SUPREME COURT OF ARIZONA 

 

KELLI WARD, ) Arizona Supreme Court 

 ) No. CV-20-0343-AP/EL 

 Plaintiff/Appellant, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CV2020-015285 

CONSTANCE JACKSON; FELICIA ) 

ROTELLINI; FRED YAMASHITA; JAMES ) 

MCLAUGHLIN; JONATHAN NEZ; LUIS ) 

ALBERTO HEREDIA; NED NORRIS; ) 

REGINA ROMERO; SANDRA D. ) 

KENNEDY; STEPHEN ROE LEWIS; and, ) 

STEVE GALLARDO, ) FILED 12/08/2020 

 ) 

 Defendants/Appellees, ) 

 ) 

and ) 

) 

KATIE HOBBS, in her official ) 

capacity as the Arizona Secretary ) 

of State; ADRIAN FONTES, in his ) 

official capacity as the Maricopa ) 

County Recorder; and the MARICOPA ) 

COUNTY BOARD OF SUPERVISORS, ) 

 ) 

 Intervenors. ) 

 ) 

__________________________________) 

DECISION ORDER

The Court accepted jurisdiction of this expedited election 

appeal and en banc has considered the record, the trial court’s 

December 4, 2020 minute entry, and the briefing of Appellant Kelli 

Ward, Defendant Biden Electors, Intervenors Maricopa County and the 

Secretary of State, and amicus curiae The Lincoln Project.

The Secretary duly certified the statewide canvass and on 
Arizona Supreme Court No. CV-20-0343-AP/EL

Page 2 of 7

November 30, 2020, she and the Governor signed the certificate of 

ascertainment for presidential electors, certifying that in Arizona 

the Biden Electors received 1,672,143 votes and the Trump Electors 

received 1,661,686 votes (a difference of 10,457 votes out of a total 

of 3,333,829 cast for these two candidates). Although slim, the 

margin was outside the one-tenth of one percent of the total number 

of votes cast for both of the presidential electors which is the 

statutory trigger for an automatic recount. A.R.S. § 16-661(A)(1). 

The Secretary’s certification followed Maricopa County’s audit. 

Under Arizona law, the county officer in charge of the election 

conducts a hand count prior to the canvass. A.R.S. § 16-602(B). The 

statute provides detailed instructions on the hand count process, and 

in this case the November 9, 2020 Maricopa County hand count included 

5000 early ballots and a hand count of Election Day Ballots from twopercent of the vote centers. The audit revealed no discrepancies in 

the tabulation of the votes between hand count totals and machine 

totals. The County completed its canvass on November 23, 2020.1

Maricopa County is the only county implicated in this proceeding.

Appellant filed her contest under A.R.S. § 16-673 raising three 

statutory bases for a challenge under A.R.S. § 16-672 which include 

“misconduct” by an election board or officer; “[o]n account of 

illegal votes”; or “[t]hat by reason of erroneous count of votes the 

 

1 https://azsos.gov/sites/default/files/2020_General_Maricopa_Hand_Count.pdf
Arizona Supreme Court No. CV-20-0343-AP/EL

Page 3 of 7

person declared elected ... did not in fact receive the highest 

number of votes.” A.R.S. § 16-672(A)(1), (4) and (5). In her First 

Amended Complaint, Appellant sought the inspection of an unspecified 

number of ballots under A.R.S. § 16-677, which authorizes the 

inspection of ballots before preparing for trial after the statement 

of contest has been filed. 

Under Arizona law, “If any ballot, including any ballot received 

from early voting, is damaged, or defective so that it cannot 

properly be counted by the automatic tabulating equipment, a true 

duplicate copy shall be made of the damaged ballot in the presence of 

witnesses and substituted for the damaged ballot. All duplicate 

ballots shall be clearly labeled ‘duplicate’ and shall bear a serial 

number that shall be recorded on the damaged or defective ballot.” 

A.R.S. § 16-621(A). 

In this election, Maricopa County had 27,869 duplicate ballots

pertaining to the Presidential Electors. Witness testimony explained 

that “duplicate ballots” include those reflecting “overvotes” or 

votes for more than one candidate; overseas ballots; and ballots that 

are damaged or otherwise cannot be machine tabulated. The trial 

court also heard testimony from a number of witnesses who presented 

credible testimony that they saw errors in which the duplicate ballot 

did not accurately reflect the voter’s apparent intent as reflected 

in the original ballot. 

Before the trial, the parties conducted a review of randomly 
Arizona Supreme Court No. CV-20-0343-AP/EL

Page 4 of 7

chosen sample ballots. The first review was of 100 ballots and the 

second was of 1526 ballots, and of the 1626 total, there were nine 

errors, (1617 correct duplicate ballots) that if correct would have 

given the Trump Electors an additional seven votes and the Biden 

Electors an additional two votes. The Secretary maintains that this

constitutes an error of no more than 0.37% within the sample. 

Appellant argues that the error rate was 0.55%, and the trial court 

concluded the results were “99.45% accurate.” When this is 

extrapolated to the total number of duplicate ballots it is not 

sufficient to come close to warranting a recount under A.R.S. § 16-

661.

Although Appellant requested additional time and the opportunity 

to review additional ballots, Appellant offered no evidence to 

establish that the 1626-ballot sample was inadequate to demonstrate 

any fraud, if present. As the trial court noted, this review 

confirmed the witness testimony that there were mistakes in the 

duplication process, the mistakes were few, and when brought to the 

attention of election workers, they were fixed. Extrapolating this 

error rate to all 27,869 duplicate ballots in the county would result 

in a net increase of only 103 votes based on the 0.37% error rate or 

153 votes using the 0.55% error rate, neither of which is sufficient 

to call the election results into question.

 The parties also presented evidence after reviewing a sample of 

the envelope signatures on mail-in ballots. Their experts determined 
Arizona Supreme Court No. CV-20-0343-AP/EL

Page 5 of 7

that out of 100 signatures, six to eleven of the signatures were 

“inconclusive” but neither expert could identify any sign of forgery

or simulation and neither could provide any basis to reject the 

signatures.

Election contests are “purely statutory and dependent upon 

statutory provisions for their conduct.” Fish v. Redeker, 2 Ariz. 

App. 602 (1966). Elections will not be held invalid for mere 

irregularities unless it can be shown that the result has been 

affected by such irregularity. Territory v. Board of Sup’rs of 

Mohave County, 2 Ariz. 248 (1887). The validity of an election is 

not voided by honest mistakes or omissions unless they affect the 

result, or at least render it uncertain. Findley v. Sorenson, 35 

Ariz. 265, 269 (1929). Where an election is contested on the ground 

of illegal voting, the contestant has the burden of showing that 

sufficient illegal votes were cast to change the result, Morgan v. 

Board of Sup’rs, 67 Ariz. 133 (1948). 

The legislature has expressly delegated to the Secretary the 

authority to promulgate rules and instructions for early voting. 

A.R.S. § 16-452(A). After consulting with county boards and election 

officials, the Secretary is directed to compile the rules “in an 

official instructions and procedures manual.” The Election 

Procedures Manual or “EPM,” has the force of law. The Court recently 

considered a challenge to an election process and granted relief 

where the county recorder adopted a practice contrary to the EPM. 
Arizona Supreme Court No. CV-20-0343-AP/EL

Page 6 of 7

Arizona Pub. Integrity All. v. Fontes, ___ Ariz. ___, 475 P.3d 303, 

305 (Ariz. November 5, 2020). Here, however, there are no allegations 

of any violation of the EPM or any Arizona law. 

Intervenor Maricopa County argues that the trial court could not 

entertain this challenge under A.R.S. § 16-672(A) which authorizes a 

contest of the “election of any person declared elected to state 

office.” Intervenors/Defendants/Amicus contend that the Court must 

decide this matter within the “safe harbor” deadline of 3 U.S.C. § 5. 

The Court concludes, unanimously, that the trial judge did not 

abuse his discretion in denying the request to continue the hearing 

and permit additional inspection of the ballots. The November 9, 2020 

hand count audit revealed no discrepancies in the tabulation of votes 

and the statistically negligible error presented in this case falls 

far short of warranting relief under A.R.S. § 16-672. Because the 

challenge fails to present any evidence of “misconduct,” “illegal 

votes” or that the Biden Electors “did not in fact receive the 

highest number of votes for office,” let alone establish any degree 

of fraud or a sufficient error rate that would undermine the 

certainty of the election results, the Court need not decide if the 

challenge was in fact authorized under A.R.S. § 16-672 or if the 

federal “safe harbor” deadline applies to this contest. Therefore,

IT IS ORDERED affirming the trial court decision and confirming 

the election of the Biden Electors under A.R.S. § 16-676(B). 

IT IS FURTHER ORDERED directing Defendants/Intervenors to file a 
Arizona Supreme Court No. CV-20-0343-AP/EL

Page 7 of 7

response, which may be a collective response, to Appellant’s Motion 

to Unseal Exhibits no later than Friday, December 11, 2020.

IT IS FURTHER ORDERED denying the Secretary’s request for 

attorneys’ fees under A.R.S. § 12-349. 

DATED this 8th day of December, 2020.

 _____/S/_________________

ROBERT BRUTINEL

Chief Justice

TO:

Dennis I Wilenchik

N L Miller Jr

John D Wilenchik

Sarah R Gonski

Daniel A Arellano

Roy Herrera

Joseph I Vigil

Joseph Branco

Thomas P Liddy

Emily M Craiger

Joseph Eugene La Rue

Roopali H Desai

Kristen M Yost

Susan M Freeman

Bruce E Samuels

Hon. Randall H Warner

Hon. Jeff Fine