Judge will decide whether to delay Maricopa canvass in AZGOP election challenge

By: - November 16, 2020 4:06 pm

Photo by Gage Skidmore | Flickr/CC BY-SA 2.0

Maricopa County is asking a judge to dismiss a lawsuit from the Arizona Republican Party alleging that election officials improperly used vote centers instead of precincts as the basis for a limited hand count of ballots, while the state GOP may ask the judge to postpone the county’s official canvass of the 2020 general election while the case plays out in court.

The parties will be back in court on Wednesday afternoon, when Maricopa County Superior Court Judge John Hannah will determine whether the case should move forward.

State law requires counties to perform a hand count of ballots cast in at least 2% of all precincts after each election. But state law also permits counties to abandon precinct-based voting entirely and instead use vote centers where any voter, regardless of where he or she lives, can cast a ballot. 

To reconcile the two, the election procedures manual issued by the Secretary of State’s Office each election cycle permits counties to use 2% of vote centers if they don’t use precincts. The manual, which has the force of state law and was approved by the governor and attorney general, has included that provision since 2012.

The Arizona Republican Party sued Maricopa County, arguing that it still should have conducted its hand count based on precincts.

At a hearing on Monday morning, Deputy County Attorney Joseph LaRue said it may not even be possible for the county to sort the ballots by precinct. Each vote center’s ballots are bagged together, and election officials would have to sort through each bag in an attempt to find every ballot that corresponds to designated precincts. Even if it’s possible, he said, it would be extremely time-consuming, and would likely extend beyond the statutory deadline for the canvass.

LaRue said the county plans to certify its canvass on Thursday or Friday; the deadline for counties to complete their canvasses is Monday. LaRue noted that any delay in Maricopa County’s canvass could delay the state canvass, which the secretary of state must complete by Nov. 30. And any delay at the state level could affect the scheduled meeting of the Electoral College on Dec. 14.

“If the audit takes place after the canvass, I’m not sure what the point would be,” LaRue said.

If the county plans to go ahead with its canvass later in the week, attorney Jack Wilenchik, who represents the AZGOP, said he’ll ask the judge for an injunction to postpone it.

Attorneys for the county and for the Secretary of State’s Office raised a number of problems with the AZGOP’s case. The county has asked Hannah to dismiss the case based on those alleged deficiencies. 

In a motion to dismiss its attorneys filed Monday morning, Maricopa County said it complied with the law by conducting a hand count of ballots from 2% of vote centers. According to the 2019 edition of the election procedures manual issued by Secretary of State Katie Hobbs, “In counties that utilize vote centers, each vote center is considered to be a precinct/polling location and the officer in charge of elections must conduct a hand count of regular ballots from at least 2% of the vote centers, or 2 vote centers, whichever is greater.” 

The manual has the force of state law, and statute makes it a class 2 misdemeanor to violate any rule adopted in that manual. The statute requiring the limited hand count of ballots from 2 percent of precincts and 1 percent of early ballots also states that those counts must be performed in accordance with the election procedures manual.

Roopali Desai, an attorney representing the Secretary of State’s Office, noted that the AZGOP hasn’t challenged the authority of the election procedures manual, which she described as a procedural defect in the case. In the party’s initial complaint, it argued that the statute conflicts with the manual’s instructions on hand counts based on precincts, but didn’t address the authority that state law grants to the manual.

The county also argued that Hannah should dismiss the case because the AZGOP waited too long to bring it. Maricopa County not only used vote centers as the basis for its hand count for the August primary election, but the county Republican Party, which is legally a subgroup of the state GOP, participated in that process. State law requires the participation of county political parties for the hand count to move forward.

The manual’s provision allowing counties to substitute vote centers for precincts isn’t new. Hobbs issued the original draft of her manual in August of 2019. And previous iterations issued in 2012 and 2014 contained similar provisions. 

Desai said mandating that Maricopa County use precincts instead of vote centers could also raise problems under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution because other counties that also used vote centers for their hand counts aren’t part of the case. According to the county’s motion to dismiss, Cochise, Greenlee and Yavapai counties hand counted ballots from vote centers instead of precincts.

Wilenchik could not be reached for comment, and a spokesman for the AZGOP did not respond to messages from Arizona Mirror asking why the party didn’t challenge Maricopa County’s hand count for the primary election or why the party isn’t also suing other counties that conducted hand counts of vote centers.

Some Arizona Republicans, including elected officials, have alleged without evidence that the election in Maricopa County was flawed, oftentimes due to baseless conspiracy theories involving Dominion Voting Systems, which provides the ballot tabulation machines and software that the county uses to count votes.

Former Vice President Joe Biden defeated President Donald Trump in Arizona by about 10,500 votes, becoming the first Democrat to win the state’s electoral votes since 1996, and only the second since 1948. Biden topped Trump by more than 45,000 votes in Maricopa County.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”