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A Maricopa County judge gave a tentative go-ahead to a lawsuit seeking to overturn the results of the attorney general’s race, amid criticism that it lacked sufficient evidence and was filed prematurely based on statutory guidelines, though he warned he may yet dismiss the legal challenge.
Last week, Abe Hamadeh, the Republican candidate for attorney general, sued election officials across the state, alleging that a mishandled election cost him the race. Democratic nominee Kris Mayes eked out a victory with 510 votes, triggering an automatic recount once the election is canvassed.
The filing came under fire from legal experts as premature because state law requires challenges to elections to be submitted no sooner than five days after a winner has been declared, which doesn’t officially happen until the election canvass is completed. That’s currently scheduled to happen Dec. 5, though it could take longer because Cochise County on Monday refused to certify its election results.
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Hamadeh’s attorney, Kory Langhofer, asked the court to consider taking up the case ahead of the state’s official canvass, arguing that the outcome can already be anticipated, based on the unofficial results that determined Mayes was the victor.
“We have to get this going or Arizonans are going to be deprived of their duly elected representative. There’s no strong reason why this shouldn’t be heard right now,” Langhofer said.
Dan Barr, Mayes’ attorney, disagreed.
“The plaintiffs could have from now until the end of eternity to address this issue, and it’s not going to change,” he said. “Their complaint is premature and fails to meet the two predicates necessary to file an election challenge.”
To qualify, Barr said, an election challenge needs to be filed after a canvass is complete and a declaration on the winner has been made to be considered valid.
Paul Eckstein, another attorney for Mayes , added that filing after the recount would make the best sense, given that it would determine which candidate won, but it wasn’t necessary. But he said a declaration of a winner was non-negotiable under state law as a prerequisite for filing a challenge to the election.
Judge Randall Warner decided to remove the counties as defendants in Hamadeh’s lawsuit, and directed Langhofer to provide a list of documents needed to move forward with an evidentiary hearing.
Hamadeh’s suit alleged, without evidence, that a combination of improperly adjudicated ballots, printer mishaps, incorrectly duplicated ballots and illegally accepted affidavit signatures led to his narrow loss. To prove these claims, Langhofer requested duplicated ballots from every county, and all adjudicated ballots in the Attorney General’s race.
A duplicated ballot is made to preserve the voter’s intent when the original one was badly damaged while adjudication is the process by which election officials determine the voter’s eligibility or choice when either is unclear due to mangling or other legibility issues.
Langhofer also said he would require information from Maricopa County on voters affected by Election Day voting issues. Around 70 voting sites had issues with on-demand printers producing ballots with ink too light for tabulators to read, leading to confusion as voters were asked to deposit their ballots into a special drawer, known as “door 3,” for later tabulation or check-out of polling sites experiencing issues and vote at a different site.
Some 146 voters left polling sites dealing with printer problems without checking out or submitting a ballot and were later asked to vote a provisional ballot. Langhofer said he would need information on how many checked in to polling sites experiencing issues and then didn’t check-out, how many were issued provisional ballots, the number of people who became frustrated and dropped of a mail-in ballot that wasn’t counted and the number of people who were told they wouldn’t be able to vote at all when they visited a second site.
Sifting through all that information, Langhofer estimated, would take about a week and could then be presented to the court over two days.
“Once we have that information, we obviously need to talk to all those folks and decide which of those may be rehabilitatable,” he said.
Barr criticized these wide-ranging requests as clearly showing that Hamadeh’s lawsuit lacked any real evidence.
“This is a lawsuit in search of facts,” he scoffed. “I think Mr. Langhofer is saying he doesn’t have any of these facts to file this lawsuit in the first place. This is very much filing a lawsuit unsupported by facts and saying, ‘I need discovery to find some facts to support a lawsuit.’ And, you know, that’s not how we litigate cases in this country.”
Langhofer rebutted that state law allowed for examination of that information during an election contest and said Hamadeh’s campaign had reason to believe there were votes to be found there. Those records, he added, had been requested previously with no response from county officials.
“To say that we’ve done something unethical by asking the question, saying, ‘We want to see these ballots’ — which the election contest statute entitles you to — we just have to take their word for it? It’s unserious and I find it deeply offensive,” he said.
Warner set a Tuesday deadline for Langhofer to file an official list of requested documents and a Dec. 6 deadline for simultaneous briefs to be submitted on what the extent of the discovery should be. He warned that he is still considering the argument that the case was prematurely filed and could yet decide to strike down the lawsuit. No date for an evidentiary hearing or briefing schedule was decided.
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