Arizona fake electors case: Defendants say state doesn't have authority to bring charges

Attorneys for Arizona’s so-called fake electors want a judge to toss out felony charges brought by Attorney General Kris Mayes, arguing the state didn’t have the authority to bring the charges in the first place.

A state grand jury indicted 18 Republicans last year for allegedly trying to undermine the results of the 2020 presidential election by conspiring to submit documentation falsely claiming President Donald Trump, not former President Joe Biden, won Arizona’s popular vote.

Those defendants – including former Trump Chief of Staff Mark Meadows, state Sen. Jake Hoffman and former Trump attorney Rudy Giuliani – face multiple felonies, including fraud and forgery charges.

Their attorneys have filed half a dozen motions attempting to dismiss the case. Many of those filings argue Mayes’ office had no jurisdiction to bring the case, which focuses on a document signed by 11 of the defendants claiming they were the “duly elected and qualified Electors for President and Vice President of the United States of America from the State of Arizona.”

Prosecutors allege they submitted that document to supplant the rightfully elected Democratic slate of electors, who awarded their votes to Biden.

But attorney Stephen Binhak, representing former Republican Party official Tyler Bowyer, argued the U.S. Constitution and federal law give Congress, not the state, the power to resolve disputes over electors.

“Once the parties pick electors under state rules, the state is out,” he said.

In fact, Binhak argued, the Electoral Count Act actually allowed for individuals to submit that “alternate” slate of electors. He cited language in the act that directed the vice president – serving as president of the U.S. Senate – to open “all … papers purporting to be certificates of the electoral votes,” during Congress’ electoral certification process.

All that means that the federal government, not the state, has jurisdiction over the case.

“There is no action that that state can take, and that is by virtue of the federal Constitution, which leaves that role to the Senate, the president of the Senate and the Congress, and to the Electoral Count Act, which leaves that role to the Senate, the president of the Senate and the Congress,” Binhak said.

And, because the Electoral Count Act did not criminalize submitting a second slate of electors, charging the so-called fake electors with a crime would create a conflict with federal law, he argued. Binhak cited multiple cases to back up his argument, including a ruling that partially invalidated a state law requiring Arizona residents to provide proof of citizenship to register to vote on federal forms because the state law went beyond what is required by federal law.

“A citizen of the United States never serves two masters,” Binhak said. “We serve first the federal government, and then we serve the states to the extent that the state does not interfere with the supremacy of federal government.”

But prosecutors claimed that’s not at issue in this case.

“There is a way that you can comply with both,” said Casey Ball with the Attorney General’s Office. “You just don't commit fraud when you create your slate of electors and send a document to Congress.”

He argued the Republican electors sought to defraud Arizona voters – who elected Biden – when they submitted their document falsely claiming to be legitimate to Congress, a federal court and the Arizona Secretary of State’s Office.

The defendants claimed they signed the document only as a “contingency” in the event ongoing lawsuits challenging the results of the 2020 presidential election proved successful. Though, unlike similar groups in New Mexico and Pennsylvania, Arizona’s fake electors didn’t include any language on the document to back up that argument.

Attorney Dennis Wilenchik, representing former U.S. Senate candidate Jim Lamon, said the fact that the Republican electors’ document wasn’t certified by former Republican Gov. Doug Ducey, who did certify the Democratic electors, proved it was a contingency plan.

He argued that proved the document was not meant to deceive anyone.

“This was not a scary democracy-threatening act, as claimed by the attorney general, or election deniers conspiring to undo our country's election process,” Wilenchik said. “It was pursuant to law.”

But, again, prosecutors pointed out that the electors falsely claimed they were “duly elected” and submitted their slate to Congress and the other federal and state offices that receive official presidential elector documentation.

Just because Congress and former Vice President Mike Pence did not take any actions to swing the election to Trump based on the fake Arizona elector document, doesn’t mean a crime did not occur, Assistant Attorney General Nick Klingerman argued.

“Plenty of people were fooled by the acts of the co-conspirators here,” Klingerman said. “There are still many people in this country today that believe Arizona's election was stolen. It was based on lies from this conspiracy.”

Maricopa County Superior Court Judge Sam Myers said he will rule on the multiple motions to dismiss the case filed by defendants but did not give a timeline for those rulings.