By Howard Fischer
Capitol Media Services
PHOENIX -- The question of whether Abe Hamadeh gets to challenge the results of the race for Arizona attorney general that he lost by 511 votes could depend on what a judge thinks about claims that some people used the wrong kind of pen to mark their ballots.
At a hearing Monday, attorney Tim La Sota noted that there were about 50,000 people who cast a ballot in the general election who did not vote for either his client or Democrat Kris Mayes. And La Sota acknowledged that there may be reasons to believe that some of the nearly 2.6 million voters opted to skip that race.
But he said there is a chance that the tabulation equipment simply could not read some votes based on the type of ink.
"We're not saying the machine cannot read blue ink,'' La Sota told Mohave County Superior Court Judge Lee Jantzen.
"We're saying it is less able to read blue ink,'' he continued. "And in a race of this small of a margin, that could make the difference.''
La Sota said allowing him to examine ballots from Maricopa, Pima and Navajo counties where there was no choice recorded in the race for attorney general will enable him to show if these people actually wanted to vote in that race -- and, more to the point, vote for the Republican contender and help him make up the deficit of 511 votes that he would need to defeat Mayes.
But Emily Craiger, representing Maricopa County, said there are a couple of problems with the theory. She said it starts with the fact that the instructions given to voters specifically tell them what kinds of ink they can use that the tabulators can read.
Beyond that, Craiger said the explanation that the use of certain inks or pens affected only the race between Hamadeh and Mayes makes no sense.
"If that's the case, unless a person is completing every race with a different color of pen or writing implement, then the entire ballot is not going to be read,'' she said. Craiger said the number of ballots with no visible markings is very small, "versus the 50,000 that the plaintiffs are alleging here.''
And Craiger said there is no authority in law to allow for wholesale examination of ballots -- even if the county actually was able to segregate out those ballots with no marking for attorney general.
Daniel Barr, representing Mayes, told the judge there is something else he needs to consider when deciding whether to allow an examination of ballots to scour for possible votes for Hamadeh by people who didn't use the prescribed inks or pens.
"These people were instructed by the head of the Republican Party, by Kelli Ward, by Mark Finchem (the losing GOP candidate for secretary of state) to deliberately use blue-colored ink and other things to mess up the ballots,'' he said.
Ward, in a Twitter post on election morning, told people waiting in line to vote to "use your own pen.'' And Finchem, in his own post, also told people to "bring blue ink pens.''
"That these people chose, for whatever reason, to disregard elections officials and use some other color ink pen, that's on them,'' Barr said. "That certainly isn't any misconduct by any election official.''
That question of misconduct is crucial.
In general, Arizona law allows election results to be challenged only if there is evidence of fraud -- something Hamadeh does not allege -- or there was intentional misconduct. And even in that case, Barr said, there has to be some evidence that these events would alter the outcome of the election.
La Sota has made a series of allegations, including that some people did not get to vote because of problems in Maricopa County with on-site tabulation machines unable to scan and read the ballots printed out at voting centers. Instead, they left without casting a ballot.
But Barr said there's something missing from the claim: the actual names of anyone who was denied the ability to vote.
"The fact that they can't do that speaks volumes to the weakness of their complaint,'' he said.
Barr said the same problem exists in a separate contention that some people who were otherwise eligible to vote were denied even the opportunity to cast a "provisional ballot,'' one which is set aside until that person's registration status can be verified.
"The complaint does not identify even one voter who was denied a provisional ballot, or any facts on where or when this supposedly happened,'' he said.
La Sota also claimed that Maricopa County allowed some early ballots to be counted even though the signatures on the envelopes did not match the voter registration records. Instead, county officials made use of other documents with a voter's signature to compare with what is on the envelope, a process Hamadeh's attorney said is not legal.
Barr disagreed with his legal contention.
Anyway, he said, the procedure being used by Maricopa County was known for years and is approved in the Elections Procedures Manual. Barr said if Hamadeh really believed that process violates the law he should have challenged it before the election, not now.
Jantzen promised a ruling by Tuesday afternoon whether to allow Hamadeh to make his claims at a full-blown trial or dismiss them now.
No matter what the judge rule, the margin of difference in the race will require a recount, though that is done using the same tabulation equipment used in the election.