Arizona’s 2022 election for attorney general that saw Republican Abraham Hamadeh lose by just 280 votes should be redone because Maricopa County failed to test their ballot printers and thousands of voters were unable to cast a ballot, Hamadeh's lawyer told a judge Wednesday.
Attorney Ryan Heath urged Maricopa County Superior Court Judge Scott Blaney to allow what would be the fourth challenge Hamadeh has filed contesting his loss to Democrat Kris Mayes to proceed even though it came well past the quick deadlines on election challenges.
Heath argued that it was not until former state Supreme Court Chief Justice Ruth McGregor's April 2023 report about what caused ballot printer issues that contributed to long lines at polling places in Maricopa County that Hamadeh learned what led to what he called disenfranchised voters, mainly Republicans.
That, Heath told Blaney, should compel him to override the law putting strict time limits on election challenges. He said such laws are unconstitutional.
"I would claim that the statute unconstitutionally deprives my clients of their right to bring a challenge even in instances where the information is not known or could not be known until many months after the election,'' Heath said. "That's exactly what happened here.''
He said even officials in Maricopa County did not know what caused the long lines until McGregor’s report was published. Allowing the law requiring challenges to be filed within five days of when an election is certified to remain in place leaves voters with no remedy in cases like Hamadeh's, Heath said, where Maricopa County failed to ensure its printers could handle the longer ballots using thicker paper that were used in November 2022.
"So really, there is no remedy for the situation there should be,'' Heath told Blaney. "That's what we contend.''
What makes that relevant is that Hamadeh argues that the majority of election day voters were Republicans, presumably his supporters, and that many gave up trying to cast a ballot in-person because of the problems. Without that happening, Hamadeh says he would have won.
Heath urged Blaney to let the case proceed so the problems aren't repeated in future elections.
Attorneys for Maricopa County and Secretary of State Adrian Fontes want Blaney to toss the lawsuit, filed in November, seven months after McGregor’s report came out. They said it was filed too late, Hamadeh unreasonably delayed filing the case and that it is seeking an order for Fontes to call a new election, something he can't legally do.
More importantly, attorney Craig Morgan said, it would disenfranchise voters who participated in the 2022 election.
Blaney asked Morgan, who represents Fontes, and Eric Spencer, representing the county, its supervisors and election officials, if the late discovery of evidence in McGregor’s report should override timelines on election challenges. Both emphatically said no.
"I want to be clear, your honor -- there is no remedy,'' Spencer said. "The five day period (in the law) bar(s) claims found in the future whether they were swept under the rug, concealed or just not known.''
That contention appeared to trouble the judge.
"Even under misconduct, willful misconduct, hiding something about the election, in the election here, your argument is that there is no remedy past five days,” Blaney asked.
"I'm aware of no election contest case law in Arizona that has ever allowed a contest to proceed past the five-day deadline,” Spencer responded. He said a candidate could file an election contest, drag it out and hopefully discover evidence while it was still active. But Spemcer said that, barring that, their contest is closed.
Morgan provided Blaney an option to try to mollify the judge's concerns.
"I think the court is struggling with the concept, 'well what’s the remedy if the wrong person is elected,' '' Morgan said.
"Well, judge I have good news - the Constitution giveth, the Constitution can also take away, pointing to a constitutional provision allowing for the recall of public officers.
"That your remedy,'' Morgan said. "If there was fraud in an election, and if the electorate believed truly there was fraud, our glorious Constitution gives them the remedy.''
Morgan went on to urge Blaney to not only throw out the case but to sanction Heath and Hamadeh for bringing a meritless lawsuit. The judge did that the third case Hamadeh filed seeking to redo the 2022 election. It was tossed just last month.
"This lawsuit, your honor, is objectively ridiculous,'' Morgan said.
"It shouldn't have been filed,'' he said. "No competent person would have. You should dismiss it. And you should set a schedule granting us leave to move for sanctions.''
Heath said sanctioning him or his client could have a chilling effect on candidates who are just trying to ensure the voices of voters are heard. He said he had a rational basis for bringing the suit, it isn’t frivolous and that Maricopa County's failure to properly test the ballot-on-demand printers caused the issues they are seeking to address.
"So here the defendants are trying to impose sanctions not just against myself and my clients, but also as a warning to anyone who seeks to ensure that free, fair and properly conducted elections are held in the state,'' he said. "There are no grounds for imposing sanctions.''
Blaney promised a quick ruling on the request by the county and Fontes to throw out the lawsuit or allow it to proceed to determine if Hamadeh gets another election.
Hamadeh lost two cases he filed soon after his 2022 loss, one after a trial in front of a judge in Mohave County. An appeal of that ruling failed.
He then filed a suit that alleged Maricopa County counted many invalid mail-in ballots because it used an improper signature verification process, That suit also sought a new election, plus an order saying Mayes was illegally holding office.
Maricopa County Superior Court Judge Susanna Pineda said in a ruling made public on April 2 that Hamadeh had no legal basis for making those claims. She slapped Heath with sanctions, noting that many of the same arguments were raised in the earlier Mohave County case.
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