Kelli Ward v. Constance Jackson ( 2020 )

SUPREME COURT OF ARIZONA
KELLI WARD, ) Arizona Supreme Court
) No. CV-20-0343-AP/EL
Plaintiff/Appellant, )
) Maricopa County
v. ) Superior Court
) No. CV2020-015285
CONSTANCE JACKSON; FELICIA )
ROTELLINI; FRED YAMASHITA; JAMES )
MCLAUGHLIN; JONATHAN NEZ; LUIS )
ALBERTO HEREDIA; NED NORRIS; )
REGINA ROMERO; SANDRA D. )
KENNEDY; STEPHEN ROE LEWIS; and, )
STEVE GALLARDO, ) FILED 12/08/2020
)
Defendants/Appellees, )
)
and )
)
KATIE HOBBS, in her official )
capacity as the Arizona Secretary )
of State; ADRIAN FONTES, in his )
official capacity as the Maricopa )
County Recorder; and the MARICOPA )
COUNTY BOARD OF SUPERVISORS, )
)
Intervenors. )
)
__________________________________)
DECISION ORDER
The Court accepted jurisdiction of this expedited election
appeal and en banc has considered the record, the trial court’s
December 4, 2020 minute entry, and the briefing of Appellant Kelli
Ward, Defendant Biden Electors, Intervenors Maricopa County and the
Secretary of State, and amicus curiae The Lincoln Project.
The Secretary duly certified the statewide canvass and on
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November 30, 2020, she and the Governor signed the certificate of
ascertainment for presidential electors, certifying that in Arizona
the Biden Electors received 1,672,143 votes and the Trump Electors
received 1,661,686 votes (a difference of 10,457 votes out of a total
of 3,333,829 cast for these two candidates). Although slim, the
margin was outside the one-tenth of one percent of the total number
of votes cast for both of the presidential electors which is the
statutory trigger for an automatic recount. A.R.S. § 16-661(A)(1).
The Secretary’s certification followed Maricopa County’s audit.
Under Arizona law, the county officer in charge of the election
conducts a hand count prior to the canvass. A.R.S. § 16-602(B). The
statute provides detailed instructions on the hand count process, and
in this case the November 9, 2020 Maricopa County hand count included
5000 early ballots and a hand count of Election Day Ballots from two-
percent of the vote centers. The audit revealed no discrepancies in
the tabulation of the votes between hand count totals and machine
totals. The County completed its canvass on November 23, 2020.1
Maricopa County is the only county implicated in this proceeding.
Appellant filed her contest under A.R.S. § 16-673 raising three
statutory bases for a challenge under A.R.S. § 16-672 which include
“misconduct” by an election board or officer; “[o]n account of
illegal votes”; or “[t]hat by reason of erroneous count of votes the
1
https://azsos.gov/sites/default/files/2020_General_Maricopa_Hand_Count.pdf
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person declared elected ... did not in fact receive the highest
number of votes.” A.R.S. § 16-672(A)(1), (4) and (5). In her First
Amended Complaint, Appellant sought the inspection of an unspecified
number of ballots under A.R.S. § 16-677, which authorizes the
inspection of ballots before preparing for trial after the statement
of contest has been filed.
Under Arizona law, “If any ballot, including any ballot received
from early voting, is damaged, or defective so that it cannot
properly be counted by the automatic tabulating equipment, a true
duplicate copy shall be made of the damaged ballot in the presence of
witnesses and substituted for the damaged ballot. All duplicate
ballots shall be clearly labeled ‘duplicate’ and shall bear a serial
number that shall be recorded on the damaged or defective ballot.”
A.R.S. § 16-621(A).
In this election, Maricopa County had 27,869 duplicate ballots
pertaining to the Presidential Electors. Witness testimony explained
that “duplicate ballots” include those reflecting “overvotes” or
votes for more than one candidate; overseas ballots; and ballots that
are damaged or otherwise cannot be machine tabulated. The trial
court also heard testimony from a number of witnesses who presented
credible testimony that they saw errors in which the duplicate ballot
did not accurately reflect the voter’s apparent intent as reflected
in the original ballot.
Before the trial, the parties conducted a review of randomly
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chosen sample ballots. The first review was of 100 ballots and the
second was of 1526 ballots, and of the 1626 total, there were nine
errors, (1617 correct duplicate ballots) that if correct would have
given the Trump Electors an additional seven votes and the Biden
Electors an additional two votes. The Secretary maintains that this
constitutes an error of no more than 0.37% within the sample.
Appellant argues that the error rate was 0.55%, and the trial court
concluded the results were “99.45% accurate.” When this is
extrapolated to the total number of duplicate ballots it is not
sufficient to come close to warranting a recount under A.R.S. § 16-
661.
Although Appellant requested additional time and the opportunity
to review additional ballots, Appellant offered no evidence to
establish that the 1626-ballot sample was inadequate to demonstrate
any fraud, if present. As the trial court noted, this review
confirmed the witness testimony that there were mistakes in the
duplication process, the mistakes were few, and when brought to the
attention of election workers, they were fixed. Extrapolating this
error rate to all 27,869 duplicate ballots in the county would result
in a net increase of only 103 votes based on the 0.37% error rate or
153 votes using the 0.55% error rate, neither of which is sufficient
to call the election results into question.
The parties also presented evidence after reviewing a sample of
the envelope signatures on mail-in ballots. Their experts determined
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that out of 100 signatures, six to eleven of the signatures were
“inconclusive” but neither expert could identify any sign of forgery
or simulation and neither could provide any basis to reject the
signatures.
Election contests are “purely statutory and dependent upon
statutory provisions for their conduct.” Fish v. Redeker, 2 Ariz.
App. 602 (1966). Elections will not be held invalid for mere
irregularities unless it can be shown that the result has been
affected by such irregularity. Territory v. Board of Sup’rs of
Mohave County, 2 Ariz. 248 (1887). The validity of an election is
not voided by honest mistakes or omissions unless they affect the
result, or at least render it uncertain. Findley v. Sorenson, 35
Ariz. 265, 269 (1929). Where an election is contested on the ground
of illegal voting, the contestant has the burden of showing that
sufficient illegal votes were cast to change the result, Morgan v.
Board of Sup’rs, 67 Ariz. 133 (1948).
The legislature has expressly delegated to the Secretary the
authority to promulgate rules and instructions for early voting.
A.R.S. § 16-452(A). After consulting with county boards and election
officials, the Secretary is directed to compile the rules “in an
official instructions and procedures manual.” The Election
Procedures Manual or “EPM,” has the force of law. The Court recently
considered a challenge to an election process and granted relief
where the county recorder adopted a practice contrary to the EPM.
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Arizona Pub. Integrity All. v. Fontes, ___ Ariz. ___, 475 P.3d 303,
305 (Ariz. November 5, 2020). Here, however, there are no allegations
of any violation of the EPM or any Arizona law.
Intervenor Maricopa County argues that the trial court could not
entertain this challenge under A.R.S. § 16-672(A) which authorizes a
contest of the “election of any person declared elected to state
office.” Intervenors/Defendants/Amicus contend that the Court must
decide this matter within the “safe harbor” deadline of 3 U.S.C. § 5.
The Court concludes, unanimously, that the trial judge did not
abuse his discretion in denying the request to continue the hearing
and permit additional inspection of the ballots. The November 9, 2020
hand count audit revealed no discrepancies in the tabulation of votes
and the statistically negligible error presented in this case falls
far short of warranting relief under A.R.S. § 16-672. Because the
challenge fails to present any evidence of “misconduct,” “illegal
votes” or that the Biden Electors “did not in fact receive the
highest number of votes for office,” let alone establish any degree
of fraud or a sufficient error rate that would undermine the
certainty of the election results, the Court need not decide if the
challenge was in fact authorized under A.R.S. § 16-672 or if the
federal “safe harbor” deadline applies to this contest. Therefore,
IT IS ORDERED affirming the trial court decision and confirming
the election of the Biden Electors under A.R.S. § 16-676(B).
IT IS FURTHER ORDERED directing Defendants/Intervenors to file a
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response, which may be a collective response, to Appellant’s Motion
to Unseal Exhibits no later than Friday, December 11, 2020.
IT IS FURTHER ORDERED denying the Secretary’s request for
attorneys’ fees under A.R.S. § 12-349.
DATED this 8th day of December, 2020.
_____/S/_________________
ROBERT BRUTINEL
Chief Justice
TO:
Dennis I Wilenchik
N L Miller Jr
John D Wilenchik
Sarah R Gonski
Daniel A Arellano
Roy Herrera
Joseph I Vigil
Joseph Branco
Thomas P Liddy
Emily M Craiger
Joseph Eugene La Rue
Roopali H Desai
Kristen M Yost
Susan M Freeman
Bruce E Samuels
Hon. Randall H Warner
Hon. Jeff Fine