Maricopa County Superior Court Judge Sam Myers ruled last week that prosecutors for Attorney General Kris Mayes left out key information when they presented their case against the alternate electoral slate for Donald Trump and several others associated with the electors, which "denied a substantial procedural right as guaranteed by Arizona law.” Myers previously ruled in February that there were enough grounds in the defendants’ motions to likely dismiss the prosecutions due to violating the First Amendment.

The defendants have maintained that the prosecution was politically motivated. Former Arizona Republican Party Chair Kelli Ward, one of the defendants, posted her support for the decision on X. "She & her team are trying to get the judge to STAY the decision (ie: hold it indefinitely) … so they can go around the law they are required to follow (rule 12.9 of criminal procedure) and they have the GALL to claim that the defendants (us) are not being harmed by this. WE HAVE BEEN HARMED EVERY DAY SINCE THIS BEGAN.”

Mayes is prosecuting the alternate slate of electors for alleged crimes such as forgery, claiming that creating an alternate slate was criminal. Myers remanded the case back to the grand jury because the jurors, who indicted 18 including Trump’s former attorney and constitutional legal scholar John Eastman, were not provided with a copy of the 1887 Electoral Count Act (ECA). Defense attorneys argued that the ECA allowed for multiple slates of electors. It was amended afterwards in 2022 by Congress to restrict that, stating that the Vice President did not have substantive authority to reject slates of electors.

During the State Bar of California’s disbarment trial against Eastman, he presented testimony from numerous experts on the issue, including Berkeley constitutional law professor John Yoo. Yoo, who has published law review articles on the topic, testified about previous historical instances where Vice Presidents exercised their substantive authority when considering whether to accept alternate slates of electors. Yoo said there has been only one legal scholar ever who thought the Vice President did not have this authority before the 2022 amendment.

Myers said in his May 19 opinion, "A review of the grand jury proceedings in this matter demonstrates that the ECA was central to the Defendant’s claims that they were acting lawfully and without an intent to defraud. At the oral argument on the instant motions, the State confirmed that at the time of the grand jury proceedings it was aware that at least some of the Defendants claimed that their actions were authorized by the ECA.”

He cited the obligation prosecutors have to inform grand juries of all applicable law. Myers quoted one of the cases, Korzep v. Superior Court. "This duty includes providing instructions on justification defenses that, based on the evidence presented to the grand jury, are relevant to the jurors determining whether probable cause exists to indict the defendant,” the Arizona Court of Appeals ruled.

Myers relied on Rule 12.9 of Criminal Procedure, which "permits a defendant to challenge the findings of the grand jury if the defendant was denied a substantial procedural right,” he said. "If the defendant’s challenge is successful, the case must be remanded to the grand jury for a new finding of probable cause.”

Myers said in February, when he held that there was merit to the defendants claims that the case was brought in political retaliation, that Arizona’s anti-SLAPP law allows a case to be dismissed if "the legal action was substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.

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