On the heels of the Chochise County Board of Supervisors’ decision not to approve the county’s canvass, I noted yesterday that I expected a mandamus action filed in the Arizona Supreme Court. But I was wrong.
Two actions were filed, both in Arizona Superior Court in Cochise County. One was brought by Secretary of State Katie Hobbs, represented by States United Democracy Center. The other was brought by the Arizona Alliance of Retired Americans, represented by the Elias Law Group.
Arizona Alliance recently botched (in my judgment) a voter intimidation case in federal court by seeking overbroad relief, as I noted at the time. The more narrowly-tailored relief in a parallel case brought by Protect Democracy was then promptly successful. Arizona Alliance briefly sought an emergency appeal from the federal court’s rejection, then abandoned it once it saw the parallel lawsuit was successful.
States United recently weighed into a Pennsylvania election dispute this summer, seeking mandamus relief, which, as I noted at the time, didn’t appear to be the appropriate relief. But they also (properly) sought injunctive relief in the trial court. The Pennsylvania court (appropriately) rejected the mandamus claim and granted the injunctive claim.
My initial thought in this Cochise County dispute was that litigation would track the litigation this summer in a state next door, New Mexico. Mandamus is appropriate (unlike this summer’s Pennsylvania case) because, like in New Mexico, there’s a ministerial (non-discretionary) duty from the board. The Arizona Supreme Court has original jurisdiction in mandamus cases. An original action could be swiftly filed there, and the case more speedily and tidily resolved, without the more time-intensive opportunity for appeal. (Indeed, this is perhaps the greatest advantage of mandamus over injunctive relief.)
There are tradeoffs, of course. For one, Hobbs sought injunctive and declaratory relief in addition to mandamus relief. This is perhaps a belt-and-suspenders approach, but it also may limit the forum for relief. (Arizona Alliance only sought mandamus.)
For another, the Arizona Supreme Court has discretion to decline jurisdiction and could send it back to the superior court, eating up time. But in a time-sensitive matter with effectively no factual investigation necessary, it strikes me that the Arizona Supreme Court, like state supreme courts in Michigan and New Mexico recently, would take up mandamus and act promptly.
Another possibility is seeking “local buy-in.” The notion that the county would refuse to send the votes of this Republican-leaning county into the state certified total is certainly controversial, even among Republicans in the county, and perhaps the effort is to secure a local judgment. And maybe local officials would comply after a local judge issues an order against them, I suppose.
There’s still some time, of course, but the formal deadline for the state to certify the results is December 1, and it has some leeway to move as late as December 8.
In my judgment, it’s a curious move for these two sets of plaintiffs to independently choose trial court, when the state supreme court has been the preferred place for mandamus relief in election disputes like this in recent years, and where time is of the essence. (Arizona Alliance apparently filed first, and I’m not sure that affected Hobbs’s decision.) That said, there’s still some time, even if not much. And perhaps we’ll see if these strategic litigation decisions yield the most effective result for the litigants at the end–I’m open to watching how these disputes play out to find the optimal path forward for future legal disputes.