Arizona ‘fake electors’ clear first legal hurdle in free speech litigation 

PHOENIX (CN) — Defendants in Arizona’s “fake elector” case are closer to winning motions to dismiss fraud and conspiracy charges stemming from an apparent attempt to overturn the results of the 2020 presidential election, having shown that the charges brought against them seem intended to stifle First Amendment speech, a judge said Monday morning.

Maricopa County Judge Sam Myers said the 16 defendants demonstrated in their briefings that the charges in the April 2024 indictment appear on their face to attack what is “at least in part some arguably lawful speech,” violating Arizona’s anti-SLAPP law, which prevents legal action seeking to suppress free speech.

Myers said that Arizona Democratic Attorney General Kris Mayes’ declaration when announcing the indictment that “this should never happen again” can be construed as assigning political motivation to the prosecution.

State prosecutors now have 45 days to respond to Myers’ finding and justify the charges in the face of the anti-SLAPP statute, proving they were brought to enforce the law and not to suppress speech. Myers will rule on the anti-SLAPP motions to dismiss after he receives the state’s response, he said.

In light of the decision, Myers stayed all discovery proceedings, but ordered the parties to prepare to argue remaining motions to dismiss and motions to remand to the grand jury Tuesday morning. Arguments are expected to last the whole day.

Meanwhile, state prosecutor Nick Klingerman said he intends to file a special action with the state Supreme Court to negate Myers’ decision.

“We disagree with this ruling, and we will pursue an appeal,” Mayes later said in a news release. “It is not the lawful exercise of free speech to file forged slates of electors to deprive Arizona voters of their right to vote.”

Several current and former Arizona politicians were indicted last year — alongside Donald Trump attorneys John Eastman and Rudy Giuliani — on charges of conspiracy and fraud after 11 Republicans were falsely certified as the state’s official electors. They signed a fraudulent certificate one month after the 2020 election handing Arizona’s electoral votes to Trump, who lost Arizona to Joe Biden by more than 10,000 votes.

The defendants say they submitted the “alternate electors” to Congress as a contingency plan on the chance that the U.S. Supreme Court found evidence of fraud in the election and was forced to throw out the Democratic votes. But nothing in the documents the electors signed identified them as a contingency plan, and public statements and private messages included in the indictment imply intent to pressure Congress and then-Vice President Mike Pence to certify Trump as the president regardless of pending litigation.

Giuliani and other Trump attorneys coordinated similar actions in six other states, including Nevada and New Mexico.

Trump attorney Jenna Ellis agreed to cooperate with the prosecution on Aug. 5, 2024, in exchange for the state dropping the counts against her. Lorraine Pellegrino, Republican elector and former secretary for the Arizona Trump Electors, pleaded guilty the following day and received three years of probation.

The parties were scheduled for all-day arguments on the defense’s anti-SLAPP motions when Myers threw the courtroom for a loop.

“I’m about to break all of your hearts,” he joked, before telling them he doesn’t require oral arguments and came to a decision in the first step of the anti-SLAPP analysis based on filed motions.

The defendants spent nearly three days in August arguing the merits of their anti-SLAPP motions before Maricopa County Judge Bruce Cohen.

In those hearings, the defendants told Cohen that none of the independent acts listed in the indictment — like filing action in the Supreme Court to challenge the electoral outcome, or writing to Congress or the vice president to urge them to declare Trump the winner or remand the decision to the state Legislature — is a crime of its own nature.

Defense attorneys further argued that the state has provided no evidence of an agreement between the electors and other accused conspirators to violate the law, nor is there any evidence of what specifically the electors were told to do or whether they were told that the signing was only a contingency plan.

Klingerman said the statute, amended to include criminal charges two years after the actions in question, may now constitute an ex-post-facto law — unconstitutionally retroactively adjusting the original standards — or may otherwise violate the federal rules of criminal procedure.

Cohen, who was more lenient than Myers in giving the defense time to argue, recused himself from the case in November after the defendants took issue with an email he wrote denouncing misogyny peddled by Trump and his followers.

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