Clean and accurate voter rolls are a cornerstone to safe and secure elections. And they are required by both state and federal law. Section 8 of the National Voter Registration Act (NVRA) specifically obligates states to conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters due to death or change of residence. The U.S. Supreme Court even backed this up in its 2018 decision in the case Husted v. A. Philip Randolph Institute.
But Arizona’s current Secretary of State Adrian Fontes and its former Secretary of State (now Governor) Katie Hobbs have failed to perform the necessary voter list maintenance. And right now, 14 Arizona counties are in violation of Section 8 of the NVRA…
Cochise County Sheriff Mark Dannels says that no border patrol officials can attest that the border is secure.
Dannels testified this during a joint congressional hearing in Sierra Vista, Arizona by the House Oversight and Judiciary committees on Tuesday. Dannels further accused the Biden administration of playing word games about the state of the border to foster a false sense of security among the American people.
“It’s a shell game, it’s a word game to make the American people feel safe when we know here at the community level — especially here in Cochise County — that that’s a false narrative,” said Dannels.
Dannels said he attempted to deliver a 16-point plan to secure the border, compiled by sheriffs nationwide, to Department of Homeland Security (DHS) Secretary Alejandro Mayorkas.
According to Dannels, Mayorkas later claimed to never have seen the plan. Present at the hearing were Arizona Reps. Juan Ciscomani (R-AZ-06) and Andy Biggs (R-AZ-05), as well as Reps. William Timmons (R-SC-04), Chuck Edwards (R-NC-11), and Glenn Grothman (R-WI-06).
Biggs remarked that Democrats refused to attend the hearing, which he lamented as prioritization of party politics over solving the border crisis.
Democrats’ uniform absence from Tuesday’s congressional hearing, as well as the Biden administration’s insistence that the border situation has improved, appears to be a lockstep party effort to reform public perception of the border crisis.
Last week, two of Arizona’s Democratic state lawmakers insisted that the current public perspective and reporting on the state of the border as a crisis is sensationalized. Mayorkas testified several weeks ago that he doesn’t believe the border situation constitutes a crisis, a view he has espoused consistently throughout this year. During Tuesday’s hearing, Biggs called Mayorkas’ disregard for existing law an impeachable offense.
Furthermore, DHS is changing the categorization of an illegal immigrant terrorist to “national security risk,” a potentially euphemistic shift that Biggs questioned.
“Why are you changing the language? Because it’s easier to hide the reality of the gravity of the situation,” said Biggs.
Biggs reported that cartels are actively recruiting minors via social media to smuggle illegal immigrants, citing reports out of Yuma, Cochise, and Pinal counties. These cartels promise to pay minors several thousand dollars to traffic illegal immigrants into Phoenix or Tucson.
A House-passed resolution to address the border crisis, HR2, has effectively been left to die in the Senate. Biggs remarked that Biden’s executive branch could improve the border by enforcing existing immigration laws.
Illegal immigrants have court dates as far out as a decade. While they await their day in court, these migrants are free to roam the country. The Biden administration’s practice has effectively revived the controversial catch-and-release practice of the Obama administration.
The border crisis has spawned other crises: crime and drugs. Fentanyl, the primary drug behind this latest addiction epidemic, has progressively killed more Americans: there were over 72,700 overdose deaths last year.
Legal migrants were naturalized at a historic rate last year: nearly one million, the highest since 2008.
Under Biden, there have been a historic total of 5.7 million illegal immigrant encounters at the southwest border (as of this report, July’s total hasn’t been released). This total doesn’t reflect the countless number of “gotaways” — those not encountered and remain in the country undetected.
The question before the appellate court is whether Arizona’s 15 counties are restricted to performing a hand count audit of only a very small percent of machine tabulated ballots, or if a county’s Board of Supervisors (BOS) have authority to demand a higher audit percent—even 100 percent—of those ballots to check the accuracy of the electronic tabulation.
The issue dates back to October 2022 when the Cochise County BOS approved a Resolution to have County Recorder David Stevens conduct a hand count audit of all ballots cast in-person on election day at the county’s 17 voting centers. The Resolution was challenged in court by the Arizona Alliance of Retired Americans (AARA).
Cochise County came out on the losing end of the case, which cost taxpayers nearly $90,000 in attorney’s fees to AARA. Now, the matter is in front of the Court of Appeals, with the county seeking to be vindicated for its hand count audit plan.
AARA filed its answering brief to the appeal last week. It asks for the county’s appeal to be dismissed as moot.
“Not only is the 2022 election over, but the mandatory audits prescribed by law have been conducted, and the election results were canvassed and certified,” AARA’s brief argues.
But if the Court of Appeals decides to weigh in on the question of whether Cochise County had authority to order a full hand count audit – of the early ballots, election day ballots, or both – then AARA argues the answer is no.
“Appellants are only legally authorized to conduct hand count audits in accordance with these statutorily prescribed procedures and cannot require a hand count audit of all ballots,” the brief argues. “Hand count audits must start with small, random samples for a limited number of races, and expand only on an individual race basis and only if hand counts repeatedly differ from electronic tabulations by more than a designated margin for error.”
AARA’s brief ignores the policy issue of whether an expanded hand count audit process would be better than the current law it claims is controlling.
Cochise County has until April 17 to file a reply brief with the Court of Appeals. There is no deadline for when a ruling must be issued.
The supervisors in favor of the expanded audit were Tom Crosby and Peggy Judd, who took the position that “many voters” lacked confidence in the voting system. A 100 percent audit of in-person election day ballots was justified, they argued, to “enhance voter confidence.”
The Resolution passed on a 2 to 1 vote on Oct. 24, 2022. AARA and one of its local members sued the county the next week, seeking a court order enjoining, or barring, anyone from complying with the Resolution.
Judge Casey McGinley was brought in from Pima County Superior Court by Cochise County’s presiding judge to hear the case. McGinley ruled one day before Election Day that the county and Stevens could not engage in the expanded hand count audit.
McGinley went one step further, ruling that there could also be no full audit of early ballots.
According to McGinley, ARS 16-602(B) requires the audit of ballots casts at voting centers on election day to be “randomly selected.” Selecting 100 percent of those ballots from the start would render the statutory language and the mechanism for a limited expansion of the hand count audit superfluous, he noted.
McGinley further ruled that ARS 16-602(F) establishes 5,000 as the maximum number of early ballots which may be initially part of a hand count audit, despite contradictory language included in the EPM which states counties “may elect to audit a higher number of ballots at their discretion.”
In its appeal, the Cochise County defendants contend hand count audits based on a random sampling of ballots was intended to prevent election officials from auditing races for improper purposes. There would be no concern with how certain races were selected if 100 percent were audited, they contend.
If the Cochise County BOS loses on appeal, attorneys for AARA have asked for a new order requiring the county to pay the group’s court costs and attorney’s fees in connection with the appeal.
Cochise County taxpayers are also on the hook for the fees paid to the attorney for the supervisors and Stevens, including during the appeal.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
If government officials threaten to force you from your home because of a zoning violation, should you be able to seek a court order blocking the forced removal? Or must you wait until you are actually homeless to fight back?
That is a question the Arizona Supreme Court could consider next year, in a case out of Sierra Vista that has garnered the attention of the Goldwater Institute and private property advocates across the state.
Among the plaintiffs are several longtime city residents of a mobile home park who filed a lawsuit in early 2021 arguing that city zoning officials should not be allowed to force them to move the recreational vehicles (RVs) they live in and that anti-RV ordinances violate their constitutional rights.
A Cochise County judge and the Arizona Court of Appeals ruled there is nothing that can be done in advance to stop the city from enforcing the ordinance. The lawsuit can only proceed if the city actually moves forward with making the residents leave, according to the court rulings.
The Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation took issue with the city’s position as well as the legal reasoning of the judge and appellate court. The organization has filed an amicus (friend-of-the-court) brief asking the Arizona Supreme Court to hear the case which the RVers are appealing.
Timothy Sandefur, attorney for the Institute, notes that prospective injunctive or declaratory relief against a threatened future unconstitutional government act “is a routine procedure.” As such, the amicus brief asks the justices to order the requested injunction to protect the residents.
“This case is like a hypothetical situation in which a plaintiff files a lawsuit for an injunction to prevent a defendant from converting her personal property, or building a factory that will pollute her land, and the superior court tells her the case is unripe because no theft or pollution has yet occurred—before adding, ‘come back after your property has been stolen or ruined,’” Sandefur wrote.
Under city zoning definitions, RVs are considered temporary shelters that are not allowed as permanent residences in a manufactured home subdivision. RVs are, however, permitted as permanent residences in up to 30 percent of the total spaces in a manufactured home park.
The 160-lot Cloud 9 property involved in the dispute is considered a manufactured home subdivision despite being called a mobile home park for decades. In July 2020, a notice of non-compliance gave several residents, including Amanda Root, 30 days to remove their RVs despite the fact most had lived at Cloud 9 for years and did not have funds to move elsewhere.
The city agreed to take no action on the zoning order while attorneys for the residents and the city attempted to resolve the matter. But in February 2021, the city council rejected a proposed amendment which would have allowed Root and the other impacted residents to continue living in RVs at their current locations.
A lawsuit was filed a short time later seeking an injunction preventing the city from enforcing any evictions while the case was litigated. The city’s twofold argument contended the restrictive ordinances related to RVs are constitutional and that there is no legal basis for a court injunction at that time.
Judge David Thorn of the Cochise County Superior Court denied the injunction, pointing out there was no “injury” caused by the threats of enforcement. The Arizona Court of Appeals also passed on hearing the case due to no showing of actual harm, although the appellate court noted there could be harm in the future.
The Arizona Supreme Court will decide in early 2023 whether to hear the case or to leave in place Thorn’s decision that nothing can be done until Sierra Vista officials try to enforce the zoning violations.
If Maricopa County Recorder Stephen Richer intended to quell support for Proposition 309 last week, his effort appears to have backfired. And on top of that, he is the subject of an investigation by the Arizona Attorney General’s Office, sources say.
On Oct. 11, Richer issued an email via his county account to media outlets promoting a letter “from all 15 Arizona County Recorders” about Prop 309, which the email and the letter state the Arizona Association of County Recorders (AACR) opposes.
The next day, election attorney Tim La Sota asked Attorney General Mark Brnovich to investigate the AACR’s use of Maricopa County resources to sway voters into casting a “no” vote. Richer’s actions on behalf of AACR violated two state laws which prohibit the use of public funds and public resources to influence any campaign or contest, La Sota wrote.
Prop 309 seeks to require voters who use early ballots to vote by mail to write their birthdate and a government-issued identification number on the early ballot affidavit along with the voter’s signature, which is already required. Often referred to as universal voter ID, it would also require in-person voters to present a form of photo identification such as a driver’s license or state identification card.
The AACR letter, which is printed on letterhead listing the names of the county recorders along the side, is signed “The People Responsible for Early Voting in Arizona.” The email goes further, showing it being “signed” by each of the individual recorders with their name and county noted, implying the county recorders were unanimous in their opposition.
Like many government associations, the AACR conducts its business based on a majority rule. This includes the association’s position on various matters, which is not always the same as that of the individual recorders.
For instance, Cochise County Recorder David Stevens is a very vocal proponent of Prop 309 and was consulted by lawmakers when the legislation’s language was drafted. This raised questions about the veracity of the email and letter issued by Richer, particularly after he retweeted that “Arizona’s county recorders put out a letter unanimously opposing #prop309.”
And in a subsequent Twitter exchange, Richer insisted it was a “unanimous voice vote…no nays, all ayes” with 14 of the 15 counties present (Apache County not in attendance).
Stevens wrote to Richer, demanding “a public retraction of this letter along with your apology for misleading the public.” He also questioned whether Richer was “pushing your own agenda” by giving the false impression of unanimity among the recorders on the Prop 309 issue.
The situation was further aggravated by the fact a newspaper in Stevens’ county published part of the AACR’s anti-Prop 309 letter with him listed as a signer.
Stevens told AZ Free News he was out of the country when the voice vote was conducted on Sept. 29. He was represented at the meeting by his chief deputy, who does not have a blanket proxy to vote on Stevens’ behalf.
“She was not elected by the people of Cochise County and is very careful to not speak on my behalf unless I have asked her to speak for me,” Stevens explained.
As to the statement by Richer, who is an attorney, that it was a unanimous vote, Stevens said any elected official—particularly one responsible for conducting elections—should know “that not voting no is not the same as voting yes.”
Stevens plans to push for all AACR votes in the future to be conducted by roll call, so there is documentation of how each recorder votes on a specific matter.
There has been no retraction by Richer nor AACR as of press time, but he quickly conceded it was “not appropriate” for him to post the AACR letter to the Maricopa County website.
“The letter has been taken down,” Richer said after the controversy erupted. As to La Sota’s complaint to the attorney general, Richer suggested the matter has “already been resolved” with the removal of the letter.
But election integrity proponents say the matter must not end there, as there must be consequences for the actions of AACR—and Richer specifically—for giving voters incorrect information about the group’s anti-Prop 309 position. In the meantime, supporters of strengthening voter ID laws are reporting more interest from voters on the subject.