Maricopa County says Hamadeh’s lawsuit logic is flawed

Abraham Hamadeh’s reason for his request to inspect ballots — which he hopes will turn up some evidence of misconduct in the race he lost — is fatally flawed and should be dismissed by the court, according to attorneys for Maricopa County. 

Hamadeh, the Republican nominee for attorney general, filed a lawsuit claiming that a bungled election was to blame for his 511-vote loss in November. To gather proof to support that claim, he requested permission to look over adjudicated, duplicated and provisional ballots, and all recorded undervotes in Navajo, Pima and Maricopa counties. 

Duplication and adjudication are both processes in which election officials preserve or determine the voter’s intent when the original ballot is too badly mangled or illegible for the machines to read. Provisional ballots are given to a voter on Election Day when their eligibility to vote cannot be determined, for example, when they did not properly register to vote. An undervote occurs when a ballot has unclear markings or the voter simply chose not to vote in a specific race; these ballots are not rejected, but specific races the voter didn’t make a selection for are. 

Attorney for Hamadeh, Timothy La Sota, argued that a combination of erroneously counted and rejected ballots in each category may have swayed the outcome of the historically-close race. 

Emily Craiger, an attorney for Maricopa County, said that claim wasn’t grounded in any real evidence and would ultimately prove insufficient for a successful election challenge. 

“What plaintiffs have done is taken publicly-available numbers related to the election and provided theories about the basis for those numbers, but these are purely hypotheticals and in most cases are entirely wrong,” she said, during a hearing in Mohave County on Monday afternoon over whether or not to dismiss the case entirely. 

Central to Hamadeh’s lawsuit is that hundreds of Maricopa County voters on Election Day were disenfranchised due to on-demand printer malfunctions, but Craiger rebutted that only 146 voters were affected — and of that number, 109 ultimately had their ballots tabulated. Of the allegedly 1,942 provisional ballots Hamadeh claims were incorrectly rejected in the county, all but seven were determined to be ineligible to vote in the midterm election because they registered after the Oct. 7 deadline. 

Hamadeh’s lawsuit also used an error statistic from the 2020 election in Maricopa County to claim that mis-adjudicated ballots were an issue in the midterms. Craiger criticized the use of a two-year old statistic but noted that even if the rate was the same in the November election, only 44 ballots would be imperiled — out of 1.5 million in Maricopa County alone. Altogether, she concluded, the number of allegedly erroneously counted ballots would not be enough to flip the race in Hamadeh’s favor. 

La Sota said the request to inspect ballots sought to reconcile the allegations received by Hamadeh’s campaign with the county’s data. 

“(Maricopa County) keeps saying ‘Look, nothing to see here, move along, trust us,’” he said. “It’s not a bad thing that in a race this close, there’s an ability to check the ballots to see if they’re correct. And have each side get the ability to make their case.”

He added that as many as 50,000 undervotes needed verifying. It’s likely, he posited, that ink color may have played a role in how many ballots were incorrectly deemed  undercounts by tabulation machines. Rejecting such votes, he said, amounted to disenfranchisement.

“Just because somebody decides they need to vote with a certain ink color, even if that’s erroneous, that should not affect their vote,” he said. 

Attorney Dan Barr, representing Democratic Attorney General-elect Kris Mayes, shot back that election officials can’t be blamed for voters who chose to disqualify their own ballots by following partisan advice. 

“These people were instructed by the head of the Republican Party, Kelli Ward, by (Arizona state Rep.) Mark Finchem to deliberately use blue colored ink,” he said. “That (they) chose to disregard the directions of election officials and use some other color ink pen, that’s on them. That certainly isn’t misconduct by any election official.”

Mohave County Superior Court Judge Lee Jantzen will issue his decision on whether to dismiss or continue the case by 2 p.m. Tuesday, as well as whether or not Hamadeh’s request to inspect ballots will be approved.