They voted down Prop 137, which would have largely ended judicial elections in the state and frozen in place the state supreme court’s current conservative majority. They also rejected Prop 134 and 136, which would have severely limited direct democracy by making it far tougher to qualify a measure for the ballot. 

All three measures lost handily, with Prop 137 going down by the largest margin. With some ballots remaining to be counted, it trails 77 to 23 percent as of publication. 

Arizonans on the same day approved an initiative to protect abortion in the state, overturning a 15-week ban GOP lawmakers adopted in 2022. This measure was placed on the ballot through a citizen-led effort, precisely the sort of organizing that would have become prohibitively difficult in the future if Prop 134 and 136 had passed.

“It is heartening that these measures went down pretty solidly,” said Jim Barton, an Arizona attorney who has defended ballot measure campaigns in court and opposed Prop 134 and 136. “Despite all of the work that legislators have done to try to take away citizens’ rights to make laws, we have still been able to get good things done.”

Andy Gordon, another Arizona expert in election law who worked with the group Keep Courts Accountable to convince voters to reject Prop 137, shared Barton’s relief at the results. 

Voters, he said, “recognize there are a group of initiatives that would have taken their rights without giving anything in return, and they voted ‘no’ on those. And on the one that gave them something—in this case reproductive rights—they voted ‘yes.'” 

The Republican attempts to overhaul the state’s constitution came as Democrats have gained ground in Arizona but have failed so far to take over the legislature, prompting the GOP to try to close down some of the alternative avenues the left has used to make gains.

The proposed overhaul of the judiciary would have ended the requirement that judges on the state’s appeals courts and supreme court, and some local courts, win the approval of voters at regular intervals after being appointed by the governor. 

The measure would have given judges a permanent appointment up to age 70, taking voters out of the picture unless a judge fails a performance evaluation or faces specific circumstances like being convicted of certain crimes. 

Had it passed, Prop 137 would also have applied to this year’s elections, nullifying the results of the judicial races that were on the ballot on Tuesday.

Republican lawmakers advanced the proposal this summer to voters after progressives launched a campaign to oust Justices Clint Bolick and Kathryn King, two conservative judges on the state supreme court who had just voted to revive a near-total ban on abortion. Bolick’s wife, Shawnna Bolick, is a state Senator who voted in favor of putting Prop 137 on the ballot.

Bolick and King handily won their retention races on Tuesday, a blow to progressives hoping to reshape the court. As of publication, they have 58 and 59 percent of the vote, respectively. 

Judicial retention races are typically sleepy contests that see little controversy or campaigning. No state supreme court justice has ever lost a retention election in Arizona, and the last time Bolick ran for retention in 2018, he prevailed with 70 percent of the vote. 

But 2022 saw an unusual liberal campaign to oust conservative Justice Bill Montgomery, who survived by 10 percentage points, a slim margin for an Arizona justice. The left’s attempt to unseat Montgomery grew from fears of a right-wing domination of the courts after Republicans added seats to the supreme court under former Governor Doug Ducey. Then, conservatives bristled at the losses of several local judges in Maricopa County in 2022, claiming that these elections were overly politicizing the judiciary. Bolick wrote in an opinion piece in May that progressives are “weaponizing judicial retention.”

Timothy Berg, a constitutional law attorney who co-chairs Arizonans for an Independent Judiciary, a political action committee that advocated for voters to keep Bolick and King, told Bolts that Prop 137 would have changed the Arizona judicial system “to give voters less control.”

“Voting it down is consistent with Arizona’s longtime approach to politics: that voters want a say in who their judges are,” Berg said.

All justices on the state supreme court have been appointed by Republican governors, though that is about to change since Democratic Governor Katie Hobbs is set to pick a replacement for Justice Robert Brutinel, who announced his retirement in September. 

Hobbs was not on the ballot on Tuesday and will remain governor until at least 2026. Democrats were hoping to gain control of the legislature this year and fully run the state government for the first time since the 1960s. The final results are not yet known, but as of publication Democrats are just short of what they would need to accomplish that goal.

Absent legislative majorities for Democrats, progressives over the years have resorted to the citizen-led initiative process to ask Arizonans to approve reforms. This included establishing publicly funded elections in 1998, raising the minimum wage in 2016, legalizing recreational marijuana in 2020, and requiring campaigns to disclose the identity of major donors in 2022. And, this year, it included Prop 139, the abortion rights measure. 

“Initiatives are largely a safety valve for legislative inactivity,” said Gordon. “There was no way in hell this legislature or any legislature in recent history was going to advance the right to abortion and other reproductive rights.”

Prop 134 and 136 would have restricted this path going forward by severely tightening the already arduous process to get an initiative on the ballot. 

Prop 134 would have required citizen initiatives to meet a certain threshold of signatures from every single legislative district in Arizona. Currently, campaigns can qualify for the ballot by collecting a set number of signatures regardless of where in the state they come from. Critics said this requirement would have made the process prohibitively difficult for advocacy organizations and volunteer groups by requiring them to run costly campaigns in sparsely populated areas, and allow measures to be killed by any of the state’s 30 districts.

“This is an effort to make it harder for regular people to engage in the process,” Dawn Penich, an advocate for the campaign that qualified the abortion rights measure this year, told Bolts in May. She described how difficult it already is for organizers to put issues on the ballot. “It is grueling work,” she said. “I’m out in the field, on the streets, at trailheads with our volunteers many days a week.” 

Prop136, meanwhile, would have allowed opponents to challenge the constitutionality of citizen initiatives as soon as it qualifies for the ballot, before they pass. Opponents said it would have made it easier to kill citizen-driven reforms with costly legal battles before voters even had a chance to weigh in, exploding the amount of money needed to run a competitive ballot campaign. 

“Moving these disputes to the court and away from the voting process, it is about taking the power away from voters,” said Alice Clapman, senior counsel for the Voting Rights program at the Brennan Center for Justice. “Direct democracy is critical for correcting some distortions in our representative democracy. It serves as a really necessary check on other institutions.” 

Barton said that many voters perceived Prop 134 and 136 as attempts to sabotage the democratic process. Tuesday’s results, he said, “means that voters paid attention more than Republicans thought they would—the citizens do not want tricks to be involved.” 

This isn’t the first time Arizonans have voted to protect direct democracy. In 1998, they amended the state constitution to stop lawmakers from weakening, tweaking or repealing citizen-driven ballot measures after they had been approved by voters. 

“Voters got tired of legislators trying to amend or change the measures they had passed,” Barton recalls. “This is another example of that, where citizens have said—we are not going to allow you to step on our rights.”

Citizen-led initiatives are used by conservatives and progressives alike. In states that are run by Democrats, the right often pursues these measures. Voters in Washington state, for instance, weighed in this fall on initiatives that would have overturned environmental regulations and repealed a capital gains tax on wealthy residents; both failed on Tuesday. Voters in California and Colorado approved initiatives to restrict some forms of punishment.

Still, Republican politicians have moved aggressively in recent years to undercut initiatives. In Montana this year, Secretary of State Christi Jacobsen barred petitions from counting signatures of registered voters who are “inactive”—those who have changed addresses or have missed two consecutive elections—though a judge blocked the rule change. And the GOP has proposed constitutional amendments in many other states to weaken the initiative process.

In 2022 and 2023, voters in Arkansas, Ohio, and South Dakota all rejected such, and in North Dakota they did it just this week: They defeated a GOP-backed measure that would have raised the number of signatures needed to qualify an initiative, and also required initiatives to be adopted twice, on two different dates—on the primary ballot and then the general election ballot. 

“Voters are closely guarding their direct democracy powers,” Clapman said. “Consistently, when it is clear to voters that a ballot measure would strengthen or weaken direct democracy, they choose to strengthen. Voters like having this power.”

Barton agrees, saying of Arizonans, “the voters worked very hard to protect their rights.”

The post Arizonans Defeat Three GOP Measures That Would Have Restricted Their Voting Power appeared first on Bolts.

The Arizona GOP put Proposition 137 on the ballot in June, amid widespread outrage over the state supreme court’s April decision to uphold a Civil War-era abortion ban. Within weeks of that ruling, the progressive group Progress Arizona launched a campaign to unseat two of the justices who sided with the majority and are up for retention this fall, Clint Bolick and Kathryn King, providing an outlet for voters put off by the decision and the court’s ideological makeup.

Prop 137, if it passes on Nov. 5, would nullify Bolick and King’s retention races that are taking place on the same day, as well as cancel future elections. 

The proposal is “a power grab,” said Abigail Jackson, digital director of Progress Arizona. “This was responding to the energy and the anger we saw around that decision. The extremist legislators who pushed the proposal forward did it with the intention of protecting these judges.” 

She added, “It is designed to take away our voices.”

Jake Faleschini, program director for the Alliance for Justice, a national organization that works to build progressive strength in the judiciary, points to a string of changes the GOP has pushed nationwide to consolidate power in state courts. In Arizona, Republicans last decade expanded the state supreme court and secured a strong conservative majority. 

“At the end of the day, they want policy outcomes from the courts and they are willing to change the rules to achieve that,” Faleschini told Bolts.

“What we are seeing now is a bit of an awakening from the left around just how important these courts are for maintaining our rights,” he said. “As these rights have been taken away by the [U.S.] Supreme Court, some of the state supreme courts are no longer there as willing participants in proactively protecting their rights.”

Supporters of Prop 137 say it is designed to insulate judges from such blowback against their rulings so they don’t have to pander to win votes. Republican Senator David Gowan, one of the measure’s chief sponsors, says he’s worried about national groups flooding state elections.

“This proposition makes it difficult for nefarious outsiders to manipulate our judicial process,” Gowan told Bolts. “We see a lot of dollars pour in from out of state to unseat judges who can’t defend themselves because they aren’t politicians.” 

Gowan, a conservative who used to be state Speaker, has a history of proposals that would override election results. He proposed a bill in 2021 to allow lawmakers to attribute Arizona’s electoral votes to whichever presidential candidate they choose, regardless of how people vote. 

This year’s Prop 137 would cancel retention elections for supreme court justices, judges on the state’s court of Appeals, and superior court judges in counties above 250,000 residents.

Currently, all judges first make it on the court through an appointment by the governor, though the state has some guardrails for who governors can choose: They must select their nominee from a shortlist of candidates assembled by a 16-member panel, though that panel’s members are also chosen by the governor. 

Once judges are on the court, they face regular performance reviews, as well as retention elections every four to six years that give the public some say; these races are ‘up-or-down’ questions, in which Arizona judges never face an opponent. As long as they win these retention tests, judges can stay on the court—up until the mandatory retirement age of 70. 

The system was approved by Arizona voters in 1974, with support from Sandra Day O’Connor, who at the time was a Republican state senator. After she retired from the U.S. Supreme Court in 2006, O’Connor worked to bring Arizona’s system to other states.

This year, the Arizona Judges Association, a professional organization that represents hundreds of judges, advocated for the measure to end retention elections. Jonathan Paton, a former GOP lawmaker who lobbies on their behalf, told lawmakers that scrapping retention elections would improve accountability because it’s too difficult for voters to make informed decisions on judges.

“I represent the Judges Association, and I don’t know who most of these people are that appear on the ballot,” Paton testified in the legislature. “So, do we think that the average voter knows?”

Paton is married to Court of Appeals Judge Angela Paton, who is also up for retention this fall and has been targeted by a progressive group. If Prop 137 passes, it would also nullify the results of her election. 

But many Arizona jurists don’t want the public to be cut out of the process of deciding who runs the courts, and the debate over Prop 137 created large rifts within the legal community. 

Retired Chief Justice Ruth McGregor, a former president of the Arizona Judges Association, spoke against Prop 137 at the launch event of Keep Courts Accountable, a political action committee formed in August to convince voters to reject the amendment. Former Chief Justice Scott Bales and former Justice John Pelander spoke at the event as well. 

Reached for comment, Paton would not say whether the Arizona Judges Association still backs the reform. The association’s website was taken offline in the last month. Paton also told Bolts that, as a lobbyist for judges, he cannot reply to questions about an active ballot measure.

“Without the vote of the people, the judges would have no accountability,” Felicia Rotellini, who chairs the Keep Courts Accountable PAC, told Bolts. “If there is no accountability to the people, then there is a motivation to lean towards their own ideological preferences, their personal preferences, their political preferences.”

“We will lose part of our democracy,” said Rotellini, who is also a former head of the state Democratic Party.

Arizona is among the 31 states that hold elections for their justices. Ending that practice would make it an outlier in the West, where many states adopted judicial elections during the Progressive Era as part of a broader wave to end corruption and cronyism. The 19 states that have no judicial elections are heavily concentrated in the northeast of the country.

In Arizona, a commission of laypeople and legal experts periodically reviews judges’ performance to determine if they meet the standards for the bench, based on surveys collected from attorneys, fellow judges and people who have appeared before them in court. The scores are shared with voters before each election to help voters decide whether to keep them based on standards of merit, such as legal ability and integrity, rather than political issues.

If Prop 137 is approved, judges would only go before the voters if they fail their performance review, a rarity in Arizona, or if they are convicted of certain crimes, declare bankruptcy, or foreclose upon a mortgage. Gowan is making the case that this reform would help voters make decisions that are a lot more informed.

“The judicial retention portion of the ballot, that’s two pages long,” he said. “If we take the high performing judges off the ballot, it allows the people to see the low-performing judges, and they are no longer able to hide in the crowd, because those are the ones we want to knock out.”

But Prop 137 would also modify the performance review process by injecting legislators into it: The majority party in each chamber would appoint a member to the otherwise nonpartisan commission charged with assessing judges for impartiality, temperament and expertise. 

According to Bales, the former chief justice who spoke at the launch of the PAC that opposes Prop 137, the change would “make judges more susceptible to criticisms from the legislature, and perhaps a little less susceptible to the kind of public input you get through the [election process].” 

Prop 137 would also give legislators authority to order investigations against judges suspected of “a pattern of malfeasance,” though the proposal does not define what activities would warrant such an inquiry. 

Bates worries this would empower legislators to attack judges they disagree with. “What I think this really is, is a blank check for any individual legislator who has a grievance against a judge or wants to get some political milage out of asserting a grievance against a judge,” he said.

The effort to end judicial terms in Arizona comes as reformers at the federal level are pushing for the inverse change of rolling back lifetime judicial appointments. Following revelations that U.S. Justices Clarence Thomas and Samuel Alitto accepted millions of dollars in undisclosed gifts from individuals with cases before the court, groups like Alliance for Justice are making the case that federal judges are not accountable enough and that the federal system needs stronger guardrails, such as term limits and an enforceable code of ethics.  

If Prop 137 passes, Arizona judges would look a lot more like the federal bench, Falschini said. They “would have zero accountability to the people, just like federal judges.” 

Bolick, one of the two justices up for retention this fall, published an opinion article in May in the Arizona Republic, arguing that it’s the campaign to oust him that’s responsible for politicizing the judiciary and diluting the state’s emphasis on merit.

Progressives, he wrote, are “weaponizing judicial retention” and “cynically harnessing anger over our recent abortion decision to replace us with justices who will rubber-stamp their ideological agenda.”

The latest efforts over Bolick’s reelection and Prop 137 are an escalation of fights that took off last decade, though. Republicans, led by former Governor Doug Ducey, changed the norms around court appointments, helping ensure courts would lean conservative. Their maneuvers allowed Ducey to appoint five of the seven justices currently sitting on the all-Republican court.

In 2016, Republicans expanded the state supreme court by adding two seats, enabling Ducey to appoint two new judges despite unanimous opposition from sitting justices.

Then, in 2019, Ducey upended the nominating commission to ensure he’d be able to nominate his preferred candidate. Earlier that year, the commission had refused to include Bill Montgomery, Maricopa County’s conservative prosecutor, on its shortlist for a judicial vacancy. Ducey then replaced some of the commission’s members, paving the way for the new panel to recommend Montgomery and for the governor to place him on the supreme court. 

Although no Arizona justice has ever lost a retention race, progressives in 2022 mounted an unusually solid effort to oust Montgomery, questioning his ideology and ethics. The justice also received relatively low performance scores in his evaluations, but was ultimately retained. 

But in Maricopa County, the largest county in the state, voters chose to not to retain three local judges, an unusual result. One of the ousted judges, Stephen Hopkins, was the only judge that year to fail to meet the performance standards of the review process. 

In March of this year, GOP lawmakers passed a resolution to end judicial elections through the state Senate; that was right before the supreme court’s decision on abortion. The House took up the bill months later, amid the surge of pro-choice activism against Bolick and King. The vote to advance the measure was strictly along party lines in both chambers, with all Republicans supporting it. 

State Senator Shawnna Bolick, a Republican who is married to Clint Bolick, voted in favor of the resolution that would end her spouse’s future elections. 

Democrats in 2022 also flipped the governor’s mansion, and this November they have a shot at gaining the legislature and controlling the state’s government for the first time since the 1960s. 

Republicans have reacted with frustration as they’ve lost their advantage in the state, and have pursued other steps to use this year’s ballot to limit the will of voters, including a measure to make it prohibitively difficult to qualify a citizen’s initiative. In Maricopa County, GOP candidates who have spread conspiracy theories that the 2020 election was stolen are trying to win control over the elections systems. 

And if voters pass Prop 137 this fall, it would void the results of the concurrent retention races, including Bolick and King’s. 

But if they reject the amendment while ousting one or both of Bolick or King, Democratic Governor Katie Hobbs would have the power to nominate their replacements. 

Regardless, Hobbs will soon get her first appointment to the court. Justice Robert Brutinel, who was appointed to the court by Republican Governor Jan Brewer in 2010 and who dissented in the court’s decision to revive the abortion ban, announced on Tuesday that he is retiring.

For Faleschini, Prop 137 is about freezing the court’s conservative majority in place. “It’s not that they are looking for a change to the system to make it more fair and impartial,” he said. “They are seeking changes to make sure that the types of political justices they want on courts can stay.”

He added, “Republicans are concerned they will not win a statewide election again in a very long time. They think the only power they can hold onto is through the supreme court.”

The post Arizona GOP Asks Voters to Nullify the Judicial Elections They’ll Be Voting On appeared first on Bolts.

Ever since the Arizona Supreme Court upheld a near-total abortion ban this month, pro-choice advocates have rushed to reverse it. They’ve pushed the GOP-run legislature to repeal the law, to no avail so far. They’ve defended the Democratic governor’s order blocking enforcement of the ban from legal pushback. And now they’re close to placing a constitutional amendment protecting abortion on the November ballot. 

If these statewide solutions fail, though, they’re at least eying Arizona’s local prosecutors as the backstop to an outcome they dread: the prospect of people facing criminal charges—and prison terms—over abortions.

“The least our county attorneys can do is commit that they would not prosecute those cases,” said State Representative Analise Ortiz, a Democrat whose district covers parts of Maricopa County. “They absolutely should do that to bring relief to the millions of people who are scared by this decision.”

Whether such a backstop materializes in Maricopa County—a giant jurisdiction home to more than four million residents in Phoenix and its surrounding areas—is going to come down to November’s prosecutor race.

Maricopa County Attorney Rachel Mitchell, a Republican who is up for reelection this year, reacted to the ruling with a statement vowing that women would not be “prosecuted for receiving an abortion,” and especially calls out that she would not prosecute abortions that stem from rape, incest, or molestation. The statement did not, however, address whether she would prosecute doctors who provide abortions. Just days prior, Mitchell had said she’d enforce Arizona’s abortion law “whatever that law is.” She has also denounced as unlawful a gubernatorial order barring county attorneys like herself from prosecuting abortion. 

Mitchell’s only Democratic challenger, Tamika Wooten, promises she won’t pursue such prosecutions if she becomes county attorney. 

“I will not prosecute a woman for her personal health care decisions, nor will I prosecute the medical provider who performs that,” Wooten, a former local prosecutor and defense attorney, told Bolts. “That is a very serious and personal decision that a person must have with themselves and with their health care provider, and it’s not my business.”

Mitchell’s office on Monday declined to answer questions from Bolts about whether she would prosecute doctors that provide abortion, only referring Bolts to her April 9 statement that does not mention medical providers. “That statement, in its entirety, is the information being provided at this time,” said a spokesperson for the office. 

Arizona’s revived ban, which dates back to 1864, mandates two to five years in prison for doctors who provide an abortion except when it’s to save a patient’s life.

In 2022, the GOP passed a separate law banning abortions after 15 weeks; that law also makes it a felony for doctors to violate those restrictions. 

Even if Arizona repeals the 1864 law, that would still leave in place this 15-week ban and its share of criminal penalties.

Wooten criticized Mitchell for not ruling out charges against medical professionals. “If you say you’re not going to prosecute the woman but you’re not quite sure if you’re going to prosecute the medical professional, licensed medical professionals are going to be wary of that,” Wooten said. “That’s gonna force a woman to go to a back alley. Now we’re subjecting women to all kinds of unsafe, unsanitary procedures… because our licensed professionals are afraid that they’re going to be prosecuted.” 

Wooten added, “We need to make sure that the people who are licensed and able to perform these can do it confidently without fearing felony prosecution or prison.”

In the GOP primary in August, Mitchell first faces a rematch against Gina Godbehere, a conservative who used to work as a prosecutor in the county attorney’s office; Godbehere did not reply to Bolts but has echoed Mitchell’s position on abortion in the past. 

Arizona’s 14 other counties also elect their chief prosecutor this year, but a statewide analysis by Bolts found that most of these races aren’t even contested, and among those that are, Maricopa County is unique in featuring a stark contrast on the issue of criminalizing abortion. It’s the only Arizona county where there’ll be at least one candidate on the ballot this year pledging to not prosecute abortion, and at least one candidate who hasn’t made that assurance. 

This single race, though, will have outsized resonance, since it’s playing out in the county that by itself is home to most of the state’s abortion clinics and the majority of Arizona’s population.

Mitchell was just a line prosecutor in the Maricopa County prosecutor’s office in 2018, when she was tapped by U.S. Senate Republicans to interrogate Christine Blasey Ford during Brett Kavanaugh’s Supreme Court confirmation hearings. In 2022, the same year Kavanaugh voted to strike down federal protections for abortion in the Dobbs decision, Mitchell was appointed Maricopa county attorney after her predecessor’s surprise resignation.

Mitchell then prevailed in a 2022 special election that closely mirrored the upcoming election. In the immediate aftermath of the Dobbs ruling, she defeated Godbehere in the Republican primary and then beat another pro-choice Democrat by six percentage points.

The state supreme court’s shock decision this month to trigger Arizona’s Civil War-era abortion ban has once again underscored the stakes of who occupies the local county attorney offices with a hand in enforcing it. Still, the exact role these county attorneys will play in either protecting or prosecuting abortion remains unsettled.

Statewide Democratic officials are currently trying to block county attorneys from targeting abortion. Governor Katie Hobbs issued an executive order last year that transferred all abortion cases to Attorney General Kris Mayes, who has pledged to never prosecute them. Combined with Mayes’ promise, Hobbs’ executive order moots the threat of criminal prosecutions for abortion—at least on paper.

But this guardrail is far from ironclad. Hobbs and Myers, who each won very narrow races in 2022, are both up for reelection in 2026. Were they to lose to anti-abortion Republicans in the future, their replacements could revert these cases to county attorneys or bring charges.

More urgently, many county attorneys, including Mitchell, are arguing that Hobbs’ order is invalid and say the governor lacks the legal power to give their cases to the attorney general. 

“It is a substantial overreach to suggest the governor may strip away prosecutorial discretion from local, elected officials,” Mitchell wrote in a letter to Hobbs last year. Jeanine L’Ecuyer, chief of communications for her office, reasserted Mitchell’s position this week, telling Bolts that county attorneys “are not supervised, nor do they report to, the attorney general.” (Wooten, her Democratic challenger, told Bolts she disagrees with Mitchell, and approves of Hobbs’ order.)

If a county attorney challenged or ignored Hobbs’ order, it would trigger a legal showdown—and the state supreme court may be the final arbiter, again. Aadika Singh, a senior attorney at the Public Rights Project, a national organization that was involved in the recent case against Arizona’s abortion ban, told Bolts this uncertainty will deter abortion care providers.

“The promises from the governor and her executive order, the attorney general’s statements, don’t help that doctor feel confident that she won’t be prosecuted by some rogue local prosecutor,” Singh said. 

Such a case could emerge from Yavapai County, home to Prescott and Sedona. Republican County Attorney Daniel McGrane jumped into the recent litigation to ask the state supreme court to revive the 1864 ban and has signaled his interest in prosecuting people for abortion.

When Bolts contacted the Yavapai county attorney’s office with questions about their policies, an employee told Bolts to contact the Alliance Defending Freedom, a religious organization opposed to abortion that represented the office in court during the litigation over the 1864 ban. When Bolts clarified that it had questions about what McGrane would do in light of the court’s decision, and not just about the litigation, his executive assistant replied in an email, “I understand your request, and I have been directed to refer all inquires [sic] to the ADF.” 

The Alliance Defending Freedom did not answer Bolts’ question on how they were advising the Yavapai county attorney’s office, though they did share a generic statement celebrating the court’s ruling.

Asked about the Yavapai office deferring to the Alliance Defending Freedom, Singh told Bolts, “I think it’s very troubling when governments delegate their positions, their jobs, to ideological antichoice groups.” 

Singh’s organization is now fighting to get Arizona courts to delay the implementation of the 1864 ban; the attorney general said last week that the law would not be in effect until June 8 at the earliest. 

In the meantime, Democratic lawmakers made some progress toward repealing the ban altogether in the Senate last week despite Republicans’ narrow majority, but the odds of repeal are even lower in the House. Speaker Ben Toma, a Republican who controls what the chamber votes on and opposes repeal, said on the floor last week, “I would ask everyone in this chamber to respect the fact that some of us believe abortion is the murder of children.” 

Organizers are also championing a constitutional amendment that may end up on the ballot in November; in securing broader abortion rights in Arizona, the measure would overturn both the 1864 and 2022 bans.

“That is the most durable protection we can have here in our state,” said Chris Love, a spokesperson for Arizona for Abortion Access, the organization that’s pushing for an initiative to be voted on in November. The organization has already collected well above the required number of citizen signatures to qualify the measure, and they’re continuing to gather signatures to be safe. 

Obstacles remain, however. Proponents of the measure worry, for instance, that state courts may step in and strike down the initiative even if it passes, as happened a few years back with a state ballot measure to raise taxes to boost education funding. 

The composition of the state supreme court is not set in stone, though. Two of the justices who ruled to uphold the abortion ban this month, Clint Bolick and Kathryn King, are up for retention elections this fall; these races will decide whether they still sit on the bench next year to hear any challenge to the constitutional amendment if it passes. 

A progressive organization on Monday launched a campaign to urge Arizonans to vote “no” on retaining Bolick and King, the Arizona Republic reported, saying it would raise money toward that goal.

Arizona voters have never ousted a supreme court justice before, and several progressive Arizonans told Bolts last week that they were still unsure of how much attention these races would get. Ortiz, the Democratic lawmaker from Maricopa County, says these judicial races could double as a referendum on abortion rights. “If voters take that power to reject these judges, they’re going to send a really strong message,” Ortiz said. “I do think that it would be a worthwhile effort.” 

If the November measure protecting the right to abortion fails or is struck down, or if a court overturns Hobbs’ order preventing prosecutions, the state’s 15 county attorneys would inherit the authority to go after abortion providers within their jurisdiction. Twelve of the 15 current officeholders joined the letter opposing the governor’s executive order last year, though many have also dodged questions about whether they’d enforce the 1864 ban since the supreme court revived it. 

And while all county offices will be on the ballot this year, in most places, voters will have little choice on offer: Just four counties besides Maricopa even drew multiple candidates for prosecutor—Coconino (Flagstaff), Pima (Tucson), Pinal, and Yavapai counties, all of which will be resolved in the August primaries. 

In Coconino and Pima counties, all four candidates are Democrats—deputy prosecutor Ammon Barker and public defender Gary Pearlmutter in Coconino, incumbent Laura Conover and former deputy prosecutor Mike Jette in Pima—and all four told Bolts they would not prosecute abortion cases against either patients or doctors.

“The threat of prosecution will have a chilling effect on the medical administration of this state unless prosecutors in this state can give women and their medical providers clear assurance that this law will not affect them,” said Barker. Pearlmutter added that he also wants to shield “organizations who perform or assist a woman in receiving an abortion,” as well as “a family member or friend who assists a woman in transporting or obtaining an abortion.”

It’s the mirror image in the other two contested races, Pinal and Yavapai counties. Those only drew GOP candidates. 

Pinal County Attorney Kent Volkmer and his primary challenger Brad Miller did not respond to Bolts’ questions. Volkmer’s office also dodged questions by the Arizona Republic. Miller is a staunch conservative who describes himself as pro-life on his website.

David Stringer, a Republican running in Yavapai County against McGrane, said he was “disappointed” in the court’s decision to uphold the 1864 abortion ban, sharply breaking from McGrane, who championed the ruling. Stringer, a former state lawmaker who resigned in 2019 over scrutiny into racist remarks, told Bolts that people should have access to an abortion “in the very early stage of pregnancy.” But he did not rule out prosecutions for abortion. “I would want to see how my colleagues in other county’s handle this very sensitive issue,” he said via email. 

Stringer suggested that it may breach a prosecutor’s duty to refuse to enforce a law that’s in the books, telling Bolts, “A County Attorney is sworn to uphold the law—even laws they may not like.”

Ortiz, the Democratic lawmaker, insists that it does fall within county attorneys’ purview to refuse to prosecute abortion. She points out adultery is a crime under Arizona law and yet prosecutors aren’t going around hounding cheating spouses with criminal charges. 

“Prosecutors have the full discretion to determine which cases they’re going to file charges on and which cases are going to be dismissed, and they make those decisions every single day,” Ortiz said. “It is fully within their authority to say, ‘I am not going to prosecute cases that involve abortion under this unjust law.’”

Still, abortion rights advocates also warn that this emerging patchwork of policies—with some counties open to prosecuting abortion while others are not—is insufficient to protect abortion access even in places with favorable prosecutors. What happens in one county is bound to bleed into the rest of the state, they say, which is why their priorities are amending the constitution and defending Hobbs’ statewide prohibition on enforcement.

“If a few county attorneys decide to aggressively prosecute, it could result in doctors and other providers in other counties deciding not to provide abortion services, due to the lack of statewide consistency in how reproductive health services should be provided,” said Pearlmutter, the Coconino candidate, to explain why he supports the governor’s effort to block a “fractured approach” to enforcement.

In some states led by Republican executives, the drive for statewide consistency has gone the other way. GOP officials have cracked down on prosecutors who refuse to enforce abortion bans, exposing them to heavy retaliation. In 2022, Florida Governor Ron DeSantis went so far as to remove Tampa’s elected prosecutor from his job, ostensibly over such a pledge. 

Some prosecutors working under a broader ethos of criminal justice reform have also announced they won’t file criminal charges against a larger array of behaviors than just abortion—an approach known as declination. They have said these offenses are a matter for public health professionals, rather than for courts. For instance Julie Gunnigle, Democrats’ unsuccessful nominee in Maricopa County in 2020 and 2022, had pledged to not prosecute low-level drug possession and sex work.

Maricopa Democrats’ candidate this year, Wooten, did not name any type of charge besides abortion that she would decline to prosecute during an interview with Bolts, though she said she wanted to increase alternatives to incarceration for people with addiction or mental health issues in order to “address the underlying issue, as opposed to just throwing everybody in prison.” 

But Wooten drew a line in the sand against enforcing a law that is about “taking constitutional rights away from women.” She invoked Rosa Parks and the civil rights movement’s legacy of civil disobedience.

“Sometimes you may have to bend the rules in order to make a greater good for America,” she said.

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