First Trump Election Lawsuit Moot in Arizona, Republicans File Another

The ballot counting machines used by Maricopa County elections are key to a Trump campaign lawsuit.
The ballot counting machines used by Maricopa County elections are key to a Trump campaign lawsuit. Screenshot
After a number of setbacks, the attorney in a lawsuit brought by President Donald Trump's campaign seeking to delay the certification of election results has admitted the suit's impact on the presidential election is moot.

"Since the close of yesterday's hearing, the tabulation of votes statewide has rendered unnecessary a judicial ruling as to the presidential electors," Kory Langhofer, an attorney with the local Statecraft PLLC law firm, wrote to a superior court judge this morning. He also represents the Republican National Committee and the Arizona Republican Party.

Fifteen minutes after Langhofer's admission, attorneys for the county and state provided an update confirming that the number of votes alleged to not have been properly counted were not enough to make up the 11,414-vote deficit that President Donald Trump is facing statewide, and would make little difference in other close races.

While Langhofer noted that two down-ballot races — Maricopa Board of Supervisors District 1 and Arizona Legislative District 28 — were still in contention, the races would have to come within nine-vote and three-vote margins for the contested ballots to make a difference, respectively.

This is all a long way off from the campaign's initial complaint that alleged there were systemic issues affecting thousands of votes that could change the result of the presidential election.

The case took several hits in a six-hour hearing yesterday.

First, Maricopa Superior Court Judge Daniel Kiley excluded hundreds of statements the Trump campaign had collected from a website form. Kiley said the statements did not meet the level of legal declaration, noting that Langhofer had admitted that a large portion of the submitted statements turned out to be unreliable. When Langhofer called the creator of the form as a witness, it came out under cross-examination that the man was actually his business partner — something Langhofer had not disclosed.

Additionally, six witnesses Langhofer called did testify that some poll workers incorrectly handled errors with ballots in a way that meant votes in certain races might not be counted. But none were able to say with certainty that any presidential votes were not counted.

By the end of the hearing, Langhofer was asking for a much more limited order from the judge: that the votes at-issue only be counted if they could possibly swing a partisan race.

”It is not about fraud,” Langhofer told the court, an explicit break from the rhetoric pushed by some Republican party officials — and Trump — claiming that the election is being stolen.

"This a narrow claim about a good-faith failure to process [those] ballots correctly,” he said.

Attorneys for the Arizona Secretary of State and Maricopa County said there was no evidence that the issues were systemic and that the relief Langhofer requested was "extraordinary."

The county's director of election day and emergency voting, Scott Jarrett, testified that recounting the contested ballots would require reexamining the "batch" of counted ballots each was in to locate the relevant ballot.

Thomas Liddy, the county's attorney, pointed out that 99.989 percent of ballots were processed without any issue.

"That is mathematical certitude and ... metaphysical certitude that it’s impossible to find systematic error," he said.

The lawsuit is one of a number of long-shot lawsuits filed by Trump's campaign in battleground states that have been called for his opponent. The campaign has also filed lawsuits in Pennsylvania, Michigan, and Georgia.

click to enlarge Elections expert Larry Garber. - ASU
Elections expert Larry Garber.
Trump has hinted at his hopes that the U.S. Supreme Court will decide the outcome of the election. However Larry Garber, an elections expert and instructor at Arizona State University's law school, said that it's unlikely the court would take up an elections case unless it impacted a significant number of ballots.

In a "friend of the court" brief, The Lincoln Project, a group of Republicans opposed to Trump, argued that the Maricopa County lawsuit is part of an effort to undermine the outcome of the presidential election by delaying certification of state elections. The group says this would allow state legislatures to send Trump supporters to cast votes for him at the electoral college, regardless of what voters decided.

The Washington D.C.-based publication Axios has reported that some Republicans have been considering such a move, however a lawyer quoted by the publication said that would be an arduous legal process.

Judge Kiley is likely to rule on this case later today, deciding whether the county may have to reprocess contested votes in local races that are close enough to be decided by those votes, a process that could delay the certification of election results.

Meanwhile, the state Republican Party filed a separate lawsuit on November 12 alleging that Maricopa County's hand-audit of ballots is insufficient because it relied on reviewing a percentage of voting centers instead of precincts. A hearing is scheduled for Monday morning, as is a hearing on a new lawsuit filed by a woman who previously claimed the use of Sharpies in voting centers affected her vote.


At a 3:30 p.m. hearing, the county disclosed that only 422 ballots remained to be added to the count, making it a near impossibility that any race could come within the margin where contested votes could make a difference.

Langhofer agreed as much, declaring the case moot at the encouragement of his law partner.

“I think we can say the legal issues have been mooted due to the [results] here,” he told the court.

Judge Kiley accepted the declaration and said he would sign an order dismissing the case.
KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Erasmus Baxter is a staff writer for Phoenix New Times.
Contact: Erasmus Baxter