Hamadeh makes last-ditch effort to fight 2022 Arizona election loss

PHOENIX — Abe Hamadeh is making a last-ditch effort to get a new trial so he can argue that he really didn’t lose the 2022 race for attorney general.

In a new legal filing, Hamadeh through his legal team is telling the Arizona Supreme Court he was denied the opportunity to look for and present evidence when he first challenged his loss to Democrat Kris Mayes right after the election. And when he finally did get some of those materials, Hamadeh said, Mohave County Superior Court Judge Lee Jantzen refused to grant him a new trial so he could present all that.

There’s nothing really new in the claims. They are pretty much identical to what he argued to the state Court of Appeals and what was rejected in a split decision.

But Hamadeh pointed out to the Supreme Court that decision was not unanimous.

In a dissent, appellate judge Judge James Morse said it was wrong of Jantzen to refuse to order that Hamadeh was entitled to the “cast vote record.”

That essentially is a computerized representation of how voters voted, stripped of any individual identifying information. Hamadeh argued the information could be analyzed by an expert to find problems with vote tallies.

That includes what were recorded as “under votes,” ballots where the tallying equipment showed someone voted for candidates in other races but no vote in the race for attorney general. And based on that, Hamadeh argued, he could request to see the ballots to determine if someone actually had voted for him but that was not recorded.

In writing the majority opinion for the appellate court, Judge David Gass said Hamadeh failed to show how any of that might have changed the outcome of the race he lost by 280 votes.

But Morse said it wasn’t necessary for Hamadeh to prove that it would change the outcome.

“The prejudice shown is not necessarily whether additional production would have led to a different result but whether Hamadeh was afforded an opportunity to conduct a meaningful inspection of the requested ballots and properly prepare for trial,” Morse said. And he said this is of critical importance in election cases where challengers have just a narrow window to make their case.

“Denying access to the CVR deprived Hamadeh of an opportunity for a meaningful way in which to conduct the ballot inspection in the condensed timeline allotted for election contests,” Morse wrote.

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Hamadeh wants the Supreme Court to look at all of that to determine whether he is entitled to a new trial — this time with the evidence he said he was denied — to try to show he really won. And he claims that in 10 counties that reported undervotes in the final recount, there were at least 68,196 ballots where tabulators did not record a vote for either himself or Mayes.

What Hamadeh also wants to see — and what was denied to him by Jantzen — is a list of Maricopa County voters whose provisional ballots were rejected.

Generally speaking, these are cases where there is no record of the person being registered to vote in that county.

Hamadeh said the fact they were not listed as registered had to do with a change in procedures in what happens at the Motor Vehicle Division when someone updates his or her information. And he contends that many of these votes would have been for him.

Gass said there are three problems with that.

First, he said, those new procedures for changing someone’s registration had been in place for more than two years before the 2022 elections. Gass said it is established law that if someone is challenging such changes they have to do that before an election, not afterwards.

Second, Gass said Hamadeh never answered the question of how counting those ballots would likely have an effect on the outcome.

And, finally, there are state election laws.

“Neither the superior court nor this court has the power to order those votes counted,” Gass wrote. “Arizona law simply does not authorize opening the envelopes and counting those ballots.”

The legal filing comes even as Hamadeh is running to be the Republican nominee for the U.S. House in the seat that is being vacated by Debbie Lesko. There was no immediate answer to a query to his press aide about whether he would quit that race if he is granted a new trial.

The justices have not decided whether they will hear his case.