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Judge denies lawsuit from Arizona attorney general race loser

Republican Attorney General candidate Abe Hamadeh

By Howard Fischer
Capitol Media Services
PHOENIX -- A judge on Tuesday tossed out Abe Hamadeh's legal bid to have himself declared the winner in the race for Arizona attorney general.
In a brief order, Maricopa County Superior Court Judge Randall Warner called the lawsuit by the losing candidate in the race "premature.''
Warner said Arizona law requires challenges to election results to be filed "within five days after completion of the canvass of the election.'' That isn't set to occur at this point until Dec. 8.
"There can be no election contest until after the canvass and declaration of the results because, until then, no one is 'declared elected,' '' the judge wrote. "It is undisputed that the canvass and declaration of results for the November 2022 election have not occurred.''
Warner's ruling does not end the dispute. It still gives Hamadeh through Dec. 13 to refile,
Hamadeh contends that the results of the election showing that Democrat Kris Mayes got 510 more votes should be disregarded because of various problems in Maricopa County on Election Day. That includes issues where tabulators at some vote centers could not read ballots printed on site and that some people were denied the right to vote when they went to a second location.
County officials acknowledged the printer problem when the supervisors canvassed their votes on Monday. But they have insisted that no one was denied the ability to cast a ballot, even if it was not tallied on site.
Warner's ruling comes as Pima County Superior Court Judge Casey McGinley scheduled a hearing for Thursday on the latest legal fight that Cochise County supervisors are picking with the state.
Board members voted Tuesday to hire outside counsel a day after they failed to meet the legal deadline to certify the election results.
They contend they do not have to formally canvass the votes of the Nov. 8 general election, at least not until they get the answers they want about the machines used to tabulate the ballots. Their next meeting to consider the issue is Friday.
Only thing is, Secretary of State Katie Hobbs wants the judge to order the board to meet and certify the results by the end of the day Thursday. Her attorney, Andrew Gaona, said that will "allow the secretary sufficient time to meet the final Dec. 8 deadline for completing the statewide canvass.''
The vote by the supervisors was to retain The Valley Law Group to defend them. Attorney Bryan Blehm represented the county in its bid earlier this month to conduct a full hand count of ballots, an effort that was rejected McGinley.
That move became necessary for the supervisors to continue the new fight.
"We're in a situation where, because the actions of the board were contrary to Arizona law, our office won't be providing representation,'' County Attorney Brian McIntyre told the board.
Less clear is who will pay Blehm's bill.
Supervisor Tom Crosby, one of two Republicans on the board, said he presumes the defense will be "privately funded.'' But County Administrator Richard Karwaczka said it's not that simple.
"If it's an attorney for the board, the board is responsible ... which would come out of general fund,'' he told the supervisors. "I don't believe that the board can accept private funding to pay for these attorneys,'' saying he has been informed by the county attorney's office that the board can't accept money for a specific purpose.
Karwaczka said, though, there's no problem as long as Blehm gets his fees paid by someone else and does not submit a bill to the county.
"But if there's a bill owing ... I do have to put it on the agenda for the board to pay for those items,'' he said.
There was no discussion of who might provide the dollars. And Blehm did not return a message seeking comment.
Blehm has some history of being involved in election fights in Arizona. He represented Cyber Ninjas, the firm hired by Senate President Karen Fann, R-Prescott, to "audit'' the results of the 2020 election in the races for president and senator.
A hand count of those 2020 ballots, however, found that the results from the tabulators were accurate. In fact, it actually showed that Joe Biden's margin of victory was slightly larger than the official tally.
In this new case, Hobbs has a contingency plan if the supervisors do not act.
"Absent this court's intervention, the secretary will have no choice but to complete the statewide canvass by Dec. 8 without Cochise County's votes included,'' Gaona told the court in the Monday filing.
If that occurs, it would eliminate the 27,767 votes that Republican Tom Horne got from Cochise County in the race for state schools chief.
Democrat incumbent Kathy Hoffman also would see her total reduced by 18,457. But, without the Cochise vote, that would put her ahead of Horne by 280 votes.
Horne told Capitol Media Services he has not reached out to the two Republicans on the three-member board.
It's not just Horne who would see his victory turned into defeat.
Republican Juan Ciscomani won the race for CD 6 over Democrat Kristen Engle by 5,232 votes. But backing out the more than 2-1 margin for Ciscomani in Cochise County would give the race to Engle by more than 8,000 votes.
"We are 100% confident that the results will stand and the election will be certified,'' said Becky Freeman, who is chief of staff for the new congressman.
Whatever the judge decides -- and whatever the supervisors ultimately do -- will not end the all the legal fights over the outcome of the election.
On Thursday, Maricopa County Superior Court Judge Scott Blaney will hear arguments by failed GOP gubernatorial candidate Kari Lake that Maricopa County officials have not "promptly'' produced a laundry list of documents and records she is demanding regarding the general election.
Lake, in her complaint, cited many of the same complaints made by Hamadeh about the way the county conducted the election which she said, without proof, raise questions about the "validity of the election results.'' Many of them deal with the well-publicized issues of tabulators at some vote centers not being able to read the ballots that were printed there.
What Lake gets -- and when -- is virtually certain to form the basis of a lawsuit that the formal election results which show her losing to Hobbs by more than 17,000 votes should be set aside and that she should be declared the winner.
Lake is not alone in that quest.
On Tuesday, Mark Finchem, the unsuccessful Republican candidate for secretary of state, sent out an email to supporters saying that, he, too, plans to challenge the results. Finchem, however, has a bigger hill to climb: The final tally shows him more than 120,000 votes behind Democrat Adrian Fontes.
All that threatens to drag the issue well into December.
As Warner pointed out in the Hamadeh case, Arizona law does not allow a losing candidate to challenge the election results until after the formal statewide canvass, now set for Dec. 8. And with a five-day window at that point, that gives all losers until Dec. 13 to file -- with any final ruling potentially days or weeks later.
In the meantime there's the refusal of the Cochise supervisors to certify their results. And it isn't just Hobbs with whom the board is fighting.
A separate lawsuit was filed against the county by the Elias Law Group, which represents Democratic interests in election cases, on behalf of the Arizona Alliance of Retired Americans. That is the local affiliate of a national organization founded in 2001 by the AFL-CIO which is made up of retired trade union members.
But attorneys in this case are seeking only an order from McGinley to certify the votes by the end of the day on Thursday, as their clients have no authority to decide whether or not to go ahead with the state canvass without the Cochise votes.
On Twitter: @azcapmedia