PHOENIX — Saying any delays in the case are his own fault, lawyers for Kris Mayes are asking the Arizona Supreme Court to rebuff a bid by Abe Hamadeh to now jump in the middle of his bid for a new trial in his effort to overturn the race for attorney general.
In a new legal filing, Alexis Danneman told the justices that the original trial came to an end more than seven months ago. At that time, she said, Hamadeh’s legal team acknowledged that it did not have enough evidence to prove their claim that he had gotten more votes.
“But also, they took no new steps to expedite review of various rulings about which they now complain,” Danneman said.
In fact, she said, Hamadeh’s lawyers have yet to ask Mohave County Superior Court Judge Lee Jantzen for a final judgment. That would allow them to seek Court of Appeals review of his decision using the regular process.
On top of that, Danneman argued to the justices that there is nothing that requires their immediate intervention.
“Attorney General Mayes was sworn into office on Jan. 2, 2023, over seven months ago,” she told the court.
But Danneman is asking the high court to do more than simply spurn Hamadeh’s request for the immediate intervention. She also wants an order for the GOP contender to pay Mayes’ legal fees for having to fight his latest bid.
Even if the justices agree with Mayes and refused to intercede at this point, that doesn’t end the fight over who was elected as attorney general.
Hamadeh still would retain the option of going through the normal appellate process. But that would only further delay a final ruling on who gets to serve in the office through the end of 2026.
In seeking Supreme Court intervention, Hamadeh and his allies at the Republican National Committee, who also sued, claimed he was not given enough time to prepare his arguments that he outpolled Mayes.
One issue is that some people who turned out on Election Day were given “provisional” ballots because they were not listed as registered, ballots that were never included in the final tally. Hamadeh contends that was in error, that those Election Day ballots would have skewed in his favor, and he wants time to investigate further.
He also wanted to examine more than the 2,300 ballots from three counties that his team was allowed to see if some votes were not properly tabulated.
That, his legal team said, gained credibility when a court-ordered recount of the race after the initial trial — required by a finding there was only a 511-vote difference statewide — turned up additional uncounted votes in Pinal County due to human errors. That closed the margin to just 280 votes statewide, a figure not available until after his original December trial.
But Jantzen refused to give him a new trial, including the opportunity to examine about 68,000 ballots statewide where there was an “undervote,” meaning the voter made choices in some races, but the machine tally showed no selection in the race for attorney general. Hamadeh wanted to see if there was evidence that the voters actually made a choice but the machines failed to recognize it.
The judge said much of the evidence he now wants to examine actually was available to him before his original December trial.
“If there is an allegation of problems with provisional ballots made in the complaint, they must be asserted in some detail at the trial not not investigated later,” he said.
Danneman told the justices that even if Hamadeh has some valid legal theories — something she is not conceding — that is no reason for them to jump into the case now, even before the case is reviewed by the state Court of Appeals.
“Petitioners do not even try to explain why they lack and equally plain, speedy, and adequate remedy by appeal,” she wrote.
“Their silence is no surprise,” Danneman continued. “All the relief they request here — other than an order directing entry of a judgment — would be available to request by appeal.”
And then there’s the fact that, after the trial, Jantzen asked Hamadeh’s lawyers whether they needed a “written order.” They responded that they did not, at least not now.
Even later, Danneman said, when Hamadeh’s lawyers proposed an order, they said it is “not a final order.” She said there still is no request by Hamadeh for the trial judge to issue a final judgment, something that would allow him to seek expedited review by the Court of Appeals.
Instead, Danneman said, he and the GOP want to bypass all that and go directly to the Supreme Court.
“Petitioners should not be rewarded for their deliberate failure to take the requisite actions for advancing their appeal,” she said.
On the other side of the equation, Danneman said that Hamadeh’s delay in pursuing an appeal and now asking for high court intervention is unfair to the justices, “placing the court in a position of having to steamroll through the delicate legal issues.”
And, she said, it’s also unfair to Mayes as her client.
“She is now the attorney general,” Danneman said.
“She had hired attorneys and staff,” her lawyer continued. “She is doing her job and has been since January.”
Then there’s Mayes’ request for Hamadeh and the Republican National Committee to pay her new legal fees for having to defend against his effort to get the Supreme Court to take the case.
“Through their petition, petitioners have (not for the first time) forced defendants to divert time and resources away from carrying out the functions of state government and to responding to frivolous, lengthy filings instead,” Danneman said. “Ms. Mayes respectfully asks this court to impose appropriate sanctions for such conducts.”
And if nothing else, Danneman told the justices there’s another reason to punish Hamadeh financially, arguing there are “at least two misrepresentations in this petition that are integral to the extraordinary relief they seek and that are unequivocally false.” And those, she said, relate to claims by Hamadeh had asked Jantzen for a final judgment.
“Petitioners explicitly asked that any entry of judgment ‘be stayed pursuant to (court rule) until a new trial is held and the case decided.’ “
Not true, said Danneman.
“Ms. Mayes was the one who asked for final judgment in response to petitioner’s request,” she wrote.
The justices have not said when they will consider Hamadeh’s request.
