UPDATE, 11/28 at 10:40am: Judge Frank Moskowitz has recused himself from the Election Contest, and a 4th judge has been assigned. Judge Randall Warner will take over the case and conduct the initial hearing as scheduled at 2pm today. (Minute Entries to follow.)
The Court may have been closed since Wednesday evening for the holiday, but several Arizona election attorneys could not take much time to eat or shop. With GOP AG candidate Abe Hamadeh filing an early Election Contest lawsuit on Tuesday and the court setting a hearing for tomorrow afternoon, the outgoing Secretary of State (/incoming Governor) and the apparent incoming Attorney General rushed to get Motions to Dismiss on file.
Counsel for Katie Hobbs and Kris Mayes each filed complementary Motions. While they covered similar arguments as to why the Complaint was deficient and should be thrown out, taken together they made an even stronger case for dismissal. And in social media, the defendants' attorneys were complimentary, too.(Link on request.)
Both Motions begin their analysis on two basic points that were obvious from the moment Hamadeh and the Republican National Committee filed the suit - the election contest statutes clearly state that the window to file the action is within the five days after the state's certification of the results, and the action must be brought "by a qualified elector". As Hobbs' Motion puts it:
"There is no question that an election contest cannot be brought until after the statewide canvass and after the challenged candidate has been declared elected, neither of which has occurred. The Court can dismiss this action for this obvious reason – which should have been obvious to experienced election law attorneys like Plaintiffs’ – alone."
The Mayes Motion adds the point that the Attorney General contest is so close (510 votes) that there will even be an automatic recount before a judge could declare Hamadeh to be the winner. It goes on to blast the inclusion of the RNC "as a qualified elector".
Both Motions blast all five substantive counts raised by Hamadeh/RNC, citing the statutes, case law and noting that the various types of relief requested by plaintiffs is beyond what the court is allowed to grant. (In fact, Mayes' Motion states in a footnote that less than a year ago in the same court "Mr. Hamadeh’s counsel know this. Mr. LaSota recently argued in another case that “the Court’s only power pursuant to [an election contest] is to issue a ruling ‘confirming or annulling and setting aside the election.’”)
Chandler attorney Tom Ryan has been involved in election cases for many years, and he is impressed by both Motions to Dismiss:
"The Motion to Dismiss filed on behalf of Kris Mayes to respond to the purported Election Contest filed on behalf of Abe Hamadeh is a master class in Arizona Election Law. Notably, there is only one footnote: to advise Hamadeh's counsel he just took a contrary position in the Arizona Supreme Court. Ouch. Dan Barr, Paul Eckstein and the legal team at Perkins Coie have this one nailed down tight....
The walk away line in Hobbs' excellent response: "Plaintiffs’ requested relief – declaring Hamadeh the winner of that race – is extreme, unfounded, and unavailable." I would add: it's conduct that should get the attorneys sanctioned."
Additionally, the most intriguing allegations in the Complaint are that 419 voters did not have their votes counted because of issues arising from the printer/tabulator issues at some Maricopa County Vote Centers on Election Day. The County today released an election report to the Attorney General's Office and in advance of tomorrow's Board of Supervisors meeting to canvass the results. In it, they explain in detail how they handled the ballots of people who left one Vote Center after checking in to cast their ballot at a second Vote Center. Of those 206 voters, all but 13 have had their votes included in the final results. Two of those refused to put their 2nd ballot in a provisional envelope, and the County could not verify that there had been a printer or spoiled ballot issue prompting the other 11 to get a new ballot at a different location.
The initial hearing in this election contest will take place Monday afternoon in front of Judge Frank Moskowitz. (There was some uncertainty about the hearing because Moskowitz is the 3rd judge to be assigned, and the holiday delayed the public posting of some Minute Entries.)
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