Salzman pointed out that Brnovich never made an attempt to intervene in the case when it was filed. That put Hobbs in the role of deciding how to defend the law and, more to the point, when to stop, she said.
She pointed out that Brnovich and Hobbs have squabbled in other election-related cases.
For example, Hobbs sided with initiative circulators who sought to be able to collect signatures online this year, during the pandemic, by using the existing E-Qual system already available for candidates. Brnovich did not and the court sided with him.
The pair also are on opposite sides of a case before the U.S. Supreme Court on the issue of “ballot harvesting.” Hobbs wants the justices to uphold a federal appeals court decision allowing civic groups to collect and deliver early ballots from those who forgot to mail them in; Brnovich wants to overturn that ruling.
In those cases, Brnovich was a party to the case. This time, Salzman said, he chose to sit on the sidelines despite the history of differences he has had with Hobbs.
“He fully well knew that the secretary might make a different decision in this case than he would,” yet opted not to intercede, she said.
“That the attorney general is unhappy with how that choice turned out provides no basis for him to change course and declare, contrary to his position in the district court, that he and not the secretary speak for the state in this action,” Salzman told the appellate judges.