A dispute over the change of one word to an election law in 2019 has led to scrutiny of the attorney who recently filed a complaint with the Arizona Supreme Court seeking to invalidate the results of three key statewide races nine months after the 2022 General Election.
Ryan Heath filed the Complaint for Special Action on Aug. 17 on behalf of two Arizona voters, Tom Crosby and David Mast. They claim their votes were “diluted” last November by “illegal ballots” included in the more than 1.3 million early (vote-by-mail) ballots accepted in Maricopa County.
As a result, Crosby and Mast contend that if those illegal ballots are removed, the Republican candidates for governor and attorney general would likely have won. The secretary of state race is also included in the complaint.
However, Gov. Katie Hobbs, Attorney General Kris Mayes, and Secretary of State Adrian Fontes are named as defendants in their official capacity and not as individual candidates. The complaint also disputes the results of Proposition 308 related to classification of students for tuition purposes and Prop 309 related to voter identification.
The filing has brought renewed scrutiny to Heath, who represented Mast in a failed attempt to file a brief in Kari Lake’s election challenge against Katie Hobbs for governor. Court records show even Lake’s legal team objected to the effort by Mast and Heath.
Heath was admitted to the State Bar of Arizona in November 2020. He is also the president and CEO of The Gavel Project, whose website describes Heath as “a constitutional expert and talented legal strategist.”
Tom Ryan, a Chandler-based attorney and commentator for Arizona’s Law, has been a frequent critic of Heath’s legal maneuvers. And Ryan was not impressed by the latest filing.
“No matter how much one tries to polish a cow pie, you’re never gonna make it shine. Something young Mr. Heath has not yet learned,” Ryan said.
The complaint also comes as voters await a decision by the Arizona Supreme Court on attorney general candidate Abe Hamadeh’s petition for special action seeking a new trial in his December 2022 election challenge against Mayes.
Jennifer Wright, one of Hamadeh’s attorney, told Arizona Daily Independent she hopes the Crosby/Mast complaint does not distract the justices from Hamadeh’s well-pled and timely filing.
“Although I share many of the [Crosby/Mast] Petition’s concerns about the administration of the 2022 election, a special action petition asserting original jurisdiction in the Arizona Supreme Court on what amounts to a late-filed election contest is not likely to succeed,” Wright said. “I suspect it will be summarily denied.”
Heath responded Friday to some of the criticism, telling Paul Weich of Arizona’s Law that “the crux of the argument is constitutional in nature, it’s supported by caselaw, and that the evidence supporting this claim was withheld by Maricopa County until recently.”
Meanwhile, Crosby is a member of the Cochise County Board of Supervisors, although Heath failed to inform the justices that one of the plaintiffs is an elected official.
Crosby has raised eyebrows for his role in authorizing a lawsuit against a county employee without a formal board vote and failing to show up to canvass the county’s 2022 General Election results despite a court order. He was also recently threatened by Mayes’ office for allegedly violating Arizona’s open meeting law on multiple occasions.
The heart of the filing with the supreme court is Arizona Revised Statute 16-550(A) which deals with verifying a voter’s signature on an affidavit envelope before an early (by-mail) ballot can be sent to tabulation. The verification is done by comparing the affidavit signature to that voter’s “registration record.”
Prior to 2019, Arizona law pertaining to verification referred to matching against a voter’s “registration form.” Which for some voters could be a document that is decades old.
The Arizona Legislature changed the law in 2019 to refer to a voter’s registration record. Election officials in most counties consider the record to be all available signatures on file for a voter, including in-person roster signatures and early voting affidavits from previous elections.
The complaint alleges that despite the 2019 law change, Maricopa County’s procedure until the 2022 election cycle continued to compare the affidavit signature to the signature on the voter’s original registration form.
Maricopa County changed its procedures in 2022, according to the complaint, to start the comparison with “the most recent historical signature submitted by the purported elector.” If review of any older historical signatures was necessary to perform the verification, the verifiers needed to scroll down on their screens.
But nothing in the law allows election officials to utilize more current signatures on file, Crosby and Mast contend. As a result, they seek an order from the Arizona Supreme Court declaring Maricopa County’s signature verification process “impermissible and unlawful.”
Then, “if possible” they want the justices to order a recount of all 2022 General Election vote-by-mail ballots in Maricopa County using the signature verification process demanded by Crosby and Mast.
The if possible aspect of the requested relief stems from the fact that after a successful verification, ballots are separated from the affidavit envelopes they arrive in. Even if matching up a specific ballot to its original affidavit envelope was possible, Maricopa County would have to match up more than 1.3 million early ballots and then perform a new round of signature verification.
This could present a risk during the matching process of exposing how a specific voter completed their ballot, critics note.
An alternative put forth in the complaint is to decertify all votes cast in Maricopa County for the three challenged statewide offices and two proposition contests, even though only the early ballots are reportedly at issue.
The winners would then be declared “based exclusively on legal votes cast throughout the remainder of Arizona,” which would likely result in Hobbs and Mayes losing their offices.
Another alternative offered by Crosby and Mast would require Maricopa County to conduct a new election no later than Oct. 15, in strict compliance with ARS 16-550(A). But critics note it would be impossible to administer a new election that ensures all voters lawfully eligible to participate back on Nov.8, 2022, could cast a new ballot.
They point to the fact thousands of Maricopa County voters have likely moved out of the county, and some have even died.
The Maricopa County Board of Supervisors as a public body is also named as a defendant. Other Maricopa County defendants are Recorder Stephen Richer; co-Elections Director Scott Jarrett; co-Elections Director Rey Valenzuela; and Supervisors Steve Gallardo, Thomas Galvin, Bill Gates, Clint Hickman, and Jack Sellers, all in their official capacities.