Arizona GOP Chairwoman Kelli Ward

 Capitol Media Services 2019

PHOENIX — Unable to get permission for a formal hearing, “select” lawmakers are holding their own unofficial, away-from-the-Capitol event Monday, Nov. 30, to hear allegations from the Trump legal team on the election.

The event at the Hyatt Regency in downtown Phoenix is being billed as an “urgent public hearing” to air claims that improprieties altered the election results. Rep. Mark Finchem, an Oro Valley Republican, promised information to show that the state’s 11 electoral votes should not go to Democrat Joe Biden.

Yet, at the same time, Republican Gov. Doug Ducey, Republican Attorney General Mark Brnovich and Chief Justice Robert Brutinel are expected to formally certify the Arizona results as accurate.

The governor said he has seen no evidence of fraud in the election.

“I trust our election system. There’s integrity in our election system. Joe Biden did win Arizona,” Ducey said last week.

That leaves Finchem and the lawmakers who will attend looking for another way to overturn the results.

Their hearing comes after Republican House Speaker Rusty Bowers rebuffed Finchem’s efforts to call a hearing of the House Federal Relations Committee, which Finchem chairs, to look at ways the 2020 election could have been tainted.

“My worst fears have come to light in the process, and so far the evidence has been blocked from an official public forum,” Finchem said. “This process has been anything but transparent.”

He promised that the testimony, which is expected to feature Trump campaign lawyers Rudy Giuliani and Jenna Ellis, “is going to reveal a great deal that I think the taxpayers, the voters, are going to be stunned.”

Finchem argues that the U.S. Constitution empowers lawmakers to decide, on their own, whether the election was valid and, if not, to select the electors of their choice.

The hearing also comes as Kelli Ward, chairwoman of the Arizona Republican Party, goes to court Monday, trying to get access to certain voting materials she says will help prove her claim that the tally was incorrect, at least for the presidential race.

The issues are closely related, with the Trump campaign having raised some of the same allegations, particularly about possibility of fraud with mail-in votes.

Election employees processing and verifying ballots at the Pima County Election Center in Tucson on Nov. 4, 2020. (Josh Galemore / Arizona Daily Star)

Trump and allies have not won such cases

The lawmakers’ unofficial hearing Monday is likely to be a carbon copy of one held Wednesday by some Pennsylvania lawmakers — also off-campus — where Giuliani listed what he said were irregularities in not just that state but also in Arizona.

There, Trump, appearing by phone, repeated his claim that fraud in mail-in ballots altered the election returns. “They cheated,” he said of Democrats.

“This was a fraudulent election,” Trump continued. “That has to be turned around because we won Pennsylvania by a lot, and we won all of these swing states by a lot.”

He also complained about “all of the horrible things that happened to poll watchers.”

The theme has been repeated in Arizona — including in Ward’s lawsuit — that poll watchers were kept too far from the process to see what was going on. Ward’s attorney also questions whether signatures scanned from ballot envelopes matched what the county recorder’s offices already had on file.

So far, though, Trump and his allies have lost virtually every legal case they have brought alleging fraud or other improprieties.

Legislature “not tethered” to vote count, Finchem says

That, then, brings up the issue of what state lawmakers can do.

“The legal theory is the legislature has plenary (absolute) power to fulfill its obligation to send qualified Electoral College electors to engage in the vote,” Finchem said.

“This is a federal office,” he said. “And it is a federal obligation under the Constitution by the legislatures of the various states.”

As for the official vote tally, Finchem said, “We are not fettered, we are not tethered to anything other than our plenary power in the legislature to fulfill our duty.”

That, he argued, would allow a special legislative session where lawmakers could make their own decisions on the validity of the election and whether to try to block the state’s 11 electoral votes from being cast for Biden.

His claim dovetails with Ward’s lawsuit.

Under the system of mail-in voting, election workers compare signatures on the outside of the envelope with what they have on file from prior elections or other documents.

If there are questions, the signature is reviewed by members of both parties. The law allows election workers to contact the voters to determine if they really sent in the ballot and whether there is a reason a signature looks different, such as an illness or injury.

The problem, according to Ward’s attorney Jack Wilenchik, is what happens when the election worker says the signatures match, as there is no further review by party officials. Repeating the president’s claim, he said legal observers were kept too far away from the process to be able to see what was going on.

He is asking Maricopa County Superior Court Judge John Hannah to allow a representative sample — perhaps 2% — to be reviewed by a handwriting expert to determine if the workers were correct or if the ballots never should have been tallied.

Even if Hannah grants the review, and even if the expert says there are signatures that do not match, that in itself is no help to Ward’s cause. That’s because the ballots were long ago separated from the envelopes and there is no way to tell for whom these people voted.

But Wilenchik hopes that a judge, confronted by evidence of a large number of invalid ballots, would void the results of the presidential race, prohibiting the state’s 11 electoral votes from going to Biden.

That, in turn, could open the door to the legislature appointing electors.

But that presumes that Bowers and Republican Senate President Karen Fann would consent to convening a special session.

Monday’s off-campus hearing is designed to raise enough questions to put pressure on them and other lawmakers to agree.

Wilenchik has a second legal theory that damaged ballots were not properly duplicated for scanning. He wants these reviewed, too, with the idea that if there were sufficient votes that should have gone to Trump, Hannah should order that he is the winner.

Timing, state law may work against Finchem and Ward

There are things working against both the lawsuit and any potential legislative intervention.

Arizona law allows a challenge to the official canvass within five days. Federal law also says that all election challenges must be resolved by Dec. 8, with electors set to vote six days later.

The state also has a “faithless elector” provision in law, which requires electors to vote for the presidential candidate who wins the state.

Legislative lawyers said it would take a change in statute to alter how presidential electors are appointed. And they said it’s too late to change that this year given that the electors already were chosen by voters.

Become a #ThisIsTucson member! Your contribution helps our team bring you stories that keep you connected to the community. Become a member today.