By Howard Fischer
Capitol Media Services
PHOENIX -- A judge on Friday tossed out a bid by the head of the Arizona Republican Party to void the results of the election that awarded the state's 11 electoral votes to Joe Biden.
Maricopa County Superior Court Judge Randall Warner said the two days of testimony produced in the case brought by Kelli Ward produced no evidence of fraud of misconduct in how the vote was conducted in Maricopa County.
Warner acknowledged that there were some human errors made when ballots which could not be read by machines due to marks or other problems were duplicated by hand.
But he said that a random sample of those duplicated ballots showed an accuracy rate of 99.45%. And Warner said there was no evidence that the error rate, even if extrapolated to all the 27,869 duplicated ballots, would change the fact that Biden beat Trump.
The judge also threw out charges that there were illegal votes based on claims that the signatures on the envelopes containing early ballots were not properly compared with those already on file.
He pointed out that a forensic document examiner hired by Ward's attorney reviewed 100 of those envelopes. And at best, Warner said, she found six signatures to be "inconclusive,'' meaning she could not testify that they were a match to the signature on file.
But the judge said this witness found no signs of forgery.
Finally, Warner said, there was no evidence that the vote count was erroneous. So he issued an order confirming the election.
Friday's ruling, however, is not the last word.
Ward, in anticipation of the case going against her, already had announced she plans to seek review by the Arizona Supreme Court.
And a separate lawsuit is playing out in federal court. That includes not just some of the same claims made here but a host of allegations of fraud and conspiracy.
That case, set for a hearing Tuesday, also seeks to void the results of the presidential contest. But there also are allegations that the Dominion Software voting equipment used by Maricopa County is not only unreliable but actually was programmed to register more votes for Biden than he actually got, calling in to question the 10,457-vote edge he had over the president.
Along the same lines, Senate President Karen Fann and House Speaker Rusty Bowers on Friday called for an independent audit of the software and equipment used by Maricopa County in the just-completed election.
"There have been questions,'' she said.
But Fann told Capitol Media Services it is not their intent to use whatever is found to overturn the results of the Nov. 3 election. In fact, she said nothing in the request for the inquiry alleges there are any "irregularities'' in the way the election was conducted.
"At the very least, the confidence in our electoral system has been shaken because of a lot of claims and allegations,'' she continued. "So our No. 1 goal is to restore the confidence of our voters.''
And Bowers specifically rejected calls by attorneys for the Trump legal team that the legislature come into session to void the results of the election that were formally certified just this past Monday.
"The rule of law forbids us to do that,'' he said.
In fact, Bowers pointed out, it was the Republican-controlled legislature that enacted a law three years ago specifically requiring the state's electors "to cast their votes for the candidates who received the most votes in the official statewide canvass.'' He said that was done because Hillary Clinton had won the popular vote nationwide in 2016 and some lawmakers feared that electors would refuse to cast the state's 11 electoral votes for Trump who won the state race that year.
"As a conservative Republican, I don't like the results of the presidential election,'' Bowers said in a prepared statement. "But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.''
And if nothing else, Bowers said there just aren't the necessary two-thirds vote of both the House and Senate for a special session ahead of the regular one set to convene Jan. 11 -- nearly a month after the electors will have voted and days after the Congress will have certified the results.
During two days of hearings, Jack Wilenchik, Ward's attorney argued there were reasons to overturn the results -- or at least order a full audit of all the ballots cast in Maricopa County, if not the entire state.
He said Republican observers were kept from positions where they could oversee what was going on as ballots were being counted. Warner tossed that early on, saying if that was a problem it should have been presented to him at that time when a fix was possible.
That left two arguments, the one on mismatched signatures on early ballot envelopes and the other about improperly duplicated ballots.
Warner agreed to allow an examination of a random sample of both ballot envelope signatures and duplicated ballots. Wilenchik told the judge Friday that "has resulted in the discovery of some very serious problems with Maricopa County and, our belief is, potentially statewide.''
Errors were found in both samples. That, Wilenchik argued, requires a full inspection of all ballots or annulling the results of the election, a move that would allow the Republican-controlled legislature to appoint electors.
But Bruce Spiva, representing the 11 Democratic electors pledged to Biden, said that whatever errors there were did not rise to the level of having a court toss out the election.
"And 3.4 million Arizonans have cast their vote and by a margin of over 10,000 votes, Joe Biden won this election,'' he told Warner.
"There is nothing that you heard over these last two days that would change that, that even plausibly could change that,'' Spiva said. "That should be the end of this case.
No one disputed that the sampling turned up errors when some ballots were duplicated. But Roopali Desai who represents Secretary of State Katie Hobbs said the rate, even if extrapolated to the entire universe of all duplicated ballots, would not change the outcome of the vote.
"An extremely small number of votes were miscalculated,'' she said. "That does not amount to misconduct.''
Deputy Maricopa County Attorney Tom Liddy had a slightly different take. He said Ward is alleging that because Maricopa County didn't do its job that votes should all be thrown out.
"Sound kind of stupid?'' he asked Warner. "It does to me.''
And Desai pointed out there was no testimony that any of the signatures on any of the ballot envelopes reviewed had been forged.