PHOENIX — With the tally of votes now showing Joe Biden winning ÃÛèÖÖ±²¥, the state Republican Party and its allies are trying last-minute legal tactics to keep that from happening.
Two new lawsuits come as the former vice president on Friday had a lead of 10,998 votes over Donald Trump.
The Secretary of State's Office says there are just 6,670 ballots yet to be counted.
Meanwhile, the president's reelection campaign agreed Friday to drop its demand for a hand count of certain ballots cast at polling places on Election Day to see if they were properly recorded. Attorney Kory Langhofer told Maricopa County Superior Court Judge Daniel Kiley that with just 191 ballots at issue, the latest vote tallies makes the outcome of that claim moot.
Despite that decision — and despite the vote tallies that show there just aren't enough uncounted ballots for Trump to catch up — state GOP Chair Kelli Ward insists this isn't the end.
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"We are getting close to recount territory here," she said Friday in a video message.
That is debatable given that state law would appear to require Trump to be within 200 votes of Biden to trigger a new count.
But the two new lawsuits are the best — and perhaps only — chance that the president has to getting close to that margin and taking the state's 11 electoral votes.
One contends that Maricopa County is not complying with state laws which require there be a hand-count audit after each election to ensure that what was recorded by the voting machines matches the ballots that went into them.
That was done with no irregularities found.
But attorney Jack Wilenchik representing the ÃÛèÖÖ±²¥ Republican Party says state law requires that the sample has to be done of at least 2% of all the precincts. In Maricopa County, he said, with 748 precincts, that would require checks at 15 separate precincts.
Only thing is, Maricopa County uses "voting centers" rather than requiring residents to cast a ballot at the specific precinct in which they live. This year, Wilenchik said, there were about 175 of these.
And what that means, he said, is that an audit of 2% of 175 voting centers is not sufficient, regardless of how many people voted at each one.
While the GOP is suing only Maricopa County, the lawsuit also could affect Yuma, Yavapai, Santa Cruz, La Paz and ÃÛèÖÖ±²¥ counties which also use vote centers.
In a separate lawsuit, attorney Alexander Kolodin says that Maricopa County — and presumably all others — have no specific way to determine whether a given voter's choices were properly counted.
That goes to the question of what happens when a ballot is not automatically accepted and read by tabulating machines at polling places, whether because of problems with the equipment or other issues. These instead are set aside for hand review at county offices.
Attorney Alexander Kolodin charges that one of the women he represents — the same who brought the never-proven claim about how the use of Sharpies and bleed-through on ballots was affecting the count — never had her vote counted at all. And he said his other client, whose ballot had to go through separate review was denied the right have her vote "counted via a fully automated and perfect process," as were others in a similar situation.
There was no immediate response from attorneys for the county to either lawsuit.
Time is running out.
The state is supposed to certify the election results on Nov. 30. And the electors who will cast their ballots for who won the majority in the state are supposed to be appointed by Dec. 8.
Hearings in both cases are set for Monday.
The legal maneuverings fit into what has been the position of Trump and his supporters that there has been something amiss about the voting process this year.
"ÃÛèÖÖ±²¥ voters deserve complete assurance that the law will be followed and that only legal ballots will be counted in the 2020 election," Ward said.
That mirrors repeat comments of the president himself who has insisted he will will if only the "legal votes" are counted, not just in ÃÛèÖÖ±²¥ but elsewhere.
But none of this will matter unless any of the lawsuits result in orders that get more votes tallied and bring Trump within recount territory.
State law does require a recount when the difference between candidates is less than 0.1% of the votes cast for the office. At this point, that would be about 3,400.
But there is a separate provision governing any race for "state electors," which is technically what people who were voting for Trump, Biden and Libertarian Jo Jorgensen was choosing. That figure is just 200.
Despite that, state GOP spokesman Zach Henry said the outstanding votes plus "ongoing litigation in the courts" should be enough to force that recount.
Wilenchik's contention that audits done by voting centers is illegal already is getting some legal pushback.
In letters to legislative leaders, Joe Kanefield, the chief deputy state attorney general, pointed out that lawmakers specifically allowed counties to operate centers. And Kanefield, himself a former state elections director, said the statutes left it up to the secretary of state to come up with specific rules for how to conduct these audits.
That, he said, was codified in the Election Procedures Manual which specifically allows audits of 2% of vote centers. And since that manual was approved by both Attorney General Mark Brnovich, who is Kanefield's boss, as well as Gov. Doug Ducey, both of whom are Republicans, it could mean that the state party is now picking a fight with its top elected officials.
Wilenchik does not dispute that the hand counts already done by the county of the vote centers, which are chosen jointly by Democrat and Republican party officials, have shown no discrepancies between the recorded tally and the hand count. But he said what's needed to truly check the veracity of the vote is that precinct-by-precinct breakdown.
"It makes it easier to sort the data that comes out of the sampling, to compare it with the voter registration database data," he told Capitol Media Services, figures that are broken down by precinct. That, Wilenchik said, ensures that there aren't more ballots being counted than people who actually are supposed to have voted at that location.
"If instead they do the sampling based on the vote centers, that's sort of worthless to us because we can't sort that data," he said. "The voter registration data is not based on vote centers."
Wilenchik conceded that state law does specifically allow for vote centers. And he said he did not know how a county would then organize the already cast ballots by precincts — as he contends is required for the post-election audit.
He said it's possible that the ballots are in some way encoded to show to which precinct a voter was assigned.
And if not?
"Then count all of them," he said. Wilenchik said it can't be that hard, pointing out that's exactly what's taking place in Georgia for the presidential race.
Even if Trump can't be aided by the litigation, any adjustment of votes could make the difference in some down-ballot races like the one for state Senate in LD 28 where incumbent Republican Kate Brophy McGee is 495 votes behind Democrat challenger Christine Marsh.
Photos: 2020 General Election in Pima County and ÃÛèÖÖ±²¥
Ballot processing in Pima County
Ballot processing in Pima County
Ballot processing in Pima County
Ballot processing in Pima County
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Ballot processing in PIma County
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Election 2020 Senate Kelly
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Election Day, Pima County and ÃÛèÖÖ±²¥, 2020
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Judge throws out lawsuit, finds no fraud or misconduct in ÃÛèÖÖ±²¥ election
PHOENIX — A judge tossed out a bid by the head of the ÃÛèÖÖ±²¥ Republican Party to void the election results that awarded the state’s 11 electoral votes to Democrat Joe Biden.
The two days of testimony produced in the case brought by GOP Chairwoman Kelli Ward produced no evidence of fraud or misconduct in how the vote was conducted in Maricopa County, said Maricopa County Superior Court Judge Randall Warner in his Friday ruling.
Warner acknowledged that there were some human errors made when ballots that could not be read by machines due to marks or other problems were duplicated by hand.
But he said that a random sample of those duplicated ballots showed an accuracy rate of 99.45%.
Warner said there was no evidence that the error rate, even if extrapolated to all the 27,869 duplicated ballots, would change the fact that Biden beat President Trump.
The judge also threw out charges that there were illegal votes based on claims that the signatures on the envelopes containing early ballots were not properly compared with those already on file.
He pointed out that a forensic document examiner hired by Ward’s attorney reviewed 100 of those envelopes.
And at best, Warner said, that examiner found six signatures to be “inconclusive,†meaning she could not testify that they were a match to the signature on file.
But the judge said this witness found no signs of forgery.
Finally, Warner said, there was no evidence that the vote count was erroneous. So he issued an order confirming the ÃÛèÖÖ±²¥ election, which Biden won with a 10,457-vote edge over Trump.
Federal court case remains to be heard
Friday’s ruling, however, is not the last word.
Ward, in anticipation of the case going against her, already had announced she plans to seek review by the ÃÛèÖÖ±²¥ Supreme Court.
And a separate lawsuit is playing out in federal court, which includes some of the same claims made here along with allegations of fraud and conspiracy.
That case, set for a hearing Tuesday, also seeks to void the results of the presidential contest.
It includes allegations that the Dominion Software voting equipment used by Maricopa County is unreliable and was programmed to register more votes for Biden than he actually got.
Legislative leaders call for audit but not to change election results
Along the same lines, Senate President Karen Fann and House Speaker Rusty Bowers on Friday called for an independent audit of the software and equipment used by Maricopa County in the just-completed election.
“There have been questions,†Fann said.
But she told Capitol Media Services it is not their intent to use whatever is found to overturn the results of the Nov. 3 election.
In fact, she said nothing in the Republican legislative leaders’ request for the inquiry alleges there are any “irregularities†in the way the election was conducted.
“At the very least, the confidence in our electoral system has been shaken because of a lot of claims and allegations,†Fann said. “So our No. 1 goal is to restore the confidence of our voters.â€
Bowers specifically rejected calls by the Trump legal team that the Legislature come into session to void the election results, which were formally certified on Monday.
“The rule of law forbids us to do that,†he said.
In fact, Bowers pointed out, it was the Republican-controlled Legislature that enacted a law three years ago specifically requiring the state’s electors “to cast their votes for the candidates who received the most votes in the official statewide canvass.â€
He said that was done because Hillary Clinton had won the popular vote nationwide in 2016 and some lawmakers feared that electors would refuse to cast the state’s 11 electoral votes for Trump, who won ÃÛèÖÖ±²¥â€™s race that year.
“As a conservative Republican, I don’t like the results of the presidential election,†Bowers said in a prepared statement. “But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.â€
Photos of the 2020 General Election voting, election night and ballot processing in Pima County, Maricopa County and throughout ÃÛèÖÖ±²¥.