Examination finds Maricopa ballot errors didn’t affect presidential outcome

By: - December 3, 2020 9:07 pm

Kelli Ward at the State of the State speech in 2020. Photo by Jerod MacDonald-Evoy | Arizona Mirror

Observers testified that they saw numerous mistakes as election workers recreated ballots that couldn’t be read by tabulation machines, but an examination found that such errors likely didn’t cost President Donald Trump anywhere close to enough votes to affect the outcome of the presidential race in Arizona.

Meanwhile, a Maricopa County judge dismissed a central part of state GOP chair Kelli Ward’s lawsuit to overturn the results of President-elect Joe Biden’s win in Arizona during an evidentiary hearing on Thursday.

The lawsuit alleged that Maricopa County election workers may have improperly verified signatures used to to confirm the identities of people who vote by early ballot and that they switched Trump votes to Biden votes on duplicates of ballots that were unreadable by the county’s tabulation machines. She’s urging Superior Court Judge Randall Warner to negate Biden’s win and award Arizona’s electoral votes to Trump under a state law allowing challenges to election results in cases of misconduct.

Ward’s lawsuit contained no evidence of her allegations, and she asked Warner to allow her to examine duplicated ballots and the signatures on the envelopes used to mail early ballots. Warner agreed to let her examine 100 of each, and after attorneys found two duplicated ballots that mistakenly subtracted votes from Trump, the county agreed to let them examine up to 2,500 more.

Attorneys and election officials were able to examine 1,526 additional ballots on Wednesday. And the results didn’t bode well for Ward’s attempt to show that improperly duplicated ballots may have cost Trump the race in Arizona.

Nine of the 1,626 duplicate ballots examined had errors — seven of which cost Trump votes and two that took votes from Biden. Scott Jarrett, Maricopa County’s director of election day voting, testified on Thursday that if that error rate were applied to the nearly 28,000 total duplicated ballots cast in the county, Trump would gain a mere 103 votes.

Biden won Arizona by 10,457 votes.

Ward opened the day with a partial win as Warner rejected Secretary of State Katie Hobbs’s request to dismiss the case outright. Her attorney, Roopali Desai, argued in a motion to dismiss the entire complaint that Ward failed to show the kind of misconduct the law requires to invalidate election results, among other alleged defects in the case.

But Warner agreed to partially dismiss the case, rejecting anything based on allegations that election officials didn’t allow Republican Party observers to get close enough to determine whether errors were made in the signature verification or ballot duplication processes. Warner said Ward should have raised these issues sooner instead of waiting until “the only remedy would be to upend the entire election.”

“I find that claims of insufficient opportunity to observe those procedures should have been brought when there was an opportunity to correct any violation of Arizona law, if there was a violation,” Warner said.

Desai noted that the bulk of Ward’s case rested on the assertion that there could have been misconduct because observers didn’t have an adequate view of the processes.

“I’m not sure what claim we’re hearing evidence on today,” she said.

Warner said he wanted to establish a complete record in the case. He has said several times that he expects his ruling, whatever it is, to be appealed to the Arizona Supreme Court.

Jarrett, whom the Maricopa County Board of Supervisors appointed last year to oversee Election Day and emergency voting, testified that the county made a number of changes to the observer process in 2020, but that those date back to the August primary election, meaning Ward was well aware of them before the general election. He said the county permitted more partisan observers than in previous years, but that observers had to abide by social distancing requirements due to the ongoing COVID-19 pandemic.

Several GOP observers who worked on and after Election Day at Maricopa County’s main tabulation center near downtown Phoenix testified that they saw a number of mistakes, some of which were corrected, some of which might have been and some of which likely weren’t remedied.

Desai noted in her motion to dismiss that Arizona courts have long established “honest mistakes or mere omissions on the part of the election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain.”

When the county’s tabulation machines cannot read a ballot because of damage or erroneous markings, an electronic image of that ballot goes before a bipartisan adjudication board that tries to discern the voter’s intent. They duplicate what they believe the voter’s choices were onto another ballot using a software program, and the new ballot is fed into the machine for counting.

Thomas Lane was one of a half dozen observers whom Ward’s attorney, Jack Wilenchik, called to the stand. Lane, who was observing on behalf of the campaign opposing Proposition 207, which legalizes recreational marijuana, said he watched election workers mistakenly negate votes for Trump. He said the software that tries to prefill what it believes to be the voter’s choices generally favored Biden, regardless of what the original ballot said.

Oftentimes, the election workers caught those mistakes and corrected them, Lane said. When they didn’t, he took notes and informed them after they completed the duplication process. The election workers said they would use the serial numbers he wrote down to find the improperly duplicated ballot and correct it later, Lane testified.

Lane said he doesn’t know whether election workers ultimately corrected those mistakes, but they said they would.

Several credentialed Republican observers said they saw similar problems with the software, usually to Biden’s benefit and Trump’s detriment.

Kenneth Sampson said he was able to roam the downtown election center and compare the original ballots to the suggested duplications, which were side by side on computer screens.

“Across the board I saw those were wholly inaccurate,” he said.

While some observers testified that election workers said they would correct the problems they witnessed, one observer, Lori Gray, said she didn’t realize until later that she could get the ballots’ serial numbers to report them to the county. Another observer, Jan Bryant, testified that she only saw “minor mistakes” and saw no problems with the duplication boards that copied new ballots.

Linda Brickman, the first vice chair of the Maricopa County Republican Party, testified that in her work on a bipartisan adjudication board, the software program often wouldn’t allow her to correct mistakes that took legitimate votes away from Trump. And she said election workers wrongly determined that some votes that should have counted toward Trump’s total were ineligible.

Most of Thursday’s hearing focused on the duplication issue, but Wilenchik also called his handwriting expert to the stand to discuss her analysis of 100 signatures from early ballot envelopes. Amid aggressive questioning from defense attorneys about her credentials, including reprimands from a judge in a recent case in California about the quality of her work, Laurie Hoeltzel said she found six of the 100 signatures that she couldn’t conclusively match to the signature in the voter files, though she said that doesn’t necessarily mean the signatures were bad.

Maricopa County elections director Rey Valenzuela, Jarrett’s counterpart, found no signatures that he didn’t believe were good matches with the voter file, while the defendants’ handwriting expert concluded that 11 signatures were inconclusive, Hoeltzel testified.

Wilenchik rested his case following Hoeltzel’s testimony. Testimony will resume Friday at 9:15 a.m., when defense attorneys are expected to call several witnesses, including Valenzuela and state Elections Director Bo Dul, before the hearing concludes.

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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.”