Listen to this articleRebuffed in prior legal attempts to overturn his loss in the race for attorney general, Abe Hamadeh now is trying to get a judge to declare that Kris Mayes is holding office illegally.
But that doesn’t mean, as he claims in new legal filings, that he will automatically replace her.
In court documents, Hamadeh repeats his claims that Maricopa County improperly included some early ballots in its count of the 2022 election. What that means, he said through attorney Ryan Heath, is that Mayes “has usurped, intruded into or unlawfully holds or exercise the public office of attorney general.”
What’s different with this new claim is that Hamadeh wants Maricopa County Superior Court Judge Brian Kaiser to order the state to install him as attorney general, “an office to which petitioner is personally entitled.”
All this is built around Hamadeh’s continued insistence that some votes were illegally counted.
He contends that Arizona law allows early ballots to be tallied only if the signature on the affidavit on the outside of the envelope matches what is on the person’s original voter registration record. By contrast, Maricopa County – and some others – also do comparisons with other signatures on file, such as those on requests for early ballots.
As proof, Heath is citing a preliminary ruling earlier this year by Yavapai County Superior Court Judge John Napper who said state law is “clear and unambiguous” that election officials must compare the signatures on the envelopes with the voters’ actual registration record. And that, the judge said, consists only of the document signed when a person first registered along with subsequent changes for things like altering party affiliation.
Napper, however, has yet to issue a final ruling. And even if that occurs, it is likely to be appealed.
But Heath, writing for Hamadeh, is using that to advance his argument.
“If mail-in ballot votes were properly rejected because the signatures on the mail-in ballot affidavits were not consistent with the voters’ signatures on their ‘registration records,’ then petitioner would have won the contested race,” Health wrote for Hamadeh. “At the very least, the contested race is uncertain as a matter of law – requiring nullification.”
Only thing is, that’s not the way the law works.
Arizona does allow someone to file what is known as a “quo warranto” action seeking a declaration that someone is holding office illegally.
That’s what happened in 1999 in a challenge to the 1998 election of Republican Tony West to the Arizona Corporation Commission.
In a 3-2 ruling the Arizona Supreme Court ruled he was illegally elected because he was ineligible to hold the office.
The justices said he broke a state law that prohibits someone who is “subject to regulation by the commission” from being elected to the agency. West held a commission-issued license to sell securities when he was elected.
That ruling, however, did not install Democrat Paul Newman, whom West had defeated.
Instead, the declaration of the office being vacant meant that Renz Jennings – who had not sought reelection – was reinstated to the post he had held before the election. That is based on a section of the Arizona Constitution which says that the term of any elected officer “shall extend until his successor shall be elected and shall qualify.”
Jennings, in turn, got to serve until then-Gov. Jane Hull, required to name a replacement who had to be a Republican like West, tapped Bill Mundell to fill out the term.
What that means is that even if Hamadeh, using the same legal arguments about election irregularities that have been dismissed in other challenges, manages to have Mayes declared to be holding office illegally, he doesn’t get the job as he is asking.
Instead, that would put Republican Mark Brnovich, who did not seek reelection in 2022, back in charge of the agency, at least for the moment.
But that would be short lived – only until Democratic Gov. Katie Hobbs gets to name a replacement. And that person would have to be a Democrat, like Mayes.
Whether Hobbs could reappoint Mayes, however, remains an open question.
This isn’t the first time Heath has advanced that theory about ballot signatures on Hamadeh’s behalf.
In August, the Arizona Supreme Court threw out his bid to have Maricopa County redo the process they used to verify the signatures on early ballot envelopes.
Neither Hamadeh nor Heath returned messages seeking comment about whether there actually is a legal avenue to have the election voided and the Republican contender installed as attorney general.
But Heath apparently has some fallback positions if Kaiser isn’t buying it.
One is his request that the judge compel Maricopa County to redo the signature verification process, this time only counting those where a signature matches the original voter registration record. Heath concedes, though, that could be impossible, as the ballots were separated from the envelopes more than a year ago, after the county verified the signatures.
“In the event that cannot be done, then the election results for the contested race should be set aside and a new election held as soon as possible,” Heath wrote. He said that could happen as early as Feb. 12.
Hamadeh already is asking for that in another lawsuit, also filed by Heath.
It complains that problems in Maricopa County with printers and tabulators on Election Day resulted in long lines. Heath contends 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 from polling places without voting.
There was no comment about the new litigation from Mayes.
While Hamadeh continues to contest his 280-vote loss for attorney general, he has since announced his candidacy for Congress in CD 8. That is the heavily Republican district encompassing part of Glendale, Peoria, Sun City West and New River which has an open seat after incumbent Debbie Lesko decided not to seek another term.
Hamadeh has picked up the endorsement of former President Trump.
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