Judge dismisses Borrelli election suit for failure to serve defendants

An election lawsuit brought by Lake Havasu Republican Sonny Borrelli that challenged the election of Katie Hobbs as Arizona governor was dismissed late Friday afternoon. 

But the Mohave County judge hearing the case is allowing the portion of the suit pertaining to ballot signature verification in Maricopa County to continue as a civil case, with a much more relaxed timeline than election challenges, which are expedited. 

Borrelli filed the suit Monday, on behalf of Mohave County voters, who he claimed were disenfranchised by the unlawful use of artificial intelligence to verify signatures on ballot envelopes in Maricopa County in the 2022 midterm. 

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In the suit, Phoenix lawyer Ryan Heath, representing Borrelli and Mohave County voters, wrote that the use of third party artificial intelligence software to make initial scans and give a verification ranking to voter signatures in Maricopa County led untrained workers to accept bad signatures. He argues that the number of ballots with unmatching signatures accepted in Maricopa County because of the AI disenfranchised Mohave County voters by “diluting” the impact of their votes. 

Maricopa County Recorder Stephen Richer refuted this in a statement to the Arizona Republic. 

“Maricopa County has never used artificial intelligence to verify signatures on early ballot envelopes. All signatures are verified by humans — both at the initial review level and at the manager level,” Richer said in the statement.

Heath wrote that the impact of the allegedly wrongly accepted signatures was so large that it swayed the results of the governor’s race. Republican Kari Lake lost that race to Democrat Hobbs by more than 17,000 votes. 

Heath is the president and CEO of The Gavel Project, which describes itself as an “anti woke nonprofit legal organization.” 

Hobbs and the Maricopa County Board of Supervisors, along with other county officials who were named defendants in the suit, haven’t had a chance to officially refute the claims because they still haven’t been served with summonses in the suit. 

No one from the Board of Supervisors attended Friday’s hearing and Andy Gaona, an attorney representing Hobbs as secretary of state, said he only learned of the court date because a reporter told him about it. 

“This is a fundamental failure of the plaintiffs to comply with the statutes,” Gaona said. 

Heath blamed his failure to serve the defendants in a timely manner on an automatically created court summons that incorrectly gave the defendants 20 days instead of five to respond. Heath said it took several days to correct the error, and advised the judge not to worry about defendants not being served. 

Gaona called that “ridiculous” and asked for the case to be dismissed, especially considering that Heath made no effort to reach out to any of the defendants to inform them of the case and explain the delay in serving them with summonses. 

Heath said he wanted to ensure that the summonses included the correct time frame to respond, because he believed if they didn’t, the defendants would take the opportunity to drag out the case. 

Mohave County Superior Court Judge Lee Jantzen responded that Heath was wrong, because Gaona had been served with a summons in another elections contest case that also had the incorrect number of days for response listed, and responded to it expeditiously, Jantzen said. 

“It’s a mistake on your part to think that’s what would have happened,” Jantzen told Heath.

Jantzen also pointed out that the plaintiffs in other election cases in his courtroom had the same issue with their summonses, but still served them anyway. 

Heath asked for a five-day extension of the elections contest timeline, to give him time to serve the defendants, but Jantzen denied it, saying there just wouldn’t be enough time under state law to see the case through. 

Jantzen planned to be out of the office next week, and has no expertise in artificial intelligence, he said, meaning there would have to be lengthy testimony from experts on the subject before he could make an informed decision in the case. 

In Arizona, suits challenging election results can’t be filed until the results are certified by the state, and this year that happened Dec. 5. The cases are expedited in the courts, with tightly prescribed deadlines, since newly elected officials take office in January. 

“I’m finding specifically that we cannot process a contested election case within this timeframe,” Jantzen said. “It’s no longer possible to get this done before the end of the year.” 

Jantzen added that removing the portion of the suit regarding election practices in Maricopa County from the portion contesting the results of the governor’s race would give Heath and Borrelli more time to properly serve the defendants with summonses and otherwise prepare their case. 

In the portion of the case not tied to the governor’s race, Heath asked for a jury trial; demanded the court declare the use of third-party software in signature verification on Arizona ballot affidavits illegal; asked the the court to enjoin Maricopa County from “using unproven third party software vendors and AI to determine the validity of ballot affidavit signatures;” and mandate that Arizona extend the time allowed after elections for signature verification.  

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