AZGOP chair eyes nullification of presidential election in new lawsuit

By: - November 25, 2020 5:07 pm

Arizona Republican Party Chairwoman Kelli Ward speaks at an April 24, 2019, press conference supporting an increase in the state sales tax to provide more funds to education. Photo by Jerod MacDonald-Evoy | Arizona Mirror

Arizona Republican Party Chair Kelli Ward wants a judge to allow her to examine ballots to determine if any were improperly counted in an effort to overturn President-elect Joe Biden’s victory, though she hasn’t shown any evidence of the theoretical problems she’s alleging.

Ward plans to bring suit under a state law permitting any voter in the state to challenge election results on grounds of misconduct by election officials, illegal votes or if the loser is declared the winner through an “erroneous count of votes.” She is suing in her capacity as an individual and as an elector for President Donald Trump.

It is the latest challenge from state Republicans to the results of the election, which Biden won by about 10,500 votes. This is the fifth lawsuit involving Arizona’s election results and the second involving Ward. 

According to the proposed complaint, the chairwoman will request that “the Court declare that the certificate of election of the Biden electors is of no further legal force or effect,” and “that the election is annulled and set aside” in accordance with a state law permitting a judge to reject the outcome of an election if a lawsuit shows that result to be improper. If an inspection of ballots proves Trump got the highest number of votes, Ward wants the judge to declare his electors as the winners.

But before a judge can nullify the results of the presidential election in Arizona, Ward must show that enough votes were improper to warrant such a drastic result. And in order to help her show that, she’s asking a judge to allow her to examine ballots while she prepares to file her lawsuit after the state canvass of the 2020 general election is certified on Monday.

Maricopa County Superior Court Judge Randall Warner will hold a hearing in the matter on Monday at 10:30 a.m.

When people vote by early ballot, they must sign the envelope they use to mail or deliver those ballots. Election workers compare the signatures to the signatures on file for those voters to ensure that they match. 

Political parties can appoint observers to watch ballot counting, signature verification and other election-related activities. Ward’s lawsuit alleges election officials kept observers 10 to 12 feet away from the computers where they were verifying signatures, which was too far away to see the signatures themselves. When observers complained, election workers let them use binoculars, the lawsuit stated, but the observers still weren’t able to read the signatures.

Attorney Jack Wilenchik, who represents Ward, argued in the proposed lawsuit that the refusal to allow observers to more closely examine the signature-verification process constitutes misconduct by election officials.

“Because Arizona’s method of proving identity for mail-in early voters relies entirely on signature verification, and because election officials did not allow legal observation of signature verification to occur — potentially allowing falsely or insufficiently verified ballots to be counted — then the result of the election is fundamentally uncertain,” Wilenchik wrote.

A request for discovery that Wilenchik filed on Tuesday asks that Ward be permitted a “reasonable inspection” of a “sampling” of signatures “that can be performed in an appropriate statutory timeframe.” It doesn’t say how many signatures they want to inspect. At most, they would have two weeks to examine the signatures because the Electoral College will meet on Dec. 14 to certify Biden as the winner of the presidential election.

Even if Ward and Wilenchik found signatures that were improperly verified, it would be impossible to figure out which ballot should be invalidated. Ballots and their envelopes are separated once election workers confirm the authenticity of the signatures. And it would be impossible to determine whether the improperly counted vote went for Biden or Trump. 

Wilenchik said if enough ballot signatures were found to be deficient, it could cast enough doubt on the election results to warrant the annulment of the presidential contest.

Ward and Wilenchik questioned the signature verification process and  the training of the election workers who conduct it, and suggested that people could obtain copies of voters’ drivers’ licenses for the purpose of obtaining their signatures to use for ballot forgery. But they did not provide any evidence that election officials had verified forged or otherwise faulty signatures.

Fraud involving ballot signatures is rare, according to election officials in Arizona, where the majority of people vote by early ballot, as well as in other states that conduct all-mail elections, a list that includes Colorado, Hawaii, Oregon, Utah and Washington.

The lawsuit also alleges that there could have been problems with “duplicate” ballots in the East Valley-based 5th Congressional District and the suburb of Queen Creek, which is part of the district. 

If the tabulating machines used by counties are unable to read a damaged or otherwise ineligible ballot, a bipartisan team duplicates the voter’s choices on a fresh ballot and feeds into the machine, or election officials can fill out an electronic duplicate for that voter.

The lawsuit alleged an “unusually high” number of duplicates in the 5th District, and said the results of the election were “strongly inconsistent” with partisan voter registration numbers and historical data. Wilenchik didn’t elaborate on that claim. But several Republican elected officials raised questions after Garrett Archer, an elections data analyst with ABC15 and former Secretary of State’s Office employee, reported that in one precinct of Queen Creek with more than 1,000 voters, Trump won 67.4 percent of the vote in 2016 but only 58.5 percent in 2020.

Though it alleged a higher number of duplicates in Queen Creek, the lawsuit didn’t say how many there were this year or in previous years. Wilenchik said observers witnessed an unusually high number of duplicates, but hadn’t yet received those numbers from the county. He also alleged that the software used for electronic duplicate ballots in Maricopa County is “highly inaccurate,” often flips votes and was observed to erroneously pre-fill votes for Biden twice as often as Trump, though Wilenchik didn’t include any evidence of that.

Ward, who has repeatedly spread false or dubious allegations of fraud or misconduct in the election, claimed there were “countless voting irregularities” and “failures in the crucial processes” that ensure election integrity.

“Arizonans cannot have confidence that our state’s election canvass will be error-free considering the process by which counties verified signatures on mail-in ballots was not transparent nor adequately evaluated by outside observers. For reasons like this, we will be seeking to contest the reported result of the 2020 election,” Ward said in a press statement.

Secretary of State Katie Hobbs said the allegations lacked any merit.

“This is just the latest in a series of frivolous lawsuits and is nothing but a last-ditch effort to undermine the credibility of the election. The Secretary of State’s Office trusts that the court will continue to do the right thing,” she said in a statement provided to the Arizona Mirror.

It’s unclear who will defend against the lawsuit. Hobbs isn’t named as a defendant, nor is Maricopa County or any county officials. The only defendants are the 11 Democratic electors who are committed to Biden, a list that includes Arizona Democratic Party Chair Felecia Rotellini, Tohono O’odham Chairman Ned Norris, Navajo Nation President Jonathan Nez, Tucson Mayor Regina Romero, Corporation Commissioner Sandra Kennedy, Gila River Indian Community Gov. Stephen Roe Lewis and Maricopa County Supervisor Steve Gallardo.

The Maricopa County Board of Supervisors met in executive session to receive legal advice about the lawsuit on Wednesday. A spokesman for the county wouldn’t comment on whether the board plans to intervene as a defendant.

This is the second lawsuit that Ward and Wilenchik have brought since Election Day. The Arizona Republican Party sued Maricopa County, alleging that it improperly conducted its post-election hand count of ballots. A Maricopa County Superior Court judge dismissed the suit and took the rare move of inviting the Secretary of State’s Office to seek attorney’s fees under a statute pertaining to frivolous or bad-faith lawsuits.

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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.”