By james art PHOENIX – The appeals court won’t remove Chris Mays as attorney general and replace her with Abe Hamadeh.
That’s all because a three-judge panel on Tuesday rejected claims by Hamadeh and two of his supporters that Maricopa County improperly included some early ballots in its final tally.
Attorney Ryan Heath argued that once those early ballots are excluded from the count, the 280-vote lead Mays amassed in the 2022 race will more than disappear. And he asked the appeals court to apply a little-used legal principle known as “quo warranto” to declare that Mayes is in office illegally – and Hamadeh is the rightful holder of the office.
Hamadeh is currently running for the open seat in Congressional District 8, which represents Sun City, Sun City West and parts of Glendale, Peoria and Surprise.
Judge David Weinzweig, writing for the unanimous three-judge appeals panel, said the case seeking to overturn the results of the attorney general race suffered from a fatal flaw: It was filed too late.
Still, there was a small victory in the new decision for Hamade. The judges said he and his allies would not have to pay $200,000 in legal fees to Mayes and others who had to defend against that suit and others he brought.
At the center of the dispute is a section of the state Election Code that deals with early ballots. It requires the county recorder to “compare the signatures on it with the voter’s signature on the voter’s registration record.”
Procedures are in place for election officials to contact a voter in cases of “inconsistent” signatures to allow the ballot to be counted. But Heath argued that none of that precludes the county from deciding on its own that other signatures it has on file can be used for comparison.
In its decision, the appeals court never decided whether Heath’s legal theory was correct.
Instead, they pointed out that Maricopa County announced six months before the 2022 general election that it would decide the validity of early ballots by comparing the signatures on the envelopes to a “historical reference signature that was previously verified and determined to be a valid signature for the voter.” ” And that, the county said, could include early voting affidavits from previous elections.
Specifically, it meant the county used more than what was in the original voter registration.
That means, Weinzweig wrote, that any question Hamade had about the legality of what the county was doing should have been raised when the county announced the proceeding, not afterward.
“Voters knew or should have known about this verification procedure before the election because Maricopa County disclosed all the necessary information before the first ballot,” the appellate judge wrote. “Maricopa County is indeed using the early ballot counting procedure before Election Day.”
The appeals judges were no longer impressed with Hamadeh’s “quo warranto” claim.
It is an extraordinary legal procedure to remove a sitting public official and replace that person with someone else. Hamade said that was applicable here based on his claim that Mayes was elected with illegal votes.
But Weinzweig said that’s not how the law works.
He said such claims are allowed only if the claimant can prove that he is entitled to the position. Instead, the judge said, Hamade relied solely on what he claimed was a weakness in Mace’s own title to the office, something Weinzweig said did not fit what the rarely used law allows.
Appellate judges were more likely to grant some financial relief.
Maricopa County Superior Court Judge Susan Pineda ordered Hamadeh, his allies and Heath to jointly pay $200,000 in legal fees to Mays, Maricopa County and the Secretary of State’s office after she called the lawsuit “baseless and unjustified.”
The judge gave Heath a particular slap in the face for taking the cases at all.
She said that once he agreed to represent Hamadeh and the others who sued on his behalf, he had a duty to conduct a “reasonable investigation” to determine whether these were viable claims. That includes looking at previous lawsuits on the same issues, she said.
“He either failed to do so or chose to ignore the history of litigation that followed the 2022 general election, including the previous unsuccessful lawsuits filed by his client,” Pineda wrote in the ruling that the people sued by Heath on behalf of Hamadeh , are entitled to reimbursement of their legal fees.
But the appeals court, in overturning that order, gave Hamade the benefit of the doubt. They said his claims of a quo warranto and an invalid signature verification process were “quite debatable.”
And Weinzweig used the same phrase to describe whether Hamadeh’s claim that the county didn’t use the proper signature verification method was actually just a rehash of two previous lawsuits he lost, freeing him from the sanctions imposed by Pineda.
Hamadeh still has a separate case before the Arizona Supreme Court over his loss to Mayes. He claims Mojave County Superior Court Judge Lee Jantzen didn’t give him enough time after the 2022 election to look for evidence of irregularities in the race, a claim that has already been rejected by the Court of Appeals.