Arizona Secretary of State Katie Hobbs wants the Arizona Supreme Court to ignore the State’s official response to a lawsuit filed by the Arizona Republican Party, and she wants to prevent the Arizona Democratic Party from sharing its legal concerns with the justices, according to court documents.
The AZGOP and its secretary, Yvonne Cahill, filed a petition for special action on Feb. 25 which asks the Arizona Supreme Court to declare the state’s voting by mail option unconstitutional. The lawsuit points to the language in the Arizona Constitution which refers to voting “at the polls.”
If the justices agree, then the only constitutional form of voting in Arizona would be in-person, election day voting despite the fact nearly 90 percent of all ballots cast in 2020 elections were mailed to voters and then returned by mail.
Hobbs is asking the Court to toss out the AZGOP’s challenge to the state’s 30-year use of mail-in balloting. She is also pushing back against efforts by members of her own party who believe they should be able to comment on behalf of voters and candidates who are registered Democrats.
According to Hobbs, granting the motion to intervene filed by the Arizona Democratic Party, the Democratic National Committee, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee would “cause prejudice by needlessly extending” the AZGOP litigation.
Roy Herrera, an attorney for the Democratic groups, notes Hobbs was the lone opposer to the motion to intervene. Even the AZGOP did not argue against granting the Democratic groups standing.
“Instead she argues that she adequately represents Proposed Intervenors’ interests and that permitting Proposed Intervenors to intervene would delay resolution of this matter,” Herrera wrote to the Court on March 18. “The Secretary is wrong on both points.”
Herrera’s reply to the Secretary of State’s objection further notes that elected officials like Hobbs “defend the laws as appropriate given their respective positions as state officials.” But courts have often ruled such defense “to be inadequate to protect the different interests of the political parties themselves” even if the official is of the same political party, he added.
But it is Hobbs’ unprecedented request that the justices should strike in its entirety the response filed by the State of Arizona to the AZGOP lawsuit and strike Attorney General Mark Brnovich’s amicus curiae brief that has raised many eyes.
The AZGOP’s lawsuit requests the justices take certain actions if voting by mail is deemed constitutional. And one of those issues, according to AZGOP attorney Alex Kolodin, is Hobbs’ “exceptional failing” of her statutory duty to put forth a Elections Procedures Manual (EPM).
Without an approved EPM, the county recorders will be left “with no legal, binding, or relevant EPM to guide the elections of 2022—a critical situation that must be resolved forthwith,” Kolodin notes. The EPM, or lack thereof, is also addressed in the attorney general’s combined State Response and amicus brief.
Hobbs is required by law to draft a EPM every two years, but Brnovich contends the draft Hobbs recently proposed for the 2022 election cycle includes several provisions which “either exceeded the scope of the Secretary’s authority or were inconsistent with the purpose of one or more election statutes.” As a result, his office will not sign off on the EPM, Brnovich told the Court.
Hobbs is asking the justices to strike, or disregard, the attorney general’s filings.
“It is disappointing but not surprising that the Secretary bristles at this,
because she does not want any sunlight shone on her actions in failing to provide
the Attorney General and Governor with a valid draft Elections Procedures Manual
(“EPM”) for the upcoming 2022 elections,” Brnovich responded.
The attorney general is not the only one who has offered a friend of the court briefing in the case. Several groups have filed briefs, including the League of Arizona Cities and Towns, the Navajo Nation, the League of Women Voters of Arizona, and the Coconino County Board of Supervisors.
Several individuals have also filed briefs, including Arizona State Senator Kelly Townsend, whose March 15 filing explained that as chair of the Senate’s Committee on Government she can provide “information, perspective and argument beyond what the parties and their counsel can provide.”
Justice Kathryn King noted the Court considered Townsend’s argument, and on March 18 ordered the senator’s brief be accepted.