With the tally of votes now showing Joe Biden winning Arizona, the state Republican Party and its allies are trying last-minute legal tactics to keep that from happening.
Two new lawsuits come as the former vice president on Friday had a lead of 10,998 votes over Donald Trump. More to the point, the Secretary of State’s Office says there are just 6,670 ballots yet to be counted.
Meanwhile, the president’s reelection campaign agreed Friday to drop its demand for a hand count of certain ballots cast at polling places on Election Day to see if they were properly recorded. Attorney Kory Langhofer told Maricopa County Superior Court Judge Daniel Kiley that with just 191 ballots at issue, the latest vote tallies makes the outcome of that claim moot.
Despite that decision — and despite the vote tallies that show there just aren’t enough uncounted ballots for Trump to catch up — state GOP Chair Kelli Ward insists this isn’t the end.
“We are getting close to recount territory here,” she said Friday in a video message.
That is debatable given that state law would appear to require Trump to be within 200 votes of Biden to trigger a new count.
But the two new lawsuits are the best — and perhaps only — chance that the president has to getting close to that margin and taking the state’s 11 electoral votes.
One contends that Maricopa County is not complying with state laws which require there be a hand-count audit after each election to ensure that what was recorded by the voting machines matches the ballots that went into them.
That was done with no irregularities found.
But attorney Jack Wilenchik, representing the Arizona Republican Party, says state law requires that the sample has to be done of at least 2% of all the precincts. In Maricopa County, he said, with 748 precincts, that would require checks at 15 separate precincts.
Only thing is, Maricopa County uses “voting centers” rather than requiring residents to cast a ballot at the specific precinct in which they live. This year, Wilenchik said, there were about 175 of these.
And what that means, he said, is that an audit of 2% of 175 voting centers is not sufficient, regardless of how many people voted at each one.
While the GOP is suing only Maricopa County, the lawsuit also could affect Yuma, Yavapai, Santa Cruz, La Paz and Cochise counties. which also use vote centers.
In a separate lawsuit, attorney Alexander Kolodin charges that Maricopa County — and presumably all others — have no specific way to determine whether a given voter’s choices were properly counted.
That goes to the question of what happens when a ballot is not automatically accepted and read by tabulating machines at polling places, whether because of problems with the equipment or other issues. These instead are set aside for hand review at county offices.
Attorney Alexander Kolodin charges that one of the women he represents — the same who brought the never-proven claim about how the use of Sharpies and bleed-through on ballots was affecting the count — never had her vote counted at all. And he said his other client, whose ballot had to go through separate review was denied the right to have her vote “counted via a fully automated and perfect process,” as were others in a similar situation.
There was no immediate response from attorneys for the county to either lawsuit.
Time is running out.
The state is supposed to certify the election results on Nov. 30. And the electors who will cast their ballots for who won the majority in the state are supposed to be appointed by Dec. 8.
Hearings in both cases are set for Monday.
The legal maneuverings fit into what has been the position of Trump and his supporters that there has been something amiss about the voting process this year.
“Arizona voters deserve complete assurance that the law will be followed and that only legal ballots will be counted in the 2020 election,” Ward said.
That mirrors repeated comments of the president himself who has insisted he will win if only the “legal votes” are counted, not just in Arizona but elsewhere.
But none of this will matter unless any of the lawsuits result in orders that get more votes tallied and bring Trump within recount territory.
State law does require a recount when the difference between candidates is less than 0.1% of the votes cast for the office. At this point, that would be about 3,400.
But there is a separate provision governing any race for “state electors,” which is technically what people who were voting for Trump, Biden and Libertarian Jo Jorgensen was choosing. That figure is just 200.
Despite that, state GOP spokesman Zach Henry said the outstanding votes plus “ongoing litigation in the courts” should be enough to force that recount.
Wilenchik’s contention that audits done by voting centers is illegal already is getting some legal pushback.
In letters to legislative leaders, Joe Kanefield, the chief deputy state attorney general, pointed out that lawmakers specifically allowed counties to operate centers. And Kanefield, himself a former state elections director, said the statutes left it up to the secretary of state to come up with specific rules for how to conduct these audits.
That, he said, was codified in the Election Procedures Manual which specifically allows audits of 2% of vote centers. And since that manual was approved by both Attorney General Mark Brnovich, who is Kanefield’s boss, as well as Gov. Doug Ducey, both of whom are Republicans, it could mean that the state party is now picking a fight with its top elected officials.
Wilenchik does not dispute that the hand counts already done by the county of the vote centers, which are chosen jointly by Democrat and Republican party officials, have showed no discrepancies between the recorded tally and the hand count. But he said what’s needed to truly check the veracity of the vote is that precinct-by-precinct breakdown.
“It makes it easier to sort the data that comes out of the sampling, to compare it with the voter registration database data,” he told Capitol Media Services, figures that are broken down by precinct. That, Wilenchik said, ensures that there aren’t more ballots being counted than people who actually are supposed to have voted at that location.
“If instead they do the sampling based on the vote centers, that’s sort of worthless to us because we can’t sort that data,” he said. “The voter registration data is not based on vote centers.”
Wilenchik conceded that state law does specifically allow for vote centers. And he said he did not know how a county would then organize the already cast ballots by precincts — as he contends is required for the post-election audit.
He said it’s possible that the ballots are in some way encoded to show to which precinct a voter was assigned.
And if not?
“Then count all of them,” he said. Wilenchik said it can’t be that hard, pointing out that’s exactly what’s taking place in Georgia for the presidential race.
Even if Trump can’t be aided by the litigation, any adjustment of votes could make the difference in some down-ballot races like the one for state Senate in LD 28 where incumbent Republican Kate Brophy McGee is 495 votes behind Democrat challenger Christine Marsh.