'Fake elector' asks Arizona high court to toss case

PHOENIX — One of the defendants in the "fake electors'' prosecution is asking the Arizona Supreme Court to reject a last-ditch bid by Attorney General Kris Mayes to salvage her case.

Defendant Tyler Bowyer's attorney Andrew Pacheco is telling the justices that a Maricopa County judge was on firm legal ground earlier this year when he tossed the indictment against the 11 Republicans who signed paperwork inaccurately declaring Donald Trump won the 2020 election, as well as others close to the president who were accused of creating a scheme to deny the state's 11 electoral votes to Democratic victor Joe Biden.

Since that time, the state Court of Appeals has refused Mayes' request to review that ruling. She now wants the state's high court to weigh in.

Bowyer was one of the 11 "fake electors." 

If the justices side with him, that will end the current case against all remaining defendants. The only way for Mayes to proceed at that point would be to either convene a new grand jury and get a new indictment — this time with the evidence Maricopa County Superior Court Judge Sam Myers said was missing — or file a direct complaint and conduct a preliminary hearing.

The justices have not set a date to consider the issue.

Bowyer, like the other electors, is charged with conspiracy, fraud and forgery over the preparation of the document declaring that they, pledged to vote for Trump, were the rightful electors despite the fact that Trump lost Arizona by 10,457 votes.

The charges against others, including aides and attorneys for Trump, are based on allegations they were the ones who came up with the plan for Arizona and other battleground states to deny Biden the necessary 270 electoral votes, a move that could have let Congress decide the outcome of the race.

But Myers said the grand jurors were never given a copy of an 1887 federal law that directed Congress how to handle it when they get multiple slates of electors from any state.

That failure is significant, Pacheco is telling the justices, because prosecutors knew when they were presenting the case to the grand jury that some of the defendants claimed their actions were authorized by what is known as the Electoral Count Act. He said that, at the time the Republicans prepared their documents claiming to be the rightful electors, there were pending lawsuits "which, if successful, could have changed the Arizona election results.''

He is arguing that Myers was right to say the grand jurors, while being told about the law, never got the actual text, which might have caused them not to hand up an indictment.

Mayes contends that omission is irrelevant.

"The primary function of the grand jury is to determine whether probable cause exists to believe that a crime has been committed and that the individual being investigated was the one who committed it,'' the Democratic attorney general said in her own filing with the Supreme Court.

Mayes said it's irrelevant to the indictment whether those indicted believed their actions were in accordance with, and protected by, the Electoral Count Act. That's something they can claim at their trial as an "affirmative defense'' that they never intended to break the state laws they are charged with violating, she said.

"The grand jury's role was to determine whether probable cause existed that defendants had intent to defraud when they submitted the false ballots and then strived for a month to have them accepted as the true ballots,'' Mayes told the justices.

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"That determination does not turn on whether various provisions of the Electoral Count Act, cobbled together, permitted contingent ballots,'' she continued. "Rather, it turns on whether defendants' mistaken view of the law affected their intent, which the state instructed the grand jury to consider.''

Pacheco, in his new filing, does not view the failure to give the grand jurors the law the same way.

"The Electoral Count Act is central to defendants' defense that they were acting lawfully and without an intent to defraud,'' he wrote. He said the key is that the federal law "directly allows for multiple ballots from the same state.''

He said he law specifically addresses the actions the president of the Senate — the vice president — must take if Congress receives competing elector ballots from the same state.

"In this instance, there is no crime,'' Pacheco said. "Instead, Congress splits into separate sessions and decides which slate to honor.''

Under that law, if the House and Senate can't agree, at that point Congress counts the electoral votes that have been certified by the governor of that state. In this case, that was the slate of Democratic electors for Biden, with the formal results signed by Republican then-Gov. Doug Ducey.

Pacheco also told the justices there was no reason for the Attorney General's Office to deny the grand jurors the full law rather than just a discussion.

"Given that the grand jury heard 13 days of testimony, requiring the state to read a 20-page statute to the grand jurors is hardly an arbitrary or capriciously burdensome requirement or an abuse of discretion, especially when the statute is central to the defense,'' he said.

Mayes contends the failure to provide the full text of the Electoral Count Act law was "harmless error.'' She said even if the state had a duty to instruct the jurors on the federal law — a point the state is not conceding — it did not matter as the jurors had "either the substance or actual text of the relevant portions'' of the law. 

Pacheco is urging the justices to reject those arguments.

"The denial of a substantial procedural fight cannot be harmless error,'' he said. 

Even if the Supreme Court sides with Mayes, that doesn't automatically put her case back on track.

All it would do is direct the Court of Appeals to review the legality of Myers' decision to toss the indictment. And then whatever the appellate court ruled would be subject to Supreme Court review.

A total of 16 of the original 18 defendants remain in the case.

Jenna Ellis, one of Trump's attorneys, entered into a deal to have the charges against her dismissed based on a promise to cooperate with prosecutors.

And Loraine Pellegrino, one of the 11 electors, pleaded guilty last year to a single misdemeanor charge of filing a false instrument.