Phoenix Judge Boots Elections Challenge, Finds No Proof of Fraud
Supporters of Democratic presidential contender Bernie Sanders will have to suck it up. There will be no do-over of Arizona's disastrous Presidential Preference Election.
In a ruling issued today following two days of testimony, a Maricopa County Superior Court judge booted a lawsuit claiming fraud, illegal voting, and other improprieties in the contest, which Sanders' rival Hillary Clinton handily won on the Dem side, and on the GOP side, featured a triumph for Donald Trump.
Although the March primary was a major embarrassment for Maricopa County, with voters forced to wait in line for as long as five hours in some instances, Judge David B. Gass found that most of the complaints of irregularities were anecdotal and did not prove the allegations brought by John Brakey of the elections watchdog group AUDIT-AZ.
"Longstanding precedent establishes that the court must not infer fraud in an election from slight irregularities, unconnected with incriminating circumstances," Gass wrote in his ruling. "Mere suspicion is insufficient."
Mesa attorney Michael Kielsky said his client will not be appealing the results.
It should be noted that the Sanders campaign had nothing to do with the lawsuit, though many Sanders supporters feel the elections debacle kept Sanders from upsetting Clinton in the contest.
Gass acknowledged that Brakey, represented by Mesa lawyer and libertarian candidate for Maricopa County attorney Michael Kielsky, had a high bar to meet to de-certify the election results, which already had been certified by Arizona Secretary of State Michele Reagan.
But that bar was not met, according to the judge, who stated that Brakey "did not establish fraud," nor did he "establish misconduct by any election [official]."
Though there had been one poll worker who identified problems with her electronic poll book, Gass found no evidence that the issues were widespread, and as to the testimony of voters who claimed irregularities on election day, election departments for Maricopa and Pima counties "were able to show the trail of registration changes," and "most of the witnesses ultimately had their votes counted."
Gass also rejected arguments that there had been illegal votes cast or that Maricopa County's practices were illegitimate.
On the main complaint from March 22, the reduction in polling places from 200 in 2012 to 60 in 2016, Gass stated that he could not address that underlying issue.
"Plaintiff's allegations of voter disenfranchisement as a result of issues related to the number and location of polling places," Gass wrote, "is not subject to post-election judicial review."
According to Gass, such issues must be challenged "before the actual election" takes place.
Kielsky told New Times that the situation created a sort of Catch-22, at least regarding the low number of polling places, a plan approved in advance by a unanimous vote of the Maricopa County Board of Supervisors.
The attorney said he understands the judge's point, but he thinks that if a challenge had been brought beforehand, it would not have changed anything.
"The courts and to some extent the politicians really have this deference to the supposed experts," said Kielsky. "So the only way we know that the experts are completely wrong is when it blows up in their faces like it did."
He admitted that the evidence he presented to the court was "sparse," but that this is the nature of such challenges, where there was almost no discovery he could do.
"I wish I'd had 100 or 200 people that I could have lined up to testify," said Kielsky, who instead had to rely on a handful.
Kielsky did take some consolation from the judge's not granting the many motions to dismiss filed by various agencies, though Gass ultimately ruled against his client.
"The judge didn't fault us for bringing the action," Kielsky said. "The judge clearly expressed his feelings that if there had been more evidence, he may have been able to do more for us."
Another lawsuit has been filed by the Arizona Democratic Party and others in federal court as a result of the PPE meltdown.
However, that suit does not seek to de-certify the March 22 election. Rather, it seeks to affect the county and the state's actions in upcoming contests, particularly the November 8 general election.
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