By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Unsuccessful so far in his bid to overturn his loss in the race for attorney general, Abe Hamadeh has opened up a new legal front — with some new legal theories.

And what he wants is a judge to order the race he lost to Democrat Kris Mayes be re-run in Maricopa County.

All this is based on Hamadeh’s contention Maricopa County officials botched how they handled Election Day procedures.

Attorney Ryan Heath said problems with printers and tabulators at vote centers resulted in long lines. And he claims as many as 20% of potential voters were unable to cast their ballots, though he provides no basis for that estimate other than a handful of affidavits from people who say they eventually walked away.

The only way to resolve all that, Heath says, is to have a re-do of the race — this time following what he said are laws and procedures that would have prevented the problems at polling places.

“If the voters desire to have Kris Mayes represent Arizona as the attorney general, then a re-vote in Maricopa County will not change that result,” he told Maricopa County Superior Court Judge Melissa Julian. “Yet if the will of the voters was thwarted by Maricopa County’s well-publicized failures on Election Day, then that also will be clear with the issuance of the writ requested.”

The new lawsuit comes even as Hamadeh is waging a parallel challenge to his loss, asking the state Court of Appeals to order Mohave County Superior Court Judge Lee Jantzen to grant him a new trial in his unsuccessful effort to overturn the election results.

Hamadeh contends Jantzen acted improperly at the first trial by limiting the amount of time the 2022 Republican candidate’s attorneys had to find evidence they contend will show some people legally entitled to vote did not have their ballots counted.

But in a new filing this week, Alexis Danneman who represents Mayes, told the appellate judges there is no basis for giving Hamadeh a new trial — and more time to unearth evidence that would support his theory that he actually outpolled Mayes despite the official results showing her defeating him by 280 votes.

“Contestants offer only speculation that this evidence was likely to change the results at trial,” Danneman said. And she is asking the appellate court to not only dismiss the case but also force Hamadeh to pay Mayes’ legal fees and costs.

The new case filed by Heath on Hamadeh’s behalf tries a different tactic.

Much of this relates to the fact Maricopa County uses voting centers. That allows people to go to any location to cast a ballot rather than a local precinct.

That in turn requires the ability to have a ballot specific to that voter printed on location, containing only those races for which the person is entitled to vote.

Most notably, on-site tabulators at multiple voting centers were rejecting many of what was being produced by certain ballot-on-demand printers made by Okidata. Among reasons cited were everything from faint-ink issues to a “fit to page” setting that resulted in a ballot where the markings did not align, resulting in tabulators rejecting them.

Heath acknowledges voters who couldn’t get their ballots immediately tallied had the option to instead put them in a sealed drawer to be counted later at county election offices. But he said that still resulted in “exceptionally long lines” — perhaps of multiple hours — which, in turn caused some people to simply decide to leave instead.

“It cannot reasonably be disputed that long lines on Election Day resulted in depressed voter turnout in Maricopa County,” Heath told Julian.

What makes that critical is Democrats tended to vote more heavily using early ballots. In Maricopa County, early voters were 84% of the total turnout of more than 1.56 million votes cast.

Another 248,070 votes were cast in the county on Election Day.

But Republicans have shown more of a propensity to wait until Election Day. And that, said Heath, means the people turned away were more likely to be Republicans — and more likely to have voted for Hamadeh than Mayes.

In fact, Hamadeh outpolled Mayes in Election Day statewide by a margin of better than 2-1. But she fared better among those who voted early.

“The long lines had a disproportionate impact on Election Day results and plausibly changed the outcome of the election causing plaintiff Hamadeh his race,” Heath said.

He has another legal theory.

Heath pointed out that Yavapai County Superior Court Judge John Napper has issued a preliminary ruling the signatures on early ballot envelopes must be compared to each person’s voter registration record.

By contrast, election officials in many counties, including Maricopa and Pima counties, also will compare other signatures they have on file from voters.

And Heath is saying if that reasoning is applied retroactively — something Napper has not ordered — then Maricopa County will be required to re-examine the more than 1.3 million ballot signatures against the correct registration record “or there will have to be a re-vote or other remedy.”

A spokesman for the county supervisors, who are in charge of handling Election Day voting, said they do not comment on ongoing litigation.