PHOENIX β A judge on Monday ruled itβs legal to challenge last monthβs presidential preference election.
Maricopa County Superior Court Judge David Gass said it remains to be seen whether the Tucson man, John Brakey, contesting the election β and seeking to void the results β can prove his case that the things that went wrong merit voiding the vote.
During the first day of hearings Monday, Assistant Attorney General James Driscoll Maceachron, defending Secretary of State Michele Reagan, told the judge that Arizona law allows someone to contest the outcome of a political primaries between candidates. Ditto, he said, if the issue is something like an initiative or bond election.
But he said there is no authority to challenge the stateβs presidential preference election, which is neither a primary in the traditional sense nor a ballot measure.
But the judge wasnβt buying it.
βI canβt find ... that this statute excludes the presidential preference election,β he said. Gass said if heβs wrong, heβs sure the Court of Appeals will βtell me differently, because thatβs their job.β
That paved the way for attorney Michael Kielsky to try to convince Gass the irregularities of the March 22 vote were enough to declare the election void.
One key witness was Dianne Post. A retired lawyer, she worked at a polling place in South Phoenix, a district with a large minority voting population.
Post told Gass how her polling place had run out of ballots for several congressional districts and was giving voters ballots from other districts. Democrats allocate delegates in part based on who wins each of the nine districts.
More significant, Post detailed how the electronic βpoll booksβ listed people as being registered in parties different than they said they were registered. She said it wasnβt simply voters being confused, pointing out many of them had county-issued voter registration cards.
βI did not keep track by race, and I should have,β Post told the court.
βBut many of them were blacks who were told they were Republicans,β she continued. βAnd their response was unkind.β
Post said she is convinced the problem was with the countyβs records and not with the voters.
βI had a woman who was 76 who assured me that she had been voting Democratic since she was old enough to vote and she had never registered Republican and she was not going to vote Republican,β Post said.
Kielsky also told Gass itβs a matter of public record that many people did not get to vote, either because they were deterred by long lines or because there were foul-ups in their party registrations.
Even if Gass finds their testimony credible, none of that means any laws were violated, at least not to the point of upsetting the results that gave victories to Donald Trump and Hillary Clinton.
And thereβs one more issue : Should Gass void the tally if heβs not convinced that the results would have been any different without the irregularities?
Kielsky conceded the point.
βMere irregularities will not allow an election contest absent allegations of a different result,β he told the judge. But he told Gass thatβs not the case here.
βWhat we have alleged is something amounting to fraud,β Kielsky said. βWeβre talking about the disenfranchisement of potentially 100,000 people or more who were either denied the ability to cast a vote, or when they attempted to cast a vote whose provisional ballot ended up not being counted.β
While Kielsky argued the election should be overturned because some voters were disenfranchised, Driscoll Maceachron told Gass that voiding the election would have the reverse effect.
βHis relief is not about enfranchising voters,β he said. βHe will invalidate the entire election and leave all Arizona voters without a vote in the presidential preference election.β
What happens if Gass voids the vote is unclear.
The lawsuit does not seek a new state-run election.
One scenario is that it would be up to each partyβs officials to decide how to allocate delegates to their national conventions. There is nothing to preclude the parties from doing that according to the results of the March 22 election.
