Judge tosses Hamadeh suit; Cochise attorney refuses to defend board

PHOENIX — A judge tossed out Republican Abe Hamadeh’s legal bid to have himself declared the winner of the race for attorney general.

Also on Tuesday, Cochise County’s supervisors, in their own legal fight, voted to hire outside lawyers to defend their decision to defy the deadline in state law to canvass, or officially certify, the election returns. That came after County Attorney Brian McIntyre, an elected Republican, refused to defend the board’s decision not to meet the deadline.

“We’re in a situation where, because the actions of the board were contrary to Arizona law, our office won’t be providing representation,’’ McIntyre told the board. It remains unclear who will pick up the tab for outside counsel.

In the Hamadeh case, Maricopa County Superior Court Judge Randall Warner called the lawsuit by the losing candidate “premature.’’

Warner said Arizona law requires challenges to election results to be filed “within five days after completion of the canvass of the election.’’ That isn’t set to occur until Dec. 8.

“There can be no election contest until after the canvass and declaration of the results because, until then, no one is ‘declared elected,’ “ the judge wrote. “It is undisputed that the canvass and declaration of results for the November 2022 election have not occurred.”

Warner’s ruling gives Hamadeh through Dec. 13 to refile.

Hamadeh contends the results of the election showing that Democrat Kris Mayes got 510 more votes should be disregarded because of various problems in Maricopa County on Election Day. Those include issues where tabulators at some vote centers could not read ballots printed on site and cases in which some people say they were denied the right to vote when they went to a second location.

Maricopa County officials acknowledged the printer problem Monday when the Republican-led Board of Supervisors canvassed the county’s votes. But they have insisted no one was denied the ability to cast a ballot, even if it was not tallied on site.

Warner’s ruling comes as Pima County Superior Court Judge Casey McGinley scheduled a hearing for Thursday on the latest legal fight Cochise County supervisors are picking with the state.

The two Republicans on Cochise County’s three-member Board of Supervisors contend they do not have to formally canvass the votes of the Nov. 8 general election, at least not until they get the answers they want about the machines used to tabulate ballots. Their next meeting to consider the issue is Friday.

But Democratic Secretary of State Katie Hobbs wants the judge to order the board to meet and certify the results by the end of the day Thursday. Her attorney, Andrew Gaona, said that will “allow the secretary sufficient time to meet the final Dec. 8 deadline for completing the statewide canvass.’’

The supervisors voted to retain The Valley Law Group to defend them. That firm’s Bryan Blehm represented the county in its bid earlier this month to conduct a full hand count of ballots, an effort rejected by McGinley.

Supervisor Tom Crosby, one of two Republicans on the board, said he presumes the defense will be “privately funded.’’ But County Administrator Richard Karwaczka said it’s not that simple.

“If it’s an attorney for the board, the board is responsible ... which would come out of general fund,’’ he told the supervisors. “I don’t believe that the board can accept private funding to pay for these attorneys.’’ He said he has been informed by the County Attorney’s Office that the board can’t accept money for a specific purpose.

Karwaczka said, though, there’s no problem as long as Blehm gets his fees paid by someone else and does not submit a bill to the county.

“But if there’s a bill owing ... I do have to put it on the agenda for the board to pay for those items,’’ he said.

There was no discussion of who might provide the payment. Blehm did not return a message seeking comment.

Blehm has some history of involvement in Arizona election fights. He represented Cyber Ninjas, the firm hired by state Senate President Karen Fann, R-Prescott, to “audit’’ the results of the 2020 election in the races for president and U.S. senator.

A hand count of those 2020 ballots, however, found the results from the tabulators were accurate. In fact, it actually showed Joe Biden’s margin of victory was slightly larger than the official tally.

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In this new case, Hobbs has a contingency plan if the supervisors do not act.

“Absent this court’s intervention, the secretary will have no choice but to complete the statewide canvass by Dec. 8 without Cochise County’s votes included,’’ Gaona told the court in the Monday filing.

If that occurs, it would eliminate the 27,767 votes that Republican Tom Horne got from Cochise County in the race for state schools chief.

Democrat incumbent Kathy Hoffman also would see her total reduced by 18,457. But, without the Cochise vote, that would put her ahead of Horne by 280 votes.

Horne said he has not reached out to the two Republicans on the three-member board.

It’s not just Horne who would see his victory turned into defeat.

Republican Juan Ciscomani won the race in Congressional District 6 over Democrat Kirsten Engel by 5,232 votes. But backing out the more than 2-1 margin for Ciscomani in Cochise County would give the race to Engel by more than 8,000 votes.

“We are 100% confident that the results will stand and the election will be certified,’’ said Becky Freeman, chief of staff for the congressman-elect.

Whatever the judge decides, and whatever the supervisors ultimately do, will not end the all the legal fights over the election.

On Thursday, Maricopa County Superior Court Judge Scott Blaney will hear arguments by failed GOP gubernatorial candidate Kari Lake that Maricopa County officials have not “promptly’’ produced a laundry list of documents and records she is demanding regarding the general election.

Lake cited many of the same complaints made by Hamadeh about the way the county conducted the election, which she said, without proof, raises questions about the “validity of the election results.’’ Many of them deal with the well-publicized issues of tabulators at some vote centers not being able to read the ballots that were printed there.

What Lake gets, and when, is virtually certain to form the basis of a lawsuit claiming the formal election results — which show her losing to Hobbs by more than 17,000 votes — should be set aside and she should be declared the winner.

Lake is not alone in that quest.

On Tuesday, Mark Finchem, the unsuccessful Republican candidate for secretary of state, sent out an email to supporters saying, he, too, plans to challenge the results. Finchem, however, has a bigger hill to climb: The final tally shows him more than 120,000 votes behind Democratic winner Adrian Fontes.

All that threatens to drag the issue well into December.

In the meantime, there’s the refusal of the Cochise supervisors to certify their results. And it isn’t just Hobbs with whom the board is fighting.

A separate lawsuit was filed against the county by the Elias Law Group, which represents Democratic interests in election cases, on behalf of the Arizona Alliance of Retired Americans. That is the local affiliate of a national organization founded in 2001 by the AFL-CIO that is made up of retired trade union members.

But attorneys in this case are seeking only an order from McGinley to certify the votes by the end of the day on Thursday, as their clients have no authority to decide whether or not to go ahead with the state canvass without the Cochise votes.