By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A judge on Tuesday dismissed a claim by Abe Hamadeh that his constitutional rights were violated in the 2022 race for attorney general that he lost as nothing more than a too-late election challenge.

That makes the GOP contender zero-for-three in his efforts to overturn his loss to Democrat Kris Mayes or at least get an election do-over.

In an extensive ruling, Maricopa County Superior Court Judge Scott Blaney said it may be that Hamadeh has valid claims about problems with the election. These include problems with printers at Maricopa County voting centers resulted in long lines — lines the Republican contender said resulted in some voters simply walking away.

More to the point, Hamadeh and his legal allies at AZ Voters Rights said these dissuaded voters were more likely to have been Republicans. And that, he said, could have changed the results of the race he officially lost to Mayes by 280 votes.

All that, he charged, violated his rights of equal protection and due process. That, said attorney Ryan Heath, provides legal grounds to set aside the certified results and order Maricopa County to re-do the election.

All that, said Blaney, is legally irrelevant.

“This case is actually an untimely election contest,’’ the judge said, no matter how it’s dressed up as a violation of constitutional rights.
“Any action contesting a state election must be filed within five days after completion of the canvass of the election and declaration of the result thereof by the secretary of state or the governor,’’ said Blaney. That would have been in the first week of December 2022; the case was filed in November 2023.

This is the third lawsuit Hamadeh has lost challenging the election results.

In one case, Mohave County Superior Court Judge Lee Jantzen found he failed to present sufficient evidence of any irregularities. The judge refused to give him a new trial to present new information, a ruling upheld by the state Court of Appeals.

Hamadeh had no better luck with a separate effort to get Maricopa County Superior Court Judge Susan Pineda to declare Mayes is holding office illegally.

That was based on a claim that Maricopa County improperly included some early ballots in its count of the 2022 election. Pineda said Hamadeh was legally incorrect in saying ballots can be counted only if the signatures on the outside of the envelopes match the voter’s registration form.

That leads to this case based on Hamadeh’s contention that Maricopa County officials botched how they handled Election Day procedures.

Attorney Ryan Heath said problems with printers and tabulators at vote centers resulted in long lines. And he claims that as many as 20% of potential voters were unable to cast their ballots, though he provided no basis for that estimate other than a handful of affidavits from people who say they eventually walked away.

The only way to resolve all that, Heath says, was to have a re-do of the race — this time following what he said are laws and procedures that would have prevented the problems at polling places.

“If the voters desire to have Kris Mayes represent Arizona as the attorney general, then a re-vote in Maricopa County will not change that result,’’ he argued. “Yet if the will of the voters was thwarted by Maricopa County’s well-publicized failures on Election Day, then that also will be clear with the issuance of the writ requested.’’
As to the delay in filing, Heath had an excuse for that.

He argued it was not until former state Supreme Court Chief Justice Ruth McGregor’s April 2023 report about what caused ballot printer issues that contributed to long lines at polling places in Maricopa County that Hamadeh learned what led to what he called disenfranchised voters, mainly Republicans.

That, Heath told Blaney, should compel him to override the law putting strict time limits on election challenges. He said such laws are unconstitutional.

“I would claim that the statute … unconstitutionally deprives my clients of their right to bring a challenge even in instances where the information is not known or could not be known until many months after the election.” Heath said. “That’s exactly what happened here.”

In his ruling Tuesday, Blaney acknowledged there is a “discovery rule” under Arizona law. In essence, it says that the five-day limit in this case does not begin to run until someone knew or should have known the facts in the case.

But the judge said that doesn’t help Hamadeh given the McGregor report was published on April 10, 2023.

“Plaintiffs cannot reasonable argue that they were unaware of the facts underlying the present case after issuance of that report,’’ Blaney wrote. “But plaintiffs waited another seven months before filing this special action.’’

There was no immediate response from either Hamadeh or Heath.
Hamadeh is currently one of six Republicans on the ballot seeking the party’s nomination for the CD 8 seat being vacated by Debbie Lesko. Whoever survives will face off against Democrat Gregory Whitten in the heavily Republican district.

The one bit of good news out of Tuesday’s ruling for Hamadeh is Blaney said he is “initially reluctant” to order the candidate to pay penalties for filing a frivolous lawsuit.

“Plaintiffs’ constitutional claims were novel and although unsuccessful, appear to have not been groundless,” the judge wrote.
That is far different than a ruling earlier this year by Pineda who tossed out Hamadeh’s claim, also filed by Heath, that Mayes is holding office illegally. The judge imposed more than $200,000 in legal fees on the candidate, his lawyers and political supporters who were part of the lawsuit.

She said once Heath agreed to represent Hamadeh and the others who sued on his behalf, he had an obligation to conduct a “reasonable investigation’’ to determine whether these were viable claims. That, the judge said, included looking at prior lawsuits on the same issues.

“He either did not do so or he chose to ignore the history of litigation that followed the 2022 general election, including the prior unsuccessful cases filed by his client,” Pineda wrote when she first ruled that the people Heath sued were entitled to recover their legal fees.