Abe Hamadeh filed his opening brief with the Arizona Court of Appeals last week after Mohave Superior Court Judge Lee Jantzen refused to grant him a new trial. Hamadeh requested the trial after discovering that then-Secretary of State Katie Hobbs withheld evidence from him before his trial regarding undervotes, votes not counted that resulted in narrowing Democrat Kris Mayes’ lead in the attorney general’s race to only 280 votes.
Much of Hamadeh’s brief also challenged the refusal of Maricopa County to allow him to examine provisional ballots. Over 9,000 provisional ballots have not been counted in his race. Many were cast by voters who found their voter registration mysteriously changed to another county. On Thursday, Hamadeh (pictured above) posted a chart on X showing how Maricopa and Pima counties had a strikingly large number of provisional ballots.
“The two counties with the BIGGEST discrepancies between their Election Day votes versus the Provisional Ballots that were accepted are Pima County (18%) and Maricopa County (15%),” he said. “Like the old adage goes, it’s not who votes, but who counts the votes that matters.”
The two counties with the BIGGEST discrepancies between their Election Day votes versus the Provisional Ballots that were accepted are Pima County (18%) and Maricopa County (15%).
Like the old adage goes, it’s not who votes, but who counts the votes that matters. pic.twitter.com/KZEK1cJhXV
— Abe Hamadeh (@AbrahamHamadeh) October 5, 2023
His brief pointed out that the trial court acknowledged this election was “one of the closest elections in Arizona history and perhaps the history of the United States.” He argued that “hundreds, if not thousands, of uncounted votes that once counted will prove that Abraham Hamadeh — not Kris Mayes — is the constitutionally elected Attorney General for the State of Arizona.”
The brief cited the Arizona Constitution, Ariz. Const. art. 5, § 1(B); art. 7, § 7, which states that elections shall be “free and equal.” However, “an election cannot be considered equal when government officials, including the trial court, used the power of their positions to tip the scales toward Contestee in this case.”
Jantzen denied a new trial partly because he said the provisional ballot information that Hamadeh’s team sought from Maricopa County was available by the time of the trial. Hamadeh disputed this, “Contestants could not have obtained it before trial — indeed, it was not obtained until after trial — despite reasonable diligence by Contestants.”
The brief said that “the election contest statutes lack procedural clarity and are therefore subject to misapplication.” One way Hamadeh said he believes the trial court misinterpreted them was in interpreting time limitations. “The trial court abused its discretion by strictly construing the procedural time constraints of the election contest statutes first as a basis to deny Contestants’ motion to continue the trial to provide them with adequate time to inspect ballots, given the delays in obtaining access to the ballots, and later as a basis to deny Contestants’ Motion,” the brief said.
It argued that “the rules of discovery in this case were so narrowly defined that Contestants could not reasonably identify the ‘issues’ (in particular as to the wrongfully rejected provisional ballots).”
In response to a public records request, Maricopa County only released a redacted copy of the cast vote record, which “prevented Contestants from identifying specific ballots to inspect.” Additionally, “county officials delayed access to inspect the ballots to Contestants until the afternoon before the trial despite repeated and diligent attempts by Contestants to inspect the ballots.”
As a result of the “trial court excluding evidence and reasonable discovery,” Hamadeh argued that he was denied due process. He also said he’s been thwarted by other levels of government. “Defendant Secretary and several counties objected to, delayed, and denied not only Contestants’ right to bring the case but also their statutory right to inspect ballots,” the brief said.
The brief argued that the lower court incorrectly interpreted the election statutes to not allow for a new trial. It cited a recent decision by the Arizona Supreme Court in Kari Lake’s election challenge, contradicting Jantzen’s interpretation. Lake was granted a second trial by that court, which remanded it to the lower court to conduct.
In order to receive a new trial, Jantzen stated that it was required to show that the new evidence “could not have been discovered by due diligence,” which he claimed was not the case. However, Hamadeh argued that not only did Maricopa County refuse to turn over the ballot report for inspection prior to the trial, but “the trial court did not compel Maricopa County to release the provisional ballot report.”
These were key since “1,100 provisional ballots were questionably rejected and contained uncounted votes that, having been cast on Election Day, largely trended towards Hamadeh.”
The brief also objected to Jantzen dismissing the finding after the trial of undervotes in Pinal County that favored Hamadeh. The brief described the finding of undervotes, “Pinal County reported that 63 ballots having ‘unclear marks’ were initially machine tabulated as undervotes in the canvass, but in the recount they were determined to be uncounted valid votes after the election staff reset the 34 tabulators to send the ballots with unclear marks to adjudication for review.”
Jantzen dismissed them as “human error,” but Hamadeh argued that it was a tabulation error that could have also occurred in other parts of the state. He proved at trial that 14 out of 2,300 inspected were misread as undervotes or overvotes, translating to a 0.61 percent error rate that “suggests there may be 416 uncounted valid votes statewide.” In election law, undetermined votes are to be assumed to favor the challenger to consider whether to grant a new trial, the brief said, so those 416 votes would put Hamadeh ahead of Mayes.
Hamadeh concluded, “[D]epriving Contestants of their right to reasonable discovery before trial and ignoring newly discovered evidence — essentially to exalt finality over justice — is an absolute abuse of discretion.”
The brief asked the court to allow Hamadeh to inspect all of the ballots, including provisional ballots, and remand the case back to the trial court for a new trial.
Since Hamadeh filed his opening brief, Maricopa County admitted that many voters’ registrations were erroneously changed to other counties, forcing them to vote provisional ballots in the last election. It occurred due to a glitch at the Department of Motor Vehicles. Voters who registered a car in another county accidentally had their registration switched to that county due to miss checking an opt-out box, Maricopa County Elections Department Co-Elections Director Scott Jarrett and his attorneys said, according to EZAZ’s Jeff Caldwell, who attended a Maricopa County Board of Supervisors’ meeting where the problem was brought up.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Abe Hamadeh” by Gage Skidmore. CC BY-SA 2.0.
