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Elections 2020

SCOTUS Tosses Challenge on Arizona Elections


By Howard Fischer
Capitol Media Services
PHOENIX -- The U.S. Supreme Court has tossed another of the challenges to the Arizona election returns.

On Monday, the justices rejected the pleas of Kelli Ward, who chairs the Arizona Republican Party, who said she should have been given more time to ferret out what she contends was evidence that Donald Trump actually outpolled Joe Biden in Arizona. The court provided no explanation.

It isn't just the Arizona case that the high court formally put to bed on Monday. They also turned away various challenges filed by the former president or his allies in Georgia, Michigan, Pennsylvania and Wisconsin.

But at least in the Pennsylvania case, there was some sentiment to review the legal issues, even though there was no chance it would change the outcome of the 2000 election.
"But a decision would provide invaluable guidance for future elections,'' wrote Justice Clarence Thomas.

There, he said, the Pennsylvania Supreme Court made a decision about deadlines for counting votes that was contrary to what had been adopted by the state legislature. The state justices said that was justified by  "extraordinary and unprecedented'' issues, including the pandemic, an increase in mail-in voting and postal services delays.
Thomas was not alone. Justice Samuel Alito and Neil Gorsuch also wanted to review the lower court rulings.

In the Arizona case, as in Pennsylvania, the Supreme Court appeal filed by Ward would not have affected the outcome of the election, with Congress having certified the results -- including giving Arizona's 11 electoral votes to Biden -- on Jan. 6.

But the underlying appeal remained over the issue of whether Ward was denied her legal right to inspect all the ballots cast in preparing her lawsuit. Instead, Maricopa County Superior Court Judge Randall Warner permitted inspection of only a random sample.

Warner, in limiting what Ward could review, pointed out that federal law required all legal disputes over the presidential election to be completed no later than Dec. 8. That is known as the "safe harbor'' deadline for resolving electoral issues.

And a separate statute says the electors pledged to the winning candidate cast their vote on Dec. 14.

That decision was upheld by the Arizona Supreme Court. There, the justices said that the random sample that Ward had examined turned up an error rate that was so small that, even if extrapolated out to other similar ballots, it would not have changed the outcome of the election.

But all that, attorney Jack Wilenchik told the justices is illegal. And asked the high court to rule that the federal deadlines -- the ones cited by Warner -- were illegal and Ward should have had more time to prove her allegations that when all the ballots are examined the state's 11 electoral votes would go to Trump.

"Where the state courts make a final determination of an action without affording the parties a proper opportunity to present evidence, they violate the due process clause of the Fourteenth Amendment,'' he said.

In leaving the lower court rulings intact, the U.S. Supreme Court effectively decided not to review his arguments.

There is one more case outstanding at the high court, one brought by the 11 would-be Republican electors who argued in federal court that Secretary of State Katie Hobbs conspired with various foreign and domestic individuals and companies to manipulate the result and allow Biden to win.
In a strongly worded ruling dismissing the case, U.S. District Court Judge Diane Humetewa said the allegations "fail in their particularity and plausibility.''

"Plaintiffs append over 300 pages of attachments, which are only impressive for their volume,'' Humetewa said. "The various affidavits and expert reports are largely based on anonymous witnesses, hearsay, and irrelevant analysis of unrelated elections.''

On top of that, the judge said federal courts are allowed to handle only those cases where the challengers have actual standing. That, said Humetewa, requires them to show an actual injury, that the injury is fairly traceable to the conduct they are challenging, and that their injury could be addressed by a favorable court ruling.

She electors cannot meet their burden, she said.

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