Attorney asks court for redo of 2022 election

An election worker gathers tabulated ballots to be boxed inside the Maricopa County Recorders Office, Thursday, Nov. 10, 2022, in Phoenix. (AP Photo/Matt York)

Attorney asks court for redo of 2022 election

A Scottsdale attorney who is a supporter of Kari Lake is asking the Arizona Supreme Court to void not just the results of the race for governor she lost but the entire 2023 election statewide.

In a new filing, Ryan Heath contends that it was illegal for Maricopa County to verify signatures on early ballots by comparing them with images from prior early ballots. He contends Arizona law says the only valid comparison must be with the person’s original voter registration.

So, Heath is asking the justices to decertify the results and order a recount of all early ballots, this time using what he argues is the only permissible method.

If that isn’t possible, Heath tells the court, then a new statewide canvass should be ordered, but counting only the votes from the other 14 counties which he says use the proper method of comparing signatures.

And if the justices don’t find either of those acceptable, Heath proposes to decertify all state races, including ballot measures, and order a new election to be conducted in Maricopa County “in a manner that ensures strict compliance with Arizona’s election safeguards.”

In some ways, Heath’s arguments are not new.

Lake, records, election, Maricopa County
Kari Lake (AP Photo/Ross D. Franklin)

In fact, he proffered similar legal theories in a “friend of the court” brief earlier this year in the middle of Lake’s so-far-unsuccessful efforts to get the results of her loss overturned. The justices rejected it as exceeding their word limits.

And Heath conceded in his new filing that even Lake objected to his efforts to intercede in her case.

There was no official response from the county. But the litigation is likely to get a fight from county officials who have argued that state law does not limit their signature comparisons to only a voter’s original registration, something that may have occurred years earlier, but can include other examples on file.

At the center of the dispute is a section of the state Election Code dealing with early ballots. It requires the county recorder to “compare the signatures thereon with the signature of the elector on the elector’s registration record.”

There are procedures for election officials to contact a voter in cases of “inconsistent” signatures to allow the ballot to be counted. But Heath says none of that permits a county, on its own, to simply decide that other signatures on file can be used for comparison.

What makes all that relevant is that questions about whether some early ballots were improperly accepted.

Any move to eliminate the ballots that Heath contends were illegally tallied is likely to favor Republicans. That is because most Democrats generally outpolled their GOP foes among early voters, with Republicans generally faring better among those who waited until Election Day to go to the polls.

Eliminating the challenged early ballots could change the outcome of several races.

That is part of the argument that Heath is raising on behalf of two listed clients.

One is David Mast who was also behind that unsuccessful attempt to intercede in the Lake case.

According to the lawsuit, Mast voted in person. But Heath argues that his votes – he doesn’t say for whom – were “diluted” by the inclusion of illegal early ballots where the county did not follow the law on signature matching.

The other is Cochise County Supervisor Tom Crosby who, in a separate legal action, had to be ordered by a judge to certify the results of the 2022 election after he and fellow Republican Peggy Judd pushed for a hand count based on claims that vote-counting machines are prone to hacking or otherwise untrustworthy.

That county, said Heath, follows the law and compares signatures on ballot envelopes with the voter registration record.

“His mail-in vote was treated differently than mail-in votes verified and tabulated in Maricopa County,” the lawsuit states. “The inclusion of illegal votes in Maricopa County thus diluted the strength of Crosby’s vote.”

All that, Heath argues, has ripple effects.

It starts, he said, with Gov. Katie Hobbs who the record shows beat Lake by 17,117 votes.

“As a result of Maricopa County’s wrongful conduct … the legality of her office is in doubt,” the legal papers say. Ditto Kris Mayes who won by 280 votes.

Heath also brings into question the outcome of Proposition 308 which allows those in the Deferred Action for Childhood Arrivals program who meet other qualifications to attend public colleges and universities paying the same tuition as Arizona residents. It won by 60,443 votes statewide, and by 75,447 votes in Maricopa County.

And he is arguing that Proposition 309, which mandated new voter identification figures, failed by 18,488 votes statewide, including 36,149 more votes against it than for it in Maricopa County.

Heath also told the justices it’s not too late for them to consider the issue – and to overturn election results.

He cited a 1996 race for a seat on the Yuma County Board of Supervisors which was declared for Republican Clyde Cumming after all votes, including absentee, were counted. The margin of victory was 23 votes.

Democrat Tony Reyes filed suit, arguing that county supervisors did not compare the signatures on the envelopes as required by law. A trial court judge rejected the bid, saying county officials were in “substantial compliance” with what is required.

But that was overturned — more than a year later — when the state Court of Appeals ordered the results set aside. Heath said that resulted in the rest of the Republican-controlled board appointing Cumming to the seat he had just lost.

The difference in this case, however, is that Maricopa County officials did compare ballot signatures. The only issue is which signatures on file were used for that comparison and whether the county’s procedures comply with state law.

Even if the justices take the case – and even if they conclude Heath’s reading of the law is correct – they may decide to make their ruling of what the law requires only prospective. That would leave the results of the 2022 election undisturbed.

This isn’t Heath’s first effort to alter the results of the 2022 race.

In January, he filed legal papers asking Maricopa County Superior Court Judge Peter Thompson to void his order dismissing Lake’s challenge to the election results. The judge refused.

Lake still has a pending appeal of one of Thompson’s prior rulings against her on a related question of whether the county used proper signature verification procedures. That claim is based not on which signatures the county used for verification but her argument that it was not possible for the county to perform the necessary verification in the time they provided, citing statistics that about 274,000 signatures on early ballots were compared on computer screens in less than three seconds, with about 70,000 in two seconds or less.

Also still outstanding is a bid by Republican Abe Hamadeh to get a new trial in his challenge to Mayes being declared victor in the race for attorney general. Hamadeh contends Mohave County Superior Court Judge Lee Jantzen refused his bid to examine more ballots to determine if all legal votes were counted.