I have read Mr. Jim de Bree’s letter (May 15) concerning mine setting out a basis for the objection by 50 or so representatives, including Rep. Mike Garcia, to the certification of the Arizona election results. Frankly, Mr. de Bree should have spent more time reading the 9th Circuit opinion, and less time making unsupported assertions that are contrary to the law and facts in the La Familia Vota case.
Mr. de Bree asserts that under the 14th Amendment the states may not establish voting regulations “that infringe upon the voting rights of its citizens,” and are required to change the rules as circumstances dictate. He fails to cite which provision of the 14th Amendment he relies upon for these erroneous assertions. Clearly, the plaintiffs in the Mi Familia case could not find any such provision as they based their case not on the 14th Amendment but rather on an asserted “violation of their First Amendment rights to associate and to engage in free speech to register voters and get out the vote.”
He then asserts that the district court, following “well established case law” — without citation to any cases — issued an injunction requiring Arizona to extend its registration date. This decision was appealed by defendant Kathy Hobbs, the Arizona secretary of state; the attorney general and the Republican National Committee, who had intervened. In appealing, the appellants sought an order staying the district court’s injunction. Mr. de Bree brushes off the 9th Circuit’s granting of a stay by asserting it did not “overturn” the district court’s decision. All of this reflects an amazing lack of understanding of what actually happened.
Initially, I would note that the only decision of the district court at that time, or in fact ever, was that an injunction should issue. It is this decision the 9th Circuit stayed, effectively vacating it. According to Mr. de Bree the 9th Circuit failed to understand what only he understands concerning the evidence, 14th Amendment and the Constitution.
Judge Jay Bybee, in his concurring opinion, stated the case very clearly, when he wrote, “The district court’s order was an obvious abuse of discretion … At the very last minute, on a thin complaint and record, the district court thrust itself into the election by altering the eligibility requirements for voting in Arizona. … Arizona’s deadline [for registration] fully complies with the National Voter Registration Act … and as such, it is a generally applicable and ‘evenhanded restriction that protects the integrity and reliability of the election process itself, Crawford v Marion City Election Bd … (2008). Deadlines are inherently arbitrary; [but] fixed dates … are often essential to accomplish necessary results. United States v Boyle … (1985) … It is thus an ‘aimless journey’ to ‘decide whether some date other than the one set out in the statute might better serve some goal. … United States v Locke … (1985) Improving Arizona’s election code is not our business, and when we undermine long established, neutral rules, we threaten the confidence the electorate demands in the integrity of our elections.”
This reasoning applies with equal force to the actions of the Pennsylvania Supreme Court when it unilaterally changed the dates for voting.
Thus Mr. de Bree’s disagreement is not with Mr Garcia, Mr. Biggs or me, it is with the 9th Circuit and the United States Supreme Court. Your choice. You can credit Mr. de Bree’s unsupported legal and factual assertions, or the 9th Circuit’s well-reasoned opinion. Mr. Garcia and the other objectors, who were following a procedure set out in federal election law, chose to believe the 9th Circuit and the Supreme Court case law it relied on.
As for the balance of the letter, the process followed by the objectors had nothing to do with the riot on Jan. 6. The folks in the de Bree/Thomas Oatway camp object most strenuously that the riot disrupted the electoral ballot certification — it did — and by implication that the assertion of the objections pursuant to federal statute is somehow an extension of the riot, and was a “partisan act.” This is a non sequitur. I would note that I have never heard anyone make this argument concerning the numerous Democrat congressional members who objected to the certification of the electoral count in both the Bush 2004 election and the Trump 2016 election. Were not those objections “partisan acts”? Where were Mr. de Bree and Mr. Oatway then?
Finally, it is the function of lawyers to determine what they believe the applicable law to be and to assert that position to the court, directing the court to the evidence and authority they rely on. It is for the court to look at both sides and determine which assertion, that of the plaintiff or of the defendant, is correct, or whether the law lies somewhere in between. The 9th Circuit did just that when it ruled for the defendants and stayed the district court’s unlawful injunction.
Mr. De Bree’s comments about the 1960 election are just as devoid of factual support. While it is true that Richard Nixon did not personally contest the election, he had the RNC do it for him. It filed objections to the election results in several states, including Illinois. The upshot was that the electoral count was changed by three votes, those of Hawaii, in favor of President John F. Kennedy, as a simple Google search reveals.
Stephen Maseda
Santa Clarita
