Judge rejects Lake, Masters bid to extend voting

Judge rejects Lake, Masters bid to extend voting

Voters wait to cast their ballots at Memorial Presbyterian Church, a busy polling place in central Phoenix, Tuesday, Nov. 8, 2022. Tabulator machines inside the polling site were having trouble reading ballots, causing long lines and additional delays to counting the voting. (AP Photo/Nathan Ellgren)

A Maricopa County judge rejected an eleventh-hour plea from Republican candidates to keep the polls open for another three hours on Tuesday night. The lawsuit followed problems with voting equipment at some voting locations around the county. 

Citing what they called “widespread technical malfunctions and poll worker errors in Maricopa County,” a lawyer for Republican gubernatorial candidate Kari Lake, GOP Senate candidate Blake Masters, and Republican PACs said that voters were disenfranchised by the technical problems. 

Speaking around 6:35 p.m. – less than half an hour before polls were set to close – attorney Kory Langhofer said that the high stakes of the election were another reason Judge Timothy Ryan should tell the county to keep polls open for provisional ballot voting until 10 p.m. 

Kory Langhofer

“In this election, these errors can determine the outcome,” Langhofer said. 

He cited testimony from several voters who said they were unable to scan their ballots at polling places, but when they went to vote at another location, were told they had already cast a ballot. In those instances, the voters cast provisional ballots or submitted their vote in other ways, according to arguments at the Tuesday night hearing. 

But Thomas Liddy, an attorney representing Maricopa County, said it’s “simply not true” that voters were denied a chance to cast a ballot. He pointed out that none of the more than 200 voting centers throughout the county closed on Tuesday. “Not a single one was closed. Not for a single minute,” Liddy said. 

And he said the TRO was a bad idea because it would result in different election procedures in Maricopa County and the rest of the state. “We must treat all counties the same,” he said, referencing issues in the U.S. Supreme Court case Bush v. Gore that determined the 2000 presidential election. 

At 6:55 p.m., immediately after attorneys’ arguments, Ryan denied the motion for a Temporary Restraining Order. 

The court “does not have any evidence” that a voter was denied a right to vote, the judge said. 

Ryan was appointed to the court by former Democratic Gov. Janet Napolitano in 2005. 

The case stemmed from reports on Tuesday morning that several electronic tabulation machines in Maricopa County were rejecting some ballots. In a news conference, Maricopa County Supervisor Bill Gates said machines at “about 20%” of the county’s 223 voting centers were affected. 

In Maricopa County, voters casting their ballot on Election Day fill out a physical ballot, which is then fed into an electronic tabulation machine. 

The lawsuit alleged that “(a)t least 36% of all voting centers across Maricopa County have been afflicted with pervasive and systemic malfunctions of ballot tabulation devices and printers.” Langhofer said that figure came from information gathered by attorneys on his team. 

When county officials announced the issue in the morning, they said it shouldn’t prevent people from voting. They instructed voters to either drop ballots into a secure box for later tabulation, or to toss their ballot and go vote at another location. 

“This is something we’ve prepared for,” Gates said in a video posted to Twitter. 

And by early afternoon, county staff said they’d found a solution to the problem that involved printing ballots with a darker tint. Shortly before 2:30 p.m. the County Elections Department tweeted that the fix had been implemented 

But Langhofer said that further damage had been done by bad instructions from poll workers. They’d told voters whose ballots couldn’t be read to go to a different voting center without instructing the voters to first “check out,” of the polling site they were at, he said, which could lead to issues when they arrived at a new location. 

Roy Herrera, a Democratic attorney, said the lawsuit’s timing was a problem. He argued that if the plaintiffs wanted to keep the polls open, they shouldn’t have waited until the afternoon to file the case, since they knew about the issue in the morning. 

Herrera represented Democratic U.S. Sen. Mark Kelly, Masters’ opponent, who intervened in the case. 

The case came in the final minutes of an election that will be closely watched and highly scrutinized. Two years after Joe Biden won Arizona’s 2020 presidential election, allegations of fraud in the 2020 election were at the heart of year’s midterm campaign. 

Both Lake and Masters have claimed that former President Donald Trump was the rightful winner in Arizona in 2020. 

What’s more, voting center check-in statistics showed that a significant majority of Election Day voters were Republicans, meaning any election day problems could have a disproportionate impact on GOP candidates. That’s likely because Republican candidates encouraged voters to cast their ballots on Election Day, arguing that early and mail-in voting is more vulnerable to fraud. 

Langhofer tried to draw a line between Tuesday’s case and wider claims about election irregularities. 

“This is not a case about election fraud,” he said at the outset of the hearing. 

But online, MAGA Republicans seemed to be implying just that. 

Kelli Ward, chairwoman of the Republican Party of Arizona, tweeted about the tabulation problems and suggested it was the result of wrongdoing by the county elections department. 

She also tweeted, “PSA: Hey, Maricopa County voters! Go vote in a Democrat stronghold. The machines and ballots seem to be fine there.” 

“This is incompetency. I hope it’s not malice,” Lake told reporters outside of a tabulation center in downtown Phoenix on Tuesday 

Even Trump addressed the issue, in a video directed at Arizona voters. “There’s a lot of bad things going on,” he said. “You cannot let them delay you out of voting.”   

That narrative is what Tammy Patrick, a former federal compliance officer for the Maricopa County Elections Department, was expecting. 

“Any issue that comes up is going to be leveraged, twisted, turned into some sort of a cudgel to decry the legitimacy of an election, and it couldn’t be further from the truth,” she said on Tuesday morning. 

Maricopa County elections are run by Republicans. Early voting is carried out by the County Recorder’s Office, run by Republican Stephen Richer. Election Day operations are under the purview of the five-member board of supervisors. Four of the supervisors are Republicans. 

Wayne Schutsky contributed reporting