Aug 15, 2022 - Politics

Top Republican candidates for Arizona's statewide offices have questioned 2020 election

Illustration of a voting booth on a blue background surrounded by safety cones.

Illustration: Maura Losch/Axios

The Republican nominees for Arizona governor, secretary of state and attorney general all deny the legitimacy of the 2020 presidential election.

Why it matters: That's raised largely unanswered legal questions about what would happen if one of them refused to certify election results in 2024 if they win their races this year.

State of play: If one of those three elected officials refused to certify election results, it could throw into doubt the results.

  • In 2020, former President Trump and his allies hoped to replace electors for President Biden in Arizona and several other states with electors for Trump.
  • Trump called Gov. Doug Ducey during the 2020 general election canvass trying to persuade him not to certify the results.

The big picture: State law says the secretary of state shall canvass the election results in the presence of the governor and attorney general. The law includes no provision stating that the decision is discretionary.

Context: It seems certain that someone would sue if one of the officials refused to certify the results. Several attorneys and legal experts tell Axios Phoenix that they believe a judge would order the officials to sign the canvass if they refused to do so.

Between the lines: Paul Bender, an Arizona State University law professor and expert on the state constitution, says he believes judges would have the authority in such a case to either certify the results themselves or appoint someone to do it.

  • "I think the judge has the power and the obligation to make sure it gets done because the law says it should be done," Bender tells Axios Phoenix.

Of note: If an official refused an order to certify election results, it's possible that they could be held in contempt of court, several attorneys suggest.

  • There's also a state law that says an election official "who knowingly fails or refuses to perform any duty required of him" is guilty of a misdemeanor.

Democratic election attorney Roy Herrera, who represented the Biden campaign in Arizona two years ago, noted that state statute explicitly says that only the secretary of state needs to canvass election results.

  • That raises the possibility that election results could be certified without the signatures of the governor or attorney general.

The other side: State Rep. Mark Finchem, the GOP nominee for secretary of state, tells Axios Phoenix that he's never asserted that he wouldn't have certified the 2020 election, only that any state officer who signs a fraudulent document or one based on fraudulent claims would be guilty of a felony.

  • No court has ever found that the 2020 election in Arizona was affected by fraud.
  • Asked if he would've signed the 2020 canvass, Finchem tells Axios Phoenix, "There are too many hypotheticals to make a judgment call so long after the event."
  • Spokespeople for gubernatorial nominee Kari Lake and attorney general nominee Abraham Hamadeh did not respond to our request for comment.

Threat level: A nonpartisan Arizona election protection coalition is studying this issue and other potential threats to democracy, and it hopes to come up with a workable solution for 2024.


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