PHOENIX — Attorney General Kris Mayes wants more time to decide what she intends to do next in the currently stalled case against the “fake electors’’ in Arizona and their allies.
In a new court filing Monday, Mayes told the Arizona Supreme Court she won’t be ready with an answer by Wednesday. That is the deadline for her to decide whether to seek review of a lower court ruling that tossed out the indictments tied to efforts to overturn the 2020 presidential election.
Most immediately, if Mayes does not meet the Wednesday deadline, that paves the way for the grand jury indictment to be dissolved and the charges dropped on all the remaining defendants.
None of that would keep her from presenting evidence to a new grand jury and seeking new indictments. But given that it took more than two years to get the first charges approved, that presents logistical problems.
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The simplest thing, at least from the attorney general’s perspective, would be if the Arizona Supreme Court ruled that Maricopa County Superior Court Judge Sam Myers got it wrong earlier this year when he tossed the indictment.
Myers said grand jurors were not given access to an 1887 federal law. That law, he said, could be relevant to whether there was enough evidence to bring charges of forgery, fraud and conspiracy against not just the 11 Republicans who filed documents declaring that Trump had won the popular vote in Arizona — he did not — and was entitled to the state’s electoral votes, but also to indict others involved with Trump and his reelection campaign.

Mayes
The case either needs to be sent back to the grand jury or the charges dismissed, Myers said.
Mayes is reviewing a third option: get the state’s high court to rule that Myers was wrong. That appears to be the position she is taking, calling the trial judge’s order “erroneous.’’
But in Monday’s filing, the attorney general made it clear she hasn’t quite made up her mind.
“The state is still considering whether to pursue a petition for review,’’ her office wrote. And what she wants is more time — until Nov. 21 — to make a decision.
Such an extension is not automatic. And, in asking for the extension, Mayes acknowledged that lawyers for several of the defendants are opposed.
But Mayes told the justices this isn’t an idle request.
“Counsel avows that this request is not being made for purposes of delay, and that an extension of time is indispensable to the interests of justice,’’ she said.
Whether Mayes will have any luck with the Supreme Court is debatable.
She previously had asked the state Court of Appeals to overturn what Myers decided. But in a brief order last month, Presiding Judge Kent Cattani said he and two of his colleagues considered the request and decided not to step in.
What’s behind the voided indictment is the Electoral Count Act of 1887. It specifically addresses the possibility of competing presidential electors from a state and how Congress must handle them.
That is crucial because the defendants are claiming they were not trying to commit fraud by filing paperwork showing that Trump won —even after the official results showed he lost to Joe Biden by 10,457 votes — but that they were preparing an “alternate slate’’ of electors to send to Washington if a lawsuit overturned those results.
There is no way to know whether providing that federal law to the grand jurors would have made any difference in their decision to indict the electors and others involved in the plan.
But Myers said the jurors were entitled to that information. And since they did not get it, he ruled, the indictment is flawed.
Even if Mayes gets the indictments reinstated — whether through a Supreme Court ruling or taking the case to a new grand jury — that still doesn’t mean the case is ever going to court.
Still undecided is whether the judge will toss the charges based on a different complaint by the defendants.
They are citing the state’s “strategic actions against public participation law.’’
It specifically is designed to keep public officials from using the court to silence individuals because of their “lawful exercise of a constitutional right.’’ It allows defendants to seek immediate dismissal if they can prove the legal action against them was “substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.’’
In this case, the defendants contend that Mayes, a Democrat, is going after them for their political views. Mayes has countered that the charges stem from filing false documents — the certificates saying Trump won Arizona — and there’s nothing about that which is protected by the Constitution.
Myers has deferred a ruling on that anti-SLAPP claim while there is an appeal of his ruling that the indictment is not valid.
But he previously concluded that “at least some’’ of what is included in the indictment might be protected by the First Amendment. And that puts the issue front and center if the Supreme Court reinstates the charges or Mayes succeeds in getting a new indictment.
Aside from the 11 GOP electors, charges also were brought against others in the Trump orbit, including former White House chief of staff Mark Meadows and several of Trump’s attorneys, including John Eastman, Christian Bobb and Rudy Giuliani. Another Trump attorney, Jenna Ellis, is having the charges against her dismissed after she agreed to cooperate with prosecutors.
Trump himself was listed as an unindicted co-conspirator.
One of the electors, Loraine Pellegrino, previously pleaded guilty to a single misdemeanor charge of filing a false instrument. She has since been released from her sentence of unsupervised probation.
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, , and Threads at @azcapmedia or email azcapmedia@gmail.com.