The Arizona gubernatorial election was five months ago, but Kari Lake still hasn’t given up her legal fight contesting the results. So, today we’re diving into all the litigation that’s going on in the Grand Canyon State. Our 2022 litigation report revealed that Arizona had by far the most voting rights lawsuits, with Pennsylvania and Wisconsin in second and third. We already explored litigation in Pennsylvania and Wisconsin in 2022, so now it’s Arizona’s turn. The litigation in Arizona comes in many flavors, with 20 ongoing lawsuits touching on voting rights, election administration and election denialism.
Following the lead of former President Donald Trump, multiple Republican candidates in Arizona contested their election losses last year in court. While none of these contests have succeeded in changing the election results, several are still ongoing.
Gubernatorial election contest
Firebrand Republican Kari Lake lost the 2022 gubernatorial election to Democrat Katie Hobbs by 17,000 votes. Given that, prior to the election, Lake repeatedly claimed that there would be fraud, it shouldn’t be a surprise that she filed a lawsuit contesting her own results.
Date filed: Dec. 9, 2022
Argument: Lake alleges that illegal votes were cast in the 2022 midterms and raises a litany of grievances against the secretary of state and Maricopa County officials. She argues that these alleged violations contravene Arizona law and the state constitution. She asks the court for an order vacating (meaning voiding) the 2022 election results and that either the election be rerun in Maricopa County or she be declared the winner.
Status: After Lake’s contest was rejected by both the trial court and the appellate court (and Hobbs was sworn in as governor), the Arizona Supreme Court rejected six of Lake’s seven claims and sent the seventh back to the trial court for further review. Litigation is ongoing at the trial court over this final, narrow claim.
Lake’s arguments highlight election-day difficulties, but her request for relief fails because the evidence presented to the superior court ultimately supports the court’s conclusion that voters were able to cast their ballots, that votes were counted correctly, and that no other basis justifies setting aside the election results.COURT OF APPEALS OPINION
Attorney general election contest
In the closest statewide election of 2022, Kris Mayes (D) defeated Abe Hamadeh (R) by just 280 votes following a mandatory recount. Hamadeh filed two lawsuits challenging the results, although the first was dismissed for being filed before results were certified.
Date filed: Dec. 9, 2022
Plaintiff: Hamadeh, two Arizona voters and the Republican National Committee
Argument: While not alleging any fraud, the plaintiffs argue that systematic errors led to an erroneous vote count in the office for attorney general. Among other requests, they ask the court to declare Hamadeh the victor.
Status: On Dec. 23, 2022, the judge rejected the contest and ruled from the bench in favor of the defendants. Mayes was sworn into office on Jan. 2, 2023. On Jan. 3, Hamadeh requested a new trial, alleging that there is “new and compelling information” that all votes weren’t counted in the race. The motion is pending.
Plaintiffs seek from this Court what they could not get at the ballot box. They ask this Court to overturn Arizona’s November 8, 2022 general election (“the Election”) and declare Mr. Abraham Hamadeh the Arizona Attorney General-elect instead of Defendant Kris Mayes, who received the most votes. They allege that the Election was fraught with poll worker “misconduct,” ballot duplication and electronic adjudication errors, and unlawful counting of ballots. But their claims are based on little more than speculation and conjecture.DEFEDANT MAYES’ MOTION TO DISMISS
Secretary of state and 3rd Congressional District contest
Election denier Mark Finchem (R) lost to Adrian Fontes (D) by over five points in the race for secretary of state. Similarly, Jeff Zink (R) lost in a landslide to U.S. Rep. Ruben Gallego (D). Both candidates contested their losses in court, although Zink dropped his contest before the case moved forward.
Date filed: Dec. 9, 2022
Argument: Finchem alleges that widespread failures in the state’s conduct of the midterm elections, such as issues with tabulators in Maricopa County, cost him the election. He argues that without the violations, “201,232 votes would have gone to Finchem…changing the outcome of the election in favor of” him.
Status: On Dec. 16, 2022, the trial court dismissed the lawsuit. On Dec. 29, the Arizona Supreme Court denied Finchem’s appeal. Litigation is ongoing at the Arizona Court of Appeals. Meanwhile, the trial court imposed sanctions on Finchem for filing a frivolous lawsuit.
None of Contestant Finchem’s allegations, even if true, would have changed the vote count enough to overcome the 120,000 votes he needed to affect the result of this election. The Court finds that this lawsuit was groundless and not brought in good faith.ORDER GRANTING SANCTIONS
Voting rights lawsuits
Mail-in voting challenge
Arizona has a long history of mail-in voting, a method that was originally championed by the state GOP. In 2022, 75% of the state’s voters were on the Permanent Early Voting List, which allows voters to receive a mail-in ballot for every election. Yet after Trump blamed mail-in voting for his 2020 loss in the state, other Republicans in the Grand Canyon State turned on the popular voting method. The Arizona Republican Party filed two lawsuits in 2022 to overturn the mail-in voting system; one of them is still ongoing.
Date filed: May 17, 2022
Plaintiffs: Arizona Republican Party and its chairwoman
Argument: The plaintiffs argue that the Arizona Constitution requires in-person voting on specific days and, because mail-in voting does not follow these rules, it is unconstitutional. The lawsuit asks the state trial court to strike down Arizona’s no-excuse mail-in voting system and require all voters to vote in person.
Status: On June 6, 2022, the trial court dismissed the lawsuit. On Jan. 17, 2023, the appellate court affirmed the dismissal; Republicans then asked the Arizona Supreme Court to review the dismissal. The case is currently pending before the Arizona Supreme Court.
The superior court found Arizona’s mail-in voting laws adequately preserve secrecy in voting, denied Plaintiffs’ motion for a preliminary injunction, and entered a final judgment dismissing Plaintiffs’ complaint. Plaintiffs appealed. Because the superior court did not err in finding Arizona’s mail-in voting laws preserve secrecy in voting, we affirm.COURT OF APPEALS ORDER
Citizenship requirement challenge
In 2022, Arizona enacted House Bill 2492, which requires voters to prove their citizenship before being allowed to register to vote. This requirement extends to voters who register using federal forms, despite a 2015 U.S. Supreme Court ruling that these “federal only” voters don’t need to provide proof of citizenship. The law drew multiple lawsuits (including one from the U.S. Department of Justice), which were consolidated together into a single case. As a result of consolidation, the lawsuit also challenges House Bill 2243, which requires county recorders to cancel a voter’s registration if they receive information that a voter is not qualified to vote or if the county officials have a “reason to believe” that a voter is not a U.S. citizen.
Date filed: March 31, 2022
Plaintiffs: Mi Familia Vota, Voto Latino, Living United for Change in Arizona, League of United Latin American Citizens, Arizona Students’ Association, ADRC Action, United States, Poder Latinx, Democratic National Committee, Arizona Democratic Party, Arizona Asian American Native Hawaiian and Pacific Islander for Equity Coalition, Promise Arizona, Southwest Voter Registration Education Project, Tohono O’odham Nation and Gila River Indian Community
Argument: The plaintiffs argue that H.B. 2492 and H.B. 2243 violate the First and 14th Amendments by severely burdening the right to vote and potentially disenfranchising Arizona voters. Additionally, they argue that the laws violate the National Voter Registration Act (NVRA) by imposing requirements on voters beyond those on the federal registration form and violating the act’s list maintenance procedures.
Status: H.B. 2243 was blocked in September 2023 thanks to an agreement between then-Secretary of State Hobbs and one of the plaintiffs. Litigation over the broader citizenship requirement in H.B. 2492 is ongoing.
The Proof of Citizenship Restriction continues a baseless assault on Arizona’s election system based on a conspiracy theory that non-citizens are voting, despite a persistent lack of credible evidence to support such claims. The Restriction is the newest in a series of cynical and bad faith attempts to use these politically motivated and false allegations to limit access to voting by eligible, lawful citizens. And the new law’s limitations on early voting are particularly pernicious given the prevalence of early voting by mail in Arizona.COMPLAINT
Proof of residency requirement challenge
H.B. 2492 also requires individuals registering to vote for federal elections to provide proof of residency at a physical address. Two native communities in Arizona filed a lawsuit challenging this aspect of the law, which was consolidated with the Mi Familia lawsuit discussed above. Since these plaintiffs raise claims separate from those of the other plaintiffs, we discuss their argument separately here.
Date filed: Nov. 7, 2022
Plaintiffs: Tohono O’odham Nation, Gila River Indian Community
Argument: The plaintiffs argue that, due “to the lack of addresses on reservation homes or to the unfamiliarity with Tribal addressing systems, many Arizona voters from Native American areas, including from Gila River and Tohono O’odham, register by drawing a map of the location of their residence and have done so without issue for years.” Additionally, voters in the Gila River Indian Community “typically do not have any documents that include both their name and an indicator of the physical location of their home sufficient to satisfy the Physical Address requirement under HB 2492.” The plaintiffs argue that, as a result, this provision of the law violates both the First and 14th Amendments and NVRA and should be blocked.
The challenged requirement…will disenfranchise significant numbers of Native Americans by blocking Arizonans who reside in a dwelling that does not have a standard physical address assigned to it—a circumstance that is significantly disproportionately common for Native Americans across many areas of the state—from registering to vote in federal, state, and local elections.COMPLAINT
Status: Litigation is ongoing.
During the run up to the 2022 elections, reports surfaced in Arizona that armed vigilantes were monitoring drop boxes. Two civic groups filed a lawsuit against right-wing voter integrity groups to challenge these intimidation practices. The lawsuits were consolidated into a single case.
Date filed: Oct. 24, 2022
Plaintiffs: Arizona Alliance for Retired Americans, Voto Latino, League of Women Voters of Arizona
Argument: The plaintiffs contend that Clean Elections USA’s — the defendants — actions violate Section 11(b) of Voting Rights Act (VRA), which prohibits voter intimidation, and the Ku Klux Klan Act of 1871, which prohibits “conspir[ing] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner.”
Key quote: Under any circumstance, Defendants’ conduct would be objectively intimidating. But, in the current charged political climate, Defendants’ actions carry with them exacerbated threats. There is no guarantee that the crowds that Defendants have mobilized and are continuing to stoke will remain peaceful. But even a false accusation that a voter is a “mule” can have broad, irreversible consequences. In 2020, election workers who were wrongfully accused of misconduct faced unrelenting harassment, including death threats, with some relocating themselves and their families out of fears for their safety. Defendants’ conduct—both at the drop box locations themselves, and beyond, as they threaten to publicize the names and faces of voters who they suspect to be bad actors—risks similarly unacceptable outcomes.
Under any circumstance, Defendants’ conduct would be objectively intimidating. But, in the current charged political climate, Defendants’ actions carry with them exacerbated threats. There is no guarantee that the crowds that Defendants have mobilized and are continuing to stoke will remain peaceful. But even a false accusation that a voter is a “mule” can have broad, irreversible consequences. In 2020, election workers who were wrongfully accused of misconduct faced unrelenting harassment, including death threats, with some relocating themselves and their families out of fears for their safety. Defendants’ conduct—both at the drop box locations themselves, and beyond, as they threaten to publicize the names and faces of voters who they suspect to be bad actors—risks similarly unacceptable outcomes.COMPLAINT
Status: On Nov. 1, the judge in the case granted a limited order that restricted the defendants’ conduct, as well as requiring one of their leaders to post a message on Truth Social. Litigation is ongoing before the district court.
S.B. 1260 challenge
In June 2022, Senate Bill 1260 was signed into law by then-Gov. Doug Ducey (R). S.B. 1260 requires county recorders to cancel a voter’s registration if they receive confirmation that the voter is registered to vote in another Arizona county, creates a process to remove voters from the state’s permanent vote-by-mail list if the voter is registered in another county and makes it a felony to forward a mail-in ballot to a voter who may be registered in another state. The law was challenged in court by several civic organizations.
Date filed: Aug. 15, 2022
Plaintiffs: Arizona Alliance for Retired Americans, Voto Latino, Priorities USA
Argument: The plaintiffs argue that the challenged provisions should be permanently blocked because they violate the First Amendment’s rights to free speech and association and the First and 14th Amendments’ protections against undue burdens on the right to vote.
SB 1260 has no rational connection to any legitimate government purpose. It will not improve election integrity or prevent election fraud. Instead, it will severely chill voter registration and voter engagement efforts and disenfranchise eligible Arizona voters.COMPLAINT
Status: On Sept. 26, 2022, a federal judge temporarily blocked two of S.B. 1260’s provisions. The defendants appealed this decision to the 9th U.S. Circuit Court of Appeals, which will hold oral argument in May 2023.
Voter suppression laws challenge
In 2021, the Arizona Legislature enacted Senate Bill 1484, which purges voters from the Permanent Early Voting List if they don’t vote in two consecutive elections, and Senate Bill 1003, which changes the cure process for mail-in ballots. Both laws were challenged in court for burdening the right to vote.
Date filed: Aug. 17, 2021
Plaintiffs: Mi Familia Vota, Arizona Coalition for Change, Living United for Change in Arizona, Chispa Arizona
Argument: The plaintiffs allege that these laws violate the First, 14th and 15th Amendments as well as Section 2 of the VRA by burdening the right to vote, particularly among voters of color in Arizona.
Key quote: paragraph 2 of linked complaint (unable to copy from pdf)
The Voter Purge Law and the Cure Period Law violate the right of all Arizonans to vote. Neither law responds to any genuine shortcoming in Arizona’s election system or furthers any valid state interest. Rather, the laws reflect baseless accusations of improprieties in the 2020 general election. Because the laws burden the exercise of the right to vote and are not justified by “legitima[te]” state interests that “make it necessary to burden” voters’ rights… both laws violate the First and Fourteenth Amendments to the U.S. Constitution.COMPLAINT
Status: Litigation is ongoing.
Arizona has also seen a bevy of lawsuits dealing with more technical aspects of voting, like who has authority to run elections and how ballots should be counted. Cochise County in particular has become a hotspot for this kind of litigation beginning when the county, fueled by right-wing conspiracies, took steps to hand count all ballots last year.
Cochise County lawsuits
While Cochise County was involved in several legal actions stemming from the midterm elections, only two are still ongoing. The first involves the county’s decision to shift election authority to its conspiracist county recorder, which the state government alleges is a violation of Arizona law.
Date filed: March 7, 2023
Plaintiff: State of Arizona
Argument: The attorney general alleges that the recorder “has unlawfully aggrandized his power, and the Board has unlawfully and almost completely offloaded its statutory duties over elections” in violation of the Arizona Constitution and Arizona law.
Once again, the judiciary is called upon to ensure that elections in Cochise County are conducted in accordance with the law. And here, the Agreement not only threatens the lawful administration and operation of elections. It also may threaten Cochise County residents’ right to know how and when their government is making consequential decisions that affect their right to vote. In shifting all election duties to the Recorder—a distinct constitutional county officer—the Agreement says not a word about how or whether the public may still have access to deliberations on matters that the Board would normally consider in open meetings.COMPLAINT
Status: Litigation is ongoing in the trial court.
Even though the 2022 elections are over, Cochise County’s decision to hand count ballots is still in court after the county was sued over it.
Date filed: Oct. 31, 2022
Plaintiffs: Arizona Alliance of Retired Americans, individual voter
Argument: The plaintiffs argue that the county’s decision to hand count all early ballots violates the Arizona Elections Procedure Manual and Arizona law by ignoring the required procedure for an audit, which requires specific circumstances and the elections director’s supervision. The plaintiffs further assert that if the defendants are allowed to proceed with their plan, there will be “unlimited opportunity for electoral chaos” and it could disrupt and delay the county and state’s certification.
Key quote: The Court cannot interpret any statute in any manner which renders a portion of that statute superfluous…Because the statute does not permit elections officials to begin the precinct hand count by counting all ballots cast, the Board’s requirement that elections officials do so here is unlawful.
Status: On Nov. 7, 2022, a judge ruled that Cochise County may not conduct a full hand count audit of early ballots. The defendants appealed this ruling, but the appellate court denied their motion for expedited briefing. Litigation is ongoing.
The Court cannot interpret any statute in any manner which renders a portion of that statute superfluous…Because the statute does not permit elections officials to begin the precinct hand count by counting all ballots cast, the Board’s requirement that elections officials do so here is unlawful.ORDER
Signature verification challenge
In Arizona, voters who cast an early mail-in ballot must sign an affidavit attesting to their identity; this signature is then compared to prior signatures in the voter’s record to confirm a match. A right-wing legal group founded by Bill Barr and others filed a lawsuit challenging the current procedure Arizona uses for signature matching.
Date filed: March 6, 2023
Plaintiffs: Arizona Free Enterprise Club, Restoring Integrity and Trust in Elections, a voter
Argument: The plaintiffs argue that the secretary of state’s current guidance for signature verification, which permits comparing a voter’s signature on their mail-in ballot to mail-in ballots from past elections, violates state law. Instead, county officials are only allowed to use signatures from the voters’ “registration record,” which they argue has a more narrow definition that only includes certain documents, like original registration forms, for verification.
Status: Multiple groups have intervened to defend the state’s signature matching guidance. Litigation is ongoing.
Signature matching is notoriously difficult to do accurately, and election officials are far more likely to mistakenly reject a lawful voter’s ballot based on a perceived signature mismatch, than to identify a ballot that was actually cast by someone other than the voter based on signature matching. Indeed, study after study has shown that voter fraud is exceedingly rare, and signature matching—particularly under the conditions that election officials must conduct it, e.g., under time pressure, without years of training in the subtleties of signature differences, and without scores of exemplars to compare the signature to—is far more likely to disenfranchise voters than to safeguard the election system. Yet, in this lawsuit, Arizona Free Enterprise Club, Restoring Integrity and Trust in Elections, and Dwight Kadar…seek to make the process even more unreliable.MOTION TO INTERVENE
Voting machines challenge
In addition to drop boxes and mail-in voting, many Republicans have turned on voting machines in response to conspiracy theories about the 2020 election. Prior to the 2022 elections, Lake and her fellow election deniers filed a lawsuit challenging Arizona’s use of voting machines and seeking their banishment from Arizona elections.
Date filed: April 22, 2022
Plaintiffs: Kari Lake, Mark Finchem
Argument: The plaintiffs allege that Arizona’s use of electronic voting machines violates their fundamental right to vote guaranteed by the U.S. Constitution and Arizona law because “the vote tallies reported by electronic voting machines cannot, without objective evaluation, be trusted to accurately show which candidates actually received the most votes.”
Status: Following a hearing on July 21, 2022, the judge dismissed the case. The plaintiffs appealed this decision to the 9th U.S. Circuit Court of Appeals. Litigation is ongoing.
While the Court agrees with Plaintiffs that the right to vote is precious, and should be protected, Plaintiffs lack standing because they have articulated only conjectural allegations of potential injuries that are in any event barred by the Eleventh Amendment, and seek relief that the Court cannot grant under the Purcell principle.ORDER