PHOENIX — The Court of Appeals is not going to oust Kris Mayes as attorney general and replace her with Abe Hamadeh.
They’re also not going to declare that a voter-passed measure on the 2022 ballot giving resident tuition to “dreamers’’ really didn’t pass. Nor will they rule that a proposal on the same ballot to require additional identification to vote, one rejected by voters, actually was enacted.
It’s all because the three-judge panel on Tuesday rejected claims by Hamadeh and two of his supporters that Maricopa County improperly included some early ballots in its final tally when the Republican lost the 2022 race for attorney general to Democrat Mayes.
Attorney Ryan Heath argued that if those early ballots are excluded from the count, the 280-vote lead racked up by Mayes more than disappears.
He asked the appellate court to apply a little-used legal principle known as “quo warranto’’ to declare that means Mayes is holding office illegally and Hamadeh is the rightful office holder.
That’s not all. The multiple lawsuits consolidated into a single appeal went a step farther, arguing that once those allegedly improper ballots were removed from the total, it left the final tally on Proposition 308 without the votes needed for approval.
That’s the law that says anyone who otherwise meets residency requirements and has graduated from an Arizona high school is entitled to in-state tuition at state universities and community colleges. Voter approval of that overruled a legal opinion that those who entered the country illegally — specifically including individuals in the Deferred Action for Childhood Arrivals program, known as dreamers — had to pay full out-of-state tuition.
Heath made the same argument on Proposition 309.
That measure would have required dates of birth on voter identification numbers on mail-in ballots. It also would have eliminated the option of people providing two documents, such as utility bills and bank statements, rather that producing a photo ID.
He argued that removing those allegedly invalid ballots from the count meant that voters did, in fact, approve Proposition 309 despite the official count showing it was rejected by 18,488 votes.
Judge David Weinzweig, writing for the unanimous three-judge appellate panel, said the lawsuits seeking to reverse the results of the race for attorney general and the two ballot measures suffer from a fatal flaw: They were filed too late.
Still, there was a small win in the new ruling for Hamadeh. The judges said he and his allies will not have to pay $200,000 in legal fees to Mayes and others who had to defend against the various claims seeking to overturn the election results.
At the center of the dispute is a section of the state Election Code dealing with early ballots. It requires the county recorder to “compare the signatures thereon with the signature of the elector on the elector’s registration record.’’
There are procedures for election officials to contact a voter in cases of “inconsistent’’ signatures to allow the ballot to be counted. But Heath argued that none of that permits a county, on its own, to simply decide that other signatures it has on file also can be used for comparison.
The appellate court, in its ruling, never decided whether Heath’s legal theory is correct.
Instead, they pointed out that Maricopa County had announced six months before the 2022 general election that it would decide the validity of early ballots by comparing the signatures on the envelopes with a “historical reference signature that was previously verified and determined to be a valid signature for the voter.’’ The county said that also could include early voting affidavits from previous elections.
More to the point, it meant the county announced it would be validating ballot signatures using more than what was on the voter’s original registration.
What that means, Weinzweig wrote, is any question that Hamadeh had about the legality of what the county was doing should have been filed when the county announced the procedure, not afterwards.
The appellate judges were no more impressed by Hamadeh’s “quo warranto’’ claim.
This is an extraordinary legal proceeding to remove a sitting public official and replace that person with someone else. Hamadeh said it applies here based on his claim that Mayes’ 280-vote victory included illegal votes.
But Weinzweig said that’s not the way the law works.
He said such claims are allowed only if the challenger can show he or she is actually the one entitled to that office. Instead, the judge said, Hamadeh was relying solely on his claimed weakness of Mayes’ own title to the office, something that Weinzweig said does not fit within what the rarely used law allows.
Hamadeh still has a separate case before the Arizona Supreme Court over his loss to Mayes. He contends Mohave County Superior Court Judge Lee Jantzen did not give him enough time after the 2022 election to search for evidence of improprieties in the race, a claim already rebuffed by the Court of Appeals.