LIVE-TWEETING today's court arguments on the #AZaudit, beginning at 10:30.
We'll be joined by election security consultant and triple threat @ThePolitiKat and all around threat (and election attorney) @TomRyanLaw!
Ct filings, more: bit.ly/AZlaw1186
We'll be joined by election security consultant and triple threat @ThePolitiKat and all around threat (and election attorney) @TomRyanLaw!
Ct filings, more: bit.ly/AZlaw1186
And, you can follow along with us (and keep us on our toes) by watching here (Ct's site): bit.ly/3tOmM0m
UPLOADING yesterday's filings for reading.
1) Declarations filed by Plaintiff @azdemparty
2) @SecretaryHobbs proposed Complaint vs @FannKfann/State Senate/Ninjas
3) Ninjas me-too'ing Senate's filing about filing under seal.
bit.ly/AZlaw1186
1) Declarations filed by Plaintiff @azdemparty
2) @SecretaryHobbs proposed Complaint vs @FannKfann/State Senate/Ninjas
3) Ninjas me-too'ing Senate's filing about filing under seal.
bit.ly/AZlaw1186
FYI, I've notified the Court personnel about the issue with the live feed.
They should NOT begin without the public and media being able to watch!
--PW
They should NOT begin without the public and media being able to watch!
--PW
We have some new attorneys jumping in this morning.
--Greg Jernigan, the State Senate's general counsel, is on.
--Jordan Wolff from Wilenchik & Bartness is also here for Cyber Ninjas. Supplementing the Kolodin firm.
--pw
--Greg Jernigan, the State Senate's general counsel, is on.
--Jordan Wolff from Wilenchik & Bartness is also here for Cyber Ninjas. Supplementing the Kolodin firm.
--pw
Jordan Wolff, attorney is the new Cyber Ninjas attorney from the law firm of Wilenchik & Bartness.
wb-law.com/attorneys/jord…
-TR
wb-law.com/attorneys/jord…
-TR
Judge Martin is on the bench. Hearing underway. - TR
First issue whether Cyber Ninjas have to publicly disclose their policies and procedures. Second issue is going to be the injunction. Also, the substitution of counsel request. - TR
Wilenchik makes Emergency Motion to continue today's arguments, based on Cyber Ninjas' desire to switch firms last night.
Judge Martin denies the substitution of counsel because the exigencies of this case means it has to go forward.
--PW
Judge Martin denies the substitution of counsel because the exigencies of this case means it has to go forward.
--PW
Wolff had filed an emergency motion to delay hearing today. Wolff claims he is not prepared to proceed. Court asks Kolodin how to proceed? Emergency motion for delay denied. Wolff and Kolodin have to decide how to proceed now.... - TR
This is already interesting. And I’m the non-lawyer in the group. -KC
But, Kolodin doesn't want to argue today's under seal motion if he's about to get kicked out of the case.
--PW
--PW
Judge Martin now allows Wilenchik's Wolff to sub in, but denies the emer motion to continue. Wolff will have to handle it the best that he can.
--PW
--PW
Request ex parte denied. Motion to withdraw/substitution of counsel granted. Motion to continue hearing denied. Wolff will have to proceed. In the words of Homer Simpson DOH! - TR
Langhofer starts arguing the under seal issue. He reps State Senate, and wants to make clear he doesn’t share the Ninjas’ trade secrets argument. Just the legislative immunity part of the issue. (You can’t tell us what to do.)--PW
Langhofer making legal(istic) arguments on it. For his filing, go to bit.ly/AZlaw1184 --PW
Langhofer now says this audit/recount is NOT legislative function. HOWEVER, that was the FOUNDATION of their argument in the case against the County to enforce the subpoena. --PW
I'm going out for a ciggy and coffee. Lemme know when Langhofer is done.... -TR
The story starts years ago, when I first started studying immunity. --Langhofer (sorta)
--pw
--pw
Kory Langhofer is currently arguing for Legislative Privilege/Immunity for the Senate and their agent performing the audit. He is claiming legislators received thousands of calls from constituents concerning the 2020 General Election. -KC
Boys & Girls, gather 'round. If you start your argument with "When I first studied this issue back in law school" you have zilch, zip, zero, nada of a meaningful argument going on. -TR
Langhofer raises one of the Brnovich v Board of Regents cases, where the AZ Supreme Court recently considered AG's right to sue ABOR.
Here's that Opinion: bit.ly/3t14rwb
--PW
Here's that Opinion: bit.ly/3t14rwb
--PW
BTW, Langhofer mentioned law school. He graduated from Yale. --PW
Folks, if you are watching the live stream, it may be frozen - Kory Langhofer is currently arguing. We will update when they change speakers, because at this point we’ve watched so much 2020 election litigation, we know which voice goes with which attorney. - KC
Langhofer may intentionally taking time to permit Cyber Ninjas' new attorney to get up to speed. (Also leaves less time for the trade secrets argument!) --PW
The press and the Democrats won't treat the State Senate's documents about the audit/recount fairly. --Langhofer.
Wait, wut?
--PW
Wait, wut?
--PW
Andy Gaona is arguing for Plaintiffs AZ Dems. He praises the Judge’s opinion yesterday that this case turns on how the Senate/Ninjas handle the ballots.--PW
Gaona: “Cyber Ninjas are certainly acting under color of state law and they are being paid by taxpayers.”--PW
Gaona now argues that Langhofer didn't get the gist of the Brnovich v ABOR case right. This (below) is a key paragraph.
--PW
--PW
Gaona: Even if the Senate has leg immunity, they waived it by selectively speaking about it publicly to right-wing media outlets.
--PW
--PW
Gaona now bringing up Fann's (ill-advised) comments made yesterday on the Mike Broomhead radio show. Perfect. -TR
Gaona: This audit/recount are NOT legislative acts. That’s what is behind the concept of legislative privilege/immunity. --PW
Gaona: "The simple thing for them to do is release the policies and procedures for (the parties and public) to see." --pw
Dan Barr for the 1st Amendment Coalition now up to bat. -TR
Barr (First Amdmt Coalition): Cyber Ninjas has provided no facts/affidavits/etc to back up their claim that they are trade secrets that should be under seal. Circular argument: "Because they says its so."
(That's what Ninjas do, Dan!)
--PW
(That's what Ninjas do, Dan!)
--PW
Dan Barr (doing a lawyer thing quoting case law) contends: A party asserting secrecy must set forth each and every specific fact to obtain the secrecy. Broad allegations will not suffice. Ain't no specifics with the Cyber Ninjas. Deadly stuff by Danny B. -TR
Barr argues that the CN don’t make a strong enough argument to seal their procedures. “I find it fantastic to believe there is legislative privilege involved in the security of the ballots or election machines.” So do I. -KC
"Their 2nd rationale is even weaker than that (trade secrets)."
That 2nd arg is that its in the state's interest to keep it under seal cuz it would impact Senate's relationships with its contractors.
--pw
That 2nd arg is that its in the state's interest to keep it under seal cuz it would impact Senate's relationships with its contractors.
--pw
Bendor (for Hobbs) makes another good point. Ninjas claim it is totally transparent because of the cameras live streaming. So, it contradicts to claim that there are trade secrets.
--pw
--pw
Josh Bendor is next, speaking on behalf of @SecretaryHobbs -KC
Bendor (for Hobbs): the legislative immunity from being served with this lawsuit shouldn't apply because it is not keeping them away from their legislative duties. That was the purpose of that immunity.
Also, the speech and debate immunity is not impaired here.
--pw
Also, the speech and debate immunity is not impaired here.
--pw
Bendor rightly points out that in election administration, audits are used and all procedures and policies are made public, as the point of an audit is to instill public confidence and engagement in the election result. - KC
Bendor rightly points out that in election administration, audits are used and all procedures and policies are made public, as the point of an audit is to instill public confidence and engagement in the election result. - KC
Wow! Mr. Wolff - the new counsel for Ninjas - doesn't want to argue anything.
Martin is taking a recess to consider the issues.
5-10 minute break.
--pw
Martin is taking a recess to consider the issues.
5-10 minute break.
--pw
And we're on a break. - TR
From right before the break - I pulled this quote to make clear the position of the Plaintiffs - KC
https://twitter.com/thepolitikat/status/1387474311330418688
High school, Tom? --pw
Well, to summarize this hearing so far: (1) Judge Martin is a no-nonsense kind of judge, with no hidden agenda. He's fair, polite, and certainly gives everyone their opportunity to make their argument. (2) He saw through the CyberNinja nonsense about changing attorneys. -TR
(Noted: Tom totally ignores high school remark.) --pw
BACK ON THE RECORD.
Judge Martin ruling on Motion To Seal (by Ninjas). 4 things they had to show. --PW
This is not going to go well for Senate/Ninjas. --pw
First prong failure: doesn't extend to Ninjas/contractors.
2nd prong failure: speech and debate immunity.
(Waiver of immunity: Judge Martin says Senate did NOT waive right to assert it.)
3rd prong failure: Ninjas didn't show overriding interest exists and overcomes public int. -p
2nd prong failure: speech and debate immunity.
(Waiver of immunity: Judge Martin says Senate did NOT waive right to assert it.)
3rd prong failure: Ninjas didn't show overriding interest exists and overcomes public int. -p
Court holds off on requiring the public access to the dox filed under seal until tomorrow (to give Ninjas time to go to AZ Supreme Court).
--pw
--pw
Court will stay its order until tomorrow at noon. If no special action filed by then, the CN policies and procedures will be made public. -TR
Next up the TRO. -TR
NO TRO. --pw
TRO will not be granted. Plaintiffs' have not met their burden. -TR
The Plaintiffs' declarations don't show enough actual evidence to threats to voters/ballots. So, not placing restrictions on the audit/recount for now. --pw
There IS an open Special Action case in front of the Arizona Supreme Court. Plaintiffs were supposed to file today, Defendants tomorrow. We'll see. --pw
Judge gives parties chance to say where we go from here.
Desai for Plaintiffs says a TRO should be judged on a "sliding scale" when there is danger "of grave and immediate harm."
--pw
Desai for Plaintiffs says a TRO should be judged on a "sliding scale" when there is danger "of grave and immediate harm."
--pw
The judge(s)/justices are very reluctant to lay down guiderails for the audit/recount because we are still dealing with the legislative branch. --pw
Desai notes that when the Ninjas' documents come out from under seal tomorrow, the plaintiffs will likely have more evidence to present to Judge Martin.
--pw
--pw
Bendor (for @SecretaryHobbs) verbally moves that Judge Martin allows for IMMEDIATE discovery/disclosure, so that the SOS can go into the Colisseum to see what's happening. --pw
AzSOS attorney invokes Rule 34 ARCP to allow the Hobbs office to go to the MadHouse on McDowell and be able to observe what is going on. - TR
Langhofer reminds court that no voters have had their ballots discarded, disclosed, etc. Therefore, Plaintiffs will continue to have trouble proving irreparable injury.
--pw
--pw
Langhofer, continuing on irreparable injury, says the State Senate would be the ones injured if Ninjas announced that Trump received more votes.
(Uh-huh, yeah.) --pw
(Uh-huh, yeah.) --pw
Langhofer says Democratic Party has been invited to participate in the audit/recount. --pw
BREAKING: Judge Martin orders parties to meet by 5pm TODAY to try to come to an agreement on allowing @SecretaryHobbs access to Colisseum.
No agreement? File tomorrow by noon.
--pw
No agreement? File tomorrow by noon.
--pw
With that, the hearing is CONCLUDED.
--PW
--PW
Judge rules CN/Az Rep Senate meet and confer with Hobbs office to allow for observation and inspection of the audit process. -TR
Frankly, it is amazing that the plaintiffs had not demanded access earlier. Seems like Judge Martin was ready and waiting for that speaking motion from @SecretaryHobbs.
--pw
--pw
And, that's a wrap. Court adjourned. Thanks PW & KC for letting me lounge on the couch here, and spew forth my view. -TR
NUTSHELL:
1) Under seal filings by Ninjas: DENIED but won't be opened until tomorrow, to give time for review.
2) Dems' TRO/injunction: DENIED
3) Parties have 'til 5pm today to try to work out ACCESS for Secy/State and Plaintiffs. If not, they can file a motion tomorrow (12pm).
1) Under seal filings by Ninjas: DENIED but won't be opened until tomorrow, to give time for review.
2) Dems' TRO/injunction: DENIED
3) Parties have 'til 5pm today to try to work out ACCESS for Secy/State and Plaintiffs. If not, they can file a motion tomorrow (12pm).
4) The Ninjas tried to switch counsel last night and use it to delay this a.m.'s hearing. Judge DENIED that effort, kicked off Kolodin (old counsel) and the new counsel (Wolff from Wilenchik) had NOTHING to say.
--pw
--pw
MANY thanks to @ThePolitiKat & @tomryanlaw for helping cover this 1 1/2 hour hearing!
For more filings, analysis and reporting, please keep checking back here and on our site: bit.ly/AZlaw1186.
Cheers! --Paul
For more filings, analysis and reporting, please keep checking back here and on our site: bit.ly/AZlaw1186.
Cheers! --Paul
I'll try to stick around to answer a few questions, etc.
Hey, fellow Zonies! For those of you wondering about who Kory Langhofer, Republican go-to-lawyer guy is, he's this guy. I was on
@brahmresnik
when this came wafting through the studio air.... - TR
@brahmresnik
when this came wafting through the studio air.... - TR
Sorry, I've gotta run, but thanks for so many great questions and points! Keep 'em coming!
(Coincidentally, I actually have a brief to finish about unintended consequences from a bill passed by the AZ Legislature in 2015. The more things change....) --pw
(Coincidentally, I actually have a brief to finish about unintended consequences from a bill passed by the AZ Legislature in 2015. The more things change....) --pw
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