Hamadeh v Kris Mayes and Katie Hobbs motion for new trial in Mohave County Superior Court, “new and compelling information that not all legal votes were counted in the Attorney General race”
Hamadeh v Kris Mayes and Katie Hobbs motion for new trial in Mohave County Superior Court, “new and compelling information that not all legal votes were counted in the Attorney General race”
From the Hamadeh v Kris Mayes and Katie Hobbs motion for new trial.
“There is new and compelling information that not all legal votes were counted in the Attorney General race. For this reason, as well as those set forth more fully below, Contestants hereby move for a new trial on the following agrounds permitted by Rule 59(a)(1):
(A) any irregularity in the proceedings or abuse of discretion depriving the party of a fair trial; …
(D) newly discovered material evidence that could not have been discovered and produced at the trial with reasonable diligence; [and] …
(F) error in the admission or rejection of evidence, error in giving or refusing jury instructions, or other errors of law at the trial or during the action.
(Emphasis added). As this Court ruled from the bench and has not yet entered final judgement containing Rule 54(c) language, this Motion should, if necessary, be treated as a motion made pursuant to Rule 60(b). The grounds for relief under Rule 60(b) are substantially similar to the grounds set forth in Rule 59(a)(1). If necessary, this motion should also be treated as a motion pursuant to Rule 60(b) for relief from this Court’s order limiting discovery. Contestants further move that entry of final judgement be stayed, pursuant to Rule 62(a) until a new trial can be held. This Motion is supported by the following Memorandum of Points and Authorities.
MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction Arizonans are entitled to have their votes accurately and properly counted. Chavez v. Brewer, 222 Ariz. 309, 320 (App. 2009). And the purpose of an election contest under Arizona law is to ensure the will of Arizona voters is determined and the byproduct of a contest is an accurate counting of votes that produces confidence in the result. See A.R.S. §§ 16-672, et seq. Unfortunately, the recount identified more problems in an election already riddled with process failures. This further demonstrated that the vote count totals are likely inaccurate, with thousands of Arizonans’ votes not counted, thus casting further doubt about the actual result.1
Even more unfortunately, this information that was not available to this Court at the time of trial. The Maricopa County Superior Court read the results in open court, and the Secretary of State’s Office announced the results of the statewide recount on Thursday, December 29, 2022. (Exhibit A). This reduced Mr. Hamadeh’s previous 511 vote deficit by over 45% and it now stands at only 280 votes. Id. In other words, Mr. Hamadeh’s vote total is within .01% of Ms. Mayes’. Given this new margin the tiniest errors in counting are enough to change the results, or at least cast them into doubt. And there are now new reasons to believe that such errors occurred. The recount results identified significant, material discrepancies that cast doubt upon the completeness and accuracy of the election results. And at least some Defendants, including the Secretary of State, knew about these material discrepancies no later than December 21—eight days before she made the results available to Contestants and the public. (Exhibit B – Pinal County Recount Variance Report (“Pinal Report”). Yet, they were not made known to the public until after this matter was tried. If this is not grounds for a new trial, then nothing is.
The statewide automatic recount was primarily conducted by machine. However, during the course of this recount at least one county, Pinal, was conducting a parallel audit of its own elections processes which discovered discrepancies significant in the context of this race. As the Pinal County elections director explained in her report, dated December 21st, but only unsealed after trial in this matter (along with the results of the recount): “One factor underlying this disparity is that the canvass was filed prior to taking an adequate opportunity to investigate any possible anomalies we could discern from polling place returns.” (Exhibit B – Pinal Report). In other words, given more time, new evidence, and the physical inspection of ballots - the results changed.
Partial investigation into these anomalies, which primarily impacted disproportionately conservative election day voters, resulted in a net gain of 277 votes for Mr. Hamadeh. As Pinal County explained:
Learning of the poll pad check-in problem, we began to research this concern and started with Precinct 01 which showed a difference between poll pad check-ins and number of votes counted. Unfortunately, before the analysis was completed, the canvass was downloaded and filed. While analyzing this concern, we ultimately decided to open up the locked Precinct 01 ballot box. Upon examination, it appeared to contain more than 422 ballot cards which was indicated as number of cards tabulated on election day. Therefore, we physically hand counted the number of ballot cards in that box. Our hand count revealed 600 ballot cards- not 422. We selected 3 additional precincts with similar disparities (Precinct 26, 109, 15) and physically counted the number of ballots they contained. All 3 had more ballots than were reported on election day.
(Exhibit B at pg. 6.) The County further explained that this problem was largely caused by difficulties that the County’s polling place tabulators had with reading ballots, combined with human error:
[W]e believe that when a machine jammed or a jam led to an error message, it may not have been interpreted correctly. Thus, we believe this led to ballots the operator thought were counted were not actually counted and needed to be returned from the output trays to the input tray to be rescanned.
(Exhibit B at pg. 6.) In trial in this case on December 23, 2022, Scott Jarrett testified that Maricopa County did not adjudicate election day ballots which were tabulated as completely blank ballots, instead relying on the machines and poll workers to inform voters that an undervote had been read on their ballot. The evidence presented by Maricopa County is especially significant because another cause of the discrepancy in Pinal County was that “Ballots with unclear marks were not sorted out for adjudication on Election Day.” (Exhibit B-Pinal Report.) As Pinal County recognized, in circumstances such as these, taking the time to perform a physical inspection of ballots plays a key role in identifying miscounts and ensuring that all votes are properly tabulated.
Contestants applaud the process Pinal County completed to identify and correct the vote tally discrepancies. Contestants further assert that, had this information been available to Contestants when it was available to the Secretary of State, Contestants would have had the opportunity to present an even more compelling case to this Court for wider ballot inspection and thus would have had access to additional evidence to prove its case at trial. With this information imbalance, Contestants were further hamstrung in their effort to ensure election officials counted every vote accurately to determine the rightful winner of this contest.”
