Judge Improperly Allows A Fishing Expedition For Evidence Of Election Fraud

This is disheartening. Maricopa County Superior Court Judge Randall Warner knows better, but apparently was more concerned about the unlikely possibility of being overturned on appeal than in enforcing the rules of procedure and the rule of law.

A plaintiff must present some evidence in support of their request for extraordinary relief and cannot rely on mere speculation and conjecture. This Kelli “Chemtrails” Ward entirely failed to do. The “what’s the harm?” attitude from Judge Warner may lead to establishing an undesirable precedent for “fishing expeditions” in future election challenges, resulting in a similar abuse of process. Judge Warner should reconsider his order.

Jeremy Duda at the Arizona Mirror reports, Judge allows Ward to examine handful of ballots, envelopes in lawsuit to overturn election:

Arizona Republican Party Chair Kelli Ward’s attempt to invalidate nearly 1.7 million votes for Joe Biden will begin with 200 ballots as she and her attorneys search for evidence of election fraud or misconduct that they have thus far been able to show.

[W]ard has presented no evidence that ballots were wrongly accepted due to improper verification of signatures or that any votes were changed on “duplicated” ballots. She and attorney Jack Wilenchik asked Judge Randall Warner to allow them to inspect tens of thousands of ballots so they can determine whether election workers made such errors.

In other words, a “fishing expedition.”

During a hearing on Monday, Wilenchik said he’d like the handwriting analysis expert he’s retained to look at 1-2 percent of the 1.6 million early ballots submitted in Maricopa County, which would be 16,000 to 32,000 ballots. He also wanted access to all duplicated ballots, a number that Maricopa County election officials pegged at around 20,000.

Instead, Warner agreed to let Ward and Wilenchik’s expert look at 100 envelopes and 100 duplicated ballots.

“It’s enough to let us know if there are red flags,” Warner said.

Ward and Wilenchik will have until Thursday, when the judge scheduled a trial in their election complaint, to examine the ballots.

Ward and Wilenchik failed to present any credible evidence in support of her request for extraordinary relief. The Judge was wrong to grant even this limited discovery.

Historical Note: For those of you who were involved the years-long Battle Over Ballots in the 2006 Regional Transportation Authority (RTA) election in Tucson, Judge Warner’s “what’s the harm?” attitude in allowing a fishing expedition for evidence by the Arizona GOP in this case must leave you gobsmacked:

The next legal challenge: asking the court to allow the public to look at the RTA ballots and other elections materials still in storage. Before that hearing ended, then-Attorney General Terry Goddard had the ballots inspected and counted, and determined there was no foul play. Critics, however, contended that a forensic analysis of the ballots should be done, and that key election reports were missing.

Later in 2010, Pima County Superior Court Judge Charles Harrington ruled that he had no jurisdiction to release the ballots or rule on how votes are counted in Pima County. However, the Libertarian Party successfully appealed Harrington’s ruling last year, with the Arizona Court of Appeals declaring that courts do have jurisdiction to issue orders for fair and transparent elections if the legislative branch fails to intervene.

In 2009, a Judge ordered the disputed RTA ballots destroyed. The plaintiffs never got the forensic examination of ballots they sought.

Warner gave Ward far less than she asked for, but still more than an attorney for the Secretary of State’s Office hoped for.

Roopali Desai, who represents Secretary of State Katie Hobbs, emphasized that Ward and Wilnechik hadn’t produced any evidence of wrongly verified signatures or improperly changed votes, and as such had no legal right to examine any ballots. [She is CORRECT]. And even if they had good cause to examine ballots, Desai argued that they’re asking for materials they have no right to, such as voter files that contain the signatures election workers use to verify early ballots. [She is again CORRECT].

Desai told Warner that Wilenchik’s request was nothing more than a “fishing expedition.” [She is again CORRECT].

“Petitioner has no facts to support her claims, which is why she is trying to use Rule 27 [Discovery Before an Action Is Filed or Pending an Appeal] to uncover them,” Desai wrote in a court filing of the procedural rule Ward cited in her request to examine ballots. “In other words, Petitioner knows of no errors, but she wants to inspect some random number of ballot affidavits to see if she can find some.”

Desai wrote that Ward failed to show that even a single early ballot was wrongly accepted, let alone enough to justify overturning the votes of more than 3.42 million Arizonans. Similarly, Ward failed to demonstrate even a single error in the duplication of ballots.

No evidence presented, no extraordinary relief granted (note to Judge Warner).

“Difficult as it may be for Petitioner to accept, this election is over, and her preferred slate of presidential electors received fewer votes than those of the winning challenger,” Desai wrote.

According to attorney Joseph LaRue, who represents Maricopa County, there were, at most, 104 duplicated ballots from Queen Creek and adjacent vote centers. And it would be a “herculean task” to determine which ones came from an individual vote center, LaRue said. In addition, some of those 104 may not have been duplicated at all. The ballots would have been transferred to Maricopa County’s main tabulation center near downtown Phoenix, where the tabulation machines might have accepted and read some of them, negating the need for duplication.

Desai noted in a court filing that Ward acknowledged in her own briefings that she had no way of knowing whether ballots with faulty signatures were improperly verified. Ward’s only basis for suggesting that fraudulent signatures might have been approved is her claim that voters’ signatures are readily available to others from the state’s Motor Vehicle Division, which Desai said was “nonsense” and simply not true because state and federal law tightly control access to the information on people’s driver’s licenses.

And while political parties have the right to have observers present when ballots are being processed, including signature verification, they have no right to conduct any verification themselves or to challenge a signature, nor is the county required to give them a close-up view of the process, Desai said.

Furthermore, Desai said the law allows ballots to be inspected as part of election challenge lawsuits, but not envelopes and signatures.

So Judge Warner granted extraordinary relief that he has no authority to grant.

While Desai noted that it would be impossible to match a ballot to an envelope, even if mismatched signatures are found, Wilenchik said he’s not trying to invalidate individual ballots. He’s looking to demonstrate that enough ballots were improperly accepted that it would call the results of the entire election into question and warrant a judge invalidating the results.

“I think there is a very dangerous precedent that can be set by allowing discovery simply because a party who then says we want … to check if they did a good job,” Desai said.

Warner said several times that the case is likely to end up before the Arizona Supreme Court, or perhaps even the U.S. Supreme Court [highly unlikely]. His courtroom will establish the record that those higher courts will use.

The judge acknowledged that Desai raised serious issues about the precedent that could be set for future cases by allowing Ward to inspect ballots. But he said he’d rather the Arizona Supreme Court say he erred by giving her access to the ballots rather than conclude that he should’ve given it, but that there’s no time left to right that wrong.

“You folks may be right, but I’m inclined to err on the side of transparency and to air these things out so whatever the results are we can be confident in them,” Warner said.

Ward and the Arizona Republican Party praised the ruling.

“This decision is a step in the right direction, and is important to help ensure the integrity of our elections. The Republican Party of Arizona continues to fight for access to records it can legally acquire, which has been extremely limited, to fight for the level of transparency that is essential to voter confidence in our elections,” Ward said in a press statement.

Ward is suing in her capacity as an individual and as an elector for Trump.

The Arizona Republican Party did not hire their “handwriting experts” to not find signatures to dispute – they will get what they paid for. But in a court of law, they are subject to cross-examination, and the state of Arizona can put on its own expert witnesses and evidence. Just because some hired gun “expert” says what he was paid for doesn’t make it so.

And let’s get real: overturning the votes of more than 3.42 million Arizonans based upon a minuscule sample of 100 envelopes and 100 duplicated ballots is not going to happen. No statistician would ever endorse this. The Arizona Capitol Times adds:

[At the] hearing on Thursday attorney Jack Wilenchik said he hopes to prove there were mistakes. He said that would allow Warner to extrapolate out the error rate and declare that the results which were officially reported — and officially certified Monday — are in doubt.

More to the point, Wilenchik told Warner that would require the judge to declare the results invalid.

And what that in turn would do, Wilenchik said, is leave it to the Republican-controlled Arizona Legislature to decide who gets Arizona’s 11 electoral votes.

This is the anti-democratic “GOP Clown Car Coup” to disenfranchise millions of voters, and to declare Donald Trump the first autocratic leader of a Republican authoritarian tyranny of the minority.

Obvious Man points out the obvious: If these ballots are fraudulent as to the presidential race at the top of the ballot as Ward claims, then of course the ballots must be fraudulent as to all other contested race on the ballot.

Ward cannot invalidate just the presidential race, but must invalidate the entire election – “What’s sauce for the goose is sauce for the gander.”  She is in fact arguing that no one was legitimately elected in the the November election, and that there must be a do-over election for all down ballot races on the ballot and the ballot propositions, excluding the presidential race.

Absent a ruling favorable to the Arizona GOP from Judge Warner, the certification of the vote on Monday should clear the way for the 11 electors pledged to Biden to vote for him when the Electoral College meets on Dec. 14.

Thursday’s virtual hearing will begin at 10:30 a.m.

The “safe harbor” date is next Tuesday, December 8. Judge Warner would do well to follow the logic of the per curiam order of the Supreme Court of Pennsylvania and apply the legal doctrine of laches (the unreasonable delay by the plaintiff in prosecuting a claim or protecting a right of which the plaintiff knew or should have known, and under circumstances causing prejudice to the defendant) to Ward’s claim. All Seven Justices agreed that an injunction which would disenfranchise voters would be inappropriate. This is the same relief requested by Kelli Ward.

As election law expert Rick Hasen says, “The bottom line is that if you think there is a problem with how an election is being run – i.e., verification of signatures – you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it.” Which is what occurred in this case.