Judge shreds state GOP lawsuit in dismissal ruling

By: - December 22, 2020 4:15 pm

Kelli Ward and her husband, Michael, speaking at a primary election night watch party in Scottsdale in 2016. Photo by Gage Skidmore | Flickr/CC BY-SA 2.0

A Maricopa County judge blasted the Arizona Republican Party’s lawsuit challenging procedures for post-election hand counts as “meritless” and defective on a number of grounds.

Superior Court Judge John Hannah dismissed the state GOP’s lawsuit in November, but didn’t provide any reasoning at the time, saying only that he would issue a full ruling at a later date. On Monday, he issued the ruling, writing that the Arizona Republican Party had no chance of success.

State law requires counties to conduct limited hand counts of ballots immediately after the election, if the state’s recognized political parties choose to participate. They count all ballots cast in person from at least 2 percent of precincts, as well as 1 percent of early ballots. Instead of precincts, some counties use vote centers, where any voter in the county can cast a ballot. The state’s election procedures manual, which statute grants the force of law, allows those counties to base their post-election audits on vote centers rather than precincts.

Nonetheless, the state Republican Party sued Maricopa County, arguing that it erred by not counting ballots based on precincts. It asked Hannah to order a new audit of 2 percent of precincts, and to bar Maricopa County from certifying its election results until that was completed.

In his ruling, Hannah gave several reasons for why he dismissed the case instead.

Maricopa County followed the law as written, Hannah said. Though state statute doesn’t address how counties are supposed to conduct their hand counts if they don’t use precincts, it does say the audits must be conducted in accordance with the election procedures manual. And that manual says counties that use vote centers must use them as the basis for their hand counts.

That means the county would have acted illegally if it had conducted the hand count based on precincts, as the state GOP wanted.

“Since Maricopa County election officials had no power to vary from the Election Procedures Manual rules for the hand count audit, this Court likewise has no authority … to compel them to do so,” Hannah wrote. “A judge cannot change election rules whenever someone has ‘questions’ or ‘concerns’ about the results.”

Furthermore, Hannah said the AZGOP waited far too long to bring its suit. He noted that Maricopa County used voting centers in the presidential preference election in March and in the state primary election in August, and that the party didn’t object to the audit procedures in either case. Nor did the state GOP raise any concerns ahead of the Nov. 3 general election, the judge said, even though the county informed Republican and Democratic party officials of the upcoming audit process.

“This case is a textbook example of unreasonable delay,” the judge wrote.

The state GOP also filed its lawsuit against the wrong person, Hannah said. The suit named Maricopa County Recorder Adrian Fontes as the defendant. But because the argument revolved around allegations that the election procedures manual misinterpreted state law, the party should have sued Secretary of State Katie Hobbs, whose office wrote the manual, the judge said.

Hannah also took issue with the party’s attempt to cast aspersions on the legitimacy of the election’s results, including “concern about potential widespread voter fraud.” The judge chastised the state GOP for “the illogic of an attempt to disprove a theory for which no evidence exists,” and said changing election audit procedures after the fact would have actually increased the public’s distrust regarding the election.

The judge noted that the post-election hand count of nearly 9,200 ballots, including almost 3,000 cast at voting centers, perfectly matched the original count from Maricopa County’s ballot tabulation machines. Despite that, Hannah said, the party continued to insist that another audit was needed to clear up “lingering questions” about the legitimacy of the election.

“The plaintiff baldly asserted that this relief was necessary to maintain ‘confidence in the integrity of our elections,’ without alleging any facts to show that the machines might have miscounted the votes,” Hannah wrote.


The only remaining question from the lawsuit is whether Hobbs will get the attorneys’ fees she requested. In his order dismissing the case, Hannah invited the secretary of state to seek reimbursement from both the state GOP and its attorney, Jack Wilenchik, for legal costs under a statute pertaining to lawsuits that are “groundless and … not made in good faith.” 

Hobbs has filed an application for $18,237 in attorneys’ fees, split between the party and its attorney.

“That application will require the Court to decide whether the Republican Party and its attorneys brought the case in bad faith to delay certification of the election or to cast false shadows on the election’s legitimacy,” Hannah wrote.

The original version of the state GOP’s lawsuit used language suggesting that the audit, which was already completed, had not yet begun. The party “appears to have had constructive knowledge” that contradicted the allegations in its lawsuit, Hannah said, but it’s unclear whether Wilenchik knew the audit had been completed at the time he filed the complaint.

Hannah said when the state party and its attorney knew this information will help him determine whether Hobbs will receive the legal fees she asked for.

The judge added that the state party lost interest in its request for a new audit based on precincts once the county made it clear that it had already finished its hand count, and instead shifted its focus to its request for an injunction to block the county from certifying its canvass of the general election.

“The plaintiff could have pursued the declaratory judgment claim to determine how to audit future voting center elections. That it did not do so demonstrates that its real interest was not the audit procedure as such. The real issue, evidently, was the outcome of the 2020 election,” Hannah wrote.

Arizona Republican Party Chairwoman Kelli Ward said she was disappointed by the ruling and criticized Hannah, who was appointed to the bench by Democratic Gov. Janet Napolitano, for his dismissiveness toward the allegations of fraud and misconduct that she and others have made.

“Judge Hannah, the Democrat-appointed judge randomly assigned to our case, is entitled to impose whatever order he deems necessary, but expressing open hostility to public concerns about fraud and the efforts to investigate them only serves to undermine confidence in judicial impartiality and further erodes faith in the courts as a fair and unbiased forum to hear claims of public importance,” Ward said.

The state GOP chairwoman has been among the more prominent Republican voices in Arizona promoting baseless claims that Biden won the state and the presidential election nationally through fraud. There has been no evidence that fraud affected the outcome of the presidential election, in Arizona or anywhere else in the U.S.

Ward filed a separate suit asking a judge to nullify the results of the presidential election and declare President Donald Trump, who lost the state by about 10,500 votes, the winner of Arizona’s 11 electoral votes. A Superior Court judge dismissed the case and all seven Arizona Supreme Court justices upheld that decision. Ward has appealed the case to the U.S. Supreme Court.

The litigation over Maricopa County’s hand count was one of nine lawsuits filed in Arizona regarding the 2020 general election. Each has been withdrawn or dismissed by a judge.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”