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Arizona: State Secretary Won’t Properly Defend Ballot Law (1)

June 18, 2020, 8:49 PM; Updated: June 19, 2020, 12:11 AM

The state of Arizona has asked to join a lawsuit challenging election rules that allegedly don’t allow mail-in voters to cure unsigned ballots after Election Day in November, telling the District of Arizona that the secretary of state likely won’t defend the state’s interests.

Arizona has been pegged as a pivotal battleground state for the 2020 general election. President Donald Trump won the state in 2016 by 3.5 percentage points. That margin was down from the 9% margin secured by former Republican Presidential nominee Mitt Romney in 2012.

Arizona Secretary of State Katie Hobbs (D) has demonstrated that she won’t fully defend Arizona’s voting laws, the state said Wednesday. The motion to intervene was filed by the office of Arizona’s Attorney General Mark Brnovich (R), signaling political infighting among the state’s elected officials.

Because Hobbs hasn’t adequately represented the state’s interests in prior suits, the attorney general should be allowed to intervene on behalf of the state to defend its restrictions on curing absentee ballots, according to the brief from the AG’s office.

Hobbs’ office didn’t get a preview of the brief before it was filed, a spokeswoman for Hobbs told Bloomberg Law. The allegations laid out in the filing are “politicized and inflammatory,” C. Murphy Hebert, Hobbs’ director of communications, said.

Arizona provides a five-day cure period that extends beyond Election Day for ballots with “mismatched” signatures, but not for ballots that don’t have any signature at all, according to the lawsuit filed June 10 by the Arizona Democratic Party. The thousands of ballots that have been rejected for lack of a signature in prior elections demonstrates that Democratic voters are likely to be disenfranchised in the 2020 general election, it says.

The lawsuit names Hobbs as a defendant but not the state.

The attorney general’s office says that Hobbs declined to defend Arizona’s prohibition on third-party ballot collection at the U.S. Court of Appeals for the Ninth Circuit, which ruled in January that the restriction discriminated against minorities, the state said.

Her decision not to support the state’s petition for the U.S. Supreme Court to review that decision allegedly undermines Arizona’s interests in defending its laws against constitutional challenges, it said.

The state also had to request to intervene in another case at the Ninth Circuit challenging the state’s strike-out law when Hobbs declined to defend her initial win on appeal, the state said. Arizona’s strike-out law voids voters’ signatures in support of a ballot initiative if a paid or out-of-state petition circulator doesn’t show up to court when subpoenaed.

Hebert disagreed with the attorney general’s representation of Hobbs’ participation in those lawsuits.

“The Secretary will respond appropriately to this lawsuit, as she has in every case in which she’s been named as defendant,” Hebert said.

The attorney general’s office argued that it has a right to intervene in the lawsuit. But in the alternative, the U.S. District Court for the District of Arizona should permit intervention based on the timeliness of its motion, it said.

Coppersmith Brockelman PLC represents Hobbs.

Perkins Coie LLP represents the Arizona Democratic Party.

The case is Ariz. Dem. Party v. Hobbs, D. Ariz., No. 20-cv-01143, motion to intervene filed 6/17/20.

(Updated with comment from Hobb's office)

To contact the reporter on this story: Porter Wells in Washington at pwells@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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