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Legal argument by Dem election superlawyer will aid GOP challenge, 'upend' Arizona AG race: Hamadeh

GOP nominee Abe Hamadeh fell just 280 votes short of winning, but at least 1,200 provisional ballots cast by high-propensity voters were "erroneously rejected," calculates state's former assistant attorney general.

Published: April 12, 2023 11:08pm

Updated: April 13, 2023 10:33am

A legal argument by Democrats' go-to election superlawyer Marc Elias may boomerang to "upend the Arizona Attorney General race," according to defeated GOP nominee Abe Hamadeh, who is challenging the election in court.

Hamadeh is suing his opponent, Arizona Attorney General Kris Mayes, to ensure all votes were counted in their midterm election contest, which Hamadeh lost by just 280 votes, according to an automatic statewide recount.

In a legal challenge to an Arizona election integrity law pending before the Ninth Circuit Court of Appeals, Elias' law firm argues that the cancellation of multiple voter registrations for a single voter across different counties could result in voter suppression of populations that frequently move. 

"Elias is unintentionally going to get disenfranchised votes from the November 2022 election counted which will upend the Arizona Attorney General race," Hamadeh tweeted on Wednesday. "I look forward to working with ⁦[Marc Elias]⁩ and the team to ensure that democracy is honored."

Meanwhile, the Democratic National Committee has parted ways with Elias, citing strategic disagreements, according to a report on Wednesday.

On Tuesday, Mohave County Superior Court scheduled oral arguments on May 16 for Hamadeh's motion for a new trial, which he filed after learning that vote total discrepancies in Pinal County were allegedly not brought to the attention of his legal team or the judge in his initial election challenge.

As Hamadeh's case moves forward, the Elias Law Group's separate lawsuit challenging an Arizona election integrity law could aid the GOP nominee's case.

In August 2022, Arizona Alliance for Retired Americans, Voto Latino, and Priorities USA first sued then-Arizona Secretary of State Katie Hobbs and then-Attorney General Mark Brnovich with the help of Elias Law Group over Senate Bill 1260, which was enacted in June 2022. The Yuma County Republican Committee intervened in the lawsuit in defense of the new law.

The lawsuit argues that the bill "violate[s] the First Amendment's rights to free speech and association and the First and 14th Amendments' protections against undue burdens on the right to vote," according to a summary by Elias' progressive elections news source, Democracy Docket.

S.B. 1260, according to Democracy Docket, "requires county recorders to cancel a voter's registration if they receive confirmation that the voter is registered to vote in another Arizona county, creates a process to remove voters from the state's permanent vote-by-mail list if the voter is registered in another county and makes it a felony to forward a mail-in ballot to a voter who may be registered in another state."

The lawsuit warns that the bill's provision for the cancellation of a person's voter registration does "not require county recorders to notify the voter or ask for their consent before canceling their voter registration," nor require "recorders to make any inquiry at all of the voter, including to find out where the voter currently resides and intends to vote."

As a result, the law "place[s] an undue burden of affirmative cancellation on voters, particularly those who frequently move or change residences, because voters must cancel their other voter registrations if they want to prevent their current voter registration from being canceled," according to the lawsuit.

In September, the U.S. District Court for the District of Arizona "temporarily halt[ed] the enforcement of the cancellation and felony provisions," which meant they weren't to take effect during the 2022 midterm elections.

The appeal of the order is scheduled to be heard by the Ninth Circuit Court of Appeals on May 16.

Elias' legal argument against the cancellation of multiple voter registrations actually helps Hamadeh's case, former Arizona Assistant Attorney General Jennifer Wright told Just the News on Monday.

Wright, who served in the civil division of the AG's election integrity unit under Brnovich, joined Hamadeh's lawsuit in January.

While the district judge stopped the new law from canceling voter registrations in more than one county for a single voter, there are still policies and procedures remaining in effect that allow the cancellations, Wright explained.

The cancellation provision applies when someone registers to vote in a new county while they are already registered to vote in a different county. In such cases, the new registration replaces the original one, which is canceled.

The audit of the 2020 presidential election in Arizona found that there were voters who registered to vote in multiple counties and voted in more than one county, according to Wright, which is what led to the cancellation provision in Senate Bill 1260. But the issue that occurred in the 2022 midterm elections, she explained, is that high-propensity voters who were previously registered to vote had to cast provisional ballots when they learned at voting centers on Election Day that they weren't registered to vote.

While there were nearly 9,000 provisional ballots rejected statewide during the 2022 general election, Hamadeh's legal team estimates that, based on their research, at least 1,200 of them across roughly half of the state's counties were "erroneously rejected," Wright said, and there could be more in other counties.

Those 1,200 provisional ballots were cast by high-propensity voters, which is unusual, she explained, because typically provisional ballots are cast by first-time or low-propensity voters who aren't fully aware of all the requirements they must meet to vote.

Wright explained that it's common for Arizonans to have two properties and if they register a vehicle at their secondary property with the motor vehicles department, there is a pre-checked box on a form for that process that moves a person's voter registration to the new location.

She noted that provisions in Arizona's 2014 Elections Procedures Manual included safeguards that prevented voters from being erroneously removed without notifying them. However, those safeguards were removed in the 2019 Elections Procedures Manual, which Wright said she didn't initially realize when she was assisting the attorney general's office in defending the challenged election integrity law.

Given that Hamadeh was just 280 votes short of victory in the attorney general's race and there are at least 1,200 provisional ballots that were cast by high-propensity voters, it is possible that if those are counted, he could win, Wright argues.

While Wright said she disagrees with Elias on allowing voters to be registered to vote in multiple counties, she added that it is unfair to voters if their registration is changed without them realizing and consenting to it, and it also violates procedural due process.

Elias argued that the cancelation of voter registrations "would disenfranchise voters," Wright told the "Just the News, No Noise" TV show on Wednesday. "And under the safeguards that should be in place under the National Voter Registration Act," counties "shouldn't have been canceling valid registrations," she added, "but our campaign is finding they did."

"This is a violation of the NVRA and of people's civil rights," Wright concluded.

Elias' "doomsday argument," she told Just the News, "came to fruition but not in the way he thought it was gonna happen, and his exact arguments could now be used to get Abe into office."

Elias Law Group and Mayes didn't immediately respond to requests for comment on Wednesday.

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