Originally Published: April 26, 2016 6:01 a.m.
PHOENIX - A judge on Monday ruled it's legal to challenge last month's presidential primary.
But Maricopa County Superior Court Judge David Gass said it remains to be seen whether the Tucson man contesting the election - and seeking to void the results - can actually prove his case that the things that went wrong merit voiding the vote.
During the first day of hearings, Assistant Attorney General James Driscoll Maceachron, defending Secretary of State Michele Reagan, told the judge that Arizona law clearly allows someone to contest the outcome of a political race between candidates.
Ditto, he said, if the issue is something like an initiative or bond election. Driscoll Maceachron said the statutes permit a challenge only if something is "declared carried” or not carried.
"The presidential preference election cannot be ‘declared carried,’” he said, meaning it cannot be voided.
But the judge wasn't buying it. "I can't find ... that this statute excludes the presidential preference election,” he said. Gass said, though, if he's wrong he’s sure the Court of Appeals will "tell me differently, because that's their job.”
That paved the way for attorney Michael Kielsky to try to convince Gass that the irregularities of the March 22 vote were enough to declare the election void.
One key witness was Dianne Post. A retired lawyer, she worked at a polling place in South Phoenix, a district with a large minority voting population.
Post told Gass how her polling place had run out of ballots for several congressional districts and simply giving voters ballots from other districts. That matters because the Democrats allocate delegates in part based on who wins each of the nine districts.
More significant, Post detailed how the electronic "poll books” listed people as being registered in parties different than they said they were registered. She said this wasn't simply voters being confused, pointing out many of them had county-issued voter registration cards.
"I did not keep track by race, and I should have,” Post told the court, "but many of them were blacks who were told they were Republicans ... and their response was unkind.”
Post said she is convinced that the problem was with the county's records and not with the voters.
"I had a woman who was 76 who assured me that she had been voting Democratic since she was old enough to vote and she had never registered Republican and she was not going to vote Republican,” Post said.
Kielsky also told Gass it's a matter of public records that many people did not get to vote, either because they were deterred by long lines or because there were foul-ups in their party registrations.
But even if Gass finds their testimony credible, none of that means any laws were violated, at least not to the point of upsetting the results that gave victories to Donald Trump and Hillary Clinton.
And there's one more issue weighing on the judge: Should he void the tally if he's not convinced that the results would have been any different even if there were no problems.
Kielsky conceded the point.
"Mere irregularities will not allow an election contest absent allegations of a different result,” he told the judge. But he told Gass that's not the case here.
"What we have alleged is something amounting to fraud,” Kielsky said. "We're talking about the disenfranchisement of potentially 100,000 people or more who were either denied the ability to cast a vote, or when they attempted to cast a vote whose provisional ballot ended up not being counted.”
While Kielsky argued that the election should be overturned because some voters were disenfranchised, Driscoll Maceachron told Gass that voiding the election would have exactly the reverse effect.
"His relief is not about enfranchising voters,” he said. "He will invalidate the entire election and leave all Arizona voters without a vote in the presidential preference election.”
What happens if Gass voids the vote is unclear. The lawsuit does not seek a new state-run election.
One scenario is then it is up to each party's officials to decide how to allocate delegates to their national conventions. And there is nothing to preclude them from doing that according to the results of the March 22 election.