Friday, November 21, 2014

BEHIND THE RHETORIC, READ: Obama's Immigration-Related Executive Actions CANNOT Apply To Parents of DACA Recipients (DREAMers), Dept. Of Justice Memo Analyzing Legal Basis Determines

(This article contributed by Arizona attorney Paul Weich.)

Behind the rhetoric, the White House has released two Presidential memoranda regarding immigration today, and it took the somewhat unusual step of releasing the Office of Legal Counsel memo analyzing the legal bases for the executive actions.

In that 32 1/2 page memo (below), dated Wedenesday, Karl R. Thompson - the Principal Deputy Assistant Attorney General in the Office of Legal Counsel - determines that the Department of Homeland Security's proposed prioritization and deferred prosecution "for parents of U.S. citizens and lawful permanent residents WOULD be legally permissible", but that similar action for parents of DACA recipients WOULD NOT be permissible.



The memo's logic for not including parents of DACA recipients is chiefly that DACA recipients themselves are here under deferred action and have no legal status; therefore, the family unity policy of U.S. immigration law would not have a foundation to grant the parents deferred action.

As for the executive orders themselves, the White House website has posted two Presidential Memoranda, but no far-reaching Executive Orders.  The Memoranda (below) establish a White House Task Force on New Americans, and directing various agencies to come up with recommendations for "modernizing and streamlining the U.S. Immigrant visa system."




(This article contributed by Arizona attorney Paul Weich.)

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Thursday, November 20, 2014

UPDATE, MCSALLY/BARBER RECOUNT: Barber's Attorneys Submit 24 More Declarations - 156 Total - From Voters Who Claim Were Mis-Directed By Election Workers, Want Votes To Count

Rep. Ron Barber's legal team today submitted declarations from 15 more voters in Pima County and 9 in Cochise County who swore that they were misdirected by election workers, with their ballots rejected.  Together with the 132 declarations submitted on Monday, Barber has now located almost enough apparently-disenfranchised voters to erase GOP challenger Martha McSally's current 161-vote lead.

If you add in 11 additional unnamed Cochise County voters who had their early ballots rejected because they failed to sign the outer envelope and were not given a chance to remedy (as Barber argues they should have), and Barber has located 167 votes he believes should be counted.

As reported earlier by Arizona's Politics, the Cochise County Board of Supervisors today approved the official canvass and rejected the memorandum and declarations submitted by Barber. Pima County did likewise on Monday.

Here is one of the declarations, by a Richard Michael Ross. He describes confusion among the election workers at his polling place, which eventually led to him being instructed to vote a provisional ballot. That ballot was then rejected because he should have been instructed to vote at a neighboring polling place.


"Southern Arizonans who registered to vote and showed up to vote on Election Day deserve to have their voices heard," said Kyle Quinn-Quesada, campaign manager for Ron Barber for Congress. "Mistakes happen in every election, and in a race this close, the right thing to do is to rectify those mistakes by counting every lawful vote."

Once the Arizona Secretary of State certifies the election on December 1, an automatic recount will take place.

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UPDATE, MCSALLY/BARBER RECOUNT: Cochise County Approves Canvass, Rejects Barber Bid To Approve More Ballots

The Cochise County Board of Supervisors this morning approved the official canvass of the November 4 election results, rejecting a bid by attorneys for Rep. Ron Barber (D-CD2) to order the counting of ballots by voters who were allegedly misdirected by election workers.

GOP challenger Martha McSally will take a 161-vote lead to the official certification of the election (Dec. 1) and the automatic recount that will follow.

The Cochise Supervisors' decision follows that of the Pima County Board of Supervisors on Monday. In front of them, Barber attorney Kevin Hamilton pleaded the cause of at least 132 voters who signed sworn statements detailing how they had been given incorrect information and had not had their provisional ballots counted.  Cochise County has a much smaller - and, less Democratic - portion of the toss-up Congressional District 2, but Hamilton said that Rep. Barber believes that "just because mistakes are made doesn't mean voters get disenfranchised."

More details to follow.

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Tuesday, November 18, 2014

Barber Attorneys Ask Pima Supervisors To Order Count Of 132 Added Votes; McSally Campaign Claims Opponent Trying To Steal Election By "Exploit(ing) the law"

Attorneys for Rep. Ron Barber (D-CD2) appeared before the Pima County Board of Supervisors with a stack of affidavits from 132 voters who did not have their votes counted for a variety of reasons.  Barber asked that the Supervisors order the Elections Department to tabulate those votes.

During Barber's news conference call, the National Republican Congressional Committee ("NRCC") Chairman sent out a McSally fundraising email urging supporters to prevent a "stolen victory" by "liberal Democrats who want to exploit the law."

After the initial counts in Pima and Cochise counties, challenger McSally holds a 161 vote lead over the 1 1/2 term incumbent.  A recount will be conducted in December if the certified numbers show a difference of 200 votes or less between the two candidates.

The voters who signed sworn declarations claim their ballots were not counted for a variety of reasons, including: (1) a voter's spoiled ballot was incorrectly replaced by a provisional ballot; (2) an elderly voter's early ballot was not counted because her signature has changed; and (3) a retired teacher recently moved, went to closest polling place and was improperly advised by the pollworker.

Barber attorney Kevin Hamilton says that the common element is that the 132 would have had counted ballots but for errors by pollworkers or Election Department workers.

His argument to the Board of Supervisors was that "just because mistakes are made does not mean voters get disenfranchised."

Hamilton indicates that they will be submitting some currently-uncertain number of similar declarations from voters in Cochise County.  Cochise's Board of Supervisors is scheduled to approve the canvass on Thursday.

After reports that the Pima Supervisors had just rejected his request (during the conference call with reporters), Hamilton stated "that's disappointing, it's a mistake and we'll be examining our options."

The request had been made pursuant to A.R.S. §16-643, which provides the methods for the canvass.

The Board of Supervisors had been presented with a memorandum earlier in the day from County Administrator Chuck Huckelberry, urging approval of the vote-counting.  The memo (republished below) indicates that 776 (of 10,118) provisional ballots were not counted for a variety of reasons.  (The validity rate was 92.3%) Those reasons include: 


Under the subject line "Stolen Victory?", NRCC Chairman Rep. Greg Walden wrote on behalf of the McSally campaign and touched the hot-buttons of the coming recount, lawyers, Nancy Pelosi and Barack Obama to urge contributions.  The email begins by stating that "liberal Democrats who want to exploit the law" and trying to steal McSally's victory.  (The entire email is reproduced below.)




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Thursday, November 13, 2014

Arizona Obamacare Premiums DECREASE 10% For Key Health Insurance Benchmark Policy; Arizona, New Mexico Lowest In Nation

(This article contributed by Tempe attorney Paul Weich, and Tempe insurance agent George Fontaine. Mr. Fontaine, of RSP Insurance, is a Certified Health Insurance Marketplace agent.)

Lost in all of  the news coverage* of the 2nd open enrollment period for health insurance policies in Arizona's Obamacare Marketplace is that premiums for the benchmark policy dropped 10% from last year.  Also, that New Mexico and Arizona have the lowest premiums in the nation for that policy.

The non-partisan Kaiser Family Foundation compared the 2014 and 2015 premiums for the second-lowest "silver" plan in the largest city of each state**. That 2nd-lowest is the benchmark used in calculating the amount of financial assistance an individual may receive (along with other factors).

For a 40-year old non-smoker (the plans cannot distinguish between men and women), the 2nd lowest silver plan in the Phoenix area is $177/month.  It is offered by Meritus, and is their Neighborhood Network Silver HMO MIHS plan.  Here is the basic synopsis, from Arizona's Marketplace (set up by HHS). (This year, you can easily click on links to the Summary of Benefits and the Provider Directory; last year, you had to visit each insurer's website separately.)

The various categories of plans (Bronze, Silver, Gold, Platinum, Catastrophic) "differ based on how (the customer and insurance company) share the costs of care."

Arizona has 11 different insurance companies offering 44 different silver plans through the Marketplace.  That is a substantial increase from the first year of the Marketplace.  As last year, there are Navigators available to help individuals and families figure out how much premium assistance is available.  HHS has worked closer with insurance agents this year, and many have taken courses to help choose the best plan.

(This article contributed by Tempe attorney Paul Weich and Tempe insurance agent George FontaineMr. Fontaine, of RSP Insurance, is a Certified Health Insurance Marketplace agent. )

* And certainly lost in the flood of negative campaign ads.

** The table only looks at 47 states and the District of Columbia. Arizona's Politics did not determine which three states are MIA, and why.

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Gov.-Elect Ducey Begins Standing Up To Obama - Worrying About President's Executive Action Re: Immigration

Arizona Governor-Elect Doug Ducey (Repub.) began fulfilling his campaign promise to "stand up to the Obama Administration".  In a statement released this afternoon in advance of an expected executive order by President Obama about immigration policy, Ducey said it "would be the wrong approach" and that "I worry it will only make matters worse."  (Full statement below.)

***
PHOENIX (November 13) – Governor-elect Doug Ducey issued the following statement today in response to reports that President Obama is considering unilateral executive action on immigration:
We are a nation of immigrants, but we are also a nation of laws.  I believe that everyone must be treated with respect, but the first thing Washington needs to do is rebuild our trust, as Americans, by securing the border.
This kind of unilateral action by the administration would be the wrong approach to dealing with our border crisis and I worry it will only make matters worse.  I encourage President Obama to work with Congress and border state governors, like myself, to address this issue with a common-sense, step-by-step approach that starts with securing the border.  I want to work with the president and our congressional delegation to address this issue, but Im concerned that this kind of action will make those bipartisan opportunities more difficult and further exacerbate the crisis occurring on our southern border.
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Wednesday, November 12, 2014

MCSALLY/BARBER DUEL IN THE DESERT: No Recount? Found Ballots Could Help Give McSally Lead Beyond Recount Threshold

Today's news from Pima County Elections that discovered that some 213 general election ballots had been discovered yesterday and today could hand GOP challenger Martha McSally a victory with no recount needed.

Her current lead over Rep. Ron Barber (D-CD2) is 133 votes.  The threshold for an automatic recount is 200.  If she picked up 68 votes from the conditional provisionals and others left to count, there would not be an automatic recount.

The newly-discovered ballots - which have a number of Republicans up in arms on social media - come from the Continental Elementary School District.  Here is a map of the district:
That area has voted heavily for McSally. The current vote total for one of the precincts, Prct 84, is 1,602-968, or 62%-38%.  The other precincts are a bit closer.  It is highly likely that McSally will pick up a majority of these 213 votes; if they match the 62% clip, she would add 52 (of the needed 68) right there.

***

In other McSally/Barber news, the lawsuit filed by McSally's legal team on Monday, to stop the counting of provisional ballots if the receipt was not signed by the pollworker, has been voluntarily dismissed by the McSally campaign.

After the Superior Court judge denied their request for a Temporary Restraining Order to segregate those ballots and slammed the likelihood of success on the argument down the road, the McSally team saw no reason to keep the lawsuit alive.


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Tuesday, November 11, 2014

READ: Pleadings, Ruling In Yesterday's McSally Challenge To Provisional Ballot Envelopes Unsigned By Pollworker

As expected, Pima County Superior Court Judge John Marner denied the request for the Temporary Restraining Order requested by Martha McSally's legal team, and permitted Pima County to continue processing and counting provisional ballots in which the form was not signed by an election worker.






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Sunday, November 9, 2014

McSALLY/BARBER VOTE COUNT: Legal Wrangling Re: Provisional Envelopes (from Tucson Weekly); McSally Challenge Unlikely To Succeed (ANALYSIS)

Tucson Weekly's Jim Nintzel  and Tucson Sentinel's Dylan Smith reported this afternoon on an effort by a McSally attorney to stop Pima County from verifying some provisional ballots. The request is to toss ballots if a pollworker did not sign the provisional ballot form that is stuck to the outside of the envelope (the secret ballot is inside the envelope).

Of course, the provisional ballot voter has no control over whether the pollworker properly documents or signs the form.

Nintzel's report has both the initial email from attorney Eric Spencer and the County's response.  The response from Pima County's registrar of voters, Chris Roads, informs Mr. Spencer that he can raise the issue in any potential challenge to the count.

While Spencer correctly cites the state's election procedures manual regarding the requirement of the pollworker's signature*; in reality, there is no practical way that the voter can deposit a voted provisional ballot into the proper box without oversight by the election workers.

In addition, while the manual calls for the signature of the pollworker, the statute itself does not require that signature.  Therefore, any potential claim of improper voting due to the lack of a pollworker's signature seems unlikely to be sustained.



* The manual's pollworker signature requirement would appear to be needed for a couple of the reasons that a provisional ballot may be cast (witnessing identification), but not necessarily all of them.  Plus, in observing several polling places in Maricopa County this past week, the procedure was that both pollworker and about-to-vote voter both signed the form before marking the ballot.  The voter then placed the ballot in the envelope and into the provisional ballot ballot box him or herself.

(Tempe election law attorney Paul Weich contributed to this article.)


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Saturday, November 8, 2014

UPDATED VOTE COUNT WATCH, ARIZONA: 13,000 Votes Left In Pima County, No New Tallies 'Til Monday (AZ Star)

With confirmation that Pima County has about 13,000 ballots remaining to be processed - ballots that needed to be re-marked and provisionals - it is apparent that the 509-vote lead currently held by Martha McSally in her campaign to knock off incumbent Rep. Ron Barber (D-CD2) is in jeopardy.

Congressional District 2 is made up of the southeastern border county of Cochise and about 2/3 of the Tucson-dominated Pima County.  McSally has drawn well in Cochise County (21,731-14,681), but has consistently been out-polled in Pima County (83,956-90,497).

If (major *if*) the Secretary of State's Friday morning numbers are correct, Cochise County is close to completing its ballot count. And, with Pima County's 13,000 remaining ballot figure, it is likely that the 509-vote lead will shrink.

***
To recap the problem with last night's Arizona's Politics article:

1) On Friday morning (8am), the Arizona Secretary of State released a table with the "estimated outstanding ballots" by county.  It indicated that Pima County had 8,040 early ballots left to process, and 10,131 provisionals. Cochise County had 2,081 & 1,141, respectively.

2) Pima County updated its numbers at 8:30am on Friday, noting that it had 14,000 ballots ready to be counted that day, 9,856 provisional ballots that needed to be verified before counting, and 275 conditional provisionals. (Voters had until Friday to provide proof that their conditional provisional ballot should be counted.) Arizona's Politics was not aware of the Pima County update... and apparently, neither was the Secretary of State's.

3) By early evening on Friday, Pima had added more than 16,000 votes to its tally, and Cochise added approximately 3,000.

4) Subtracting the tallied votes from the Secy of State's 8am numbers, there were few or no ballots left to be processed in either county.

PRESENT: Pima County's own publicly-available numbers from Friday/8:30am, the Friday tally, and the Saturday afternoon outstanding ballots number STILL do not add up. Either the Friday/8:30am and/or the Saturday afternoon number is or was off - assuming the 16k tallied was correct, of course.

Elections ARE hectic, and so is the vote-counting process.  As a long-time on-the-ground observer of both (both in Pima and Maricopa counties), we get that.  However, ESPECIALLY in this day and age - given the past 14 years of votes and court cases - it is important that the numbers in the public sphere reconcile.  If there is an incorrect number, it needs to be publicly corrected.  Confidence in the vote-counting process is critical.



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READ: Judge Bolton Goes Beyond SB1070, Strikes Down Arizona's 2005 Smuggling Criminalization

(This article is contributed by Tempe attorney Paul Weich.)

Basing her order on previous U.S. Supreme Court and 9th Circuit opinions on Arizona's anti-illegal immigrant SB1070 law, District Court Judge Susan Bolton has struck down Arizona's entire anti-smuggling statute.

Her Friday order (first reported on this morning by the Associated Press) granted a Motion for Partial Judgment on the Pleadings, which had been filed by the U.S. in its case against Arizona.  (The entire Order is presented below.)  

The U.S. asked the Court to strike down the entirety of A.R.S. §13-2319 (below, page 4 of SB1070). Arizona and Maricopa County Attorney Bill Montgomery (who filed an amicus brief on the issue) argued that the Department of Justice had only asked to strike down the part of the smuggling criminalization statute that was added by SB1070.  That subsection permitted law enforcement to pull over a vehicle "in violation of any civil traffic law" while enforcing the smuggling law.




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Arizona's Newest Rep.-Elect, Ruben Gallego, On CNN's "State of the Union" Sunday Show; Sen. McCain Takes a Breather

Sen. McCain is taking a rare Sunday morning off.  But, Rep.-Elect Ruben Gallego (D-CD7) will be in studio tomorrow morning for CNN's State of the Union program.

Gallego is replacing retiring Rep. Ed Pastor, and won Tuesday with approximately 3/4 of the vote.

Gallego and three other incoming lawmakers will be in a discussion - moderated by Candy Crowley - with three Congressional veterans.  Gallego and the incomings will have a chance to see "what can they learn from Senator Chris Coons, Congressman Steve Israel and Congresswoman Michele Bachmann, and can they work together to end government gridlock?"

Could be an interesting discussion.

State of the Union airs in Arizona at 6am and 9am.



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