A Maricopa County Superior Court judge has dismissed a lawsuit filed by a defeated primary congressional candidate to annul Arizona’s election results for governor, secretary of state and attorney general.
The lawsuit, filed by Josh Barnett, was one of several legal complaints filed by politicians seeking to challenge Arizona’s November election.
This challenge took a different approach. Barnett did not pursue his election complaint under normal election statutes, instead citing Arizona’s Uniform Declaratory Judgment Act.
Attorneys for the Secretary of State’s Office and Maricopa County Board of Supervisors argued that the complaint should be filed as an election contest and that it was premature to do so under Arizona law.
Judge Alison Bachus agreed, writing in her ruling Friday that the complaint could be refiled later under election statutes.
“As Plaintiff passionately argued, the heart of his Complaint is that the election was improperly conducted … Plaintiff must avail himself of the remedy provided to him by the Arizona Legislature: Title 16 of the Arizona Revised Statutes (ARS), Chapter 4, Article 13,” she wrote.
The part of the law Bachus is referring to involves contesting elections.
Barnett’s lawsuit got two hearings Friday. The Secretary of State’s Office initially asked for the lawsuit to be dismissed in the morning session, which was not granted.
Barnett, who represented himself, said Friday: “The heart of the case is exactly that I cannot tolerate seeing another election run illegally where everything is broken. And all we ask for, as the people … is that we have a legally run election. I don’t think that’s asking too much where rules aren’t broken, procedures not broken, forms broken. Everything, statutes, you name it, have been broken in this election.”
Andy Gaona, the lawyer representing the Secretary of State’s Office, responded: ” We’re also in a court of law and not an election conspiracy Twitter thread, so I won’t respond to most of what Mr. Barnett just said.”
Barnett’s complaint against Secretary of State Katie Hobbs and the Maricopa County Board of Supervisors sought an injunction to prevent Hobbs from certifying the election results Monday and declaring a winner. He said he was seeking an injunction because the election was “maladministered and was illegally run.”
Barnett placed third in the Republican primary Aug. 2 in Arizona’s 1st Congressional District, behind businessman Elijah Norton and Rep. David Schweikert, R-Ariz. Schweikert narrowly won reelection in November against Democratic challenger Jevin Hodge.
Bachus noted in the initial hearing that it was unusual to file an complaint about the election statewide and not name representatives of all the counties as defendants. Barnett responded that the results in Maricopa County, because of its size, determine the results of the elections.
Barnett’s inexperience in the courtroom was evident. He tried to obtain the counsel of Leo Donofrio, a retired New Jersey lawyer, to represent him in the second hearing, which Bachus did not permit.
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Barnett failed to serve the defendants with a copy of the briefing before the second hearing, as required by law. He emailed the judge two copies of the pre-hearing memo before the second hearing, one with his name on it and the other with Donofrio’s name. Donofrio admitted drafting the memo even though, as Bachus noted, that New Jersey law does not permit retired attorneys to “draft or review legal documents, render legal assistance or advice, teach law, or serve in a court system and in capacity in any jurisdiction.”
After naming exceptions to the law, Bachus asked Donofrio if any applied to him.
He said that he was doing the case “pro bono,” which qualified as an exception under New Jersey law, but noted that it was not for legal aid, which is also required. He explained that he had not practiced law since his retirement in 2011. Donfrio said he was ” simply a blogger and Twitter person… commenting on the situation.”
“I was going to do a model complaint. Josh got in touch with me. I said, ‘You can take whatever I got, but I’m not representing you and I’m not representing anyone,’ and here I am,” Denafrio added. “So I completely understand if it’s not possible (to represent Barnett).”
Donofrio explained his presence as a result of being unable to find an Arizona attorney to represent Barnett.
Barnett’s legal complaint sought a declaratory judgment under Arizona Statute 12-1831, the Uniform Declaratory Judgment Act “that the General Election concluding on November 8, 2022 has been rendered incurably uncertain due to the misconduct of Election Boards and officers making and participatingin the canvas thereof.”
Gaona disagreed, saying the lawsuit was really a complaint contesting election results. He asked for the suit to be dismissed in an initial hearing Friday morning, on grounds that it was too early to file the suit under election statutes law. Arizona statute 16-673 notes that a statement contesting the election has to be filed five days after the secretary of state certifies the results and declares the winners.
Bachus held that Barnett was entitled to file a briefing addressing the prematurity issue after the first hearing but ultimately agreed with Gaona.
A lawsuit contesting the election results by Republican attorney general candidate Abe Hamadeh was dismissed earlier in the week on the grounds that it was too soon to file suit under 16-673.
Like Hamadeh, Barnett cited issues with tabulator machines on Election Day in Maricopa County, as grounds for the complaint. Tabulator machines at some of the county’s polling locations were unable to read the ballots because of the faintness of the ink from voting center printers, which led to ballots placed in secure boxes to be counted later and long waits at some locations.
Barnett alleged poll workers improperly checked out voters so they could vote elsewhere, leading to their vote ultimately not counting.
Maricopa County officials called the election “safe, secure and accurate” when certifying their results Nov. 28.