Arizona House Speaker Ben Toma and Senate President Warren Petersen’s aggressive strategy of intervening in court cases backfired today, as a judge ruled that they waived their legislative privilege in a challenge to voter registration/citizenship laws passed last year.
Democrats will now be able to depose Toma and Petersen and to obtain otherwise-privileged communications into why they passed HB2243 and HB2492 in 2022. Democrats, Native American and progressive groups challenged the laws claiming they were discriminatory and would illegally disenfranchise thousands of voters.
HB2492 requires proof of citizenship and proof of location of residence be provided along with the voter registration form. This received a lot of attention last year partly because there was confusion as to how – and, how many – longtime registered voters might be impacted by the new requirements. HB2243 deals with how voter registrations must be investigated and possibly canceled by County Recorders. The two laws were passed and signed by Republicans in 2022, and went into effect on January 1, 2023.
Judge Susan Bolton was not persuaded by Toma and Petersen’s arguments that their intervention into the case could be distinguished from existing case law where the privilege was waived.
Like the defendants in Powell, the Legislators “are not seeking immunity from this suit,” but instead seek to “actively participate in this litigation” yet avoid the burden of discovery regarding their legislative activities. Plaintiffs did not seek discovery from the Legislators until the Legislators sought to “fully defend the laws passed by the legislature.” The Legislators also specifically put their own motives for passing the Voting Laws at issue when denying Plaintiffs’ allegations that the Arizona Legislature enacted the Voting Laws with discriminatory intent.
She did decide that Toma’s and Petersen’s intervention did NOT waive the legislative privilege for the other lawmakers who helped pass the bills.
The Speaker and the President have waived their legislative privilege as to information about their motives for the Voting Laws. The Speaker and President must produce communications that they have sent or received relating to the Voting Laws’ legislative process and have withheld on legislative privilege grounds. They may also be deposed about their personal involvement in the Voting Laws’ legislative process. Plaintiffs may not however conduct a 30(b)(6) deposition of the Arizona Legislature.
This article was reported by AZ Law founder Paul Weich.
“AZ Law” includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona’s Politics on the internet.