Why Arizona's gubernatorial race could end up in a courtroom

A a day after the polls closed, the Arizona governor’s race remained uncontested, with Democrat Katie Hobbs and Republican Kari Lake waiting for hundreds of thousands of ballots to be counted. But as the final batches of votes are counted, a possible legal battle remains looming in the coming days and weeks.

According to sources familiar with the matter, Lake’s campaign has made it clear it is prepared to take legal action over the election, potentially over the counting of ballots and monitoring of that process. A member of Lake’s legal team, who spoke on condition of anonymity, told TIME that the “subject matter” of the lawsuit could be “ballot counting and count monitoring.” They did not say if any specific costumes are planned yet.

Such action could ultimately focus on the final batch of ballots — the roughly 275,000 mail-in ballots that were delivered in person on Election Day — that will be counted Thursday and released later that evening.

“We’ve said from the beginning that this is going to be a tight race,” Nicole Demont, Hobbs’ campaign manager, said in a statement. “Every Arizonan deserves to have their ballot counted and their voice heard, and in the coming days we will continue to watch these results closely to make sure that happens.”

As of Wednesday night, Hobbs, Arizona’s secretary of state, was leading Lake by just over 13,000 votes with roughly 70% of the ballots counted. Hobbs took a commanding lead Tuesday night after winning early mail-in votes by roughly 14 percentage points. Lake then narrowed the gap with his lead with voters who voted in person on Election Day.

That leaves those roughly 275,000 ballots from Arizonans who voted absentee but who either dropped off their ballots on Election Day or whose ballots arrived in the mail on Election Day. An Arizona elections official familiar with the matter, who spoke on condition of anonymity because he is not authorized to discuss the governor’s race, expects those votes to be split evenly between Democrats, independents and Republicans.

Arizona Republicans, however, are banking on those ballots leaning toward Lake. They say many Republicans remained on absentee voter lists after 2020 but didn’t feel comfortable mailing in their ballots or voting early. It’s a trend that remains a legacy of former President Donald Trump’s attacks on mail-in voting as rife with fraud, despite a lack of substantial evidence to support that claim, which he became particularly vocal about two years ago as many states expanded voting by mail to facilitate elections amid the pandemic.

The Hobbs campaign informed supporters Wednesday that it is beginning a process to reach out to Arizonans who voted absentee but then received notice that their ballots would not be processed until the issue is resolved, what is known as a “healing process” in election parlance.

A Hobbs campaign spokesman confirmed to TIME that the campaign is being represented by the Elias Law Group, a Washington, D.C.-based firm headed by the Democratic Party’s top election lawyer.

Arizona Secretary of State Katie Hobbs speaks to supporters at an election watch party at the Renaissance Phoenix Downtown Hotel on November 8, 2022 in Phoenix.  (Christian Petersen—Getty Images)

Arizona Secretary of State Katie Hobbs speaks to supporters at an election watch party at the Renaissance Phoenix Downtown Hotel on November 8, 2022 in Phoenix.

Christian Petersen—Getty Images

“Because every single vote matters and every single vote counts the same — whether you voted by mail, dropped your ballot in a secure box yesterday or voted in person,” the Hobbs campaign wrote in an email to supporters Wednesday. “That’s why our focus now turns to correcting the ballots — connecting with voters who may have had a problem with their ballots — to make sure all voices are heard in this race.”

An Arizona elections official explained that this is a normal process for counting votes. It usually applies to voters who either forgot to include a signature on their ballot or who may have made a mistake, such as signing a spouse’s ballot instead of their own. These errors are caught because of the signature verification technology used to ensure that the signature on the ballot matches the one on the voter registration.

Arizona allows in-room monitors for the treatment process to ensure faith in the system. The Lake campaign has indicated it is prepared to deploy lawyers to monitor the process — and possibly take legal action if they see something they don’t like.

Before the election, Lake’s campaign pumped in $2 million to create and staff an election week “War Room” to monitor the election and the vote-counting process and file lawsuits immediately, according to a campaign representative. The effort included roughly 40 lawyers in a conference space at a Scottsdale hotel, as well as a team of what the campaign called “roving lawyers” sent to polling places and vote counting centers throughout the week.

“This is the most robust election day and post-election operation that Arizona has ever seen,” Brady Smith, chief political strategist for Lake’s campaign, told TIME.

Funding for the effort, Smith said, came from several sources, including Lake’s campaign, the Republican National Committee, the Arizona Republican Party, the National Republican Senate Committee and the campaign of Republican Senate candidate Blake Masters.

Both Lake and Masters have been outspoken voices questioning the integrity of the 2020 election, including President Joe Biden’s victory in Arizona, despite multiple investigations that found no evidence of significant fraud.

The War Room department has created several channels for voters to report irregularities, including a hotline and a web portal that allows users to sign affidavits digitally. Lake promoted the site on his social media accounts in the days leading up to the election.

“They are all used, and our attorneys are quick to respond to issues and concerns as they arise,” Smith says.

Lake and Masters’ campaigns joined the RNC in a lawsuit filed in Maricopa County court Tuesday to extend voting hours there in response to problems with about 20 percent of the machine tabulators used to scan ballots at polling places in the morning. By noon, county officials said they had identified and fixed the problem. The judge denied the GOP’s request, saying the problem did not prevent voters from voting and those ballots being counted. In 2016, the Arizona Democratic Party filed a similar lawsuit to extend voting time, which was also denied.

Read more: Problems with some voting machines in Arizona fuel right-wing conspiracy theories

The campaign’s legal source, Lake, suggested that if the count is close, they could call for a hand count instead of using machines, noting that hand counts often produce mixed results.

Arizona’s election official did not dispute that machine and hand counts often produce different final vote counts, but said the discrepancy is usually minor. They also emphasized that machines tend to be more accurate and less prone to human error.

Still, if the remaining ballots do as Lake’s campaign officials hope and expect, they may be less likely to engage in a legal battle. “Wow,” Lake tweeted Wednesday afternoon. “We’re going to win big. Stay on the line.”

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