Maricopa County Judge Rules To Unseal Evidence In Trump Lawsuit

PHOENIX — A Maricopa County voting irregularity lawsuit is heating up, as a judge ruled on evidence ahead of a Thursday hearing.

Lawyers for President Donald Trump's campaign filed suit in the county Saturday, alleging that thousands of votes were "incorrectly rejected" in Phoenix on Election Day. Attorneys representing the defendants — Maricopa County Recorder Adrian Fontes, Arizona Secretary of State Katie Hobbs and the Maricopa County Board of Supervisors — argued that fewer than 200 ballots were actually at play.

The Maricopa County lawsuit is one of many that the campaign has filed in battleground states in recent days, including in Pennsylvania.

Here are five things to know:

1. The lawsuit is regarding "overvoting."

Overvoting is when voters mark more options than allowed in a particular race. Things like stray markings tabulation machines to register a ballot as an overvote and are programmed to alert voters when that happens. Election tabulation machines allow options for a green "cast" button and a "spoil" option in which voters can disregard the ballot and start over if issues like that arise. Voters could then choose to "spoil" the ballot and request a replacement, or cast the original ballot with the warning that overvotes may not be counted.

The Trump campaign's lawsuit alleges election workers either pressed, or in some cases induced voters to press, the green button so that those ballots would not be counted. A handful of voters signed affidavits as part of the lawsuit, according to the Arizona Republic.

But Thomas Liddy, an attorney for the county, said that only 180 ballots could be identified as potential overvotes, and that there was little evidence of a systemic problem.

“There were 155,860 votes voted in person on Election Day [in Maricopa County],” Liddy said. “Of those, the tabulator only identified 180 potential overvotes on the presidential line … 180, that’s it.”

2. A hearing took place Tuesday.

Attorneys for the Trump campaign sought to seal evidence that they say will prove their claims from public view, including video from a polling place and voter declarations containing personal information. Taking photos or video within 75 feet of polling places is a Class 2 misdemeanor in Arizona.

Trump campaign attorney Kory Langhofer filed a motion Tuesday asking the judge to keep the evidence sealed to ensure voter privacy.

“Entry of a protective order, as well as an order sealing the records when admitted into evidence, will allow full access to critically important evidentiary materials, while ensuring that the privacy of individual voters and witnesses is appropriately safeguarded,” he wrote.

In a separate motion filed Tuesday to keep the evidence unsealed, county attorneys argued that this lawsuit should not be treated like a typical election lawsuit and called claims of voting irregularities "baseless."

"Plaintiffs, through their lawsuit and public comments, have sought to undermine the public's confidence in Arizona’s election in general and Maricopa County’s election in particular," the motion said. "This is not a standard, run-of-the-mill election law challenge, and should not be treated as such. This case goes to the heart of election integrity, and alleges widespread, systemic failure by the Maricopa County Defendants, their employees, and their processes."

Maricopa County Superior Court Judge Daniel Kiley ruled to keep the evidence unsealed; the county will redact any personal information from the declarations.

3. Arizona requires very slim margins for a recount.

A recount in Arizona is triggered if the difference between two candidates is 0.1 percentage points, or 200 votes or less. As of Thursday morning, President-Elect Joe Biden is leading Trump in the state with 1,663,447 votes to 1,651,812 votes. That's a difference of 0.34 percentage points. With vote counting winding down, Maricopa County has just 6,715 votes left to count.

Arizona Secretary of State Katie Hobbs has said she is not anticipating a recount, according to ABC15.

4. This is one of many lawsuits from the Trump campaign alleging large-scale voter fraud.

The campaign to re-elect the president has filed suits in several other battleground states. A suit was filed Monday in Pennsylvania to stop the state from certifying its election results, alleging voting irregularities. The state said the campaign has offered no evidence to support its claims. Lawsuits filed by the campaign in Michigan and Georgia have been thrown out.

4. Oral arguments begin Thursday.

An evidentiary hearing and oral arguments will begin on Thursday morning. The public can listen to the virtual hearing, which is set to begin at 9:30 a.m., by calling 877-309-2073 and using access code 697-460-909.