By Howard Fischer
Capitol Media Services
PHOENIX -- Unable to get permission for a formal hearing, a group of "select'' lawmakers are having their own unofficial away-from-the-Capitol event Monday to hear evidence from the Trump legal team on the just-completed election.
The event at the Hyatt Regency in downtown Phoenix is being billed as an "urgent public hearing" to air allegations of improprieties that altered the results of the election. Rep. Mark Finchem, R-Oro Valley, promised lots of information to show that the state's 11 electoral votes should not go to Democrat Joe Biden.
Yet at the same time, Gov. Doug Ducey, Attorney General Mark Brnovich and Chief Justice Robert Brutinel are expected to formally certify the results as accurate despite multiple claims -- all yet unproven -- that there was fraud in the election. Even the governor said he has seen no such evidence.
That leaves Finchem and the lawmakers who will attend and who believe the election was stolen from President Trump, looking for another way to overturn the results.
The hearing comes after House Speaker Rusty Bowers rebuffed his efforts to call a hearing of the House Federal Relations Committee, which Finchem chairs, to look at ways the 2020 election could have been tainted.
"My worst fears have come to light in the process, and so far the evidence has been blocked from an official public forum,'' he said.
"This process has been anything but transparent,'' Finchem told Capitol Media Services on Friday. He promised that the testimony, which is expected to feature Trump campaign lawyers Rudy Giuliani and Jenna Ellis, "is going to reveal a great deal that I think the taxpayers, the voters, are going to be stunned.''
So Finchem decided to go ahead, on his own with the off-campus hearing because "time is of the essence to show proof that our election has been compromised.''
His claimed need for speed goes to Finchem's argument that the U.S. Constitution empowers lawmakers to decide, on their own, whether the election was valid and, if not, to select the electors of their choice. And those, presumably, would be for Trump despite the official results of the popular vote are being certified Monday.
The hearing come as attorneys for Kelli Ward, the chair of the Arizona Republican Party, go to court Monday in their bid to get access to certain voting materials they say will help them prove their claim that the tally was incorrect, at least for the presidential race. But the issues are closely related, with the Trump campaign having raised some of the same allegations, particularly about the possibility of fraud with mail-in votes.
Monday's off-campus hearing is likely to be a carbon copy of one held Wednesday by some Pennsylvania lawmakers -- also off campus -- where Giuliani listed what he said were irregularities in not just that state but also in Arizona. And Trump, appearing by phone, repeated his claim that fraud in mail-in ballots altered the election returns.
"They cheated,'' he said of Democrats.
"This was a fraudulent election,'' the president continued. "That has to be turned around because we won Pennsylvania by a lot and we won all of these swing states by a lot.''
He also complained about "all of the horrible things that happened to poll watchers.''
That same theme has been repeated in Arizona -- and even in the new lawsuit -- that poll watchers were kept too far from the process to see what was going on and whether the signatures scanned from ballot envelopes matched what the county recorder's office already had on file.
So far, though, Trump and his allies have lost virtually every legal case they have brought alleging fraud or other improprieties. That, then, goes to the question of what state lawmakers can do.
"The legal theory is the legislature has plenary power to fulfill its obligation to send qualified Electoral College electors to engage in the vote,'' Finchem said.
"This is a federal office,'' he said. "And it is a federal obligation under the Constitution by the legislatures of the various states.''
And what of the vote tally?
"We are not fettered, we are not tethered to anything other than our plenary power in the legislature to fulfill our duty,'' Finchem said. And that, he argued, allows a special legislative session where lawmakers can make their own decision on the validity of the election and whether to try to block the state's 11 electoral votes from being cast for Biden.
That, in turn, dovetails with the lawsuit filed by attorney Jack Wilenchik on behalf of the state GOP.
Under the system of mail-in voting, election workers compare signatures on the outside of the envelope with what they have on file from prior elections or other documents.
If there are questions, it is reviewed by members of both parties. And the law allows election worker to contact the voters to determine if they really sent in the ballot and whether there is a reason a signature looks different, like an illness or injury.
Wilenchik's problem is what happens when the election worker says the signature match, as there is no further review by party officials. And, repeating the president's claim, he said that legal observers were kept too far away from the process to be able to see what was going on.
So he wants Hannah to allow a representative sample -- perhaps 2% -- to be reviewed by a handwriting expert to determine if the worker was correct or if the ballots never should have been tallied.
Even if Hannah grants the review and even if the expert says there are signatures that really do not match, that in itself is no help. That's because the ballots were long ago separated from the envelopes and there is no way to tell for whom these people voted.
But Wilenchik hopes that a judge, confronted by evidence of a large number of invalid ballots, would void the results of the presidential race, prohibiting the state's 11 electoral votes from going to Biden. That, in turn, could open the door to the legislature appointing electors.
But that presumes that Bowers and Senate President Karen Fann would consent to convening a special session. Monday's off-campus hearing is designed to raise enough questions to put pressure on them and other lawmakers to agree.
Wilenchik has a second legal theory that damaged ballots were not properly duplicated for scanning. So he wants these reviewed, too, with the idea that if there were sufficient votes that should have gone to Trump that Hannah should order that he is the winner.
There are things working against both the lawsuit and any potential legislative intervention.
Arizona law allows a challenge to the official canvass within five days. And federal law also says that all election challenges must be resolved by Dec. 8, with electors set to vote six days later.
The state also has a "faithless elector'' provision in law which requires electors to vote for the presidential candidate who wins the state.
Legislative lawyers said it would take a change in statute to alter how presidential electors are appointed. And they said it's too late to change that this year given that the electors already have been chosen by voters.