Claims that “potentially thousands” of Arizona voters were disenfranchised dissolved during a six-hour court hearing on Thursday, as a lawyer representing the president’s reelection team dialed back allegations of “systematic, improper” vote overrides.
Donald Trump’s campaign, along with the Republican National Committee and the Arizona Republican Party, had filed a lawsuit on Saturday alleging Maricopa County poll workers routinely disregarded procedures designed to give voters a chance to correct ballot mistakes on Election Day.
But within minutes of the start of proceedings on Thursday morning, attorney Kory Langhofer insisted the plaintiffs were “not alleging fraud” or “that anyone is stealing the election” — simply raising concerns about a “limited number of cases” involving “good faith errors.”
That was perhaps a prescient shift, given that testimony from several witnesses failed to bear out anything more. And before Langhofer even made his opening statement, a controversy emerged over some of the declarations from supposedly misled voters that were submitted as evidence.
Attorneys representing Arizona Secretary of State Katie Hobbs, one of the election officials who was sued, moved to have declarations collected online tossed out, arguing they lacked “any guarantee of trustworthiness.”
Langhofer acknowledged some of the online declarations were found to be false but noted those entries had been removed, saying his team had cross-referenced the remaining declarations to ensure voters were where they said they were on Election Day.
Judge Daniel Kiley was unconvinced, ultimately granting the motion to exclude the declarations collected online.
“The fact that your process for obtaining these affidavits yielded affidavits that you yourself found to be false does not support a finding that this process generates reliable evidence,” Kiley said. “This is concerning.”
Testimony doesn’t support broad claims
As the Maricopa County Elections Department continues to tabulate votes, Erika Flores, with the elections department explains how the process works on Nov. 4, 2020.
Things continued south from there for the plaintiffs.
The Trump team’s original complaint had focused on poll workers overriding potentially “overvoted” ballots instead of allowing voters to make that choice. Overvotes happen when voters mark more options than allowed in a particular race.
Because stray markings and other irregularities can cause Maricopa County tabulation machines to perceive an overvote, the tabulators are programmed to alert voters when that happens. A voter then has two choices: “Spoil” the ballot and request a replacement, or cast the original ballot with the warning that overvotes may not be counted.
The initial complaint contended voters who chose to proceed with their original ballots were entitled to a manual inspection to ensure all legitimate votes were counted by the machines, but claimed elections officials systematically disregarded that step.
And some witnesses brought forward by Langhofer indeed testified that poll workers had pushed through their ballots without an explanation after the machine initially recognized an error.
The remaining allegations seemed to fall apart under questioning, however. None of the witnesses indicated they had overvoted any race, or that they had any real reason to believe their votes weren’t counted — except for learning after the fact that poll workers shouldn’t have pressed buttons for them.
Gina Swoboda, the Arizona Election Day Operations director for the Trump campaign, said she received reports on Election Day of ballots “taking two or three chances to go through.”
“I believe that this is a justified action, that there were concerns expressed to us by the voters, by the observers,” she said.
But she noted she “would not say that, in general, the poll workers across the county had consistent, regular problems in the administration of the election.”
Attorney: Case is ‘narrow claim about a good-faith failure’
The plaintiffs originally had asked election officials to go back and identify ballots with overvotes cast in partisan races in Maricopa County on Election Day, manually inspect those ballots and discard votes only in cases when “it is impossible to positively determine the voter’s choice.”
In his closing statement, Langhofer narrowed that ask significantly, saying plaintiffs sought only a reinspection of overvoted ballots in cases where the number of overvotes was greater than the margin of the winning candidate’s victory.
It’s unclear which, if any, down-ballot races this request would affect. County officials have identified 191 overvotes in the most high-profile race, for president, where thousands of votes separate the candidates. And there are only about 950 Maricopa County ballots cast in person on Election Day with overvotes affecting partisan races in general.
Langhofer himself noted there weren’t “a tremendous number of votes” at stake, calling the suit a “narrow claim about a good-faith failure.”
That represented a marked shift from his prehearing brief, in which he claimed the “haphazard differential treatment of similarly situated ballots cast within the same geographic jurisdiction in the same election encapsulates precisely the discriminatory disenfranchisement the Equal Privileges & Immunities Clause proscribes.”
The judge seemed amenable to considering the request, saying he would take it under advisement, but attorneys for the defendants argued there was nothing in state law authorizing such an action.
An attorney for the county said the ballots in question already were tabulated, and “counting ballots that have already been counted is a recount.”
Arizona does not allow recount requests and has strict criteria for automatic recounts. In races where more than 25,000 votes were cast, the margin has to be less than or equal to 200 votes or 0.1% of votes cast for the top two vote-getters, whichever is smaller.
The judge did not indicate when he would rule, saying only that he was “aware of the time constraints and the urgency of the matter.”
Minutes later, the Arizona Republican Party announced it had filed a new lawsuit in Maricopa County Superior Court seeking to force a hand count of votes separated by precinct instead of counting them by voting center.
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