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Lawyer argues Arizona AG can't intercede now against new voter registration deadline

Lawyer argues Arizona AG can't intercede now against new voter registration deadline

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PHOENIX — Proponents of more time to register to vote say Attorney General Mark Brnovich is having what amounts to buyer’s remorse in failing to defend the deadline in the first place.

In new legal filings, they point out that Brnovich never intervened in the case when they sued Secretary of State Katie Hobbs to force her to move the deadline back from its legally set Oct. 5 date.

Only after a federal judge set a new Oct. 23 deadline and Hobbs concluded an appeal is not in the best interest of the state did Brnovich take an interest and decide that he and his office now need to defend the original deadline.

But the lawyers for the challengers are telling the appellate judges that new-found interest in the issue legally comes too late.

The new filings underscore what has become an increasingly testy relationship between Brnovich, a Republican, and Hobbs, a Democrat, who have disagreed on how to handle previous challenges to election law.

This case is about the finding this past week by U.S. District Court Judge Steven Logan that the pandemic and the resulting state restrictions on travel, gatherings and business operations made it difficult to register people to vote. So he voided, for this year, the deadline of Oct. 5 and gave anyone who wants to sign up an extra 2 ½ weeks.

The ruling came over Hobbs’ objections. She pointed out that the two advocacy groups that sued to extend the deadline, Mi Familia Vota and the Arizona Coalition for Change, waited to just three business days before the deadline to file suit. She argued that making such a major change so close to the Nov. 3 election would create extra work for county recorders.

Logan was unmoved, pointing out that 31 other states have registration deadlines much closer to the election.

Hobbs decided not to appeal, particularly as the ruling applies only to this year’s election.

“We need to give the voters clarity,” said her aide Murphy Hebert.

That decision did not sit well with Brnovich, who has asked the 9th Circuit Court of Appeals for permission to now intervene in the case. And in the interim, he wants the appellate judges to set aside Logan’s order and immediately stop new voter registrations.

But attorney Zoe Salzman, who represents the two groups that sued, is asking the appellate judges to send Brnovich packing.

“He has no independent power to appear in his own capacity now that his client — the state of Arizona’s chief election officer — has made the considered and authoritative judgment that it is not in the best interests of the state to appeal,” she wrote.

Salzman pointed out that Brnovich never made an attempt to intervene in the case when it was filed. That put Hobbs in the role of deciding how to defend the law and, more to the point, when to stop, she said.

She pointed out that Brnovich and Hobbs have squabbled in other election-related cases.

For example, Hobbs sided with initiative circulators who sought to be able to collect signatures online this year, during the pandemic, by using the existing E-Qual system already available for candidates. Brnovich did not and the court sided with him.

The pair also are on opposite sides of a case before the U.S. Supreme Court on the issue of “ballot harvesting.” Hobbs wants the justices to uphold a federal appeals court decision allowing civic groups to collect and deliver early ballots from those who forgot to mail them in; Brnovich wants to overturn that ruling.

In those cases, Brnovich was a party to the case. This time, Salzman said, he chose to sit on the sidelines despite the history of differences he has had with Hobbs.

“He fully well knew that the secretary might make a different decision in this case than he would,” yet opted not to intercede, she said.

“That the attorney general is unhappy with how that choice turned out provides no basis for him to change course and declare, contrary to his position in the district court, that he and not the secretary speak for the state in this action,” Salzman told the appellate judges.

She cited a 1975 Arizona court ruling that the attorney general does “not have the power to appeal against the wishes of his client.” That means Brnovich is stuck with the decision made by Hobbs not to pursue the case, she said.

Finally, Salzman pointed out that voters chose Hobbs to be the top state officer dealing with elections. To let Brnovich intervene, she said, would be to let him claim her powers.

The appellate judges are set to have a hearing Monday afternoon to decide whether to allow Brnovich to intervene and whether to consider the appeal of Logan’s decision.

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Arizona's top two elected officials, a Republican and a Democrat, are squabbling over election procedures. Hanging in the balance is the ability to vote for people in some nursing homes, hospitals and other places who can't physically fill out ballots themselves but also can't have visitors due to COVID-19.

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