PHOENIX -- A last-minute provision dropped into the House version of the state budget seeks to trim the ability of Attorney General Kris Mayes to bring legal charges against anyone related to election issues.
The language crafted by Rep. Alexander Kolodin would require prosecutors to get permission from both the House and Senate judiciary committees before filing any election-related lawsuit if a judge in any other case had said there was at least "prima facie'' evidence they had violated the state's anti-SLAPP law, short for Strategic Lawsuit Against Public Participation statutes. This law is designed to prevent public officials from using the courts to punish and prevent speech on political issues. What the Scottsdale Republican is proposing is not occurring in a vacuum.
In February, Maricopa County Superior Court Judge Sam Myers ruled that the remaining 16 defendants in the "fake electors'' case being prosecuted by Mayes, a Democrat, have provided that prima facie evidence, demonstrating to him that the indictments against them appear to attack what is "at least in part some arguably lawful speech.'' Mayes, rather than proceeding with the case, has instead appealed Myers' ruling.
It is unclear whether the provision Kolodin got inserted into the budget, if it becomes law, would have any effect on the ongoing electors case and would force Mayes to now get legislative approval to pursue the charges of fraud and conspiracy against the defendants. But it definitely would hobble Mayes -- and any county prosecutor, as the measure also would apply to them -- in filing future cases.
Pima County Attorney Laura Conover said it definitely would chill the ability of prosecutors to bring charges that could have political overtones. A single finding that a prosecutor may just have violated the SLAPP provisions -- not even a final ruling -- would trim that agency's ability to pursue future election-related cases. That's because it would give either the House or Senate judiciary committees, both now controlled by Republicans, veto power over new legal actions. Beyond that, Conover, a Democrat, said there's a constitutional issue.
"Directing prosecutors to ask the Legislature for permission to prosecute sounds like quite the separation of powers problem,'' she said. Richie Taylor, press aide to Mayes, agreed.
"This is creating an extra-judicial tribunal to run specific criminal prosecutions through,'' he said.
Maricopa County Attorney Rachel Mitchell, a Republican, declined to comment.
Kolodin rejected the claim that the legislation is unconstitutional.
"We extensively researched this and found no separation of powers issues exists,'' he said. Instead, Kolodin said, it complies with how one branch -- in this case, the one with the money that funds prosecutors -- can act to exercise legitimate oversight over another.
"Indeed, this is the way that the power of the purse is meant to reinforce checks and balances,'' he said.
Kolodin acknowledged he worked to get the provision into the budget on behalf of the Arizona Freedom Caucus, of which he is a member. These are considered the most conservative of Republican lawmakers at the Capitol, including one who is a defendant in this case. And Kolidin said the legislation, which still needs approval by the Senate and the signature of Democratic Gov. Katie Hobbs, is justified.
"Ending the tyrannical weaponization of government that manifests its ugliness in the form of political prosecutions is a matter of critical importance to the foundation and future of our republic,'' he told Capitol Media Services. Kolodin, who is running for secretary of state in next year's election, said the mechanics of his proposal are simple: If the majority Republicans who control the judiciary committees in either the House or Senate believe the attorney general or county attorney is "trampling'' the lawful exercise of constitutional rights, "then additional legislative oversight is necessary to prevent further abuses of power.''
And Kolodin made it clear who he think has been doing that.
"Kris Mayes is a perfect example of why this provision is necessary since she has repeatedly engaged in hyper-partisan prosecution based on novel legal theories conjured up by Leftist activist organizations,'' he said.
One of those involves the charges related to the 2020 presidential election.
Mayes got a state grand jury in 2023 to indict 11 Republicans who prepared a report and sent it to Washington saying that Donald Trump had won the popular vote and they were entitled to cast the state's electoral votes for him. The actual results, however, showed Joe Biden had outpolled him by 10,457 votes.
One of those "electors'' is Sen. Jake Hoffman, R-Queen Creek, who chairs the Freedom Caucus. Also indicted were others who Mayes said were involved in crafting the scheme, including a top aide to Trump and some of his lawyers; the president himself was named an unindicted co-conspirator. Taylor said what Kolodin is trying to put into state law needs to be seen through that lens.
"He's using a political vendetta to harm the ability of elected prosecutors to do their jobs,'' Taylor said.
Still, there is at least some basis for Kolodin's claim of outside influence on Mayes.
Documents obtained last year by Capitol Media Services showed that, ahead of Mayes obtaining the indictment in the electors case, States United Democracy Center provided her office detailed guidance on how to prosecute the individuals. That group says it's non-partisan, though its past work aligns with Democratic caucuses. Taylor said at the time the office did its own investigation but that States United provided "a memo that outlines potential charges to be brought.''
But the documents showed that States United specifically spelled out exactly which Arizona laws could be used to prosecute those involved and made recommendations. And it even detailed why it would still be legally OK to indict people years later for events that had occurred in 2020. In issuing his preliminary ruling, Myers said there was evidence of a violation of SLAPP by Mayes in bringing the charges. He specifically mentioned the attorney general's comments when announcing the indictment that "this should never happen again.''
That did not result in dismissal of the case. Instead it turned the legal tables on the attorney general, saying it is now up to her to explain why the charges in the indictment are justified or risk having the case thrown out. All that, however, has been put on hold after Myers sent the whole case back to the grand jury over a different incident. He ruled that prosecutors had failed to provide the jurors with details of an 1887 federal law about how Congress must must handle the possibility of competing presidential electors.
That law, the defendants contend, explained -- and justified -- their actions. Mayes is appealing that ruling, too. This also isn't the first time the Democratic attorney general has been accused of bringing charges for political reasons. She obtained an indictment against two Republican Cochise County supervisors on felony charges after they balked at completing the legally required canvass -- the formal counting -- of the votes in the 2020 election. They said they had questions about whether the machines used to tabulate the ballots were properly certified.
Peggy Judd pleaded guilty to a single count of failing to perform a duty and placed on unsupervised probation; Tom Crosby continues to fight the charges.
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