Howard Fischer reports, Hobbs accuses Brnovich of “attempted coup d’etate” in lawsuit filings:
A bid by Attorney General Mark Brnovich[ aka “Nunchucks”] to dictate what is in the state’s Election Procedures Manual is nothing short of “an attempted coup d’etat,” according to a lawyer for Secretary of State Katie Hobbs.
In new court filings, Roopali Desai said Hobbs complied with state law by drafting a new version of the manual and submitting it to Brnovich for his approval. But rather than have a discussion of the differences, she said that the attorney general simply demanded she accede to the changes he wants.
GQP autoritarianism writ large.
And when that didn’t happen, he — in tandem with the Yavapai County Republican Committee — filed suit.
“Nothing in the statute gives the AG the final say on which specific provisions should or shouldn’t go in the final EPM,” Desai told Yavapai County Superior Court Judge John Napper.
And then there’s the fact that Brnovich, who had a Dec. 31 deadline to approve the changes, waited until April 21 to sue, even as county officials are busy preparing for this year’s election.
“After refusing to engage in the drafting process five months ago, the AG cannot now come to court and demand a new EPM with his preferred election procedures,” Desai said, calling his lawsuit”far too late, highly prejudicial, and procedurally improper.”
She said Arizona law empowers the secretary of state to draft the manual every other year, submitting it to both the attorney general and the governor for their approval. What Brnovich wants, Desai said, is unilateral power to decide what is in the manual.
“Plaintiffs’ lawsuit should be seen for what it is — an attempted coup d’etat,” she wrote. “Plaintiffs cannot illegally seize power that must be shared among three officers of the state’s executive department.”
The legal squabble is over the manual that is designed to tell local elected officials what they are legally required to do when conducting elections as well as what they cannot do. While some provisions mirror state law, others go into much greater detail.
For example, the 544-page manual that was approved in 2019 deals with issues like posting the names of candidates at polling places who have withdrawn from a race, factors to consider when selecting polling places, voter education campaigns and even low long certain records have to be retained.
At an earlier hearing, Napper questioned whether Brnovich had any legal basis for demanding that certain provisions be added.
One of those sought by the attorney general was to spell out exactly what procedures election officials have to follow when verifying that the signatures on early ballot envelopes match those already on file. Only thing is, the judge pointed out, Arizona law has no such requirements other than to say that every signature needs to be verified by a human being.
“You’re asking the secretary to create out of whole cloth ways that individuals are supposed to verify signatures,” Napper told Assistant Attorney General Michael Catlett.
“The secretary isn’t allowed to sort of create their own rules about how things are done,” the judge said. And he said that what Hobbs included in the manual “almost tracks the statute exactly.”
But the judge agreed to give Brnovich and his GOP allies another shot to make his case that the manual should be changed to what he wants.
Desai, in the new filing, told Napper he should toss the case entirely.
Aside from Brnovich demanding that things be his way or no way, she warned of consequences if changes are ordered for this year’s election.
Consider, she said, his demand that the envelopes used to send out early ballots contain the specific words “return to sender” if the person to whom it is addressed doesn’t live there.
But Desai said county election officials consulted with specialists at the U.S. Post Office who warned that putting that language on the exterior of the envelope could cause sorting machines to automatically return the envelope to the county, meaning some people would never get the ballots they were expecting. So they instead adopted language saying that if the person doesn’t live there, “mark the box and return it to the U.S. Postal Service.”
On top of that, Desai told the judge, several counties already have ordered envelopes with that language — and some already have received them.
“It would cost Maricopa County upwards of $420,000 to reprint ballot envelopes,” she said, even if it were possible to do that in time to send out the early ballots for the primary on July 18.
Potentially more troubling she said is Brnovich’s demand that election observers have the right to challenge early ballots after the envelope actually is opened — when someone’s vote already is known.
“All counties perform signature verification (ITALICS) before (ROMAN) the envelope is opened to preserve voters’ constitutional right to a secret ballot,” Desai told the judge, comparing the signatures on the envelopes with those already on file.
Specific disputes aside, Desai told Napper that he — and other judges — have no right to get involved in the dispute, saying what is in the manual is a “non-justiciable political question.”
“That is a discretionary determination involving complex decision-making and priority setting that courts are ill-equipped to inquire into and second guess,” she said. “The court shouldn’t substitute its subjective judgment for that of election administrators who made policy decisions about what EPM procedures are feasible and appropriate.”
What it also is, Desai said, is inappropriate for judges to “meddle in policy disagreements in the executive branch.”
“Why would any AG go through the hassle of thoughtfully reviewing, negotiating and approving a draft EPM if he could just — as this AG did — reject it outright and sue the secretary to force her to accept his wholesale changes?” she asked.
Napper has scheduled a hearing on the issue for June 10.
AG Nunchucks is also not defending Arizona’s early voting law, which a Republican controlled legislature enacted in 1991. He has an agreeement with the seditious insurrectionist Arizona Republican Party not to represent the state, i.e., to do his damn job, because he is a failed candidate for Senate and naively believes that this will somehow help him win votes from the white Chtistian Nationalist anti-democracy insurrectionist GQP base – the very same Republicans who had been using early voting to their electoral advantage for almost 30 years, until they finally lost a few elections (so it must be fraud!)
Wrong. It has only led to renewed calls for him to resign for failing to do his damn job.
If AG/Senate candidate Mark Brnovich doesn't want to defend Arizona's early voting program, he should resign. The state's need for an AG outweighs his need to curry favor with the far right. https://t.co/TlqJi72XdO via @azcentral
— Laurie Roberts (@LaurieRoberts) May 27, 2022
The most corrupt attorney general in the history of Arizona – and that includes the contemptible Tom Horne – should never be allowed to practice law again.
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UPDATE: Howard Fischer reports, “Judge could rule this week on whether Arizona election manual is ‘legally compliant'”, https://tucson.com/news/local/govt-and-politics/judge-could-rule-this-week-on-whether-arizona-election-manual-is-legally-compliant/article_50c5691e-e8e0-11ec-a892-e3a45e4cce7f.html#tracking-source=home-top-story
A judge will decide this week whether there will be rules in place to run this year’s elections or whether there will be, as an attorney for the governor fears, “chaos’’ at the polls.
Anni Foster, attorney for Gov. Doug Ducey, told a judge on Friday that Attorney General Mark Brnovich never approved a new Election Procedures Manual as the law required by Dec. 31. Instead, the attorney general waited four months before filing suit, accusing Secretary of State Katie Hobbs of failing to produce a “legally compliant’’ manual.
And by “legally compliant,’’ Brnovich made it clear he believes that means what HE decides is legal. [GQP authoritarianism.]
In the meantime, Foster told Yavapai County Superior Court Judge John Napper, the state — and the election officials in the 15 counties — are in legal limbo. So she wants him to declare that the manual adopted in 2019 remain in effect and election officials can rely on them unless and until a new one is approved.
Time is running out.
The state’s primary is Aug. 2. Early ballots go out in less than a month.
And it’s even more immediate, with several counties already having administered local elections this year.
“These elections are ongoing right now,’’ Foster said. And she told the judge, it is “inviting chaos in the 2022 election’’ if he doesn’t rule that counties should continue to follow the 2019 manual, which has the force of law.
“If there is no procedure manual in effect, then nobody knows what the rules are,’’ Foster told Napper.
Napper, however, told Foster he’s not sure he even has the power to issue such an order. He pointed out the only legal issue before him is Brnovich’s lawsuit that does not seek to confirm the 2019 manual but to force changes he wants in the new one.
And the judge also lashed out at Brnovich for putting him in the difficult position of trying to figure out now, just ahead of this year’s elections, how counties should be running the election.
He got Catlett to acknowledge that Brnovich got the draft manual from Hobbs on Oct. 1, which was the deadline. And the deadline for adoption was Dec. 31.
“That probably would have been a good trigger point to file something,’’ Napper told Catlett. Yet Brnovich did not file suit until April.
The judge said there may be the basis for some of the claims by Brnovich that the items Hobbs included do not comply with the law and recent court rulings. But he was clearly not happy about being pressured to act now.
“I probably would have been more sympathetic for that argument if it was filed in November,’’ he told Catlett.
Catlett, however, said this isn’t all the fault of his boss. He said if Hobbs believed that Brnovich was abusing his discretion in refusing to approve her changes, she could have gone to court herself long before now.
[That’s lie a serial killer telling the cops. “stop me before i kill again!” It’s all on you, Dude.]
At the heart of the fight is the Election Procedures Manual, essentially guidance and an explanation of state election laws that county recorders are supposed to follow.
Arizona law requires the secretary of state to prepared a new one prepared every two years ahead of elections. It then is given to the governor and attorney general for their approval.
Hobbs did just that, only to have Brnovich refuse to give it his legally required blessing until she made the changes he wants. And when she balked, he filed suit.
At Friday’s hearing, Napper made it clear that he’s not buying many of the arguments by the attorney general that all the procedures and policy Hobbs has put in the manual for future elections do not comply with the law. He said Brnovich is off base with claims ranging from how counties verify signatures on early ballots to political party registration and campaign finance requirements.
Napper also at times expressed frustration with the arguments being advanced by Catlett, saying he doesn’t seem to understand the issues. [Incompetent counsel.]
Consider the issue of the wording that has to be on the envelopes that go out with the early ballots.
Catlett objects to the fact that Hobbs is telling counties they should not use the words “return to sender’’ as instructions for what to do if the voter does not live there anymore. He told the judge that is contrary to what lawmakers directed.
Napper said that’s not exactly true.
He said the law says it has to be that language “or something substantially similar.’’
In this case, the judge said Hobbs had information from the U.S. Postal Service that putting such language on the envelope could result in automated sorting machines might send the ballots back to the counties rather than on to voters. That, said Napper, would appear to provide sufficient reason for Hobbs to direct counties to use that “substantially similar’’ language, like “return to post office,” to ensure that voters would get their ballots.
But Catlett continued to argue that the law was clear — and that Hobbs could not dictate to counties what language they should use. He asked Napper to instead say the best Hobbs could do is provide a “helpful example’’ of what language would be similar.
Other pending issues range from whether some votes cast in the wrong precinct can be counted to whether counties have to actually have an election worker “staff’’ ballot drop boxes or they can simply be electronically monitored.
That, however, still leaves the question of what Napper actually can do about all this.
“I need someone to explain to me how this thing lands,’’ the judge said.
“I don’t know how this ends,’’ he continued. “You’ve got a clock that’s ticking.’’
And Napper pointed out that Brnovich has not agreed to abide by any decisions he makes about what needs to be in the new Election Procedures Manual. Nor, the judge said, has Ducey whose signature also is necessary to put a new manual into effect, creating the possibility of ongoing litigation.
-Lawless authoritarian Republicans.