Appeals court rejects Abe Hamadeh’s third challenge to his 2022 AG loss

Abe Hamadeh at a November 2023 campaign event. Photo by Gage Skidmore (modified) | Flickr/CC BY-SA 2.0

Nearly a year-and-a-half after the election, an Arizona appeals court agreed with a trial court judge that Abe Hamadeh’s third challenge to the results of the 2022 election should not move forward. 

Hamadeh, a Republican, lost the race for Arizona attorney general to Democrat Kris Mayes by only 280 votes. And he’s still trying to get that loss overturned, even as he mounts a campaign to represent the Eighth Congressional District in the U.S. House of Representatives

And while he wrote in court filings that 1,100 provisional ballots improperly went uncounted, in an April 10 campaign fundraising email, Hamadeh claimed there were actually 9,000. 

“After the disastrous election we have witnessed an all out effort to ensure my case would never be litigated,” the email reads. “They STONEWALLED this case from the beginning by withholding provisional ballots, delaying recount results and trying to run out the clock and STEAL the election.”

But his case has been heard — the judges just didn’t buy his arguments. Hamadeh almost immediately challenged the results of the 2022 election in court, saying his loss was due to election misconduct and ballots rejected erroneously, but he lost his first two court challenges. 

His first challenge was thrown out for violating the timelines governing election contests. A second attempt filed a short time later did go to trial, and it was ultimately rejected for failing to meet the burden of proof. 

He filed the third lawsuit after the automatic statewide recount of his race identified discrepancies that shrank Mayes’ lead from 511 votes to 280. The vast majority of the votes that narrowed the contest came from Pinal County, where officials discovered after the election that hundreds of ballots mistakenly went uncounted. 

The appeals court, in a split 2-1 decision on April 9, agreed with the Mohave County Superior Court judge that dismissed Hamadeh’s request for a new trial, criticizing Hamadeh for his failure to take swift action in moving the case forward. 

“A virtual firestorm of challenges followed the 2022 general election,” Chief Judge David Gass wrote in the majority decision. “Those flames have subsided. The winners were announced and took their oaths of office more than 15 months ago. This case, one of the last embers still glowing, does not burn hot enough to warrant relief.”

Judge Kent Cattani sided with Gass in his decision, while Judge James Morse Jr. dissented. Gass and Morse were both appointed to the appeals court by Gov. Doug Ducey, a Republican, and Cattani was appointed by Gov. Jan Brewer, also a Republican. 

In his appeal, Hamadeh argued that the trial court abused its discretion in denying his request to view Maricopa County’s cast vote record alongside a list of rejected provisional ballots, but Gass wrote that the trial court has broad discretion when ruling on what evidence it required the county to provide. Gass also noted that Hamadeh waited until just days before his trial began to request the unredacted cast vote record. 

Hamadeh also claimed that the trial court incorrectly denied his request to inspect the provisional ballot list, but the appeals court disagreed, saying that Hamadeh never provided the court with a valid reason for why he needed to inspect the list. While Hamadeh has repeatedly claimed that more than 1,000 provisional ballots remained illegally uncounted, he never provided evidence to back up that claim. 

His lawyers argued that the people who cast those ballots had their voter registration wrongly changed to the incorrect county when they renewed their driver’s licenses and that therefore their provisional votes should be counted, even if they voted in a different county than where they were registered.

But the appellate court flatly rejected that idea and said the court had no power to order those ballots be counted.

“Even if voters cast provisional ballots in the wrong precinct because of the alleged faulty but unchallenged election procedure, the voters still were not registered to vote in the precincts where they cast those provisional ballots,” Gass wrote. “Arizona law simply does not authorize opening the envelopes and counting those ballots.”

The appeals court also agreed with the trial court’s decision not to grant Hamadeh a new trial based on new evidence of uncounted votes in Pinal County. 

“After the Pinal County votes were correctly counted, Mayes was still the candidate with the most votes statewide,” Gass wrote. “The superior court correctly concluded the newly discovered evidence of those Pinal County votes did not change the outcome. And Hamadeh offered no evidence of any other county making the same error as Pinal County. Instead, Hamadeh speculates about what ‘may be’ rather than ‘what is’ and then seeks an opportunity to look for new evidence.”

And the majority criticized Hamadeh for asking “this court for various forms of relief unrelated to this appeal,” including requests to interpret laws not at issue in the case, to affirm the Arizona Supreme Court’s constitutional rulemaking authority and to “establish a universal disclosure and discovery standard for election contests.”

The court declined to do any of those things. 

“Whatever merit Hamadeh’s statutory interpretation claims may have had, they have been dampened by the passage of time,” Gass wrote. “That point aside, Hamadeh was not then and is not now entitled to the relief he seeks because the superior court did not abuse its discretion when it ruled based on its factual findings.”

In his dissenting opinion, Morse wrote that the trial court should have granted Hamadeh access to the cast vote record. 

“Denying access to the CVR deprived Hamadeh of an opportunity for a meaningful way in which to conduct the ballot inspection in the condensed timeline allotted for election contests,” he wrote.  

Hamadeh’s loss in this appeal isn’t necessarily the end of the road for his case. He could still appeal to the state Supreme Court. 

“The uniparty knows if they hadn’t stolen this race from me and dismissed my lawsuit — that the closest race in Arizona history — would’ve been overturned as there are still 9,000 uncounted ballots,” Hamadeh wrote in his campaign email. 

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