Abe Hamadeh wants another shot at overturning Az election because of Pinal County’s recount discrepancy
Abe Hamadeh wants another shot at overturning his loss, saying that issues revealed by the recount in one county put the whole election in question.
Late Tuesday, Hamadeh filed a motion for a new trial in Mohave County Superior Court, arguing that the recount discrepancy in Pinal County is sufficient grounds for a renewed investigation into the midterm election in all 15 Arizona counties. Hamadeh's previous election challenges were unsuccessful; the first was dismissed for being filed too early under state law and the second was thrown out for failing to meet the burden of proof.
This time, Timothy La Sota, Hamadeh's attorney, said there is clear evidence that the election was mishandled so badly that it affected the outcome in the closest statewide race in Arizona history.
"The recount identified more problems in an election already riddled with process failures," wrote La Sota. "This further demonstrated that the vote count totals are likely inaccurate, with thousands of Arizonans' votes not counted, thus casting further doubt about the actual result."
Pinal County added 507 more votes in its recount total than were in its original canvass after identifying several instances of poll worker error due, in part, to high staff turnover and insufficient training. The new ballots shrank Democratic Attorney General-elect Kris Mayes' lead from 511 to just 280.
This reduces the margin between Mayes and Hamadeh to 0.1% — small enough to make every ballot monumentally decisive, La Sota said.
"The tiniest errors in counting are enough to change the results, or at least cast them into doubt," he said. "And there are now new reasons to believe that such errors occurred."
At the heart of La Sota's argument is that tabulation machines incorrectly rejected votes because of stray or unclear marks on the ballots, commonly called over- or undervotes, and adjudication processes — when election workers determine a voter's intent — failed to bridge the gap. La Sota pointed to discrepancies in hand-count audits conducted during the recount as proof. The practice compares machine counts against manual results. Missed votes were found in Yavapai, Gila, Pima and Santa Cruz counties, La Sota said in the motion.
The hand-count report for Yavapai County found two extra votes in the attorney general's race. And in Pima County, the hand-count audit found two additional votes for Hamadeh that were marked improperly and subtracted one from Mayes' total.
Undervotes in Maricopa County, La Sota said, are where the biggest difference can be made. As many as 50,000 undervotes were recorded out of 1.5 million ballots cast in the county's midterm election, which attorneys for the county have said is a fairly standard amount. It's not uncommon for voters to skip filling out portions of their ballots.
That number of undervotes is especially concerning, La Sota claimed, because Maricopa County's adjudication processes are more forgiving of early ballots, which tended in 2022 to skew in favor of Democrats. If an early ballot is read by a tabulation machine as being totally blank because it was incorrectly filled out — for example, if the voter made checkmarks instead of filling in ovals — then it's sent to adjudication for review.
Comparatively, if an Election Day ballot is read as completely blank by a tabulation machine, it isn't sent to adjudication because "the voter was theoretically informed of the issue at the voting center" by verbal warnings, posters and election workers – resources that voters who mail in their ballots can't take advantage of.
If the voter on Election Day missed a portion of their ballot, the tabulation machine doesn't notify them as long as other races are filled out, La Sota added. The assumption is that Election Day voters are informed and making their voices heard — or not — at the ballot box.
La Sota isn't convinced by this argument, noting in the motion that it unfairly imperils conservative voters, who preferred in 2022 to vote on Election Day — and the policy may have cost Hamadeh as the Republican candidate in the race.
"Because Election Day votes went for Mr. Hamadeh by a wide margin, it stands to reason that the failure to adjudicate and count supposed undervotes on Election Day would affect the vote total for Mr Hamadeh most severely," he wrote.
La Sota added that testimony provided in failed gubernatorial candidate Kari Lake's election challenge flagged even more uncounted votes. During the trial, it was revealed that improperly printed timing marks on ballots led to mass ballot rejections.
La Sota claimed that as many as 196,113 ballots were rejected in Maricopa County alone, according to the cast vote record. Some of those rejections, he admits, may have been from the same ballot being rejected multiple times before being counted by the machine. The cast vote record is a spreadsheet of every action tabulation machines take when counting ballots.
Importantly, public records requests filed by Hamadeh's campaign with Maricopa County to obtain a list of provisional ballot recipients and information on uncounted early ballots dropped off on Election Day have been fulfilled, La Sota noted. That means Hamadeh is now properly equipped to provide evidence for his allegations, unlike during his trial in December.
As of Monday's inauguration, Kris Mayes is officially the state's attorney general. But, La Sota said, it's not too late or improper to bring an election challenge now, especially given that the information revealed by the recount wasn't available before. With the election over and the recount complete, there's no urgency to get through lawsuits to make sure someone's in office, La Sota said, which allows more room for investigations.
A partial investigation in Pinal County during the recount netted Hamadeh as many as 277 additional votes, La Sota said. Verifying ballots in the rest of the state, especially Maricopa County, could potentially tip the race in Hamadeh's favor.
"Mr. Hamadeh does not ask this Court to alter the vote totals or election results on a whim," La Sota said. "To be clear, (we) seek an accurate vote total — nothing more, nothing less — when we now know for a fact that the actual variance Pinal County discovered means that a similar issue elsewhere would tip the balance in this race."
The request for a new trial was filed the same day that Mayes' campaign asked the Mohave County judge to impose sanctions against Hamadeh and his fellow plaintiffs for filing a challenge to the election with no proof to back up the claims.
This report was first published by the Arizona Mirror.