Originally Published: April 27, 2016 6:02 a.m.
PHOENIX - A judge late Tuesday threw out a challenge to last month’s presidential primary.
Maricopa County Superior Court Judge David Gass said there was evidence of problems in the March 22 election as well as things that may have been done wrong. And the judge said it’s certainly possible that the decision by Maricopa County to have just 60 polling places was a mistake — and that the result was some people choosing to walk away rather than stand in line for more than five hours.
But Gass said nothing presented by the attorney for Tucsonan John Brakey was enough to allow him to void the election results.
“The evidence suggests there may have been some glitches,” Gass said at the end of the two-day hearing.
“Glitches are always something that we need to be wary of, and we need to work hard, and we need to fix them going forward,” the judge explained, “but they don’t rise to the level of fraud.”
As to the lack of polling places, Gass said any concerns should have been brought up to the Board of Supervisors — and, if necessary to a court — after the number was announced.
“Otherwise, what we face is trying to undo an election where more than a million people voted, and tell those more than a million people that we’re not going to count their vote,” he said.
Today’s ruling may not be the last word.
Attorney Michael Kielsky has the option of taking the case to the Court of Appeals. And Gass acknowledged the appellate judges may have a different viewpoint about some of his conclusions. But Gass said he expects his ruling to be upheld because of one simple fact: There is no evidence that the result of the March 22 vote would have been any different had some of the “glitches” not occurred.
Kielsky tried to prove otherwise, even soliciting the testimony of Richard Charnin, a Florida resident who has two degrees in math. Charnin has something of a reputation in the area, even writing in books that “simple mathematics proves that the 1968, 1988, 2004 and 2008 elections were fraudulent.”
Charnin told Gass that a comparison of voter turnout and election returns for Maricopa County between this year’s presidential primary and the one eight years ago mathematically shows that voting was depressed. His formula put the difference in that 100,000 range.
Gass, however, refused to consider his testimony, saying there were flaws in the methodology.
That left Colleen Connor, a deputy Maricopa County attorney, to point out to Gass that it was Kielsky who promised at the beginning of the case to prove that 100,000 or more voters had been disenfranchised, with an allegation that most of those voters were from minority groups.
“He also used the word ‘fraud,’” she reminded the judge. “What the evidence has shown is nothing of the sort.”
Connor did not dispute the long lines, with even Gass acknowledging he didn’t need anyone to prove through witnesses and testimony.
But she and the attorneys defending Secretary of State Michele Reagan and several other counties named in the lawsuit pointed out that even those who said they ran into problems, like being told they were not registered with the party they thought, were allowed to cast ballots. And if there were questions about whether those votes would be counted, voters were free to present evidence of their eligibility to county election officials in the days after the election.
“Therefore, there is no evidence, certainly not 100,000 voters, who were disenfranchised,” Connor said.
Kielsky, however, refused to concede the point. “There is evidence in the record that shows that,” he insisted, but acknowledged it was largely “circumstantial.”
Gass said that, ultimately, Kielsky may have brought a challenge there was no way for him to win.
The judge said he reads the law to allow him to void an election under two circumstances. One is proof of fraud. And even Kielsky conceded that perhaps his case was weak.
“I’m unwilling to say ‘fraud’ outright,” he told the judge. “But I am willing to say we’ve come darn close to that.”
Kielsky said the errors perhaps are “mere gross negligence.”
“If it’s gross negligence, it certainly approaches fraud,” the lawyer said.
Gass said that was not good enough, saying someone alleging fraud has to provide “clear and convincing evidence.”
“It’s an incredibly high burden and it’s a burden that’s very difficult to prove,” the judge said. And he said those things that did go wrong “don’t rise to the level of fraud.”
The only other reason to void an election, Gass said, is if there is reason to believe the outcome would have been different had the problems not occurred. Here, too, the judge rejected the contention that more polling places would have meant more people casting ballots and somehow a result that would have kept either Republican Donald Trump or Democrat Hillary Clinton from winning.
Gass said state law requires each party’s delegates to the national convention to all vote for whoever wins the statewide primary, at least on the first ballot.
He conceded the Democratic Party, on its own, has decided to allocate delegates based on a more complex formula based in part on each candidate’s share of votes in each of the nine congressional districts. Clinton got 42 delegates against 33 for Bernie Sanders.
There was evidence that some voters were given ballots to the wrong congressional district after polling places ran out of the correct ones. But Gass said, even if that were the case, he still can’t conclude the delegate allocation might have differed.
Reagan was named as a defendant because she is the one who certified the results of the March 22 primary. Kielsky contended she should not have done that because of the reported problems with how the election was run.
But state Elections Director Eric Spencer, who works for Reagan, said Arizona law requires his boss to certify the numbers provided to her by each county, with no ability to second-guess whether there were issues with the vote.