ACTION on responding to the subpoenas issued by State Sen. Pres. @FannKfann / Eddie Farnsworth re: collecting all mailed-in ballot images and forensic audit.

Taking no official action does not mean that the Superviors have chosen not to comply with the subpoenas. They apparently listened to the (GOP) legal counsel and discussed  the statutes already in place to protect the integrity of elections and their options, and there obviously was not yet agreement on how to respond. Chairman Clint Hickman announced: "There has been no action at this time. So, there is no vote at this moment."

Here are the audits the Supervisors were discussing.

No new Supervisors meeting has been noticed out as of early Thursday morning.

(This is a developing story. Please check back for additional details.)

AZ State Senate subpoena for Scanned Ballot Audit by arizonaspolitics on Scribd

AZ State Senate subpoena for Forensic Audit by arizonaspolitics on Scribd

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BREAKING, "MISSED IT BY *THAT* MUCH: New Arizona Senator Mark Kelly Raised $99.4M During Campaign

Arizona's newest Senator nearly broke the 9-figure mark in campaign fundraising. Your contribution almost might have put him over the hump, as Mark Kelly's campaign raised $99.4M as of Election Day.

That figure dwarfed the $73M raised by his Republican opponent, Martha McSally - and she had the benefit of being in the office.

Kelly also took office this week knowing that he has $1.2M already in the bank for his re-election campaign in just two years. (He is serving the last two years of the late Sen. John McCain's six year term.) Arizona's Politics wrote about that upcoming battle here.

3:30pm: BREAKING: McSally Spent $67.5 MILLION In Losing Effort, Has $476,000 Left In Account

In the most expensive campaign ever in Arizona's history, Martha McSally lost her bid to win her U.S. Senate seat while spending a total of $67,498,294.30. (That does not include the tens of millions spent by outside groups to benefit her bid.)

After paying off late-incurred bills, McSally has $476,000 left in her campaign account, which could be used for future campaigns or refunded - but may not be used for personal purposes.

McSally narrowly lost to Mark Kelly (D), who was sworn in this week to serve out the remaining two years of the late John McCain's Senate term. His post-general finance filing has not yet been made publicly available.

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COMMENTARY: "The President’s help in a primary will nearly guarantee a general election defeat"

Here is Arizona Republican political consultant Chuck Coughlin's entire analysis for Arizona's Politics about the possible impact of outgoing President Donald Trump's involvement in Arizona's politics.

The rest of our News Analysis about the 2022 U.S. Senate race can be found here.

Coughlin is the President and CEO of Highground Public Affairs Consultants.

The question placed to Coughlin was "Do you think Trump's attacks on Ducey - combined with both Trump's praise of Ward at the rally in October AND Ducey's rapid response - signal the beginnings of a primary campaign battle, with Trump trying to flex his muscles?"

I take the President’s displeasure with the Governor for what it is.. self-centered egotistical behavior totally expected an unsurprising.  There are several  questions Trump supporters should be asking themselves;

 

If the President turned that quickly on the Governor and Senator McSally, how long before he treats me just the same? Given the President’s track record and his relationship to the truth, Do I want to stake my entire political fortunes on this one guy who just lost Arizona?

 

For me, I have concluded, absent a disastrous first two years of a Biden administration, that the President’s help in a primary will nearly guarantee a general election defeat.  Trump is  not on the ballot in 22, so his supporters won’t be nearly as enthusiastic.  Trump’s ability to raise money will be severely handicapped by his loss of the White House.   His endorsement will likely mean I cannot wholly rely on him for fundraising and his support will jeopardize my own ability to raise funds independent of him.

 

And, let’s remember, Kelly has the ability to largely control the narrative of this race.  If he stakes out, as Sinema has done, a center left voting record and avoid votes where he is tagged as a progressive, he will be harder to defeat , without a Presidential race at the top of the ticket.  Also there will be an open Governor’s seat and one new Congressional district on that ballot as well further diluting attention from the Senate campaign.

 

I could see a scenario where there are several Republican candidates for Senate and the Trump endorsed candidate being out fundraised by a better center right candidate who didn’t want to struggle with the Trump shadow and sought to run a campaign that included Trump supporters and other center right Republicans. 

 

Look at that, the curtain hasn’t even come down on 20 yet and we have a double feature going in 22!  Should be fun.

BATTLE For #AZSenate 2022 Is Well Underway: Mark Kelly Files For Re-Election, Republicans Jockeying To Oppose Him (Arizona's Politics News Analysis)

(Arizona's Politics is an independent, non-partisan political news blog. When we engage in analysis or commentary, we attempt to label it as such. This article may be classified as "news analysis" because it attempts to "provid(e) interpretations that add to a reader's understanding of a subject.")

Arizona's Mark Kelly is being sworn in as the newest U.S. Senator Wednesday afternoon, marking the unofficial beginning of his re-election campaign in just two short years.

Kelly won the special election last month to fill the remainder of the 6-year term that the late John McCain was elected to in 2016. Last week, he filed his Statement of Candidacy (below) to run for the full term.

Meanwhile, while no statements have been made on the GOP side, a battle is shaping up which could pit Arizona's Governor against the Chairwoman of his state party. And, outgoing President Donald Trump may have just chosen sides between those two great friends of his. An Arizona Republican political consultant thinks Trump's endorsement would most help Kelly win re-election.

Kelly's battle to unseat the appointed Martha McSally was the most costly campaign in Arizona history and one of the most expensive in the nation this year. 

He headed into the final weeks of the campaign with $11M in his campaign account. (The new Statement of Candidacy will permit him to continue raising money.)

Meanwhile, the Republicans are already jockeying to take him on in the next election.

The National Republican Senatorial Committee ("NRSC") - which spent more than $8.7M attacking Kelly in the just ended campaign - has already begun recruiting Arizona Governor Doug Ducey to oppose Kelly in 2022.

Chris Hartline, the incoming Communications Director for the NRSC, tells Arizona's Politics that “Senator (Rick) Scott has a good working relationship with Governor Ducey. As NRSC Chairman, Senator Scott’s goal is to recruit good candidates around the country who can raise money and get their message out. Starting in January, he will by hyper-focused on that goal.” Ducey's 2nd - and final - term as Governor concludes in two years and he has long been thought to be eyeing the Senate seat.

In fact, Monday's very high profile Twitter war between Ducey and outgoing President Donald Trump may have been the first public battle for the GOP nomination for that Senate seat. As part of his continuing effort to undermine confidence in the country's election laws and administration, Trump blasted Ducey by name for certifying Arizona's election results. (He did not mention Arizona's Republican Attorney General - Mark Brnovich.) The President then fired a fusillade of derisive tweets at the governor he had recently called "a great Governor and a great friend of mine."

Ducey fired back with a series of Tweets of his own, explaining why Arizona's elections were fair and the results accurate.

At the same time, Ducey was also being hammered by the Chair of the Arizona Republican Party, Kelli Ward. Ward traveled to Washington, D.C. earlier that day, and there were unconfirmed rumors that she was at the White House at about the same time that Trump began pounding Ducey.

In that same rally where Trump proclaimed his great friendship with Ducey, he also had noted that Ward is "a friend that is so loyal and strong" who would have been a Senator. He called her a "warrior and a fighter."

(Ward has also been angrily blasting Ducey for certifying the elections, and choosing to focus on him but not Brnovich.)

The AZGOP spokesperson would not confirm to Arizona's Politics whether Ward was with the President at the White House, who else she might have met there, and whether she was there on AZGOP business. 

However, Ward has already made it clear that she would like to be in the U.S. Senate, having run for the Republican nomination twice, in both 2016 and 2018. (McCain beat her with 51% in a multi-candidate primary in the former, and McSally won 54% in a two-way primary in the latter.)

Ward also could be preparing to run for a U.S. House seat, as Arizona will be gaining a 10th Congressional seat next year. Her term as AZGOP Chair ends next month, and it would be unlikely to run for office as Chair of the party, so an announcement is likely sometime within the next several weeks.

Given the current battle for control of the Republican Party, it would appear that Ward and Ducey are destined to end up battling for the Republican nomination to face Mark Kelly. If so, the outgoing President may have just decided to try to play kingmaker and has chosen sides. 

Longtime Republican political consultant Chuck Coughlin does not think it wise for any GOP candidate to stake his or her political fortunes "on this one guy who just lost Arizona". 

"Absent a disastrous first two years of a Biden administration, that the President’s help in a primary will nearly guarantee a general election defeat," Coughlin says. He notes that Trump's enthusiastic supporters will be less likely to turn out for an election without the Trump name on the ballot, and that he will be less of a fundraising support once he is not residing in the White House.

Coughlin's entire astute analysis can be found in this sidebar article.

Kelly Stmt of Candidacy by arizonaspolitics on Scribd

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