By Howard Fischer
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PHOENIX — Claiming legal errors and improper government interference, Abe Hamadeh is asking the Arizona Supreme Court to order that he be given a new trial in his bid to overturn the race for attorney general.

In a new filing, attorneys for Hamadeh and the Republican National Committee claim Mohave County Superior Court Judge Lee Jantzen acted improperly in limiting the amount of time he had to prepare his legal arguments seeking to overturn his loss to Democrat Kris Mayes. They said that denied them the ability to find the evidence that some people who were legally entitled to vote did not have their ballots tabulated.

They also contend that more time would have enabled them to prove there were a sufficient number of situations where tabulators reported an “undervote” in the race for attorney general — essentially, that the voter had skipped the race — but where an examination of the ballots would show that people did make a choice. And given that Hamadeh outpolled Mayes among Election Day voters, they say that could more than make up for Hamadeh’s 280-vote deficit.

But Hamadeh and his lawyers also want the justices to conclude that Katie Hobbs, then secretary of state, acted improperly in withholding until six days after his trial that a recount in Pinal County showed discrepancies in the totals, information they say could have provided the evidence that her attorneys argued at trial was lacking and calling the hearing a “farcical proceeding.”

“That statement is reckless at best, deceitful at worst,” they told the high court.

There had been an order from a Maricopa County Superior Court judge barring release of any county’s recount tally until the full statewide results were available. Hamadeh contends, however, that only barred county officials from providing the information and did not apply to Hobbs who was a defendant in this case based on her position as secretary of state.

“No authority permitted defendant Secretary to violate the duty of candor to the tribunal and to falsely assert that petitioners had no evidence while simultaneously suppressing facts that validated petitioners’ claims,” the legal papers state.

The GOP contender’s legal team also lashed out at Maricopa County, which also was a party in the litigation, for what he said was its delay in giving him timely access to the ballots while, at the same time, arguing to Jantzen that the judge should toss his challenge and confirm Mayes as attorney general.

“State and county officials used the power and purse of the government to take a substantive position in an election contest and to actively tip the scales of justice by withholding public records and concealing information that validated the vote count issues petitioners raised at trial,” they said.

Much of Hamadeh’s bid to the justices is based on his contention that, given enough time, he could prove that he outpolled Mayes.

Before his first trial, Hamadeh’s legal team was given permission to inspect about 2,300 ballots from Maricopa County.

Out of that, the judge acknowledged there were 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 were less than clear.

But Jantzen said that wasn’t enough to rule that county elected 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.

Even Tim La Sota, who handled that hearing, conceded that extrapolating out these alleged errors would still not overcome what was then a 511-vote deficit by which Hamadeh lost to Mayes statewide.

La Sota said though, it might have been different had the judge allowed him to examine more ballots from Maricopa, Pima and Navajo counties. But Jantzen said that request went beyond the scope of what’s allowed in election contests, which have to be resolved quickly.

The closeness of the race necessitated a statewide recount. And while the changes in most counties were small, that wasn’t the case in Pinal County where the review produced 507 ballots that apparently had not been counted the first time around.

Hamadeh picked up 392 of those versus 115 for Mayes. But it still wasn’t enough to change the outcome.
He contends that, had that information about the Pinal County recount been known before his trial, it would have enabled his lawyers to argue for examinations of more than 68,000 other ballots statewide where there was an “undervote” in the race for attorney general, meaning the tallying machines found voters made no choice in that race even though they had made picks in other contests.

Then there’s the question of whether some ballots cast on Election Day were not counted at all because county records showed they were not properly registered.

Hamadeh blames that on computer issues he contends reregistered some voters to another address “where they had some connection’’ but without the voter’s knowledge or consent.

The total votes affected by that, his legal team said, was more than 1,100. And given that Hamadeh did better among Election Day voters — versus early ballots that went for Mayes — they said that should show he really won the race by more than 150 votes.

But Hamadeh said rulings by Jantzen that timelines for election lawsuit precluded more extensive discovery prevented him from finding and presenting that evidence at his trial. So he wants the Supreme Court to rule those time constraints are illegal because they interfere with his right to inspect more than a random sample of ballots.

All this, Hamadeh said, is enough for the justices to order a new trial — and the time to get the evidence they believe will overturn the results.

How quickly the justices will act is unclear. The filing provides an opportunity for answers from not just lawyers for Mayes but also for those from the Secretary of State’s Office and Maricopa County.