Judge allows election lawsuit from losing AG candidate Abe Hamadeh to move forward

By Howard Fischer/Capitol Media Services
Published: Tuesday, December 20, 2022 - 4:19pm

Unsuccessful attorney general hopeful Abe Hamadeh will get a chance to try to have the election results set aside.

In a ruling Tuesday, Mohave County Superior Court Judge Lee Jantzen said that the Republican contender is entitled to try to prove that some people legally entitled to vote did not get to cast a ballot on Election Day because of issues in Maricopa County. That has to do with whether people who left one voting center because of printer and tabulator problems were illegally denied the right to vote when they arrived at a second one.

Jantzen also said Hamadeh can pursue allegations that some ballots which could not be read by tabulators were improperly duplicated by election officials who are required to prepare a new — and readable — ballot.

And the judge gave the go-ahead for Hamadeh to argue that some ballots which should have been disqualified because of over-votes — meaning someone marked a selection for both candidates — were instead counted, affecting the results.

Any and all of those claims, if accepted by Jantzen, could prove material in Hamadeh's bid to have the judge declare him and not Democrat Kris Mayes declared the winner. That is because the margin of difference between the two is just 511 votes out of nearly 2.6 million ballots cast this year.

But Tuesday's decision to let the case go to trial on Friday is far from a sure shot for Hamadeh.

In his ruling, Jantzen said that strict compliance with election laws is not necessary to uphold the results.

"Honest mistakes or mere omissions on the part of the election officers ... even though gross, will not void an election unless they affect the result or at least render it uncertain," the judge said.

Jantzen also pointed out that while Hamadeh has made sufficient allegations to pursue his claim, the odds may not be on his side. He pointed out that, under Arizona law, "all reasonable presumptions are to be in favor of the validity of an election."

In filing suit, attorney Tim La Sota said that the general election was "afflicted with certain errors and inaccuracies" in how polling places were operated and how ballots were processed and tabulated.

"The cumulative effect of these mistakes is material to the race for Arizona attorney general," he said, given the margin of loss.

More to the point, La Sota said those errors, taken in total, potentially change the outcome. And what that means, he said, is the tally can be "judicially remedied, and the declared result conforms to the will of the electorate" — meaning, by his way of thinking, having Hamadeh named the winner.

Much of the lawsuit is built around the Election Day issues in the state's largest county.

Problems with printers at voting centers resulted in some of the ballots produced on site not being readable by the tabulators.

Voters were given the opportunity to instead deposit their ballots into a separate drawer to be tallied later. But they also were told they could instead go to a different polling place.

Only thing is, La Sota said, is workers at some sites failed to check the voters out of the first site before they left. The result was when they showed up at the new site, the electronic records showed they already had cast a ballot at the first location.

La Sota identified at least 495 voters who fell into that category and whose new "provisional" ballots were not counted. But he also said a "material number" of other voters who showed up at a second site who were not even granted an opportunity to cast a provisional ballot "in violation of Arizona law."

The lawsuit also alleges errors in manual duplication of ballots when the originals could not be read by the tabulation equipment. While La Sota could not put a number on that for this election, he said ballot duplication boards erroneously transposed at least 0.37% of ballots in the 2020 presidential preference primary.

La Sota hopes to prove at least some of his claims with an inspection of ballots in Maricopa, Pima and Navajo counties. The judge said if an agreement cannot be reached with all the parties — including Mayes — he will issue an order.

Tuesday's ruling was not a complete victory for Hamadeh.

He also had alleged that there were a "material number" of early ballots that were counted even though election officials did not match the signature on the envelope with that person's voter registration record. And that, said La Sota, violated state law.

But Jantzen pointed out that the state Elections Procedures Manual does allow election workers to use other samples they have on file of someone's signature to verify an early ballot.

The judge noted that Hamadeh is not alleging anyone violated that manual. Instead, the GOP contender argues that the manual illegally conflicts with state law which he said takes precedence.

Jantzen declined to rule on that, pointing out that the procedure in the manual, which is public, has been in place since 2019. He said if Hamadeh wanted to challenge that procedure the time for him to do that would have been before the election, not now after people have voted and ballots have been counted.

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