Tuesday, May 25, 2021

NEW GUEST ANALYSIS/COMMENTARY: State Budget Bill Also Aims To Steal Power From Citizens Clean Elections Commission

Arizona's state budget bill was introduced yesterday, and it passed the House Appropriations Committee today on a 7-6 vote. Yesterday, we tweeted about the provision which temporarily takes power away from the Secretary of State and reassigns it to the Attorney General. This guest analysis and commentary from Tom Collins explains how it also grabs power from the voter-approved Citizens Clean Elections Commission. (Below the analysis is the current text of the budget bill.)

For those of you who don’t know, Clean Elections is Arizona’s bipartisan, voter approved, anti corruption and voter education law. 

There is really nothing like it in the country. 

We provide voter education, correctives for mis and disinformation, and access to information for voters in each corner of the state. We also provide financing for candidates who chose to set aside large private and pac donations and abide by strict spending rules, breaking the link between dollars and political favors. 

So it’s no surprise the new budget bills take aim at clean elections. 


First, Section 15

This section provides that GRRC, The Governor’s Regulatory Review Council, can reach out strike Commission rules on its own recognizance, rather than requiring a petition or any notice to the public.  

In other words the Governor’s council could override Commission decisions at will. This is contrary to the Voter Protection Act. 

Under Prop. 306 (2018) and  Prop. 200 (1998) this is an amendment requiring a three-quarter vote as applied to the Clean Elections Act.  

I have yet to hear any lawyer, including the legislators own, suggest that expanding GRRC's authority over the Commission does not constitute an amendment. 

Notably, GRRC is entirely appointed by the Governor, while the CeC is appointed partly by the Governor and partly by the Secretary. So this provision is a double whammy. 

Second, Section 24 is written so broadly that it appears to seek to amend or supersede the Clean Elections Act.  It does this primarily by designating the Attorney General as " the. . . sole authority in all election litigation to direct the defense of election law."  This section expires with the current terms of the AG and the SOS. 

However,  the language making the AG the sole authority directly contradicts the Commission's express authority to intervene in cases where the constitutionality of the act is in question, among other things.  ARS 16-960. 

While the bill may be aimed at Secretary Hobbs, it seeks to inflict clear legal damage on the Clean Elections Act. It does so by attempting to preempt the role of defending clean elections that the voters granted to the Commission. 

Likewise, Subsection A. of Section 24, which alters the relationship between the AG and election officials, appears to usurp the Arizona Supreme Court's authority to determine the scope of conflicts for government law firms.  See Ariz. Supreme Court Rule 42, Ethical Rule 1.13, cmt. 9 (stating conflict rules governing organization apply to government organizations.). 

You might wonder why the AG needs to be relieved from these rules. One reason is they prevent him from advising clients one way then suing them. 

Here, the bill provides the AG will not advise the SOS, leaving CEC as the agency that must rely on attorneys who reserve the right to sue their clients. This is troubling for anyone concerned about the independence of the agencies responsible for the 2022 election. 

While these issues may not grab the headlines of some of the other provisions of these bills they are nevertheless serious legal problems that undermine the confidence of the public not only in elections, but in government ethics and transparency. 

Tom Collins is the Executive Director of Arizona Citizens Clean Elections Commission. 

Arizona's Law/Arizona's Politics occasionally runs guest commentaries and analysis. If you would like to submit a column, please email to Paul . Weich . AZlaw @ gmail.com (without spaces).

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Saturday, May 8, 2021

BREAKING: Judge DISMISSES Lawsuit To Force AZGOP Special Meeting To Address Voting "Irregularities" In Election Of Ward, Others (TODAY IN "THE OTHER RED MEAT AUDIT" NEWS*)

UPDATE, 5/10 at 3:30pm: Judge Kemp today granted the AZGOP's motion to dismiss the case. "Whether or not any chicanery took place in the voting process on January 23, this Court finds that it does not have judicial authority to intervene in an inter-party dispute...." Another lawsuit seeking to review all of the election documents and materials is still pending. The 3-page Minute Entry dismissing the case is published below.

ORIGINAL ARTICLE: "NEW: AZGOP "Fundamentally Dishonest" About Results Of Yesterday's Audit/Inspection; No Attorney Disqualification"

While most eyes continue to be focused on the Veterans Memorial Coliseum and the swirling news around the recount/audit being conducted by the State Senate/Cyber Ninjas, plenty was happening in the ironic intramural clash roiling the Arizona GOP over its (state-mandated) party reorganization election.

The rebellion began immediately following the results of that January meeting, in which Kelli Ward was relected as the Chairperson. The lawsuits focus on that and two of the other races for seats on the state committee - Sandra Dowling (former long-time Maricopa County School Superintendent) was first announced has having won before it was changed and Bill Beard lost a southern Arizona (CD2) seat.

On Tuesday, Superior Court Judge Mike Kemp refused to allow the AZGOP to force attorney Tim LaSota from representing the plaintiffs and has taken the AZGOP's Motion to Dismiss under consideration after oral arguments. LaSota has represented the state party in other matters, and the judge admonished him to "not use any information relating to his prior representation that would disadvantage Defendants in any way."

Friday, a group met at attorney Jack Wilenchik's (representing the AZGOP in this case) office to inspect the ballots and other records. More concerning than the small discrepancies between the number of ballots and the reported totals, according to the plaintiffs' supporters, were a large pile of completed ballots which were found together with blank ballots. 

Further frustrating the plaintiffs was that the inspection did not include other integral documents which could validate - or, invalidate - the election results. Jeremi Hale, a career auditor and state committeeman who was at both the January meeting and yesterday's inspection, described those missing items: "There were no credential reports or other crucial evidentiary artifacts to validate the ballots they gave us were complete or reflected total eligible votes."

The AZGOP declared the inspection "a win" in an email to party members, with state committeeman Constantin Querard declaring that "fundamentally dishonest".

In a statement to Arizona's Law/Arizona's Politics, Querard - who was present for yesterday's inspection - bluntly explained the frustration and irony of the situation:

I can't know for sure why they limited it, but I know that when the Maricopa County authorities or Democrats try to limit or stop audits the GOP wants of the November election, the AZGOP's position is that they are afraid, they're hiding something, they did something wrong, they cheated/stole, etc...  Do we apply the AZGOP's rhetoric to the AZGOP when it does the same thing?  Feels kind of harsh, so I'd generally want to avoid it.  But things were not done very well from what we were allowed to see, the counts were off compared to the number of ballots cast, and the Party is refusing to allow anyone to see any of the usual documents (credentials, sign-in sheets, proxies, etc.).  Why is anyone's guess, but if they did a great job and ran an accurate election, there would be no reason to spend big $ fighting in court to prevent people from being able to prove they ran an accurate election, right?

Two court cases are still proceeding, and if Ward and her folks manage to short circuit the meeting that had been called by the State Committeemen, I'm sure another call will result.  Sooner or later the Party will do things right.  Hopefully sooner, so we can move on past this.  (emphasis added)

Hale also notes that although the ballots cast number was three off in CD2 (Beard) and that was the exact number he lost by, it does not constitute proof that the election was intentionally tampered with, but it is another point of concern.

The AZGOP again urged the plaintiffs to "drop the nonsense" so that the Party can "remain focused on our sole mission: to elect Republicans and defeat Democrats." Meanwhile, Ward and the AZGOP twitter account remained focused on what she calls "America's Audit" (even though the stated purpose is to improve election laws).

(Correction: It was the CD8 at-large race which was off by three ballots, not CD2. Corrected in article. Re-correction: the original version was correct. Also, clarified that the lawsuits could also impact the State Chair results. Thanks to both Hale and Querard for post-publishing clarifications.)

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We welcome your comments about this post. Or, if you have something unrelated on your mind, please e-mail to info-at-arizonaspolitics-dot-com or call 602-799-7025. Thanks.