The failure of Secretary of State Michele Reagan to properly monitor last month’s presidential primary is grounds to have the results voided even if it won’t change the outcome, an attorney challenging the results told a judge Tuesday.
Michael Kielsky cited what he said were of irregularities in how several counties handled the election. Those range from the long lines in Maricopa County to voters in Pima County and elsewhere being told their political party registration had been changed. And he said Reagan “knew or should have known.’’
Maricopa County Superior Court Judge David Gass said he will hear the specifics of those arguments on Monday — assuming he does not first grant motions by the state and counties to dismiss the case. But Gass questioned why he should even hear the case, given that John Brakey, Kielsky’s client, is not alleging that the results of the Republican, Democrat or Green Party primaries would have been different.
“I don’t and would never condone someone not being allowed to vote improperly,’’ the judge said. But Gass said it appears “everyone was equally disenfranchised.’’ And that means there is no evidence that any one candidate might have done better or worse had the voting problems not occurred.
Kielsky said the fact the election results would still have Donald Trump, Hillary Clinton and Jill Stein as winners of their respective party primaries is irrelevant and a legal “distraction.’’
“The conduct of elections has to comply with state law,’’ the attorney argued. And Kielsky said nothing in the law that says those challenging elections have to prove there would have been a different outcome.
“We tell the voters, the people at large, you have a voice, you have a voice in your government, you have a voice in helping select your leaders,’’ Kielsky said, only to have that undermined by how the election was conducted.
There appear not to be a lot of factual disputes.
The failure of Maricopa County to set up more than 60 polling places is a matter of record, as is the fact that some people had to wait five hours after the polls closed to cast their ballots. Others apparently were discouraged and left without voting.
It also is unquestioned that some people who showed up were told that they could not vote because county records listed them as political independents. Election officials have suggested some of that occurred when people changed their addresses online and assumed that would not change their party status.
There is, however, also a separate allegation that some voting machines may not have been properly calibrated.
The lawsuit names not only Reagan but also election officials in the state’s 15 counties.
But Gass pointed out that Brakey is not asking him to order the counties to conduct a new election. In fact, there are no allegations of impropriety against several of the counties.
Kielsky told the judge to simply focus on Reagan.
He said state law makes Reagan the state’s chief election official. He said even if she delegates the duties to run the election to each county, that doesn’t relieve her of the responsibility of ensuring that the counties have complied with election laws.
And what that means, Kielsky argued, is that Reagan acted improperly in certifying the election results without first ensuring that no county broke the law. He said Reagan cannot simply rely on the results she got from each of the 15 counties and then say, “I’m going to put my rubber stamp on it.’’
“Based on the evidence we’re going to be able to present, you couldn’t have done that,’’ Kielsky said he will argue about Reagan’s actions. “You knew or should have known this election was not a proper election, was not conducted according to Arizona law.’’