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Judge dismisses Az GOP lawsuit over Maricopa County hand count

Orders AzGOP to pay attorneys' fees for the secretary of state's office

Maricopa County will proceed with its canvass of the 2020 general election after a judge dismissed a lawsuit from the Arizona Republican Party that sought to halt certification of the election results while it challenged the way the county conducted a hand count of ballots.

Judge John Hannah, of the Maricopa County Superior Court, issued a brief ruling Thursday afternoon dismissing the Arizona GOP's lawsuit.

The Maricopa County Board of Supervisors scheduled a meeting for Friday afternoon to certify the canvass of the general election. The board has resisted calls from some Republicans, including elected officials, to halt the canvass until the county's elections department can conduct a full hand count of all ballots cast in Maricopa County. Those requests are based on unfounded allegations of fraud or impropriety in the election.

Hannah didn't explain in his ruling why he dismissed the case. He said he will "shortly" issue a minute order providing a more detailed explanation of the decision.

State law requires counties to conduct a hand count of ballots cast at 2% of all precincts after each election. But Maricopa this year switched from precincts — where voters must vote at a single assigned location — to voting centers, where voters from anywhere in the county can cast ballots, regardless of where they live. The election procedures manual issued by the Secretary of State's Office allows counties to audit the ballots from 2% of voting centers instead of precincts.

Despite the fact that statute grants the manual the force of law and orders counties using voter centers to follow the manual, the AZGOP argued in its lawsuit that Maricopa County violated state law by auditing ballots based on voting centers instead of precincts. It asked Hannah to order the county to perform a hand count based on precincts, and attorney Jack Wilenchik later amended his complaint to include a request for an injunction against the canvass, which must be completed by Monday.

"The motion to amend the complaint is denied as futile," Hannah wrote.

Hannah also ruled that the Secretary of State's Office, which intervened as a defendant in the case, can seek attorney fees under a statute permitting defendants to apply for repayment of those fees in "unjustified actions" that are "groundless and … not made in good faith."

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Roopali Desai, an attorney for the secretary of state, said the office will accept the offer to seek attorney fees.

"The Secretary is pleased with the result, which she expected, given the meritless claims. She is hopeful that Arizona can now proceed to finalize its fair election through the lawful process," Desai said.

Attorneys for the county, the secretary of state and the Arizona Democratic Party urged Hannah to dismiss the case, noting that the elections procedures manual has the force of state law. The current version was drafted by the office of Secretary of State Katie Hobbs, a Democrat, and approved by Gov. Doug Ducey and Attorney General Mark Brnovich, both Republicans.

The attorneys also argued that the Arizona GOP waited too long to bring its case. The manual has included the provision allowing hand counts based on vote centers since 2012. And the party was, or at least should have been aware of, how Maricopa County conducted its hand counts with voting centers because it participated in a voting center-based audit in August after the primary election.

The Arizona GOP did not file lawsuits against three other counties that used voting centers as the basis of their hand counts.

President-elect Joe Biden defeated President Donald Trump by about 10,500 votes statewide, a victory made possible by his 45,100-vote margin of victory in Maricopa County.

Arizona GOP Chairwoman Kelli Ward has repeatedly alleged fraud and other improprieties in the election in Maricopa County, despite a complete lack of evidence. She and other Republicans have demanded a full recount of the nearly 2.1 million votes cast in Maricopa County, though they have yet to provide any explanation for why a recount would be needed, aside from baseless allegations and unproven conspiracy theories.

Following Hannah's ruling, Ward alleged that "the will of a Democrat Secretary of State is being substituted for the black letter law passed by the State Legislature." State law has for decades granted the manual the authority of statute, and the original version of the voting center rule was drafted and approved exclusively by Republicans.

Republican Secretary of State Ken Bennett's office drafted the original rule in 2012 — after the GOP legislature in 2011 allowed counties to use voting centers — and it was approved by Gov. Jan Brewer and Attorney General Tom Horne, both Republicans. An unapproved version of the manual drafted for the 2018 election by Secretary of State Michele Reagan, also a Republican, included a version of the rule. And Republicans Brnovich and Ducey approved the current version of the manual.

Ward said the Arizona GOP sought "judicial clarification" on whether the procedures manual can "supercede" state statute, and said new legislation will be needed to address the issue.

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"Arizona voters deserve to have complete trust in their election procedures. They should also have supreme confidence that only legal ballots were counted in the 2020 election. Failure to address their concerns actively harms our state and our nation. Because of this, I stand by my call for a full hand-count audit of our state's election results," Ward said in a press statement.

This report was first published by the Arizona Mirror.

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