The state’s high court late Tuesday threw out a bid by the head of the state Republican Party to void the results of the presidential race.
In a unanimous ruling, the justices said that Kelli Ward failed to present any evidence of misconduct or illegal votes in the tally that found Joe Biden had outpolled Donald Trump in Arizona.
Chief Justice Robert Brutinel, an appointee of former Gov. Jan Brewer writing for the court, said Ward, who has the burden of proof when challenging an election, provided no evidence that the electors pledged to Trump got more votes than those pledged to Biden “let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”
Brutinel acknowledged, as did the trial judge, that there were some errors made when damaged or ballots with extra marks had to be redone by hand so they could be fed through counting machines.
But he said that a random check of 1,626 of these ballots ordered by the trial court found an error rate of as little as 0.37% or as much 0.55%. Extrapolating that out to the 27,869 ballots that had to be duplicated, Brutinel said it would have gained Trump just 103 votes or, at best, 153 votes, “neither of which is sufficient to call the election results into question.”
The justices, all Republicans and a conservative independent chosen by Republican governors, also rejected claims that signatures on mail-in ballots did not match. They noted that a sample of 100 signatures was reviewed by forgery experts “but neither could identify any sign of forgery or simulation and neither could provide any basis to reject the signatures.”
“Elections will not be held invalid for mere irregularities unless it can be shown that the result has been affected by such irregularities,” Brutinel wrote. “The validity of an election is not voided by honest mistakes or omissions unless they affect the result, or at least render it uncertain.”
Tuesday’s ruling does not end the legal fight.
Separately, a federal judge hearing a different case on Tuesday questioned her legal ability to overturn the results of the election that declared Joe Biden the winner of the state’s 11 electoral votes.
“The election results were already certified,” said U.S. District Judge Diane Humetewa. “The governor has already transmitted the same to the United States Archivist.
In fact, Humetewa told attorney Julia Haller who is representing the challengers that federal courts in other states have thrown out nearly identical lawsuits seeking an order to decertify their results. She said they concluded there is no federal law being violated that would give them the ability to issue such an order.
“What makes this different?” she asked.
Haller said federal courts can review state election matters. And as to timing, she said that the 2000 U.S. Supreme Court ruling in the Florida election contest between George W. Bush and Al Gore was decided after that state certified its results.
But the heart of Haller’s arguments Tuesday came down to what she said is the weight of the evidence that something went wrong, not just here but in other states where she has gone to court.
“We have seen that a combination of individual anecdotal evidence, together with statistical proof, is the standard to show when broader remedial relief is justified,” she told the judge.
That argument was disputed by attorney Justin Nelson, representing the secretary of state and the governor.
He told Humetewa there are a host of legal problems with the claim that Haller filed on behalf of the 11 would-be Republican electors, issues including whether federal courts have jurisdiction over what are claimed violations of Arizona election.
The bottom line, he said, is that the challengers are not entitled to have a federal court set aside the election.
“The courts cannot turn the clock back and create a world in which the 2020 election results are not certified,” Nelson argued. More to the point, he said the lawsuit has an ulterior motive.
“This case is an attempt to undermine our confidence in the system with no basis in law or fact,” Nelson said. “They are using the federal court system in an attempt to undermine the rule of law and obtain breathtaking, startling and unprecedented relief to overturn the will of the people.”
Haller is trying to keep the case alive so she can present what she called “concrete evidence of widespread voter fraud.
Much of that is based on complaints about the Dominion Voting Systems software and equipment.
She said there is mathematical evidence of an “injection” of votes for Biden at specific times on election night. And that, said Haller, goes to how Dominion, a company challengers have said has ties to foreign countries and staffers who are hostile to Trump, uses an algorithm to tally votes rather than actual votes, all of which she claims provided artificial support for Biden.
Nelson, however, said claims about how Dominion is operated and even whether it sends data out of the country is irrelevant as there is no hard evidence showing any actual fraud occurred in Arizona. Then there’s the fact that a random hand count of ballots — the actual papers filled out by voters — meshed 100% with what the machines recorded.
Haller said her evidence goes beyond that, including a claim that more than 86,000 early ballots were returned by people but never recorded.
That number, however, is based on a phone survey of voters done by someone retained by the Trump campaign who asked people whether they sent in their ballot. The estimate comes from extrapolating out what that survey concluded.
But Nelson is arguing that is highly unreliable.
For example, he said it could include people who didn’t get their ballots in the mail on time. And then there’s the issue that the survey, conducted two weeks after the election, might result in people who “lied or misremembered.”
And then there’s the fact that the survey doesn’t suggest that these missing ballots — assuming there really are that many — would have favored Trump.
Haller has other allegations, including nearly 220,000 other votes she claims were fraudulently recorded for voters who, using that same telephone survey methodology, claimed they never requested mail-in ballots.
If Humetewa does not immediately dismiss the case on legal grounds she has agreed to allow Haller to present whatever evidence she has at a Thursday hearing.
Less clear is what the judge might do if she does conclude there is evidence of misconduct or fraud.
Most immediately she could order the governor and secretary of state to decertify the returns.
That would leave Biden without the state’s 11 electoral votes. But he may not need them to remain at at least 270 electoral votes if similar election challenges elsewhere fail.
Then there’s the question of whether that would allow the Republican-controlled legislature to shift the electoral votes to Trump.
House Speaker Rusty Bowers said that’s not a legal option, saying state law spells out that the only legal electors are the ones who were certified. Anyway, he said, there aren’t the votes to bring the legislature into special session ahead of Jan. 6, the day Congress will tally all the electoral votes.
Haller also wants a court order seizing all servers, software, voting machines, tabulators, printers, logs, ballot return envelopes and all election materials. And she ultimately wants a full manual recount of early ballots or at least a “statistically valid sampling.”
Editor’s note: This story and the headlined have been revised to include additional information about the Arizona Supreme Court’s decision.