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Arizona still subject to election challenges by losing Republican candidates

A polling station at sunrise in Phoenix as voting begins in Arizona's presidential primary election.
File photo.
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A polling station at sunrise in Phoenix.

By Howard Fischer
Capitol Media Services

PHOENIX -- The attorney for Arizona Secretary of State Katie Hobbs asked judges Tuesday to throw out bids by Kari Lake and Mark Finchem to overturn the election results.

Andy Gaona told Maricopa County Superior Court Judge Peter Thompson that the legal grounds for claims by the failed Republican candidate for governor are "nonexistent.''

She contends in a 70-page lawsuit that "hundreds of thousands of illegal ballots infected the election in Maricopa County.'' And Lake alleges that the Election Day problems that Maricopa County had with its printers and tabulators at vote centers "could not have occurred absent intentional misconduct.''

Lake's attorney, Brian Blehm, had asked Thompson for three days of hearings this coming week to make his case.

The judge cut that to two.

But Gaona said he will file paperwork by the end of the week he believes will convince the judge to immediately throw out the case, eliminating the need for any hearing at all. And at least part of that is based on the lack of any proof that, even if the things that Lake claims occurred -- a point he is not conceding -- there is nothing in her legal papers to show that any of that affected the outcome or that Lake would otherwise have won.

Gaona was even less charitable in his analysis of the case filed on behalf of Finchem, the unsuccessful Republican candidate for secretary of state, who alleges that some votes "were likely never counted'' and that there were 60,000 missing votes from Maricopa County and another 20,000 from Pima County.

"The claims that are raised by the plaintiffs are baseless,'' he told Maricopa County Superior Court Judge Melissa Julian.

In fact, Gaona told the judge that defendants in the case -- including not just Hobbs but Maricopa County officials and Adrian Fontes, the Democrat who has been declared the winner of the race -- are preparing legal papers to declare that the lawsuit is frivolous and without legal merit. And that could result in Finchem and his attorneys having to pay the legal fees of the defendants.

That's precisely what happened earlier this month in federal court in a case brought by Lake and Finchem. A judge found the arguments that machine counting of ballots was so without merit that he ordered the attorneys for the pair to reimburse Maricopa County which had to defend it.

Also Tuesday, Maricopa County Superior Court Judge Timothy Thomason rejected a bid by the attorney for Abe Hamadeh, the unsuccessful Republican candidate for attorney general, to halt the required recount of three contests until completion of his legal challenge to the result.

Gaona pointed out the recount of that race, along with those for state schools chief and a state House seat, already is ongoing. The margin of victory for winners of all three races fell within one-half of 1 percent, triggering the automatic recount.

But Thomason did agree to keep the results of the recount confidential, at least in the race for attorney general, until Hamadeh's separate lawsuit seeking to overturn the win by Democrat Kris Mayes is legally resolved.

A hearing on that case is set for Wednesday before Mohave County Superior Court Judge Lee Jantzen.

In that case, Hamadeh's attorney said those Election Day problems in Maricopa County resulted in some people being unable to cast ballots. But Gaona, in legal filings Tuesday, called it "speculation'' that Hamadeh would have won the race, even with just a 511-vote difference between the candidates.

In a separate legal development, the incoming Senate majority leader wants Jantzen to throw out entirely the results of the governor's race won by Hobbs because he said Maricopa County uses computers to review signatures on ballot envelopes.

Sen. Sonny Borrelli, R-Lake Havasu City, contends that the county has delegated the legally required signature verification process to "an unproven software program'' run by a private company. And even if the final decision is made by humans, the lawsuit contends that the preliminary conclusions of the computer of whether there is "high confidence'' or "low confidence'' in whether the signature matches what is on file affects whether the election workers find there is a match and allow the ballot to be counted.

The basis for the claim is Borrelli's contention that his vote and those of other residents of heavily Republican Mohave County, which does not use signature-verification software, were diluted because of illegal votes being tallied in Maricopa County.

That, he said, affected the race for governor where Hobbs outpolled Lake in Maricopa County by 37,638 votes. And that enabled the Democrat to be declared the winner by 17,117.

"Arizona and federal law both mandate 'uniform' administration of elections,'' his lawsuit states."Exact uniformity between counties is not required,'' the legal papers continue. "But uniform application of prescribed procedures within each county is both presumed and mandatory.''

Megan Gilbertson, a spokeswoman for County Recorder Stephen Richer, said the county did not use such a system this year.

She also insisted it was not in use in 2020 despite a letter earlier this year from an attorney for the county saying how ballot envelopes are sorted using software into batches, one with those with a high confidence that the signatures match what's on file and one with low confidence. Ed Novak said, though, that staffers are "trained to ignore'' that labeling and work with the batches equally, "with the same protocols established for all signature review.''

Even if the county did not use artificial intelligence this year -- a point the challengers do not concede -- the lawsuit claims there are still problems.

"Maricopa County signature verifiers receive no training in handwriting analysis, and there is no evidence they are screened for conditions, such as poor eyesight, that may impede their ability to discern subtle variations in signatures,'' Borrelli's attorneys claim. "Verifiers are not required to have proper magnification or lighting equipment, and verifiers do not have sufficient time to conduct each comparison.''

That last point goes to the contention that it would take at least 30 seconds for anyone viewing an image on a monitor to compare it with one on file and double-check the initial decision made by the computer. But the attorneys say that to have 32 verifiers review the 1.3 million signatures in the allotted time, working every day for 37 days would require an average pace of less than one second be signature.

"This pace is not only a physical impossibility for human beings, but attempting anything resembling it would result in signature verifiers relying even more on the unproved conclusions of the (Runbeck) software,'' the lawsuit charges.

Gilbertson said the claims are off base.

"All signatures are verified by humans, both at the initial review level and at the manager level,'' she said in a prepared statement. And Gilbertson said the county had more than 100 temporary and permanent workers participating this year in the signature verification process.

Borrelli is not the first one to raise concerns with the use of artificial intelligence in elections.

"The whole signature verification process is something that, regardless of where you fall in the spectrum, it should be troubling and concerning that they are trying to verify hundreds of thousands of signatures so quickly, '' Brnovich said earlier this year. "And, of course, that raises the question of how is that even humanly possible.''

At that time, though, Edward Novak, a private attorney representing the county, defended the practice.

"The staff members are trained to ignore the high and low confidence labeling and work with these queues equally, with the same protocols established for all signature review,'' he wrote in the March 31 letter to Assistant Attorney General Jennifer Wright.