Lawmaker grills former Arizona chief justice on election probe

PHOENIX — An attorney for a failed candidate challenging the 2022 election results used his unrelated position as chairman of a legislative panel to elicit testimony Thursday that ultimately could benefit his client in court.

But the top legislative leader who appointed attorney Alexander Kolodin to head the panel, House Speaker Ben Toma, said later he sees nothing improper in his use of the role.

Kolodin is a Scottsdale Republican lawmaker as well as a privately hired attorney for losing GOP attorney general candidate Abe Hamadeh. Toma named him to head the special legislative committee looking into government censorship, including attempts to censor social media posts; big tech manipulation of internet platforms; and the use of artificial intelligence.

At Thursday’s committee hearing, Kolodin grilled former Arizona Supreme Court Chief Justice Ruth McGregor on her investigation of printer failures at Maricopa County vote centers in the 2022 election Hamadeh is still challenging in court.

Kolodin told Capitol Media Services the line of questioning fits within the charge Toma gave the Ad Hoc Committee on Oversight, Accountability and Big Tech when he formed it in August.

“All of the stuff we were talking about was with the technology, the printers and how they’re configured and is there something about them that’s causing it,’’ Kolodin said. “So, it’s totally a technology issue.’’

The questions deal with the issue of “oversight in general,” he said.

But Kolodin’s questions went specifically to the issues of what McGregor found after Maricopa County asked her to discover why tabulators at vote centers failed to read some ballots from on-site printers. Hamadeh, who lost by 280 votes to Democrat Kris Mayes for attorney general, contends those problems depressed the vote for him because some voters left the centers without casting ballots.

Hamadeh raised that issue along with others a year ago when he first filed suit to overturn the election. A trial judge dismissed the challenge, saying Hamadeh’s attorneys failed to prove their claims that he did not lose to Mayes.

Kolodin was brought in more recently to represent Hamadeh in his bid to get the state Court of Appeals to grant him a new trial where he would be able to present new evidence.

Moreover, Hamadeh has hired another attorney who filed a separate lawsuit last month asking that the race be re-run in Maricopa County based specifically on claims county officials botched how the handled Election Day procedures.

Toma, the House speaker, defended Kolodin’s use of the committee chairmanship.

“This was an ad hoc interim committee that was designed to be fairly broad in scope,’’ Toma, a Peoria Republican, told Capitol Media Services on Thursday.

“It is my understanding that Rep. Kolodin asked Justice McGregor about her publicly available investigative report report and whether legislative reform is necessary to prevent future printer problems in the 2024 elections,’’ said Toma, who acknowledged he did not watch the hearing. “I have no reason to believe that anything improper occurred or will occur as a result of this hearing.’’

Kolodin did not represent Hamadeh at the initial trial where the candidate asked, unsuccessfully, that the election results be set aside. But Kolodin does represent him now in his efforts to get that ruling set aside so he can offer new evidence at a new trial. He also said his representation of Hamadeh does not extend to the new lawsuit, which specifically argues the election should be re-run because of those printer issues.

A ruling in Hamadeh’s favor on the issue of Election Day problems and the resultant voter lines, however, could negate the bid for a new trial. And Kolodin questioned McGregor on precisely that issue Thursday.

Says 2024 election is his focus

In her investigation earlier this year, McGregor said the problems of tabulators not reading ballots resulted from equipment failures and were not caused by human error or an intentional act.

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More to the point of Kolodin’s questions, she responded that 6% of the ballots were rejected by the tabulators. That led to confusion, angry voters and a scramble by county officials and contractors to fix the issue. It also led to lines at some vote centers that resulted in some people deciding to leave without casting a ballot.

McGregor told Kolodin Thursday that every voter whose ballot was rejected by the tabulator had the option of depositing it in a secure drawer, to be counted later at election offices.

“And it would have been counted,’’ McGregor said, whether by a more sensitive tabulator at the election office or, if necessary, copied onto a new ballot by election workers and then fed into the counter.

She also said that the lines at vote centers “mostly were very, very short.’’

Kolodin pursued the issue.

“Well, you’d agree that it’s very difficult to reassure voters of anything when they’re seeing this problem with their own two eyes, when they’re experiencing these lines, when they have to stick a ballot in a tabulator eight times before it’s accepted, it’s pretty hard to reassure those voters unless I can tell them this is how it’s going to be fixed,’’ he said. Kolodin said that “fix’’ for the 2024 election is his focus.

McGregor said, though, that poll workers already tell voters about the option of depositing the ballot into the box to have it counted later.

“Some voters don’t believe that because of the misinformation they were receiving,’’ she said.

The former chief justice did not spell out what that includes.

But at least part of the Election Day problems and the lines were caused by exhortations of Kelli Ward, then the chair of the Arizona Republican Party, who told people to vote in person versus by mail. Ward echoed the claims of Donald Trump and others that early voting was inherently insecure and subject to fraud.

While Kolodin said he called Thursday’s hearing to look at possible legislative changes ahead of the 2024 election, he specifically inquired into whether McGregor was qualified to do the review of Election Day problems for Maricopa County in the first place — the one that found no intentional acts.

McGregor acknowledged she had not practiced election law nor handled technology cases before becoming a judge. Her inquiry never was designed to find out to what extent voters left polling places because of malfunctioning printers and long lines, she also acknowledged.

“We were conducting a very narrow, fact-specific investigation into the problems that were seen in the printers on Election Day,’’ dealing with why some of the printers put out ballots that could not be read, she said.

The conclusion, she said, involved two factors: the use of a paper weight heavier than used in the primary election months before, and a ballot that was an inch longer than the one in the primary. That led to other problems, including the toner not being affixed to the ballots, causing them to be rejected, though she repeated that, in every case, there was an option for voters to have them tallied later.

Kolodin also questioned findings in McGregor’s report that many of the problems were specifically related to printers made by Oki, with no similar issues reported with ballots from printers from another manufacturer. He said the company sent a letter to the county disputing some of her findings.

McGregor questioned some of the company’s allegations. Anyway, she said, Oki’s letter did not come until after she filed her report.

Kolodin was recently placed on probation for 18 months by the State Bar of Arizona for his role in representing clients who challenged the results of the 2020 election. He agreed to the sanction to settle allegations he pursued election cases with no merit, including claims of “massive election fraud’’ done “for the purpose of illegally and fraudulently manipulating the vote count to manufacture and election of Joe Biden ... and down-ballot Democratic candidates.’’