Questions surrounding who actually received the most lawful votes in the 2022 Attorney General race need not linger, despite efforts by some government entities to end further consideration of Abe Hamadeh’s election challenge against Kris Mayes.
That is the position put forth to the Arizona Supreme Court in a petition for special action filed Thursday by Jennifer Wright, one of the attorneys representing Hamadeh.
The petition argues the justices can “ensure that significant, non-speculative, outcome-determinative issues are fully litigated and that every valid vote is counted,” if they grant Hamadeh petition for a new trial.
Hamadeh’s petition points to numerous issues connected to the case, which started Dec. 9 when Hamadeh filed the challenge along with two Mohave County voters and the Republican National Committee. At the time, Mayes had a 511-vote margin going into a mandatory statewide recount.
The first trial was held Dec. 23 in front of Judge Lee Jantzen of the Mohave County Superior Court. Jantzen dismissed Hamadeh’s election contest that same day, but did not rule on a Jan. 3 motion for a new trial until July 14 when the motion was denied.
“Pointedly, the parties’ rights to speedy decisions have been grossly and repeatedly violated,” the petition states. “Given the urgency to resolve all of these matters and the lack of a plain, speedy, and adequate remedy, a special action to this Court is warranted.”
Hamadeh issued a statement late Thursday about the filing in which he highlighted the thousands of uncounted ballots in the attorney general’s race.
“Although we have faced unusual roadblocks at the trial court, we are confident we will have our day in court to present the evidence and ensure that the will of the people is honored,” he said of the petition.
The petition also argues Jantzen abused his discretion by failing to enter two final judgments in the case. One of those final judgments has been outstanding since the Dec. 23 trial, which Wright notes Mayes even agreed months ago that Jantzen had a duty to get issued timely.
“Similarly, Petitioners’ Motion for a New Trial was fully briefed and at issue on February 6, 2023. Months later, oral arguments were set and heard on May 16. However, the order denying Petitioners’ Motion does not contain language consistent with Rule 54(c). Accordingly, to date, no final judgment on the Motion has been issued,” according to the petition.
Another argument put forth in Hamadeh’s petition is that the Mohave County court abused its discretion by denying the motion for a new trial. In the alternative, Jantzen is “threatening to proceed without legal authority” in his handling of the case, Wright argues.
“Courts, not the legislature, set court rules,” she wrote. “Due process of law and the right to free and equal elections demand adherence to them.”
All 15 counties as well as then-Secretary of State Katie Hobbs were named as defendants in the election contest in addition to Mayes. Hamadeh’s petition argues state and county officials should be nominal parties to an election contest “who are joined solely for the purpose of adhering to orders of the court, not for asserting substantive arguments.”
But in response to his election challenge against Mayes, state officials as well as some county officials used the “power and purse of the government” to substantively and actively “tip the scales of justice by withholding public records and concealing information that validated the vote count issues Petitioners raised at trial,” the petition argues.
“In this race decided by only 280 votes, these state actions directly oppose the constitutional rights of Arizonans to free and equal elections,” Wright noted. “This Court should not condone this abuse of power by state and county officials.”
Hamadeh’s team argues the “obligation to govern impartially is as compelling as its obligation to govern at all” and the interest of the government is not to win a case but rather that justice shall be done.
“The record shows that Defendants withheld evidence supporting Petitioners’ claims that votes that should have been counted were instead misread as undervotes,” according to the petition in reference to Pinal County discovering its machine tabulators did not properly record some votes in the race.
There are public records showing Pinal County knew of various tabulation problems by Dec. 1. Other records show county officials advised the Secretary of State’s Office by at least Dec. 21.
At the time of Hamadeh’s Dec. 23 trial in Jantzen’s courtroom. the evidence of tabulation errors “was known by at least two public officials who were parties to this case.”
But the petition points out Hobbs’ attorney stated at trial that Hamadeh and his co-contestors “had no evidence, none, to support their remarkable claim” and even called the hearing a “farcical proceeding,” despite knowing the recount validated some of Hamadeh’s claims.
“That statement is reckless at best, deceitful at worst,” Wright wrote of the position taken by the Secretary of State.
Another issue addressed in the petition for special action involves Jantzen’s pretrial ruling that severely limited discovery into potential evidence.
The discovery permitted by Jantzen the day prior to trial revealed 14 out of a sampling of 2,300 ballots were misread by tabulators as either an undervote or overvote. The 0.61 percent error rate if applied to the nearly 70,000 undervote / overvote ballots statewide was not sufficient to overcome Mayes’ 511-vote margin a trial, Jantzen ruled.
But it could overcome the smaller 280-vote margin Mayes was left with following the Dec. 29 announcement of the statewide recount results, the petition argues.
Ballots are addressed in several of Hamadeh’s arguments in support of a new trial.
Jantzen ruled prior to trial the only discovery allowed per election law involved inspection of ballots. He appears to have relied solely on ARS 16-677(A) which states “either party may have the ballots inspected before preparing for trial.”
It is the only reference in election statutes to discovery during an election challenge, but Wright contends the only significance of that statute is to confirm parties have a right to inspect ballots.
“Absent this provision, inspection of ballots would directly conflict with A.R.S. 16-624(A), which requires ballots to be delivered to the county treasurer, ‘who shall keep [the packages containing ballots] unopened and unaltered” after the canvass has been completed,’” she wrote.
Jantzen’s rulings on turning over evidence kept Hamadeh’s legal team from being able to require counties to disclose provisional ballot lists and cast vote records to help identify tabulation issues, the petition argues.
“The Arizona Constitution gives citizens the right to ‘free and equal’ elections, and an election cannot be considered equal when government officials, including the trial court, used the power of their positions to tip the scales toward (Mayes) in this case,” Wright added.
The petition encourages the justices to use the Hamadeh v. Mayes case to ensure there is “a consistent and uniform set of procedures for election contests” in Arizona. Among the recommended procedures is one which clarifies a motion for new trial can be granted in election contests if a party meets the requisite burden.
Hamadeh’s petition does not address several other issues with Jantzen’s handling of the case. The judge’s July 14 order denying a new trial notes he would address other outstanding motions in this case by July 17 when he planned to release his explanation of the denial.
But the July 17 order contained no reference to those outstanding motions. And nothing has been docketed by the judge in the two weeks since.