Thu, 30 Nov 2023

PHOENIX (CN) - Arizona state legislative leaders asked a Ninth Circuit court of appeals panel Thursday to block an order from a lower court demanding they turnover "privileged" communications regarding two voting laws that are the subject of an ongoing federal trial.

The trial, which began last week and is expected to end Tuesday, stems from four lawsuits concerning the same two voting laws that were consolidated into a single case against the state of Arizona, the secretary of state, the attorney general and all 15 county recorders.

The Democratic National Committee is a plaintiff in the case, as are political advocacy groups Mi Familia Vota, Voto Latino and the Arizona Asian American Native Hawaiian and Pacific Islander for Equity Coalition and the Tohono O'odham Nation.

State Senate President Warren Peterson and Speaker of the House Ben Toma intervened in the case in 2022, asserting on behalf of the Arizona Legislature that there were no insidious intentions behind the laws. The plaintiffs then sought to depose the lawmakers about the Legislature's intentions and requested that they turn over communications sent or received by either of them pertaining to the laws.

U.S. District Judge Susan Bolton, a Bill Clinton appointee, ordered the lawmakers to comply with the request in September, but the lawmakers appealed, claiming legislative privilege. The Ninth Circuit stayed the order in October, pending Thursday's appeal hearing.

U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, was unconvinced that legislative privilege still applies to Toma and Peterson.

"Why isn't their voluntary entry into this case, and assertion that their intentions were good, sufficient to waive the privilege?" he asked the lawmakers' attorney, Mark Dangerfield.

Dangerfield argued that they're still protected by privilege because they only spoke on behalf of the Legislature in general, not for themselves. So, they still can't be deposed as to their personal motivations.

But Daniel Volchok, who represents the plaintiffs at trial, told the panel he's seeking not the lawmakers' personal intentions, but those of the Legislature as a whole.

Volchock agreed with Hurwitz that the lawmakers' intervention into the case should mean they're subject to the same discovery disclosure as any other party.

"They have acted like all the other witnesses," Volchok told the panel. "They have sat at the defense counsel table for every minute of trial. They have cross-examined witnesses. They have objected to our witnesses."

Dangerfeild argued that the information the plaintiffs are seeking isn't relevant to the case because the lawmakers aren't testifying, so their intervention doesn't change the factual record. Hurwitz reminded Dangerfield that, at the time of Judge Bolton's ruling, the lawmakers weren't sure whether they would testify.

Volchok said the relevance argument shouldn't apply to the decision because the lawmakers only made that argument after Bolton's order was in place.

The challenged laws are House Bill 2492 and House Bill 2243. Passed in 2022, the laws are blocked from taking effect until the trial judge reaches a decision.

Under the laws, already-registered voters must show proof of citizenship to remain registered to vote in presidential elections or vote in any federal election by mail. County recorders are required to terminate the registration of anyone who hasn't provided the necessary documents.

The plaintiffs argue that the laws place an unnecessary burden on those who are already eligible to vote but don't have access to the required documents: a birth certificate, passport, driver's license, tribal identification number or a naturalization number.

No circuit court has ever ruled on the question specific to this appeal, as pointed out during the hearing by the U.S. Circuit Judge Johhnie Rawlinson, a Bill Clinton appointee.

U.S. Circuit Judge John Owens, a Barack Obama appointee, also sat on the panel.

Though the federal trial is expected to end next week, Bolton told the parties she will keep the record open "for a few days" to allow further evidence to be submitted if the panel affirms Bolton's order.

Hurwitz said the panel will "attempt to rule very promptly."

Source: Courthouse News Service

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