Dirty Money, Dirty Tricks, Dirty Judges

Arizona Supreme Court Justice Clint Bolick

The Outlaw Dirty Money constitutional amendment won’t be on the ballot this November, but the judges who rubber-stamped the dirty tricks against it will be. Clint Bolick and John Pelander are up for confirmation as Arizona Supreme Court justices this November, and here’s why we should spread the word to kick them off the court.

ODM circulators worked their tails off to gather over 285,000 signatures from Arizona voters, a fair margin of safety over the 225,963 required to get on the ballot. So when the dark money interests saw that this was likely to become law and shine some light on their real names, they pulled out all the stops. Americans for Prosperity, the front group for the Koch brothers, filed a lawsuit. They exploited a law passed by the Republican-controlled legislature that invalidates all the signatures gathered by a petition circulator if that circulator fails to show up when subpoenaed for questioning.

Arizona Supreme Court Justice John Pelander
Arizona Supreme Court Justice John Pelander

But what about the voters who signed the petition in good faith and wanted their signatures to count? The constitution of Arizona guarantees the right of citizens to petition the government. ODM argued that our Republican legislature “has passed rules that have created unnecessary and insurmountable barriers into the petition process that clearly infringe on that right.”

The justices rejected this argument with not even a nod to the constitutional rights of the voters.

Nevermind that. Guess how the circulators were subpoenaed? Americans for Prosperity picked the out-of-state circulators that lived the farthest away, and dropped off subpoenas for them with a security guard in the building that had been rented during the petition effort. None of the circulators actually received the subpoenas, as was obviously the intention, and the attorneys defending ODM weren’t even aware of their existence until the hearing. AFP didn’t even reserve any time to question the circulators as witnesses; they clearly never intended for them to show up.

Any judge worth his salt would have slapped down such a flagrant violation of the rules — subpoenas are to be delivered to the recipient, or at least a credible effort should be made to deliver them. Yet Bolick, Pelander & Co. dispensed with the entire lawsuit in a two-paragraph opinion that did not even deign to mention these dirty and downright illegal tactics.

And that’s not all.

The ODM crew, a scrappy, tenacious and dedicated bunch, fought tooth and nail for every signature. The subpoena maneuver cost about 8,000 signatures; but even losing those, the remaining signature count was within 1% of the required number, and challenges were being fought out in the lower courts.

The counties validate signatures by sampling, so every individual signature restored to a sample returns 20 signatures to the total. ODM leaders tracked down signers who had been invalidated and gathered affidavits, and provided other evidence that disqualified signatures were actually valid. About 400 of the Maricopa county sample were involved in the challenge; if even half of them were found to be valid, that would have provided 4,000 additional signatures and would have gotten ODM on the ballot even after the subpoena shenanigan.

Putting politics above the law

Except the Arizona Supreme Court didn’t care. Either they were so lazy and sloppy in their reading of the case that they didn’t realize that the assumptions in their opinion were simply wrong, or they had predetermined the outcome and the real numbers didn’t matter. The brief order simply stated, without supporting detail and without recognizing that the number of valid signatures was still in dispute, that the number of signatures was “not sufficient.” Now the effort to reinstate valid voter signatures will never have a chance to play out in court.

Clint Bolick and John Pelander have shown that they put politics above the law. They have no business on the supreme court. It’s never easy to kick off a judge – but if enough Arizona voters learn the true story, we might just make history. In any case we can at least send a message!

This story was written based on interviews with Terry Goddard and Merrill Eisenberg, as well as inspection of several documents related to the case. All opinions and any errors are those of the author.

The final split of the Az Supreme Court justices on this ruling is not public, and may not be made public until after the election. However, given that no dissenting opinion was published, I think it is fair to say that these justices share in the culpability. Bolick, in particular, has come out publicly in the past defending the interests of dark money groups.

It is also worthy of note that the decision on InvestinEd, another ballot initiative struck down by this court, was apparently inappropriately leaked to Governor Ducey’s office as a 7-2 split, which likely means that all the Republican-appointed judges took the side against the voters.

Americans for Prosperity did not respond to requests for comment on this article. Of course, they may not have gotten the request, since I dropped it off with a security guard at a building they used to have an office in.

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