Judge allows Ward to examine handful of ballots, envelopes in lawsuit to overturn election

By: - November 30, 2020 6:24 pm

Kelli Ward, chair of the Arizona Republican Party, speaks to reporters and Trump supporters outside the Maricopa County Elections Department in Phoenix on Nov. 18, 2020. Photo by Laura Gómez | Arizona Mirror

Arizona Republican Party Chair Kelli Ward’s attempt to invalidate nearly 1.7 million votes for Joe Biden will begin with 200 ballots as she and her attorneys search for evidence of election fraud or misconduct that they have thus far been able to show.

Ward is asking a Maricopa County Superior Court judge to declare President Donald Trump the rightful winner of Arizona’s 11 electoral votes, though Biden defeated him by more than 10,000 votes. She alleges that election workers didn’t allow Republican observers to get close enough to ensure that signatures weren’t mistakenly verified on early ballot envelopes, or that election workers didn’t improperly change the votes on ballots that couldn’t be read by tabulating machines.

But Ward has presented no evidence that ballots were wrongly accepted due to improper verification of signatures or that any votes were changed on “duplicated” ballots. She and attorney Jack Wilenchik asked Judge Randall Warner to allow them to inspect tens of thousands of ballots so they can determine whether election workers made such errors.

During a hearing on Monday, Wilenchik said he’d like the handwriting analysis expert he’s retained to look at 1-2 percent of the 1.6 million early ballots submitted in Maricopa County, which would be 16,000 to 32,000 ballots. He also wanted access to all duplicated ballots, a number that Maricopa County election officials pegged at around 20,000.

Instead, Warner agreed to let Ward and Wilenchik’s expert look at 100 envelopes and 100 duplicated ballots.

“It’s enough to let us know if there are red flags,” Warner said.

Ward and Wilenchik will have until Thursday, when the judge scheduled a trial in their election complaint, to examine the ballots.

Warner gave Ward far less than she asked for, but still more than an attorney for the Secretary of State’s Office hoped for.

Roopali Desai, who represents Secretary of State Katie Hobbs, emphasized that Ward and Wilnechik hadn’t produced any evidence of wrongly verified signatures or improperly changed votes, and as such had no legal right to examine any ballots. And even if they had good cause to examine ballots, Desai argued that they’re asking for materials they have no right to, such as voter files that contain the signatures election workers use to verify early ballots.

Desai told Warner that Wilenchik’s request was nothing more than a “fishing expedition.”

“Petitioner has no facts to support her claims, which is why she is trying to use Rule 27 to uncover them,” Desai wrote in a court filing of the procedural rule Ward cited in her request to examine ballots. “In other words, Petitioner knows of no errors, but she wants to inspect some random number of ballot affidavits to see if she can find some.”

Desai wrote that Ward failed to show that even a single early ballot was wrongly accepted, let alone enough to justify overturning the votes of more than 3.42 million Arizonans. Similarly, Ward failed to demonstrate even a single error in the duplication of ballots.

“Difficult as it may be for Petitioner to accept, this election is over, and her preferred slate of presidential electors received fewer votes than those of the winning challenger,” Desai wrote.

According to attorney Joseph LaRue, who represents Maricopa County, there were, at most, 104 duplicated ballots from Queen Creek and adjacent vote centers. And it would be a “herculean task” to determine which ones came from an individual vote center, LaRue said. In addition, some of those 104 may not have been duplicated at all. The ballots would have been transferred to Maricopa County’s main tabulation center near downtown Phoenix, where the tabulation machines might have accepted and read some of them, negating the need for duplication.

Desai noted in a court filing that Ward acknowledged in her own briefings that she had no way of knowing whether ballots with faulty signatures were improperly verified. Ward’s only basis for suggesting that fraudulent signatures might have been approved is her claim that voters’ signatures are readily available to others from the state’s Motor Vehicle Division, which Desai said was “nonsense” and simply not true because state and federal law tightly control access to the information on people’s driver’s licenses.

And while political parties have the right to have observers present when ballots are being processed, including signature verification, they have no right to conduct any verification themselves or to challenge a signature, nor is the county required to give them a close-up view of the process, Desai said. 

Furthermore, Desai said the law allows ballots to be inspected as part of election challenge lawsuits, but not envelopes and signatures.

While Desai noted that it would be impossible to match a ballot to an envelope, even if mismatched signatures are found, Wilenchik said he’s not trying to invalidate individual ballots. He’s looking to demonstrate that enough ballots were improperly accepted that it would call the results of the entire election into question and warrant a judge invalidating the results.

“I think there is a very dangerous precedent that can be set by allowing discovery simply because a party who then says we want … to check if they did a good job,” Desai said.

Warner said several times that the case is likely to end up before the Arizona Supreme Court, or perhaps even the U.S. Supreme Court. His courtroom will establish the record that those higher courts will use.

The judge acknowledged that Desai raised serious issues about the precedent that could be set for future cases by allowing Ward to inspect ballots. But he said he’d rather the Arizona Supreme Court say he erred by giving her access to the ballots rather than conclude that he should’ve given it, but that there’s no time left to right that wrong.

“You folks may be right, but I’m inclined to err on the side of transparency and to air these things out so whatever the results are we can be confident in them,” Warner said.

Ward and the Arizona Republican Party praised the ruling.

“This decision is a step in the right direction, and is important to help ensure the integrity of our elections. The Republican Party of Arizona continues to fight for access to records it can legally acquire, which has been extremely limited, to fight for the level of transparency that is essential to voter confidence in our elections,” Ward said in a press statement.

Ward is suing in her capacity as an individual and as an elector for Trump.

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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.”