Court Rules Hamadeh, RNC’s Lawsuit Filed Prematurely, Can Refile After State Canvass

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(Photo by Nathan O'Neal)

A Maricopa County Superior Court judge has told Republican Attorney General candidate Abe Hamadeh and the Republican National Committee to come back to court with their lawsuit after the state certifies the election results.

Hamadeh and the Republican National Committee filed the lawsuit over the handling of the 2022 General Election. In it, attorneys do not allege “any fraud, manipulation or other intentional wrongdoing that would impugn the outcomes of the November 8, 2022 General Election.” They do however, claim that election was rife with “gross incompetence and mismanagement.”

“The election was, however, afflicted with certain errors and inaccuracies in the management of some polling place operations, and in the processing and tabulation of some ballots. The cumulative effect of these mistakes is material to the race for Arizona Attorney General, where the candidates are separated by just 510 votes out of more than 2.5 million ballots cast-a margin of two one-hundredths of one percent (0.02%),” argued Hamadeh’s attorneys.

The Court found:

Arizona law allows any elector of the State to file an election contest “of any person declared elected toa state office.” ARS. § 16-672(A). The contest must be filed “within five days after completion of the canvass of the election and declaration of the result thereof by the secretary of state or by the governor.” ARS. § 16-673(A). Under these statutes there can be no election contest until after the canvass and declaration of results because, until then, no one is “declared elected.” It is undisputed that the canvass and declaration of results for the November 2022 election have not occurred.
Plaintiffs argue that the result of the election is now known, and the declaration of results is just a ministerial act. But an election contest is a statutory remedy, and the Court is required to follow the statutes’ requirements.

Plaintiffs also argue that this lawsuit is, in addition to an election contest, a special action in the nature of mandamus. Special action relict, however, is available only where there is no adequate legal remedy. Here the election contest statute provides the remedy and process for challenging an election. See Donaghey v. Attorney General, 120 Ariz. 93, 95 (1978) (a ‘mandamus action could not be brought when the “gravamen” of the complaint was that the election was improperly conducted).

For these reasons, Plaintiffs’ lawsuit is premature. That does not mean Plaintiffs must wait to file suit until after a recount, which everyone agrees will be needed for this race. Rather, ARS.§ 16-667 contemplates that an election contest might be filed despite a pending recount and directs that “upon the initiation of such a contest, a proceeding begun under this article shall abate.”

Hamadeh vowed in a tweet to keep up the fight:

“510 votes out of 2.5 million is the closest statewide race in Arizona history. Of course we’re going to litigate; especially given the issues Republican voters faced on Election Day. Imagine if the court had extended voting hours after all the problems for a few hours.”

The Arizona Republican Party and some of its candidates filed a lawsuit late in the afternoon on election day to ask a judge to keep polling places open an extra two hours, in order to allows voters who had been turned away an opportunity to vote, but the lawsuit, which was opposed by the Maricopa County Supervisors & Election Department, was rejected just a few minutes before the polls closed for good.

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