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Hamadeh bid for new trial has multiple flaws, attorney for state secretary Fontes says in filings

Posted 5/24/24

PHOENIX — Abe Hamadeh has no one to blame but his own legal team for a trial judge refusing to overturn his 2022 loss in the race for attorney general, a lawyer for Secretary of State Adrian Fontes is arguing.

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Hamadeh bid for new trial has multiple flaws, attorney for state secretary Fontes says in filings


PHOENIX — Abe Hamadeh has no one to blame but his own legal team for a trial judge refusing to overturn his 2022 loss in the race for attorney general, a lawyer for Secretary of State Adrian Fontes is arguing.

In new filings Friday, Craig Morgan told the Arizona Supreme Court that the bid by Hamadeh for a new trial has multiple flaws. If nothing else, Morgan said, the failed candidate is not legally entitled to documents he claims will allow him to prove he really outpolled Democrat Kris Mayes.

But the real problem, he said, is the way the lawyers for Hamadeh, his political supporters and the Republican National Committee handled their legal challenge in front of Mohave County Superior Court Judge Lee Jantzen right after the 2022 election.

“Petitioners made tactical decisions before the superior court, failed to meaningfully advanced their arguments concerning pre-trial discovery, and tarried through an expedited election contest,” Morgan said.

They pressed the arguments they wanted to press, as much or as little, as they desired,” Morgan told the justices.

Ditto, he said, of their choice of what issues to raise in the trial and which to assert. And Morgan said the same is true of the decision by Hamadeh to go ahead with the trial without seeking emergency action special relief, something that could have resolved any legal question before the trial — and before Jatzen’s final ruling.

“Petitioners can hardly complain about the propriety of a process they helped orchestrate,” he said.

Hamadeh is having no better luck in a parallel effort to decertify the results of the 2022 election, order it rerun in Maricopa County and declare that Mayes is holding the office illegally.

In a separate order Friday, the justices rebuffed Hamadeh’s request that they immediately review a decision of Maricopa County Superior Court Judge Susanna Pineda that there is no legal basis for his claims that the county improperly included some early ballots in its count of the election.

Hamadeh argued those votes could be counted only if the signatures on the outside envelope match the voter’s “registration form.” But Pineda said the Elections Procedures Manual also allows counties to use other signatures on file for comparison.

And she said if Hamadeh had a problem with all of that, he should have raised it before the 2022 election as the procedures being used by the county were announced six months earlier.

Nothing in this new order precludes Hamadeh from continuing that parallel argument about Mayes holding office illegally. But the justices said he has to go through the regular appellate process, something that, if he decides to pursue, could go on long past the 2024 election in which he is a candidate for Congress.

By contrast, it is more likely there will be a final ruling by that time on the case that started in Mohave County Superior Court, the one that Morgan on Friday urged the justices to deny.

In this case, Hamadeh contends access to certain information that he argues would — or at least could — change the outcome of the race he lost by 280 votes was delayed and in some cases denied.

Much of this revolves around the “cast vote record.” This is a computer output of the choices made on each individual ballot.

The identity of the voters is stripped out.

But what Hamadeh contends it would show are “undervotes.” These are ballots where, say, there is a recorded vote for governor but none for attorney general.

That information, he contends, could provide a basis for him to demand to look at the ballots to determine whether a voter actually had made a choice in the race for attorney general but that, for whatever reason, the tabulation equipment did not record it.

He claims there are plenty of such ballots, saying that in 10 counties that reported undervotes in the final recount, there were at least 68,196 ballots where tabulators did not record a vote for either himself or Mayes. And that, Hamadeh told the justices, entitles him to a new trial where he can review and introduce all that evidence.

Morgan told the justices Friday there are several problems with all that.

It starts, he said, with the fact that Hamadeh did not even mention the cast vote record until two days before the trial. But there’s also the question of whether, had he brought it to Jantzen’s attention even earlier, he would have been entitled to access.

Attorneys for Maricopa County had told Jantzen that the only thing to which Hamadeh was entitled was the ability to inspect individual ballots.

Morgan said Hamadeh never rebutted that argument “or provide any other argument supporting his entitlement to discovery.” And he said Hamadeh it was not until an emergency hearing — the day before the trial — that Hamadeh argued that the CVR was part of the ballot inspection process.

The bottom line, said Morgan, is that if there was any legal problem with any of Jantzen’s rulings, Hamadeh and his legal team have nowhere to look for blame other than in the mirror.

And there’s something else.

Morgan said if Hamadeh is unhappy with the procedures for appealing election results as well as the limited time he had to do it, he needs to take that up with the Legislature. Morgan said he can’t ask the courts to alter the procedures set down in statutes.

The justices gave no indication when they will rule on Hamadeh’s request.

This is actually Hamadeh’s second bid to get the Supreme Court to order a new trial.

Last year his attorneys sought an expedited review, telling the justices they had “diligently sought” a final ruling from Jantzen, allowing them to appeal. Not only did the justices tell them to go back and do it right — which is what Hamadeh now is trying — but they slapped Hamadeh and his lawyers with legal fees for lying to the court since that claim of having diligently sought a ruling from the trial judge was a lie.