Abe Hamadeh filed a Petition for Special Action with the Arizona Supreme Court on Friday, asking the court to consider providing him with a new trial in his election lawsuit contesting losing the attorney general’s race. Mohave County Superior Court Judge Lee F. Jantzen denied Hamadeh’s request for a new trial in July, despite the fact Hamadeh discovered that then-Secretary of State Katie Hobbs withheld evidence of undervotes in Pinal County, which led to Kris Mayes’ lead shrinking to only 280 votes over Hamadeh, making it the closest statewide race in Arizona history.
Hamadeh (pictured above) said he believes up to 76,339 “undervotes” statewide were not counted in the election.
Hamadeh said in a statement provided to The Arizona Sun Times, “I stand by my commitment to keep fighting for the people of Arizona and protect their sacred right to vote. As a veteran, I took an oath to serve our country overseas, and I will continue to serve Arizona and our country. The evidence cannot be ignored — there are thousands of uncounted ballots. Although we have faced unusual roadblocks at the trial court, we are confident we will have our day in court to present the evidence and ensure that the will of the people is honored.”
Authored by Jennifer Wright, the former Election Integrity Unit civil attorney for the attorney general’s office, the 48-page petition seeks to bypass the regular appeals process through the Arizona Court of Appeals. Wright argued that the trial court judge moved so slowly that “unexplainable and unnecessary delays on an issue of extreme statewide importance justify Petitioners’ request to seek extraordinary relief from this Court directly via special action.” She said Jantzen never even issued a final ruling denying a new trial, so Hamadeh cannot file an appeal yet.
The petition criticized Jantzen’s ruling denying Hamadeh a new trial.
“Despite its laborious process, nearly every paragraph of the trial court’s order contains legal errors and makes factual findings not supported by the record,” the petition said.
Wright’s brief explained why Hamadeh said he believed the Arizona Supreme Court should step in.
“[D]ue to a lack of procedural clarity in election contests, the trial court denied Petitioners’ Motion,” it stated. “Without relief from this Court, this case could linger for another nine months even though the stakes could not be higher.”
Courts may accept special actions when “purely legal issues of statewide importance” are raised and “there is no ‘equally plain, speedy, and adequate remedy by appeal,” the brief stated, citing case law. “Further,conflicting and inconsistent interpretations of the requisite procedures for litigating election contests compels this Court to accept jurisdiction to set forth a ‘consistent, statewide application[.]’”
The petition laid out the unsuccessful effort Hamadeh made to obtain access to look at the provisional ballots that were not counted. Mayes and the other defendants fought his request.
“All told, Petitioners were bombarded with sixteen oppositional pleadings, only three of which were filed by Contestee Mayes, thirteen of which were filed at taxpayer expense,” the petition said. It also cited “Maricopa County’s refusal to provide access to an unredacted copy of the cast vote record (‘CVR’) that would allow Petitioners to ‘run a computer program that flags which ballots are potentially impacted by the issues raised in the complaint’ to identify ‘a specific ballot image for review of…under votes.’”
Additionally, the brief said, “Defendant Maricopa County flatly objected to conducting any ballot inspections before the hearing” and providing the provisional ballot report. Jantzen agreed with the defendants and “limited ballot inspection to one three-person panel in each of the three subject counties, denied access to the CVR because it ‘was not requested in the original Petition for Inspection of Ballots,’ and did not compel Maricopa County to provide the rejected provisional ballot report.”
The brief stated, “Petitioners were … completely deprived of access to the evidence necessary to prove their case.” Hamadeh’s team was only allowed “to inspect a few thousand ballots statewide out of 2.5 million ballots cast before the trial commenced on December 23.”
However, even by inspecting 2,500 ballots, Hamadeh discovered — and all parties agreed — that 14 votes were not counted but instead marked as undervotes.
“The misread rate of 0.61% is more than 60 times the 0.01% margin of victory,” the petition said. If “14 ballots out of 2,300 inspected were determined to have been misread by tabulators,” which is “a 0.61% error rate that was proven at trial,” then “there may be 416 uncounted valid votes statewide” — more than the margin of victory, “which is more than enough to change the outcome of the trial.”
The petition criticized one of the trial court’s conclusions, “that it would be ‘speculation’ to assume that votes amounting to four times the vote margin could change the outcome of the trial and therefore denied the Motion.”
It noted that the standard in case law is not that it must be proven “that the uncounted ballots will change the results of the trial, only that they ‘would probably change the result.’”
The petition went on, “Defendant Maricopa County claimed it was ‘not on either candidate’s side in terms of who should be the next attorney general’ and then directly asked the court to ‘rule against plaintiff and its challenge and affirm Maricopa County’s election.’”
The petition addressed Hobbs’ refusal to disclose the undervotes discovered in Pinal County to Hamadeh before the trial. Hobbs’ claimed that a judge forbade her from disclosing the results of recounts. However, the judge’s order “by its plain language only prevented counties from releasing ‘vote totals,’” the petition said.
In his previous pleadings requesting a new trial due to the undervotes, Hamadeh said that he’d found 1,100 voters whose provisional ballots were rejected despite having “recent, active voting history.”
His investigation discovered that voters who owned property in counties outside their home counties discovered that their voter registrations had been mysteriously switched without their knowledge to those counties, forcing them to vote provisional ballots.
The brief said that Jantzen incorrectly interpreted the law when he denied adequate discovery and ballot inspection, insisting that the statutes did not allow time for that.
However, “nothing in election contest statutes, and especially nothing in A.R.S. § 16-677, expressly or even impliedly constrains discovery,” the petition argued. “Instead, A.R.S. § 16-677 affords parties to an election contest the right to inspect ballots.”
The brief cited Cornet Stores v. Superior Court In and For Yavapai Cnty., which held that “the rules of discovery are to be broadly and liberally construed to facilitate identifying the issues, promote justice, provide a more efficient and speedy disposition of cases, avoid surprise, and prevent the trial of a lawsuit from becoming a ‘guessing game.’”
“Instead,” the brief said, “the rules of discovery, in this case, were so narrowly defined that Petitioners could not reasonably identify the ‘issues’ (in particular as to the wrongfully rejected provisional ballots), the proceedings were drawn out and decidedly inefficient, Petitioners were surprised by the undervote evidence revealed at the recount, the entire trial was a ‘guessing game[,]’ and justice has been denied.”
Hamadeh also argued that the trial court violated his right to due process and free and equal elections under the Arizona Constitution.
The trial court found that the new evidence Hamadeh discovered could have been found with “due diligence” before the trial, but Hamadeh said this wasn’t true since he was stonewalled the whole way.
The petition concluded, “[I]f there is no meaningful way for candidates to question and confirm the accuracy of the vote count when the margin of victory is 0.01%, then there is no way to ever determine if the person elected truly received the highest number of votes.”
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Abe Hamadeh” by Gage Skidmore. CC BY-SA 2.0. Background Photo “Arizona Supreme Court” by davidpinter. CC BY 3.0.
