By Howard Fischer
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PHOENIX — The Court of Appeals is not going to oust Kris Mayes as attorney general and replace her with Abe Hamadeh.

It’s all because the three-judge panel on Tuesday rejected claims Hamadeh and two of his supporters that Maricopa County improperly included some early ballots in its final tally.

Attorney Ryan Heath argued once those early ballots are excluded from the count, the 280-vote lead racked up by Mayes in the 2022 race would more than disappear. And he asked the appellate court to apply a little-used legal principle known as “quo warranto” to declare Mayes is holding office illegally — and Hamadeh is the rightful office holder.

Hamadeh currently is running for the open seat in Congressional District 8, which represents Sun City, Sun City West and portions of Glendale, Peoria and Surprise.

Judge David Weinzweig, writing for the unanimous three-judge appellate panel, said the lawsuit seeking to reverse the results of the race for attorney general suffers from a fatal flaw: It was filed too late.

Still, there was a small win in the new ruling for Hamadeh. The judges said he and his allies will not have to pay $200,000 in legal fees to Mayes and others who had to defend against this lawsuit and others he filed.

At the center of the dispute is a section of the state Election Code dealing with early ballots. It requires the county recorder to “compare the signatures thereon with the signature of the elector on the elector’s registration record.”

There are procedures for election officials to contact a voter in cases of “inconsistent” signatures to allow the ballot to be counted. But Heath argued that none of that permits a county, on its own, to simply decide that other signatures it has on file can be used for comparison.

The appellate court, in its ruling, never decided whether Heath’s legal theory is correct.

Instead, they pointed out Maricopa County announced six months before the 2022 general election it would decide the validity of early ballots by comparing the signatures on the envelopes with a “historical reference signature that was previously verified and determined to be a valid signature for the voter.” And that, the county said, could include early voting affidavits from previous elections.

More to the point, it meant that the county was using more than what was on the voter’s original registration.

What that means, Weinzweig wrote, is any question Hamadeh had about the legality of what the county was doing should have been filed when the county announced the procedure, not afterwards.

“Voters knew or should have known about this verification procedure before the election because Maricopa County disclosed all necessary information before the first ballot was cast,” the appellate judge wrote. “Indeed, Maricopa County used the procedure to count early ballots before election day.”

The appellate judges were no more impressed by Hamadeh’s “quo warranto” claim.

This is an extraordinary legal proceeding to remove a sitting public official and replace that person with someone else. Hamadeh said it applies here based on his claim that Mayes was elected with illegal votes.

But Weinzweig said that’s not the way the law works.

He said such claims are allowed only if the challenger can show he or she is entitled to that office. Instead, the judge said, Hamadeh was relying solely on his claimed weakness of Mayes’ own title to the office, something Weinzweig said does not fit within what the rarely used law allows.

The appellate judges were more amenable to providing some financial relief.

Maricopa County Superior Court Judge Susan Pineda had ordered Hamadeh, his allies and Heath to jointly pay $200,000 in legal fees to Mayes, Maricopa County and the Secretary of State’s Office after she called the lawsuit “groundless and unjustified.”

The judge took a particular slap at Heath for taking the cases at all.
She said once he agreed to represent Hamadeh and the others who sued on his behalf, he had an obligation to conduct a “reasonable investigation” to determine whether these were viable claims. That included looking at prior lawsuits on the same issues, she said.

“He either did not do so or he chose to ignore the history of litigation that followed the 2022 general election, including the prior unsuccessful cases filed by his client,” Pineda wrote in ruling that the people Heath sued on Hamadeh’s behalf are entitled to recover their legal fees.

But the appellate court, in voiding that order, gave Hamadeh the benefit of the doubt. They said his claims of quo warranto and an invalid signature verification process were “fairly debatable.”

And Weinzweig used the same phrase to describe whether Hamadeh’s claim that the county was not using the proper method to verify signatures was actually just a rehash of two prior lawsuits he had lost, absolving him of the sanctions imposed by Pineda.

Hamadeh still has a separate case before the Arizona Supreme Court over his loss to Mayes. He contends that Mohave County Superior Court Judge Lee Jantzen did not give him enough time after the 2022 election to search for evidence of improprieties in the race, a claim already rebuffed by the Court of Appeals.