PHOENIX — Abe Hamadeh wants the judge who threw out his challenge to the election returns in the race for attorney general to give him another chance to make his case.
Republican Hamadeh says the fact that Democrat Kris Mayes already has been sworn in is not only not a barrier to further court review but actually is a good thing for him. That's because his attorneys are no longer working against the post-election deadline in state law to file and complete these legal actions and have the time to conduct a more thorough review of ballots.
They note there actually is precedent for tossing an apparent winner out of office long after the election if a court concludes the reported results were inaccurate.
In new legal papers, his attorneys say the problems found during the recount of votes in Pinal County point up the kinds of things that can go wrong in an election. Those problems were unearthed after officials there took a closer look at some of the ballots after the recount produced 507 ballots that apparently had not been counted the first time around — and after the initial election results were reported and certified.
Hamadeh picked up 392 of those. But it still wasn't enough to close the gap with Mayes, who was declared the winner by just 280 votes statewide out of more than 2.5 million ballots cast.
Pinal County election officials have since blamed the disparity on human error.
Now the lawyers who represent Hamadeh, the Republican National Committee and two voters want Mohave County Superior Court Judge Lee Jantzen, who limited their ballot inspections ahead of the first trial, to reopen the case.
"Contestants simply ask that we be given the opportunity to apply the Pinal County process across the board to conduct a physical inspection and hand count of ballots that — if the Pinal County issue repeats itself anywhere else in the state — could be outcome determinative in this election,'' they told Jantzen. They said that could provide enough evidence for the judge to overturn the results even though Mayes was sworn in on Monday.
The court gave the Democrat until Jan. 13 to file a formal response to the latest filing. But Dan Barr, Mayes' lead attorney, told Capitol Media Services this is "just another meritless, election-denier lawsuit.''
Barr did not stop there. He also took a shot at the lawyers representing not just Hamadeh but other Republicans who, having been defeated at the polls, now are seeking judicial intervention to overturn the results.
"It continues to amaze me that after continuously losing these cases around the country over the last two years, there remains a very small group of lawyers who are willing to sign their names to these complaints that are unsupported by facts and law,'' he said.
Barr is doing more than firing verbal salvos. He wants Hamadeh and his legal team to not just pay her legal fees but also a $5,000 penalty for filing and pursing the lawsuit even after it was clear "they indisputedly knew they had zero evidence to support most of their claims.''
Hamadeh's lawyers, while not conceding the original lawsuit was flawed, are telling Jantzen the results of the recount show there were problems with how the election was conducted — and not just in Pinal County.
They also say the fact that Mayes has taken office actually is a good thing for them.
The earlier legal contest was governed by rules which required election lawsuits be filed and completed within a certain number of days. That's no longer a factor as Hamadeh continues to argue that thousands of Arizonans did not have their votes counted.
"The proceedings contestants (Hamadeh and others) requested — apparently like the initial count according to the Pinal County elections director — were rushed according to an artificial timetable over concerns of interfering with the transfer of power of the Office of Attorney General,'' his lawyers wrote. "Given that Ms. Mayes has now taken office, any concerns about completing the contest up front are no longer an issue.''
There is precedent for unseating an incumbent.
That occurred in the 1916 race for governor between incumbent Democrat George W.P. Hunt and Republican challenger Thomas E. Campbell.
Campbell was sworn in after the returns gave him a 30-vote edge.
But Hunt refused to leave office while challenging the results, though Campbell did serve as de facto governor in the interim. Ultimately the Arizona Supreme Court, after looking at questions of how people had marked their ballots, installed Hunt in office in late 1917.
"Thus, there are no artificial time restrains on completing the contest process,'' Hamadeh's lawyers said. "As Pinal County recognized, in circumstances such as these, taking the time to perform a physical inspection of ballots plays a key role in identifying miscounts and ensuring that all votes are properly tabulated.''
At the first trial, Jantzen allowed Hamadeh's legal team to inspect about 2,300 ballots based on laws governing what is allowed in election challenges.
Of that, the judge concluded, there were just 14 ballots presented where there could be some question of whether a vote should have been counted, whether for Hamadeh or Mayes. These were ballots where the marks made by voters were less than clear.
Jantzen said that wasn't enough for him to rule that county election officials, who checked these ballots by hand, did something wrong.
"For the most part, these 14 ballots would be voter error, not filling them out the way the instructions say,'' the judge said.
"The bottom line is, you just haven't proven your case,'' he told Tim La Sota, one of Hamadeh's attorneys who argued the case last month in the half-day trial. "There isn't enough information — I don't think even slight information — the election was done illegally or incorrectly.''
Hamadeh has another argument of why he's entitled to a new trial.
He said that then-Secretary of State Katie Hobbs, who was named as a defendant in the legal challenge, knew by Dec. 21 that the recount has showed discrepancies with the official vote total. But he said that information, which might have convinced Jantzen to allow inspection of more ballots, was not released to Hamadeh and the public for another eight days after the trial.
What Hamadeh and his lawyers did not say, though, is that Hobbs, now sworn in as governor, was under order not to release the results until they were formally unveiled in court.