Arizona Attorney General Mark Brnovich filed an amicus curiae brief Monday in the U.S. Supreme Court with 22 states signing on, demanding the court overrule a decision by the Sixth Circuit allowing state officials to surrender in lawsuits challenging state laws they don’t want to defend. The move comes as Secretary of State Katie Hobbs, a Democrat, is refusing to appeal adverse decisions striking down Arizona’s elections laws.
The brief relates to Kentucky v. EMW Women’s Surgical Center, where Democratic Kentucky Governor Andy Beshear failed to appeal a court decision striking down a Kentucky law banning dismemberment abortions during the second trimester of pregnancy. Kentucky’s Republican Attorney General Daniel Cameron is trying to intervene in order to defend the law.
“Our office has stepped in several times over the last year to defend state and federal laws and rules when the named parties refused to,” Brnovich said in a statement. One of those cases is Brnovich v. DNC, which Brnovich argued in front of the Supreme Court in March. The case arose when the Democratic National Committee sued Arizona over its bans on voting in another precinct and ballot harvesting. Hobbs didn’t bother to appeal an adverse decision against the laws, so Brnovich and the Arizona Republican Party appealed.
In the Kentucky case, Brnovich argued, “The fact that the Court has granted certiorari in Brnovich only underscores that even if one state official does not wish to pursue an appeal to conclusion, the issues may still be meritorious and the State retains its legitimate sovereign interest in defending its laws.” In other words, although SOS Hobbs may not want to defend Arizona’s election laws, there are other officials with standing that can step in to defend those laws.
Since Brnovich was allowed to intervene in the DNC case, he argues that other cases should be treated similarly. The courts frequently allow outside parties to intervene in cases, so it seems even more persuadable to allow an entity representing the state to replace another entity representing the state.
He warned on Wednesday about the Kentucky case, “Absent correction by this Court, the laws of all states are threatened by the possibility that their democratic processes will be circumvented by strategic surrenders.” Oral argument in the case is expected to be scheduled for fall.
Brnovich has taken a leading position combating election fraud in Arizona. He was involved in six election lawsuits last year, including successfully blocking county recorder Adrian Fontes, a Democrat, from sending mail-in ballots to everyone in Maricopa County. He issued a legal opinion stating that the Arizona Legislature has the authority to conduct the ballot audit, and prior to that told the Maricopa County Supervisors to double the hand audit they were conducting, which they ignored. Last week, he sent a stern letter to Attorney General Merrick Garland telling him to butt out of Arizona’s ballot audit on grounds of federalism.
Brnovich recently announced that he is running for U.S. Senate, where he will be challenging Democrat Mark Kelly. According to ProPublica, Kelly only votes against his party 1.6% of the time.
In addition to Arizona, the Attorneys General of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia have joined the effort.
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Rachel Alexander is the State House reporter at the The Arizona Sun Times and has been involved in politics for years. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Arizona AG Mark Brnovich” by Mark Brnovich.