Maricopa County Superior Court Judge Sam Myers said on Monday during a hearing in Attorney General Kris Mayes’ prosecution of the 2020 alternate electoral slate for Donald Trump and their associates that there were enough grounds in the defendants’ motions to likely dismiss the prosecutions due to violating the First Amendment.
Myers, who previously clerked for a Democratic Senator and was appointed to the bench by Democratic Governor Janet Napolitano, made the decision without hearing oral arguments due to the strength of the defendants’ arguments, he said.
The judge addressed motions to dismiss based on the state’s anti-SLAPP law filed by former State Senator Anthony Kern and Trump’s former Chief of Staff Mark Meadows. Several other defendants filed similar motions, including Trump’s former attorney and constitutional legal scholar, John Eastman, and former Arizona Republican Party Chair Kelli Ward. State Senate President Warren Petersen (R-Mesa) and then-House Speaker Ben Toma filed an Amicus Curiae brief supporting Ward’s motion.
Anti-SLAPP laws prohibit using the courts to suppress the First Amendment, including the constitutional rights of petition, speech, and association. Mayes said she intends to appeal the ruling in the “fake electors case.” While Myers’ ruling doesn’t grant the motions to dismiss, it puts the burden on Mayes to show now why they shouldn’t be granted.
Eastman posted on X after the ruling, “Major ruling in the Arizona electors case this a.m. The new judge just ruled that I met the prima facie case required to dismiss under the anti-SLAPP statute — that is, 1st Amend. rights implicated, & substantial evid. that the prosecution was to retaliate or deter those rights.”
Major ruling in the Arizona electors case this a.m. The new judge just ruled that I met the prima facie case required to dismiss under the anti-SLAPP statute — that is, 1st Amend. rights implicated, & substantial evid. that the prosecution was to retaliate or deter those rights.
— John Eastman (@DrJohnEastman) February 10, 2025
He added, “Just to clarify. The AG now has to prove that she wasn’t motivated by desire to retaliate or deter 1A rights. Their brief is due March 25. The judge also rejected the AG’s claim that the anti-SLAPP statute is unconstitutional.”
Kern responded to Eastman, alluding to a Republican challenging Mayes for reelection, “Good news for Arizona! Better news coming in the AG election ‘26!!” Petersen is expected to challenge Mayes for the office.
Good news for Arizona! Better news coming in the AG election ‘26!! https://t.co/FzRx0IFZzQ
— Anthony Kern (@anthonykernAZ) February 10, 2025
Arizona’s anti-SLAPP law states that a defendant can ask for a case to be dismissed if they can prove “the legal action was substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.” Most of the charges against the defendants relate to allegedly forging documents.
The defendants argued that none of the acts they engaged in, such as filing a lawsuit in the Supreme Court to challenge the wrongful election activity or writing to Congress or the vice president asking them to consider the alternate electoral slates or remand the decision to the state legislatures, was a crime. They also pointed out there was no evidence of a conspiracy among them to violate the law, no evidence that they were told what to do, nor evidence that their actions constituted a “contingency plan,” as Mayes had claimed.
Although Mayes frequently refers to the alternate electors as fake electors, one of the most respected constitutional legal scholars on the left, Lawrence Lessig, said the alternate Trump slates were no different than those of electors in the 1960 presidential election. He said during an interview in a new documentary about the lawfare against Eastman, “I think it’s an important example of why it was right for the Trump electors to vote on Election Day in those states where there was some question about what the result would be, and I think the real mistake we’ve made is prosecuting those electors, calling them ‘fake electors.’ By that theory, the Kennedy electors [in 1960] were fake electors…”
Some of the attacks on Arizona’s alternate electoral slate for Trump attempt to distinguish it from similar slates in other states, pointing out that the Pennsylvania and New Mexico Trump slates used language that specifically stated that the courts would have ultimate authority. However, Lessig did not make anything of this distinction since he condemned the lawfare against Eastman, including the Arizona prosecution.
Mayes, who did not appear to have ever practiced law before becoming attorney general in 2022, drafted the indictments based on a legal blueprint provided by the far-left States United Democracy Center. During a press conference she held last year announcing the indictments, she misstated the law numerous times.
Defendant Jenna Ellis, a former attorney for Trump, signed an agreement with the prosecution to testify against the other defendants in exchange for having the charges against her dropped. Another defendant, Lorraine Pellegrino, accepted a plea agreement since her husband was dying.
State Representative Alex Kolodin (R-Scottsdale), a constitutional and election attorney, proposed a bill earlier this month that would expand the state’s anti-SLAPP law to include political and religious expression, create additional remedies against state actors who bring SLAPP suits, and establish an avenue for post-conviction relief when a defendant asserts that a prosecution was politically motivated. In 2022, Arizona became the first state in the nation to expand its anti-SLAPP law beyond civil lawsuits to criminal prosecutions.
Trump is an unindicted co-conspirator in the prosecution. Mayes has announced her intent to oppose his administration in various ways, including by avoiding the prosecution of illegal immigrants. She offered to hire the DOJ prosecutors and FBI agents that Trump fired. Founder Mike Davis of the Article III Project, which defends constitutionalist judges and the rule of law, posted on X recently that she could go to prison due to obstructing Trump.
The original judge on the case, Maricopa County Superior Court Judge Bruce Cohen, recused himself in November 2024 after Hoffman filed a motion requesting his recusal due to political emails Cohen had sent to all of his fellow judges and commissioners on the bench. In one email, he compared people who don’t defend Kamala Harris to Nazis. In another email, he mocked Kern. Cohen is known for sending highly partisan emails to other judges but has never been disciplined.
A trial date has been set for January 5, 2026.
– – –
Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
