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Last lawsuit to invalidate election ends in loss for GOP

Arizona elections officials carry ballots in trays to be counted inside the Maricopa County Recorder's Office, Friday, Nov. 6, 2020, in Phoenix. (AP Photo/Matt York)

Arizona elections officials carry ballots in trays to be counted inside the Maricopa County Recorder’s Office, Friday, Nov. 6, 2020, in Phoenix. (AP Photo/Matt York)

A federal judge late Wednesday tossed the last of the legal challenges to the decision by Arizona voters to choose Joe Biden for president.

In a sometimes strongly worded decision, U.S. District Court Judge Diane Humetewa said the claims brought by attorneys for the 11 would-be Republican electors who would vote for President Trump are based on theories that Secretary of State Katie Hobbs conspired with various foreign and domestic individuals and companies to manipulate the results and allow Biden to win.

“The allegations they put forth to support their claims of fraud fail in their particularity and plausibility,” the judge wrote.

“Plaintiffs append over 300 pages of attachments, which are only impressive for their volume,” Humetewa said. “The various affidavits and expert reports are largely based on anonymous witnesses, hearsay, and irrelevant analysis of unrelated elections.”

But the judge said that isn’t the only reason she threw out the case without giving the challengers a chance to present their evidence.

She said federal courts are allowed to handle only those cases where the challengers have actual standing. That, said Humetewa, requires them to show an actual injury, that the injury is fairly traceable to the conduct they are challenging, and that their injury could be addressed by a favorable court ruling.

Diane Humetewa

Diane Humetewa

Only thing is, she said, the electors cannot meet their burden.

They are not candidates for office whose election could be changed with a ruling. Instead, Humetewa said, electors under Arizona law have a purely “ministerial function” to cast their ballots for the presidential candidate who got the most votes.

“Notably, the Republican candidate whose name was on the ballot is not a plaintiff in this case,” she said.

Humetewa looked no more kindly on the claim that alleged breaches of Arizona election laws permitted illegal votes, allowing voter fraud which effectively diluted the lawful votes that were cast.

“Absent from the complaint is an allegation that plaintiffs (or any registered Arizona voters for that matter) were deprived of their right to vote,” the judge said

“Instead, they bring baseless claims of disparate treatment of Arizona voters, in subjecting one class of voters to greater burdens or scrutiny than another,” she continued. “They do not allege what ‘class’ of voters were treated disparately.”

And there’s something else.

“To give plaintiffs the relief they desire would disenfranchise the nearly 3.4 million Arizonans that voted in the 2020 General Election,” Humetewa said. “Under plaintiffs theory of dilution, this would transform all of the alleged diluted votes from being ‘diluted’ to being destroyed.”

The judge also said that, with narrow exceptions, the U.S. Constitution prohibits individuals from suing the state or the officials named — Hobbs and Gov. Doug Ducey — in federal court.

“None of these exceptions are present here,” she wrote.

Humetewa also said the lawsuit, filed earlier this month, comes too late.

The challengers argued that some of the fraud — particularly related to claims that Dominion voting machines and software were rigged to produce more votes for Biden — were not known until election night. That’s when their experts said they noticed a “blip” in data that showed a dump of votes for Biden.

A poll observer stretches outside a polling station on Election Day, early, Tuesday, Nov. 3, 2020, in Glendale, Ariz. (AP Photo/Matt York)

A poll observer stretches outside a polling station on Election Day, early, Tuesday, Nov. 3, 2020, in Glendale, Ariz. (AP Photo/Matt York)

But the judge said there’s nothing new here. She said the challengers themselves admitted they were aware of suspected irregularities with Dominon voting machines as early as 2018.

Humetewa said there are reasons that courts require claims to be brought promptly. That, she said is prejudice to those being sued.

“The prejudice to the defendants and the nearly 3.4 million Arizonans who voted in the 2020 General Election would be extreme, and entirely unprecedented, if plaintiff were allowed to have their claims heard at this late date,” she said.

Finally, the judge said, the lawsuit sought to block Ducey from transmitting the certified results to federal officials, force Ducey and Hobbs to decertify the election, declare that there was ballot fraud, require a manual recount of early votes and allow the challengers to seize and inspect voting hardware and software as well as security camera recordings.

“Obviously, the court cannot enjoin the transmission of the certified results because they already have been transmitted,” Humetewa said. And she said nothing in federal law even authorizes her to order such an action.

An appeal is likely given that plaintiffs in similar cases in other states have sought review.

The decision comes as state GOP Chair Kelli Ward weighs trying to get the U.S. Supreme Court to overturn a decision of the state’s high court upholding the election returns.

Dr. Kelli Ward, chairperson of the Republican Party of Arizona, speaks to a gathering inside the Yuma GOP Headquarters, Monday Aug. 17, 2020, before introducing U.S. Congressman Paul A. Gosar.  (Randy Hoeft/Yuma Sun via AP)

Dr. Kelli Ward, chairperson of the Republican Party of Arizona, speaks to a gathering inside the Yuma GOP Headquarters, Monday Aug. 17, 2020, before introducing U.S. Congressman Paul A. Gosar. (Randy Hoeft/Yuma Sun via AP)

In a video message to supporters, Ward said the justices, in upholding a lower court ruling that also went against her, did not seem to understand the nature of her complaint.

“Yes, the Supreme Court in Arizona dismissed our case and said that there’s not enough evidence,” she said. “Well, the case was about finding more evidence.”

For example, she said, the restrictions and social distancing requirements due to the COVID-19 outbreak “made it very difficult for our observers to meaningfully observe the duplication process, the signature verification process, the digital adjudication process, all of those things which is what our case has been about.”

“We found some abnormalities,” Ward said. “And we need to look for more.”

The justices did acknowledge that there were some errors made when damaged ballots had to be duplicated by hand so they could be read by the machines.

But Chief Justice Robert Brutinel, writing for the unanimous court, pointed out that the trial judge allowed a random sample to be examined. It turned up an error rate of about a half a percentage point.

Robert Brutinel

Robert Brutinel

Only thing is, applying that rate to the more than 27,000 ballots that were duplicated would have added a maximum of 153 votes for Trump, far short of the more than 10,000 vote lead credited to Democrat Joe Biden.

Ward also suggested Wednesday that Maricopa County was not doing a good job of verifying signatures on envelopes with early ballots. She said fewer than 600 were rejected for mismatched signatures, a figure Ward said was far less than four years ago.

But here, too, the high court pointed out that expert witnesses — including her own — were unable to find a single instance of verifiable fraud on any of the 100 sample ballots they reviewed.

It is true that Maricopa County Superior Court Judge Randall Warner declined to hear evidence that GOP observers did not have adequate access to reviewing the counting process. But Warner said if there was a problem it should have been brought to the court while counting was going on, when something could have been done about it, rather than try later to void the election.

Ward also complained about a ruling earlier this year by U.S. District Court Judge Steven Logan which extended the state’s voter registration deadline beyond Oct. 5. Logan agreed with challengers that the problems of getting people signed up due to COVID-19 restrictions merited additional time.

Logan eventually was overruled by the 9th Circuit Court of Appeals.

But it did create a 10-day window beyond the normal deadline. And Ward complained that, too, could have led to election irregularities.

“We do know that it was going to be very difficult for our recorders to actually appropriately vet those people to make sure that they were legally qualified to cast a vote in our election,” she said.

That issue, however, was not part of her lawsuit.

 

 

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