Objection!: How the Arizona Rules of Evidence Affect the Arizona Election Litigation

By Joel Truett.

The Case

In the wake of this year’s presidential election, President Trump promised to take legal action to challenge the counting of the vote in several states.  Cases have been brought across the country, with supporters of the President continuing to argue that failures in vote counting or voter fraud were responsible for Joe Biden’s lead. Here in Arizona, the Trump campaign brought a case in Maricopa County alleging that they had evidence of “overvotes” being handled improperly  on election day. They argued that this was evidence of systematic errors in counting the vote that affected the election results. While this case was later withdrawn by the campaign, the hearing held on November 12 served as an interesting look at how the rules of evidence can influence election cases.

"One hat, one vote" by Columbia City Blog is licensed under CC BY-NC-SA 2.0

The word “overvote” simply refers to a ballot that has markings, for whatever reason, that indicate a selection of more than the allowed number of candidate choices per race. For example, a ballot that contains marks for both Joe Biden and Donald Trump in the presidential race would be considered an overvote ballot. This can happen when a stray mark on a ballot covers part of the “bubbles” next to both candidates’ name on the ballot. During the case, both sides agreed that the proper procedure for handling overvotes in Arizona involves giving voters a chance to fix their ballot before they finalize their vote submission. If the error is not fixed, the vote may be invalidated entirely.

State officials in Arizona, including the Republican state Attorney General Mark Brnovich, have made public statements denouncing the litigation. In his statement, Brnovich said that fewer than 200 votes may have been invalidated in connection with the allegations in the case. This small number of votes could not account for the approximately 11,000 vote difference between Joe Biden and Donald Trump in the state.

Nevertheless, on November 12, the Superior Court in Maricopa County heard arguments from both sides in the case. At this hearing, attorneys for the Trump campaign clarified their position, stating that they were not alleging any kind of fraud, but instead were arguing that simple mistakes in counting the ballots led to an inaccurate result in the county. To prove this, they brought forward a list of individuals who claimed that they saw overcast ballots being accepted at voting places without the voter being given a chance to fix their selection before submitting it.

The Arguments

These sworn statements were a key piece of evidence for the plaintiffs, and they were rejected by the trial court as hearsay. Hearsay rules keep statements made outside the courtroom from being considered in court to protect the reliability of the legal process. The Trump Campaign tried to argue that the evidence fell under an exception in Arizona Rule of Evidence 807. The rule states that a party to a case may be able to bring a statement made outside of the courtroom that would normally be disallowed under the hearsay rules under certain limited conditions. Essentially, it allows evidence on a topic to be allowed when that evidence:

  1. has specific signs of being trustworthy, and
  2. the party bringing that evidence can’t reasonably get equivalently valuable evidence on that point in any other way.

Attorneys for the Trump campaign argued that this evidence met both parts of the test. Firstly, they said that this was the only way the campaign could collect large amounts of evidence of voting irregularities on short notice, thus meeting the second part of the rule. It also argued that the fact that these statements were taken from voters on penalty of perjury, and the fact that the statements submitted were only from voters who had checked in to vote in person on election day, made these statements particularly trustworthy.

However, the Trump campaign conceded that some of these voters had been contacted directly by the campaign and questioned, while others had only filled out the online form created by the campaign for people to report any irregularities. The Court ultimately ruled to throw out the evidence of both of these subsets of voters under the Arizona rules, noting that Rule 807 is a relatively narrow exception and should not be so broad that it prevents hearsay rules from being successfully invoked to screen evidence. It also noted that the Trump campaign failed to show that the statements it presented from this process were trustworthy. The court’s decision seemed to be partially informed by the fact that these statements were solicited from a public online form. It noted that many of the names initially submitted to the court on that form were later withdrawn from the list after subsequent investigation into their claims. Perhaps the court reasoned that because the list had generated these “false positives,” it was not reliable enough to fit within the Rule 807 exception.

Conclusion

While this was not the only piece of evidence presented by the Trump campaign, it was an important one that the court rejected under the Arizona Rules of Evidence. It’s not certain that a different ruling would have changed the result of the case, but it serves as an interesting look into how litigants may want to approach gathering allegations of voting irregularities in the future.

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By Joel Truett.

J.D. Candidate, 2022

Joel is a 2L staff writer from Midland, Texas. He graduated from Southern Methodist University in Dallas majoring in Economics and Finance. While originally planning to work in the finance industry, his classes in the field of Law and Economics inspired him to change direction and attend law school at ASU. In his free time, he enjoys painting and hiking.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.