By Howard Fischer
Capitol Media Services
PHOENIX -- Attorneys for state and county election officials head to federal court Tuesday to quash one of the two remaining bids to overturn the vote for Joe Biden in Arizona.
And time may be running out for a final decision.
In legal papers filed in federal court, Deputy Maricopa County Attorney Tim Liddy said the lawsuit filed by the 11 Republicans who hope to be electors for the president is "woefully deficient.'' He said the claim is based on "conspiracy-theory laden, unsigned, redacted declarations making wild accusations'' about Dominion Software which provides election equipment to the county.
And Liddy told U.S. District Court Judge Diane Humetewa that claims of hundreds of thousands of illegal votes appear to have come "out of thin air,'' calling the lawsuit a "fishing expedition.''
Roopali Desai, representing Secretary of State Katie Hobbs, was even more direct in saying there's nothing to the allegations that there was a conspiracy to throw the election to Biden, one that Republican challengers contend involves that includes Dominion and its officers to convert votes for President Trump into votes for Biden.
"Plaintiffs allege that this plan somehow originated in Venezuela more than a decade ago, over the year enlisted 'rogue actors' from various 'countries such as Serbia' and 'foreign interference by Iran and China,' compromised voting machines and software in states across the country in this election, and was ultimately executed with the assistance of thousands of Democratic, Republican, and non-partisan election officials despite the presence of both parties in numerous states across the country, including Arizona,'' she told Humetewa. That, said Desai, is "dystopian fiction.''
The challengers hope to get an order from the judge ordering Hobbs and Gov. Doug Ducey to reverse the formal Nov. 30 certification of the election results. That would keep the 11 Democrats who were chosen as Biden electors from casing their votes for him.
But attorney Sidney Powell said if Humetewa is unwilling to do that, she should preclude the inclusion of certain early ballots in the returns, ballots she contends "do not comply with Arizona law.''
That by itself likely would upset the election results.
Biden bested Trump among early ballots by 138,476. But the president outpolled the former vice president in election day voting by more than 230,000.
Separately, the Arizona Supreme Court is weighing whether to hear an appeal by state GOP Chair Kelli Ward.
A judge last week tossed out her efforts to void the election returns concluding she had presented no evidence of fraud or misconduct. And he said while there were some mistakes made in creating duplicate ballots for those that were damaged or unreadable, there were not enough of them to change the fact that Biden beat Trump in Arizona by more than 10,000 votes.
One thing the judges in both cases need to consider is how quickly they need to act.
Federal law says all election challenges are supposed to be resolved by Tuesday. But Jack Wilenchik, who is representing Ward, told the Supreme Court on Monday to ignore the deadline as an unconstitutional infringement on the rights of states to decide their own election matters.
More problematic for challengers is that the electors chosen by voters -- the ones pledged to Biden -- are supposed to cast their ballots this coming Monday.
Each of the pending lawsuits seeks a court order to prevent that from happening, at least until the legal issues are resolved, if not permanently, a move that could allow the Republican-controlled legislature to decide who gets Arizona's 11 electoral votes. There is no guarantee that any judge will agree to that.
But Wilenchik also contends that the upcoming Monday deadline, too, is no more enforceable.
"The only real deadline is Jan. 6,'' he said, the date set out in the U.S. Constitution when Congress counts the electoral votes from each state and declares the winner.
A third lawsuit which also sought to overturn the election returns was voluntarily dismissed on Monday.
That case, filed on behalf of four plaintiffs who identified themselves as members of something called the Arizona Election Integrity Association, included charges that Facebook billionaire Mark Zuckerberg funneled money to election officials in nine Arizona counties through the Center for Tech and Civil Life in a way designed to deliberately skew the vote here for Biden.
Attorney David Spilsbury said Zuckerberg sought to create a "two-tiered treatment of the American voter,'' putting funds into "progressive strongholds'' to turn out more voters. Other places, Spilsbury said, did not have the same opportunity.
"The strategy worked,'' he said.
Spilsbury noted that Biden got more than 300,000 votes in Maricopa County than Hillary Clinton got in 2016. By contrast, he said, President Trump gained only about 150,000 votes.
But Maricopa County Recorder Adrian Fontes, who lost his bid for reelection, said if his county really were as liberal as Spilsbury suggests "I'd still have a job.''
It wasn't just Maricopa County that got grants. The organization says it also provided funds to Apache, Coconino, Graham, La Paz, Navajo, Pima, Pinal and Yuma counties in Arizona, with more than 2,500 recipients across the country.
Spilsbury's decision to drop the lawsuit came after Andy Gaona, one of the attorneys for Hobbs, threatened to pursue him and his clients for legal fees if they pursued the matter.
"This is the very definition of a groundless action brought in bad faith, and without legal justification,'' Gaona wrote to Spilsbury. Aside from waiting too long, Gaona called the claims "baseless'' and "th stuff of conjecture and conspiracy.''
"They belong on Internet message boards, not a court of law,'' he wrote.And Gaona reminded Spilsbury that a judge who dismissed a different case brought by Trump supporters invited Hobbs' lawyers to seek legal fees in that case.
Four prior lawsuits about the conduct of the election already have been dismissed. Each raised different issues ranging from about oversight of the counting process to the use of Sharpies on ballots at polling places.