PHOENIX - A fight between the candidates for attorney general over who won could mean Arizona may not have a declared winner by Jan 3.
And that could leave Mark Brnovich in his office beyond the end of his term.
The possibility was raised Monday as the attorneys for the two candidates for the office argued how quickly Maricopa County Superior Court Judge Randall Warner can hear a legal bid by Republican Abe Hamadeh to have himself declared the winner even though the final votes from the counties show him losing to Democrat Kris Mayes by 510 votes.
Hamadeh contends there were a series of mistakes and illegal actions in the general election that resulted in some votes not being counted. His attorney, Kory Langhofer, also said other votes that should have gone to Hamadeh were miscounted for Mayes.
Dan Barr, Mayes' attorney, told Warner the lawsuit is premature. He contends such claims cannot be brought until the formal canvass of votes, something now set for Monday, Dec. 5.
Andy Gaona, representing Secretary of State Katie Hobbs, said that date could slip because of the failure of Cochise County to act by Monday's deadline to certify its own results. Hobbs has promised to sue to ensure compliance.
But it's even more complicated than that.
State law requires a recount because Mayes' margin of victory is less than one-half of 1 percent of the total votes cast. And the recount cannot begin until after the canvass.
"What happens if the recount for an election contest isn't done by, I guess the first day under the (New Year's) holiday scheme, would be Jan. 3?'' Warner asked.
Langhofer said that could result in a situation where there are "dueling officials'' or, at the very least, a delay in inauguration.
"And I think that's just a nightmare scenario,'' he told the judge. Langhofer said that's why he wants his lawsuit to proceed now, regardless of the recount.
There is, however, a precedent for what happens if an election is not decided when a term begins.
In 1990, Democrat Terry Goddard was running for governor against Republican Fife Symington.
Only thing is, the Arizona Constitution at that time said a winner had to have at least 50% of the vote. Neither did, with Max Hawkins picking up nearly 11,000 votes. And that left incumbent Democrat Rose Mofford in office until a February 1991 runoff, which Symington won.
Warner said he will first decide if Barr is correct in his assertion that Hamadeh is premature in his lawsuit because the statewide canvass has not yet been conducted.
"The statute couldn't be any more clear,'' Barr said.
All that would do, however, is delay the case, something Langhofer said is unacceptable.
"We have to get this going or Arizonans are going to be deprived of their duly elected representative,'' he said. "There's no strong reason why this shouldn't be heard right now.''
Many of the questions stem from problems on Election Day in Maricopa County. Issues with printers resulted in some voters unable to have their ballots scanned immediately.
Langhofer told Warner that some of these people went to another site, only to be told that they already were listed as having voted. He said they were given "provisional ballots'' which may not have been counted.
Then there were an undetermined number of people who simply left the second site without voting at all. Langhofer wants to find out who they were so he can speak with them to determine if there is a way now to count their votes.
Barr, however, told the judge he should throw out the case right now, before any witnesses are called.
"This is a lawsuit in search of facts,'' he said. Barr said that Langhofer essentially admitted he filed he legal challenge without having any facts to support his allegations that people were not allowed to vote and, more to the point, that any of that would change the outcome of the election.
"I am deeply offended at the suggestion that we have transgressed some rule or norm in filing what has been a very carefully drafted and narrow complaint,'' Langhofer responded. "There are a handful of issues that, after research, we think were handled improperly - and there's votes there.''