Arizona Attorney General Election Contest II

On Monday, Dec. 19, an Arizona judge heard oral argument in an election contest filed by Abraham Hamadeh, the failed Republican candidate for Arizona attorney general and a known election denier, along with two Arizona voters and the Republican National Committee (RNC). The contest — which was brought against Kris Mayes (D), the newly elected Arizona attorney general, current Arizona Secretary of State Katie Hobbs (D) and 15 county recorders and boards of supervisors — challenges the results of the 2022 election for Arizona attorney general. The subject of today’s hearing included defendants Mayes’ and Hobbs’ motions to dismiss Hamadeh’s election contest, as well as the plaintiffs’ motion to inspect ballots.

The court first heard from Mayes’ attorney, who argued that the contest should be dismissed because the plaintiffs have no solid factual grounds upon which to rest their allegations. Specifically, Mayes’ attorney stated that this is a lawsuit “in search of facts. [The plaintiffs] have had five weeks to produce any facts…and they haven’t done so…I very much doubt that the plaintiffs today could name one person from each county who actually was prohibited from voting in any way.” The attorney then proceeded to argue that the RNC should be dismissed as a plaintiff because under Arizona law, only electors can bring election contests and the RNC is not an elector with standing (meaning capacity to sue) in this case. The attorney then returned back to his contention that the plaintiffs’ lawsuit is not based on facts, but rather rests on mere “information and belief.” The attorney went through all five counts of alleged misconduct — including erroneously counted ballots, wrongful exclusion of provisional ballots, inaccurate ballot duplications, improper electronic ballot adjudication and early ballot signature verification issues — that the plaintiffs listed in their complaint and proceeded to counter each claim. Mayes’ attorney then asserted that the plaintiffs’ fifth count regarding the Arizona Elections Procedures Manual and its rules on signature verification are barred by laches (the legal principle that a lawsuit has to be brought in a timely manner) and should have been brought prior to the election, especially since the manual was adopted in 2019. 

Next, the court heard from Hobbs’ attorney, who opened his argument by stating that, because the plaintiffs are not alleging fraud, they bear “the heavy burden of establishing that the result of the election would have been different, assuming that there was misconduct…To allow, as plaintiffs urge here, an election contestant to declare on mere information and belief no less that an election result is uncertain and then allow them to pour over voted ballots and proceed to trial would open the proverbial litigation floodgates. Every election could be contested and proceed to trial. That cannot and should not be the rule.” Hobbs’ attorney echoed many of the arguments made by Mayes’ attorney and urged the court to dismiss the plaintiffs’ complaint since it is based on “merely speculative allegations” and “conjecture.”

Then, the court heard from Hamadeh’s attorney, who argued in opposition to Mayes’ and Hobbs’ motions to dismiss. Hamadeh’s attorney began by highlighting that this is an extremely close race, with only 511 votes separating Mayes and Hamadeh. Hamadeh’s attorney then pivoted to reiterating some of the allegations contained in the complaint, including the claim that there were erroneous vote counts due to different colored ink pens being used to mark ballots, provisional ballots that were not counted and a litany of other issues. The attorney added that some people were “mysteriously unable to vote on Election Day” and that the plaintiffs “simply need a list of these provisional ballots that were not counted” in order to figure out the exact reasons why these ballots were not counted. Hamadeh’s attorney concluded his rebuttal by stating that the plaintiffs do indeed have the right to file an election contest, and if they do not, then they have an alternate remedy via a writ of mandamus (a court order compelling a party to take a certain action).

Subsequently, the court heard from Maricopa County’s attorney, who joined Hobbs’ motion to dismiss. Maricopa County’s attorney reiterated the point that Hamadeh’s “entire contest is based on pure speculation and hypotheticals…What plaintiffs have done is taken publicly available numbers related to the election and provided theories about…those numbers, but these are purely hypotheticals and, in most cases, are entirely wrong.” Maricopa County’s attorney then disputed the plaintiffs’ claims that many provisional ballots should have been counted but were not. She summarized to the judge that Maricopa County did not count 1,942 provisional ballots; 1,935 of those ballots came from voters who registered after the Oct. 11 registration deadline and the remaining seven provisional ballots were from voters registered at commercial addresses that were ineligible. Maricopa County’s attorney then dispelled numerous other claims made by the plaintiffs, including the allegation that there were printer issues in Maricopa County on Election Day, and cited a court order stating that no voter was prevented from voting due to alleged issues with printers and ballot tabulators. 

Next, the court once again heard from Hamadeh’s attorney, who contended that there were “tens of thousands of undervotes” (in their complaint, the plaintiffs refer to undervotes as votes that were not counted “if the unclear mark fills less than 14% of the oval for that race”). Hamadeh’s attorney stated that he is not arguing that there were 50,000 undervotes that would have been cast in favor of Hamadeh, but instead that numerous ballots were rejected because of voters using the wrong color ink pens and that many of those votes were likely cast for Hamadeh. 

Finally, the court heard closing arguments from Mayes’ attorney as well as Hobbs’ attorney, both of whom reinforced the argument that the plaintiffs’ claims were largely unsubstantiated and lacked sound evidence to support them. Mayes’ attorney stated that “we haven’t heard the first and last name of any breathing human walking this earth who was somehow denied the ability to vote in an Arizona election. We’re five weeks from Election Day, and they can’t name one such person.” In a similar vein, Hobbs’ attorney concluded that Hamadeh “has not cited any case in which a court has said, ‘well the result is uncertain, therefore I’m going to throw out the results of the election.’ That’s the standard that the plaintiff here is asking you to apply and it’s not the standard that exists under Arizona law.”

The judge then stated that he will issue a ruling on the motions to dismiss by 2 p.m. MST/4 p.m. EST on Tuesday, Dec. 20. 

After the arguments on the motions to dismiss concluded, the judge heard brief arguments regarding the plaintiffs’ motion to inspect ballots from Maricopa, Pima and Navajo counties. Hamadeh’s attorney argued that tabulator machines did not accurately read ballots due to the color pen that a voter used and urged the court to allow for an examination of the ballots to manually confirm whether they were read properly. Hamadeh’s attorney asserted that there was “perhaps misinformation out there about what color ink is actually most easily read by the machines.” Maricopa County’s attorney responded by saying that counties gave out clear instructions to voters about what color ink pen they must use to complete ballots and that the machines are very sensitive to any markings made on the ballots. Following these arguments, the judge said that he will rule on the plaintiffs’ motion to examine ballots after he rules on the defendants’ motions to dismiss.