By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX — Arizona taxpayers are footing the $5,000 bill for a legal bid by the state’s two top Republican lawmakers to help fellow Republican Abe Hamadeh in his effort to overturn his loss to Kris Mayes in last year’s race for attorney general.

In a new legal filing, a private attorney hired by Senate President Warren Petersen and House Speaker Ben Toma is telling the Arizona Supreme Court that the pair “take no position” on the question of whether Mayes outpolled Hamadeh by 280 vote as certified in the formal results. Instead, Tom Basile argues that their only interest is to follow what he says are state election laws “and afford the parties a full and fair opportunity to adduce the facts necessary to answer that pivotal question.”

Basile said that did not occur when Mohave County Superior Court Judge Lee Jantzen, who had ruled in December that Hamadeh failed to provide evidence the results were wrong, refused last month to give him a do-over to search out what the GOP contender says is evidence that not all ballots were counted — evidence he argues could change the outcome.

But Basile, in the pleadings, also lashed out at Mayes and her legal team, telling the Arizona Supreme Court that Hamadeh’s rights were harmed by litigation tactics to “extinguish ... entirely through delay” Hamadeh’s ability to discover and present new information.

And Basile had particularly harsh words for Secretary of State Adrian Fontes, a Democrat who took office in January, whose office is a party to the case because of its statutory role in elections. And Fontes also filed a legal brief urging the justices to reject Hamadeh’s bid for a new trial.

In that brief, Fontes accuses Hamadeh and the Republican National Committee, which also is contesting the outcome of the race, with failing to act in good faith in dealing with the courts.

“We cannot allow a disgruntled vocal minority to weaponize our courts, sow unfounded distrust in our election processes, malign our public servants, and undermine our democracy — all for the purpose of trying to overturn the people’s will and topple an election.”

And Fontes wants the justices to order sanctions against Hamadeh and his lawyers.

Basile, for his part, termed the language in Fontes’ filings “gratuitous and abusive.” And he accused the secretary of “churlish imperiousness” in dismissing Hamadeh’s bid to reexamine some ballots to determine if the should be retabulated.

“Citizens should not be disparaged and assailed by their own public servants for raising measured and modest claims ... in the closest election for statewide office in Arizona history.” 

Petersen brushed aside inquiries about the Legislature spending taxpayer money to get involved in the dispute about who won the 2022 race for attorney general.

“Sorry, but that is a strange question,” he said. And he pointed out that lawmakers have filed briefs in other cases.

But these most often involve challenges to Arizona laws, such as a recent filing defending a 2022 measure approved by the Republican-controlled Legislature that prohibits transgender girls from participating in girls’ sports. This one, however, does not ask a judge to uphold the validity of a statute but instead seeks to bolster Hamadeh’s arguments that he’s entitled to a new trial.

An aide to Toma said it is “in the public interest to get to a conclusion in this case.”

“It is a legitimate question whether all relevant laws were followed,” said Andrew Wilder. And the Legislature’s legal brief argues that Jantzen had a “misconception” of what election laws require when he limited Hamadeh’s ability to inspect ballots.

“As lawmakers, the legislative branch has a constitutional voice in this matter,” Wilder said.

Petersen and Toma aren’t the only ones hoping to convince the state’s high court to give Hamadeh another chance to argue that there is evidence he was denied the time and opportunity to discover that he actually won the 2022 election or, at the very least, that the outcome is uncertain and the race needs a closer look.

Another new legal filing has come from America First Legal Foundation, formed following the 2020 election by senior Trump legal adviser Stephen Miller.

The organization describes itself as designed to save the United States from a “coordinated campaign” by “an unholy alliance of corrupt special interests, gig tech titans, the fake news media, and liberal Washington politicians.”

James Rogers, its attorney, accuses the Secretary of State’s Office — under the control of Katie Hobbs at the time Hamadeh’s first trial occurred in December — of using “hide the ball tactics” to withhold from the trial judge information it contends was relevant. And that, he told the justices, requires them to send the case back to Jantzen to give the GOP contender the opportunity for “full inspection” of ballots he did not get the first time around.

All that goes to Hamadeh’s main contentions that there are votes for him that were not tallied.

One batch, he said, is of “provisional ballots.” These are from people who showed up to vote on Election Day but were not listed on poll books as registered to vote. They were allocated to cast ballots which were set aside to allow for further examination.

After all that, Hamadeh says there were about 8,600 that never were counted.

What makes that important is that the final tally showed Mayes winning by only 280 votes out of more than 2.5 million cast statewide. And Hamadeh did better than Mayes among Election Day voters, leading to his argument that further review of those ballots — denied to him by Jantzen at the first trial — would find that many of these provisional ballots were improperly rejected and there are enough of them to change the outcome.

The other is directly related to the statewide recount that was legally required after the preliminary results showed Mayes with a 511-vote lead.

What makes all of that relevant, Rogers said, is that during the trial Mayes’ attorneys argued that, at best, only 395 votes may be affected by Hamadeh’s arguments. And they told Jantzen that even if all those votes were for Hamadeh — something they said he could not assume — it still wouldn’t change the outcome.

Only thing is, Rogers said, is that not only Hobbs but at least one attorney representing her office were aware — even as the case was being argued — that the recount actually shrank Mayes’ margin of victor to just 280.

“In this case, the result was predetermined by the defendants’ decision not to disclose vital evidence,” he told the justices of Jantzen’s ruling. “No court should ever countenance the ‘hide the ball’ tactics the Arizona Secretary of State employed in the (Mohave) Superior Court election contest.”

Rogers acknowledged there had been a separate court order prohibiting release of the recount numbers at that time. But he said that didn’t mean Hobbs’ attorney to use the numbers he knew were incorrect to make his case.

“Thus, regardless of whether the secretary was required to disclose the correct vote totals during Mr. Hamadeh’s contest, counsel for the secretary was absolutely prohibited by the ethical rules from from relying on, referring to, and making arguments based on, vote totals that he knew were wrong,” Rogers wrote.

The justices have yet to decide whether to accept Hamadeh’s request that they order a new trial or have him go through the regular appellate process.