Last Updated on December 5, 2020
Arizona House Speaker Rusty Bowers claims the state cannot enforce the Constitution regarding Electors, and won’t commit to calling a legislative hearing.
Speaker Bowers was one of the top Arizona legislators who on Friday called for an immediate and “expeditious” forensic audit of the Dominion voting machines and software used in Maricopa County, due to concerns that the machines may have been used to assist in massive voter fraud.
— AZSenateRepublicans (@AZSenateGOP) December 4, 2020
However, following the publication of that statement, Bowers came out with one of his own, claiming that “the rule of law” forbids the overturning of certified election results, which Arizona has already done, even if there was clear evidence of voter fraud.
“The Trump team made claims that the election was tainted by fraud, but presented only theories, not proof,” Bowers said in the statement. “If such evidence existed, the Arizona Legislature simply couldn’t do what is being asked,” referring to calls for the Arizona Legislature to take control of the state’s Electoral College votes, claiming it would require a bipartisan supermajority to even call a special session to begin to contest it.
He argued that current Arizona law gives the power to voters to decide who wins the election. “The law was aimed at ensuring that Arizona’s electors would remain faithful to the vote of the people,” Speaker Bowers claimed, saying that “nothing in the US Constitution or the decisions of the US Supreme Court even suggests that the Arizona Legislature could retroactively appoint different electors who would cast their ballots for different candidates.”
He noted that Rudy Giuliani and Jenna Ellis, Trump’s legal team, cited the Supreme Court Case McPherson vs Blacker  during the previous election integrity hearings, which argues that the legislature “can resume the power to appoint [electors] at any time.” Ellis told Pennsylvania legislators that due to delegation of authority to the legislature via the Constitution, they can take that back:
You also have an instance here that the law was completely ignored, so even though you have a manner in which your electors are generally selected in Pennsylvania, and that’s worked for the past presidential elections since the statutes were authorised and gone through the legislature, this is an election that has been corrupted, so you can’t go through that method. Those laws were violated. The general assembly here, the legislature, is the authorised entity in the constitution that selects the manner. You can take that power back at any time.
Bowers disagreed, claiming that Bush vs Gore , overrules this. He cited this passage from the decision: “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental.”
“No election is perfect, and if there were evidence of illegal votes or an improper count, then Arizona law provides a process to contest the election: a lawsuit under state law,” Bowers continued. “But the law does not authorise the Legislature to reverse the results of an election”:
As a conservative Republican, I don’t like the results of the presidential election. I voted for President Trump and worked hard to reelect him. But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election. I and my fellow legislators swore an oath to support the US Constitution and the constitution and laws of the state of Arizona. It would violate that oath, the basic principles of republican government, and the rule of law if we attempted to nullify the people’s vote based on unsupported theories of fraud. Under the laws that we wrote and voted upon, Arizona voters choose who wins, and our system requires that their choice be respected.
— AZ House Republicans (@AZHouseGOP) December 4, 2020
However, there is seemingly clear evidence to suggest that Speaker Bowers’s interpretation of the law, and therefore the Constitution, on what the Arizona Legislature can or cannot do is completely wrong. Firstly, Article VI, Clause 2, is the “Supremacy Clause,” which means that any state-level law that violates the Constitution (in this case, saying the legislature cannot take back the power to issue Electors) is nullified.
As noted in an analysis piece by Revolver News, federal law also requires state legislatures to have chosen their Electors by the second Wednesday in December (December 14th this year). If they have “failed to make a choice on the day prescribed by law,” then “the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct,” clearly showing the power that the legislature has.
In fact, the case that Bowers cites to argue his own point, Bush vs Gore, includes a section that re-emphasises the power highlighted in McPherson vs Blacker:
The State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself. … The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”)
Bret Roberts, an Arizona State Representative, replied to the intital statement put out by Bowers. “Several members [of the legislature] attended a Zoom meeting last evening with Constitutional Scholar Rob Natelson of approximately 30 years who refuted pretty much everything in this press release,” Roberts tweeted.
I'm sorry but I have to respectfully disagree. Several members attended a zoom meeting last evening with Constitutional Scholar Rob Natelson of approximately 30 yrs who refuted pretty much everything in this press release. https://t.co/nrrqdvZpbR
— Bret Roberts (@BretRbrts) December 5, 2020
By saying that the Arizona Legislature cannot take back the power to issue their own Electoral College votes, Speaker Bowers is not only ignoring the Constitution, but also the rule of law himself which he seems to care so deeply about.
He is already facing a phone campaign from Ali Alexander, one of the organisers of #StopTheSteal, among other angry constituents, who are threatening to primary him if he continues to ignore the Constitution.
Bowers is also refusing to commit a legislative hearing with subpoena power that could investigate the results of the election. This is something that Arizona GOP Chair Kelli Ward has repeatedly called for, following the news about the audit of the Dominion machines in Maricopa County.
[Senate Speaker] Fann and Bowers, in their current positions, are the ones who have the powers to call a full legislative hearing, something Ward made clear on her Twitter. “Be proud when leadership (Fann or Bowers) calls a FULL hearing,” Ward said in response to Arizona State Senator-Elect Wendy Rogers praising the call for the audit. “A legislative hearing does NOT interfere with any legal cases happening now. #DoYourJob, legislature!”
The hearing that took place in Arizona last week featuring Trump’s legal team, Rudy Giuliani and Jenna Ellis, was not a full, official legislative hearing. A full hearing would include the power to subpoena anyone to speak, and would also require witnesses and participants to swear under oath during the proceedings. This would be a major step to take towards a significant investigation into the irregularities that occurred during this election.
National File contacted Bowers to ask for his stance on calling for a legislative hearing, and whether he believed he was robbing Republicans in Arizona of the ability to have their concerns assuaged by an investigation from legislators, and did not receive a reply by the time of publication.