Mayes will pursue Arizona 'fake electors' case

Attorney General Kris Mayes is going to continue to pursue criminal charges against the 11 Republicans who claimed to be the state's legally elected electors despite the fact that did not reflect the actual results of the 2020 presidential race.

Mayes said Friday that she will seek Supreme Court review of a ruling which quashed the original indictment. It names not just those who signed the certificates saying a majority of Arizonans voted for Donald Trump in 2020 — they did not — but also seven others in the Trump orbit, including several attorneys and Trump's chief of staff from his first term as president, also will not face the same felony charges of fraud, conspiracy and forgery.

Trump himself was never charged but named as an unindicted co-conspirator.

Mayes contends they, along with the electors, all were part of a scheme to undermine the results of the 2020 election by creating enough doubt in the results in Arizona and other battleground swing states by submitting paperwork claiming they were the legal electors. She said that was designed to get Vice President Mike Pence, who was the presiding officer of the Senate, to refuse to accept the official results from Arizona and other states, preventing Biden from getting the necessary 270 electoral votes, a move that could have allowed Congress to give Trump an immediate second term.

Mayes, in a prepared statement, said she remains convinced that it is necessary to pursue the case to "uphold the law and protect Arizonans."

"An independent grand jury of ordinary Arizonans found that there was sufficient cause to charge the defendants with the alleged crimes," she said. "These defendants were charged based on two things: the facts and the law."

Now she has to convince the state's high court to restore that original indictment which charged all the defendants with fraud, conspiracy and forgery.

Mayes could face an uphill battle.

Maricopa County Superior Court Judge Sam Myers threw out the original indictment against all 18 earlier this year.

He concluded that the grand jurors were not provided with a key piece of information that could have backed up their claim there was no intent to defraud anyone because the 1887 federal Electoral Count Act actually addresses the possibility of competing electors from a state and how Congress must handle them. And the contention of the electors and those indicted with them was that the results in Arizona were not clear — there actually was a legal challenge — and they were simply submitting the GOP slate to Congress should it turn out that Biden actually lost.

That decision was upheld unanimously by a three-judge panel of the Court of Appeals.

It is that decision that Mayes hopes to overturn, telling the justices that the 1887 law is irrelevant to the case.

"The Electoral Count Act is a federal statute that provides no defense to the state fraud, forgery, and conspiracy charges,'' wrote Assistant Attorney General Nicholas Klingerman, who has been spearheading the prosecution for her office.

He also wants the high court to conclude that instructing the grand jurors on the federal law "would be misleading at best." And Klingerman said it is legally up to a trial jury -- and not the grand jurors as Myers said — to determine whether the defendants' legal interpretation of that law is correct.

The defendants now have 30 days to respond.

But even if the high court agrees with Mayes, that does not mean the case will go to trial as scheduled next year — if at all.

First there is another legal issue that has to be resolved: whether Mayes violated the state's Strategic Lawsuit Against Public Participation law.

SLAPP, as it is known, is designed to prevent public officials from using the court to punish and prevent speech on political issues. And Myers, in a preliminary ruling in February, said there was enough presented to him to believe that the indictment appeared to attack what is "at least in part some arguably lawful speech.'"

The judge at the time gave the attorney general's office 45 days to respond. But that issue was put on the back burner until there was a resolution on the question of whether there case would proceed after the indictment was thrown out.

There's also a separate bid by Christina Bobb, one of Trump's former lawyers who is among those indicted, to have Mayes — and her entire office — disqualified entirely from hearing the case.

She says that much of the case was prepared not by the attorney general's office but instead by States United Democracy Center.

A copy of the organization's 47-page report, obtained by Capitol Media Services, shows that States United provided a timeline of the events leading up to the 11 Republicans submitting their false statement about the election results to Congress and claiming they were the true electors. More to the point, it also included a list of charges that States United said could be brought against not just the GOP electors but also against others in Trump's orbit -- like Bobb -- who it said could be charged with being part of a conspiracy.

And there's something else.

At this rate, the case actually could run into the 2026 election where, Mayes is seeking a second term.

And if Mayes were defeated — she won her first race by only 280 votes — it would leave any decision whether to pursue the case to a Republican successor.

The decision to try to get the indictment reinstated drew criticism from attorneys for state Sen. Jake Hoffman. The Queen Creek Republican was one of the 11 who signed the certification declaring that he and his colleagues represented the legal electors in the 2020 race.

"The court has already made a preliminary finding that Mayes pursued the case to punish the defendants for lawfully exercising their constitutional rights,'' they said in a prepared statement, a reference to the yet-to-be-decided issue of whether the attorney general violated the anti-SLAPP law.
If nothing else, they said that Mayes should use the time she got in delaying the case while seeking Supreme Court review will conclude that dismissing the case is what is "right and just for the defendants and the people of Arizona."

Anthony Kern, a former state senator who also signed the certification, said all Mayes is doing is "wasting money."

"If she drops the case and she loses, her base is going to be mad at her," said the Glendale Republican, who is trying to get back into the Senate after an unsuccessful bid in 2024 for Congress.

"I get that,'' he said. "But how dumb can you be?"

And Kurt Altman, who represents Michael Roman, who headed Election Day operations for the 2020 Trump campaign, said while he was disappointed by Mayes' decision it is "not surprising."

Similar cases against electors and Trump allies in other states have since fallen apart.

Prosecutors in New Mexico and Pennsylvania never brought charges.

A Michigan judge tossed the charges there. And the case stalled in Georgia after Fulton County Attorney Fani Willis was disqualified from pursuing the charges over a "significant appearance of impropriety'' related to a romantic relationship she had with a top prosecutor in the case.
But other cases in Nevada and Wisconsin remain alive.