Commentary and Personal Remarks by Lyle J. Rapacki, Ph. D., Sept 7, 2023
There was a time in our nation the Rule of Law was held above all else. Politics, notoriety, social or political position, money…nothing came before upholding our US Constitution and the Rule of Law. This sacred principle doesn’t seem to be around much anymore; well, at least when it comes to election security issues. Evidence upon evidence can be submitted then easily “not allowed” or simply dismissed as hyperbole, maybe a theory at best. The very sacred act of “citizens” (that is an entirely different matter nowadays given anyone can vote no matter a citizen or not) given the privilege to choose our elected officials has been egregiously violated. For over two years, painstaking work has been accomplished to restore the sanctity of the voting system. Equally painstaking efforts by courts, district attorneys, county and state public officials have continued to block, invent, and obfuscate the issue of election integrity and security.
The Arizona Secretary of State, Adrian Fontes, who one would think would election safety (by-the-way one of his chief responsibilities as Secretary of State) has repeatedly proven otherwise. Fontes was sued by a couple of nonprofit groups in Arizona over signature comparison issues, and the use of signatures on documents other than voter registration cards. In Fontes haste to extinguish still another claim of election security violations, it appears, with more than reasonable level of surety, Adrian Fontes violated Arizona Law – not upheld Arizona Election Law.
Along comes Superior Court Judge John Napper in Yavapai County, Arizona and applied actual case law!! Go figure…a real judge in a real court ruling from the bench that upon initial review of the presentations along with a Motion to Dismiss brought by those who do not want anyone of actual authority to peek into alleged election irregularities, Judge Napper refused to dismiss the case. OH my Gosh…the Rule of Law was applied and upheld by a judge not willing to play favorites or politics but enforce law.
Yavapai County, Arizona (Prescott) was the initial capitol as Arizona moved from being a territory into a state. Prescott is still western in many ways, still historic, still a sense of community and atmosphere of knowing “right from wrong,” Superior Court Judge John Napper placed all else aside and did his job as a jurist. God Bless this man and his willing to maintain the Rule of Law v the rule of man or politics.
Please read the story by Mark Finchem in the link below.
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MARK FINCHEM, SEP 7
Once upon a time Black Letter Law mattered
Wait, what? Perhaps we are seeing the emergence of courage in the Courtroom?
What happened in court this week is soaked in rich irony. Judge John Napper, a Division 2 Superior Court Judge in and for the County of Yavapai Issued an “UNDER ADVISEMENT RULING AND ORDER” in Case No. S1300CV202300202. Almost unheard of these days, a superior court judge actually applied black letter law ruling on a motion to dismiss a challenge that many of knew, but was clearly ignored by key election officials. The Motion to Dismiss the “Special Action” case was DENIED.
The Motion to Dismiss denial is a win for the rule of law, and puts statutory provisions ahead of bureaucratic word torture that is not in pursuance of the plain meaning of the law.
The occupant of the Arizona Secretary of State office, Adrian Fontes, was sued by the a couple of nonprofit groups and an individual over signature comparison and the use of signatures on documents other than voter registration cards.
The Introduction to the Ruling and Order reads, “The court has received the Motions to Dismiss filed by the Secretary and Mi Familia Vita, the Responses and Replies. The Court also held oral argument on the Motions. After the arguments, the Court took the following issues under advisement: (1) does the Complaint state a viable claim for relief and (2) should the Special Action be dismissed because the claims are not rep for judicial determination. All other motions to dismiss were denied. Considering the Motions and arguments of the parties, the remaining Motions to Dismiss are denied.”
While not explicitly spoken this Yavapai County Court’s Order Shows that SOS Adrian Fontes violated Arizona Revised Statutes (A.R.S. Title § Title 16) Election Law as the Maricopa County Recorder during the 2020 election cycle; furthermore the current Maricopa County Recorder Stephen Richer also violated those same statutes in 2022. The complaint itself alleges the current Election Procedures Manual (E.P.M.) contains a
definition of “registration record” which deviates significantly from the statute. The court finds that the Plaintiffs have have correctly shown the black letter law defining registration record.
Why does the E.P.M. matter?
In our democratically elected constitutional republic the balance of power, indeed the separation of powers is necessary to hold power grabbers in check. Those checks have been challenged by the current administration both federal and state here in Arizona. A.R.S. Title § Title 16 Election Law requires the Secretary of State, the Attorney General and the Governor to create an Elections Procedures Manual. A.R.S. § 16-452(B) is the governing statute. The manual governs how elections are conducted throughout the state, and is supposed to provide for a “fair notice to all” the rules for the contest. A.R.S. 16-452(C) goes on to say, “The EPM carries the force of law and violating its requirements is a criminal offense.”
Under A.R.S. § 16-452(A), The Secretary is also provided latitude in creating procedures that protect an individual’s right to vote. But key to this Case, “[t]his discretion is not unfettered.” In other words, rules that are not in pursuance of the statutes DO NOT carry the weight of law. In fact, to cite Norton v. Shelby County, 118 U.S. 425 (1886), “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.” The same is true of an illegal regulation, as we see in the 2019 EPM.
One of the most important details that both Fontes and Richer —possibly every County Recorder in Arizona going back to 2019— ignored is, “The
Secretary is bound by the election statutes and any dictates in the EPM which violate or deviate from these statutes do “not have the force of law.”
Signature Comparison once again is the root of controversy……
