Five months after his last appearance in a Mohave County courthouse, Abe Hamadeh finally had the chance Tuesday to watch his attorneys argue for a new trial in his election challenge against Kris Mayes in the November 2022 race for Arizona Attorney General.
The two key points in support of Hamadeh’s motion for a new trial involve thousands of ballots across the state which may not have been accurately tabulated or were never even counted.
But the elephant in Judge Lee Jantzen’s courtroom during the hearing involved the fact then-Secretary of State Katie Hobbs withheld information during a Dec. 23 trial from the judge and Hamadeh’s legal team about dozens of ballots not properly tabulated in Pinal County.
Those problems would not be publicly revealed until Dec. 29 when results of a statewide recount were announced. Hobbs’ then-attorney Andy Gaona criticized Hamadeh’s team at trial for not having sufficient evidence of tabulation problems, a questionable decision which was referred to more than once during Tuesday’s hearing.
Jennifer Wright, Hamadeh’s new trial attorney, shared her argument time with James Sabalos, a well-known civil litigator who previously held positions with the U.S. Department of Justice.
Sabalos set the tone for the new trial hearing by opening with a Thomas Jefferson quote about the fact America is not governed by the majority but rather “by the majority who participate.” The importance of counting every vote of every eligible voter who participated in the 2022 General Election would be their recurring theme.
Much attention was on Wright, who spent several years with the Arizona Attorney General’s Office until it became clear Mayes was going to be sworn in. Wright’s performance in front of Jantzen reminded court observers on both sides of the political divide why she was the senior civil litigation attorney for the AGO’s Election Integrity Unit.
“If Abe gets a new trial then the defendants are going to have their hands full,” said an attorney who frequently represents Democratic clients. “She was calm, controlled, and confident. But most important she was certain of her case facts. And that will force attorneys for Mayes and Fontes and even Maricopa County to up their game to a level they haven’t had to reach in any Arizona election cases in several years.”
Wright also slammed the door on arguments from some of the defendants that what Hamadeh is seeking is a quasi-recount. She made it clear to Jantzen that what is being requested is a new trial at which the judge can consider whether several hundred provisional ballots that were never taken out of the envelopes should be counted for the first time.
Many of those ballots were cast by high propensity voters, meaning they had voted in one county in recent election cycles, including 2018 and 2020. But when it came to the 2022 election cycle, hundreds across Arizona were forced to cast a provisional ballot in their usual county after being told they were showing up as not being registered in that county anymore.
Some of those voters even cast provisional ballots in the 2022 Primary Election without ever knowing those ballots were not counted. They ran into the same problem just a few months later in the General Election.
Dozens of those impacted voters have provided sworn declarations to Hamadeh’s legal team describing how they were disenfranchised on Election Day.
Public records show Hamadeh received nearly two-thirds of the statewide in-person ballots cast on Election Day, which suggests he could have received the same percent of the rejected provisional ballots, Wright added.
And then there are the 76,000 or so ballots from across Arizona that were tabulated but which were reported as having no vote cast for Hamadeh or Mayes.
Such instances are referred to as undervotes. An inspection approved by Jantzen prior to last December’s trial of 2,000 randomly selected ballots reporting an undervote in the attorney general’s race found the intent of the voter was actually ascertainable on 0.61 percent of the ballots.
Applying that ratio to the remaining 74,000 ballots with an undervote recorded for the attorney general race could, in theory, lead to another 450 ballots that should have been counted for either Hamadeh or Mayes.
In an interesting development, attorneys for Maricopa County opted not to make any oral arguments against Hamadeh’s motion during the hearing. It put attorneys for Mayes and current Secretary of State Adrian Fontes in the position of trying to argue why it should not matter if there were ballots not properly counted in the attorney general’s race.
Alexis Danneman, the attorney for Mayes, argued that court rules, case law, and statutes do not allow Jantzen to grant Hamadeh a second trial to put on new evidence, no matter what claims Hamadeh makes.
“Their argument before this court boils down to this election was close ‘so if you let us keep looking we might find something,’” Danneman argued, while avoiding the fact much of the evidence was not available during the first trial.
“We feel confident that we proved that Mr. Hamadeh is entitled to a new trial,” Wright told the Arizona Daily Independent. “It’s telling that criticism is almost exclusively focused on ad hominem attacks – in fact no one has credibly argued that if these ballots are counted, Kris Mayes prevails.”
“The simple fact is that we made a strong case that valid votes were not counted, that they should be counted, and the related evidence could not have been obtained prior to the first trial because the government bodies had sole possession of the evidence until after trial,” explained Wright.
At the time Hobbs certified the 2022 General Election results, only 511 votes separated Hamadeh and Mayes, a margin of about 0.034 percent. Hamadeh and the Republican National Committee filed an election challenge a few days later.
In the meantime, the extremely close margin triggered a mandatory statewide recount. After the recount, the margin was reduced to 280 votes, becoming one of the closest statewide races in Arizona history. Hamadeh’s motion for a new trial was filed in early January.
Hamadeh issued a statement after Tuesday’s hearing, saying he is confident that he will prevail once all of the evidence is presented to the judge. He has not given any indication of being frustrated with the monthslong wait, which will be even longer now that Jantzen announced it could be “weeks” before his ruling is issued on the new trial motion.
“We have been careful to only make those claims that we believe we can prove and that will make our democratic process stronger,” he said. “Thousands of ballots remain uncounted. Many of these ballots belong to high propensity voters who were somehow erroneously disenfranchised this election cycle.”
Hamadeh also noted that election challenges take time but are essential to restoring confidence in our democratic processes.
“I am compelled to see no voter is disenfranchised, because of my commitment to our Republic and the democratic process so many of my fellow veterans sacrificed their lives to protect,” he added.