The outcome of this case could be Trump's only path to victory in Arizona.
By Howard Fischer
Capitol Media Services
PHOENIX -- With the official count now showing Joe Biden winning Arizona, the state Republican Party is trying one last tactic to keep that from happening.
The new lawsuit contends Maricopa County is not complying with state laws which require there be a hand-count audit after each election to ensure that what was recorded by the voting machines matches the ballots that went into them.
That was done with no irregularities found.
But attorney Jack Wilenchik representing the Arizona Republican Party says state law requires that the sample has to be done of at least 2% of all the precincts. In Maricopa County, he said, with 748 precincts, that would require checks at 15 separate precincts.
Only thing is, Maricopa County -- and some others -- use "voting centers'' rather than requiring residents to cast a ballot at the specific precinct in which they live. This year, Wilenchik said, there were about 175 of these.
And what that means, he said, is that an audit of 2% of 175 voting centers is not sufficient, regardless of how many people voted at each one.
The outcome of this case could be Trump's only path to victory in Arizona.
As of early Friday, the former Vice President was maintaining a lead of 11,434 votes. More to the point, the Secretary of State's Office says there are just 10,315 ballots yet to be counted.
But Kelli Ward, the state party chair, said this isn't the end
"Arizona voters deserve complete assurance that the law will be followed and that only legal ballots will be counted in the 2020 election."
That mirrors repeat comments of the President himself who has insisted he will win if only the "legal votes'' are counted.
There was no immediate response from attorneys for the county.
But Joe Kanefield, the Chief Deputy State Attorney General, said he doesn't read the law that way.
He said state lawmakers, having allowed counties to operate voting centers, left it up to the Secretary of State to come up with specific rules for how to conduct these audits. That, said Kanefield, was codified in the Election Procedures Manual which specifically allows audits of 2% of vote centers.
And since that manual was approved by both Attorney General Mark Brnovich, who is Kanefield's boss, as well as Gov. Doug Ducey, both of whom are Republicans, it could mean that the state party is now picking a fight with its top elected officials.
This litigation comes on the heels of a separate suit by the state party, along with its national parent and the Trump reelection committee, contesting what happens when ballots with "over votes'' are turned in at polling places. It asks Maricopa County Superior Court Judge Daniel Kiley to order that some of these ballots be examined by hand to see if it was the intent of the voter to support a specific candidate, regardless of the fact the machine saw votes for both that person and his or her foe.
The aim is to see if there are more votes for GOP candidates than the voting machines recorded.
As far as Mr. Trump is concerned, that lawsuit has become moot with the fact there are only 191 ballots with questionable votes on the presidential ticket. But it could theoretically make the difference in some down-ballot races like the one for state Senate in LD 28 where incumbent Republican Kate Brophy McGee is 495 votes behind Democrat challenger Christine Marsh.
In some ways, the Wilenchik lawsuit has the same goal.
The hand counts already done by the county of the vote centers, which are chosen jointly by Democrat and Republican party officials, have showed no discrepancies between the recorded tally and the hand count.
But Wilenchik said what's needed to truly check the veracity of the vote is that precinct-by-precinct breakdown.
"It makes it easier to sort the data that comes out of the sampling, to compare it with the voter registration database data,'' he told Capitol Media Services, figures that are broken down by precinct. That, Wilenchik said, ensures that there aren't more ballots being counted than people who actually are supposed to have voted at that location.
"If instead they do the sampling based on the vote centers, that's sort of worthless to us because we can't sort that data,'' he said. "The voter registration data is not based on vote centers.''
Wilenchik conceded that state law does specifically allow for vote centers. And he said he did not know how a county would then organize the already cast ballots by precincts -- as he contends is required for the post-election audit.
He said it's possible that the ballots are in some way encoded to show which precinct a voter was assigned.
And if not?
"Then count all of them,'' he said. Wilenchik said it can't be that hard, pointing out that's exactly what's taking place in Georgia for the presidential race.
Kanefield, however, said the demand for hand count by precinct by the GOP is not backed up by what the law requires.
"The statute ... is silent on how the hand count audit should be conducted when voting centers are used,'' he wrote in a letter to Senate President Karen Fann and House Speaker Rusty Bowers who first raised the issue even before Wilenchik filed his lawsuit. "Instead, the statute directs the Secretary of State to fill in that gap and establish additional hand count procedures with the approval of the Governor and the Attorney General," which was done in 2019.
And Kanefield, a former state elections director himself, said requiring audits based only on precincts would result in the absurd situation of there being no hand counts at all because there would have been no ballots cast using tabulating machine at precincts.
"We do not believe the legislature intended this result,'' he wrote.
Kanefield said there is an option: Increase the percentage of ballots audited from 2% of precincts to 5% in counties using vote centers.
"Although not required, it is certainly permitted and may help alleviate much of the concern that has been expressed this past week about the integrity of the vote tabulation process,'' he said.
Maricopa County Superior Court Judge John Hannah has not set a date for a hearing.
