A day after the polls closed, the Arizona governor’s race remained neck-and-neck, with both 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 tallied, there remains a possible legal fight looming in the days and weeks ahead.
The Lake campaign has made clear it is prepared to pursue legal action over the election, potentially over the counting of ballots and the observation of that process, according to sources familiar with the matter. A member of Lake’s legal team who requested anonymity tells TIME that “a subject matter of a lawsuit” could be “the counting of the ballots and the monitoring of the counting.” They wouldn’t say whether any specific suits were planned as of yet.
Such an action could ultimately focus on the final batch of ballots—roughly 290,000 mail ballots that were delivered in person on Election Day—that will be counted over the next several days.
“We’ve said from the beginning that this was going to be a tight race,” Nicole DeMont, campaign manager for the Hobbs campaign, said in a statement. “Each and every Arizonan deserves to have their ballot counted and their voice heard, and in the days to come we will continue to watch these results closely to make sure that happens.”
As of Wednesday evening, Hobbs, Arizona’s secretary of state, was leading Lake by a little more than 13,000 votes with roughly 70% of the ballots counted. Hobbs took a commanding lead on Tuesday night after winning the early mail-in votes by roughly 14 percentage points. Lake then closed the gap through her lead with voters who cast ballots in person on Election Day.
That leaves those roughly 290,000 ballots from Arizonans who voted absentee but who either dropped off their ballots on Election Day or whose ballots arrived by mail on Election Day. An Arizona election official familiar with the matter who requested anonymity because they were not authorized to discuss the governor’s race expected those votes to be split evenly between Democrats, Independents, and Republicans.
Arizona Republicans, however, are banking on those ballots leaning toward Lake. They say that many Republicans stayed on the absentee voter rolls after 2020 but weren’t comfortable mailing in their ballots or voting early. It’s a trend that remains a legacy of former President Donald Trump’s bashing of voting by mail as being rife with fraud, despite no substantial evidence to support that claim, which he became especially vocal about two years ago, as many states expanded mail voting to facilitate elections amid the pandemic.
The Hobbs campaign informed its supporters on Wednesday that it’s embarking on a process to reach out to Arizonans who voted absentee but who then received a notice that their ballot wouldn’t be processed until a problem was addressed, what’s known as the “cures process” in elections parlance.
A Hobbs campaign spokesperson 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 leading elections attorney.
“Because every single vote matters, and every single vote counts equally—whether you voted by mail, dropped off your ballot at a secure drop box yesterday, or voted in person,” the Hobbs campaign wrote in an email to supporters on Wednesday. “That’s why our focus is now turning to ballot curing—contacting voters who may have had an issue with their ballots—to make sure all voices are heard in this race.”
An Arizona elections official explained that this was a common process in vote counting. It generally applies to voters who either forgot to include a signature on their ballot or who may have made a mistake like signing a spouse’s ballot instead of their own. These errors are caught because of signature-verification technology used to ensure a signature on a ballot matches the one on a voter’s registration.
In Arizona, monitors are allowed in the room for the cures process to ensure faith in the system. The Lake campaign has indicated that it is prepared to deploy lawyers to observe the process—and potentially take legal action if they see something they don’t like.
Ahead of the election, the Lake campaign pumped $2 million to create and staff an election week “War Room” to monitor the election and vote-counting process, and file lawsuits at the drop of the hat, according to a campaign official. The effort includes roughly 40 lawyers in a conference space in a Scottsdale hotel, as well as a team of what the campaign has called “roving lawyers” dispatched to polling places and vote-counting centers throughout the week.
“This is the most robust Election Day operation and post-election operation that Arizona has ever seen,” Brady Smith, the Lake campaign’s chief political strategist, tells TIME.
Funding for the effort, Smith says, came from several sources, including the Lake campaign, the Republican National Committee, the Arizona Republican Party, the National Republican Senate Committee, and Republican Senate nominee Blake Masters’ campaign.
Both Lake and Masters have been outspoken voices casting doubt on the integrity of the 2020 election, including President Joe Biden’s Arizona victory, despite multiple investigations finding no evidence of substantial fraud.
The War Room unit 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 her social media accounts in the days leading up to the election.
“Those are all being utilized, and our attorneys are responding rapidly to address issues and concerns as they pop up,” Smith says.
Both the Lake and Masters campaigns joined the RNC in a lawsuit filed in Maricopa County court on Tuesday to extend the voting times there in response to problems with about 20% of the machine tabulators used to scan ballots at polling places in the morning. By midday, county officials said they had identified and fixed the problem. The judge denied the GOP request, saying that the issue didn’t result in voters not being able to cast ballots and have those ballots counted. In 2016, the Arizona Democratic Party filed a similar lawsuit to extend voting times, which was also denied.
The Lake campaign legal source suggested that, if the counts are close, they may request a hand count, rather than using machines, noting that hand counts often produce different results.
The Arizona elections official did not dispute that machine counting and hand counting often does result in different final vote counts, but said the discrepancy was usually marginal. They also stressed that machines tended to be more accurate and less susceptible to human error.
Yet if the remaining ballots pan out as Lake campaign officials hope and expect, they may be less likely to embark on a legal battle. “Wow,” Lake tweeted Wednesday afternoon. “We’re going to win big. Stay tuned.”
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