hopping back on. with a lengthy recess like this, the prudent and collegial thing for the parties to do would be to confer and try to stipulate to as much as possible to make the rest of the hearing go smoother and more quickly. i have no faith that this happened here https://twitter.com/courtpio/status/1326959207610867713

maricopa county elections director is testifying about the use of sharpies, the recommendation for the use of sharpies, the tabulating process, and all sorts of matters that are basically undisputed

the attorney for the county questioning the witness right now is joseph la rue, former deputy general counsel for herman cain and newt gingrich. the county is stacked with republicans and they're still all telling the trump campaign to pound sand

191 overvotes for president. that's what we're talking about here.

trump campaign now cross-examining the elections director for the county.

i'm not sure what the outcome of this was supposed to be. maybe some suggestion that mail-in ballots and election day ballots were adjudicated differently if there was an overvote

counsel for the trump campaign again emphasizing that they aren't alleging bad faith by the poll workers, but points out they aren't highly paid. sure.

elections director is done. next witness for the trump campaign is a woman who voted in-person at 26th avenue and rose garden

okay so this woman voted for trump and apparently thinks her vote might not have counted because someone pressed a green button. "who pressed the green button, ma'am" was the trump campaign's "who ordered the code red" moment

guess what? the woman doesn't know whether her ballot was overvoted, the declaration/affidavit was prepared by the attorneys, and she "can't confirm" that "my vote for my president" was accepted

oh, it's also "based off of all the things that i've heard." let's hear more about this!

the tabulator didn't show any error. but don't worry, she read stuff online and talked to family, so that makes sense

the next witness is going to be just another dude, probably going to testify that someone hit the green button before he could see what his overvote was. it's worth noting that even if there was an overvote, the cause was that these people couldn't fill in a ballot correctly

this guy just testified that the machine said "double count." also, the poll worked apparently told him "well it wasn't for the president-elect, so it's fine," definitely a thing poll workers say.

oh good: on cross-examination, this guy just testified that he thinks that the sharpie means his ballot didn't count. the trump campaign is now objecting to its own witness's testimony because he's clearly a nut

next guy testifying is a poll watcher in guadalupe

he apparently thinks that the poll workers were having people put in ballots and saying "push the button" with respect to literally every vote, and that the people did. i'm not sure what this is supposed to show? they can't even establish a single overvote occurred here

literally every witness has testified that, *after the fact*, they gained new information that makes them think there was some problem so that their vote (or the votes they were observing) might not have counted

the next witness does not realize that she's creating a huge echo

another poll watcher, this one says that one of the tabulators stopped working and the other one would prompt the user to press a button on occasion and the poll worker would instruct them to "press the red button"

i do not understand what this witness is saying. she said that if a ballot was rejected, the poll worker would provide guidance, sometimes to choose "yes and no" and other times "yes and no." i have no idea what the "yes" or "no" refer to

"yes" and "no" almost certainly have to refer to a judicial retention vote or a proposition. the testimony earlier was that judicial retention votes are the most likely to have overvotes.

ah, there it is. she thinks that pressing the "red button" was bad. that is the opposite of all the testimony about the green button before. i am sick of these buttons

this sums it up pretty nicely: https://twitter.com/rcpierce/status/1327001917633953792

might be about time to mention that the attorney representing the trump campaign, kory langhofer, was on the short list for a seat on the ninth circuit https://abovethelaw.com/2017/07/circuit-court-nominees-in-the-trump-administration-the-latest-news-and-rumor-part-2/

another person testifying that they were told to press the green button despite there being an overvote of some kind. can't say what the overvote was, don't know what the overvote was, everything is just speculative. probably cost a judge a retention vote

in case i've just been rolling too long: https://twitter.com/ElkeHollings/status/1327003289188245509

"you don't have a basis to believe your ballot wasn't counted, do you?" "no." why are we doing this

this is the last voter/observer witness for the trump campaign. hallelujah.

this guy: his wife's ballot was taken with no issue. his ballot had an issue saying it was "unable to read one or more of the bubbles." pretty sure this is a distinct error from an overvote

the democrats have asked every person "did you vote for more than one person for president" and they've all said no. they also said they didn't vote for more than one person for any other office, so these folks must be skipping the school board and corporation commission

"what is your basis for the belief that your vote for trump didn't count?" no witness has answered this question well, and this guy doesn't either. it's the question that prods them to go mask off every time

i would be very curious if an error pops up for an undervote (meaning someone who didn't vote for every office), because none of these people are bothering to vote for judges

short, ten-minute recess. the trump campaign still has a host of witnesses to get through. i'd guess gina swoboda is probably on deck, the witness list is available here: https://www.clerkofcourt.maricopa.gov/Home/ShowDocument?id=1614

i'm wrong and can't read well (swoboda was removed from the witness list, though she submitted a declaration with the complaint). the trump campaign is now calling witnesses to lay the foundation for their google form declarations/affidavits (which have been excluded)

the secretary of state's office is objecting to this witness because nothing about their testimony has been disclosed. given the time constraints i'm not sure that'll work, they're just laying foundation for their (still inadmissible, not going to come in) google form affidavits

objection is overruled, we get to see under the hood of the google form affidavit process

the creator of " http://donttouchthegreenbutton.com " is explaining the process of the website/form. his explanation is not consistent with my experience; he says that the website "matches" submissions to election day voters, when i think it would autofill election day voters in the form

the website is down now, so no way to check anymore. still, none of this explanation is going to somehow make the submissions (all of which are hearsay, obviously) so reliable as to be admissible

fake submissions were excluded, including those that "included profanity and didn't submit real information."

if you submitted a profane and obviously fake election day issue to the trump campaign through that website, the trump campaign is saying that a yale-trained attorney wasted their time reviewing that submission

cross-examination. this witness is supposed to be laying foundation for the (inadmissible) declarations, and he's saying that he never went out to actually obtain those declarations. he just gave information to a "team"

the democrats eliciting testimony that there were 600 websites through the website, and 250+ were screened out at the "first level." note that the website submissions were apparently supposed to be under the penalty of perjury

they're talking about the autofill functionality now (which would give names/addresses of people who voted on election day, making a fake submission very easy). witness says it was removed "very soon" after starting the site, meaning "the next morning" after starting it

democrats' counsel: "so i could've just started typing in 'john smith' and found an auto-populated name and provided a fake submission?"
witness: "yes"

the witness doesn't know if he's being paid for his testimony? or to make the website? he doesn't know?!

oh, there it is. he and counsel for the trump campaign in this case (kory langhofer) co-own a company together that does digital analysis on ballot measures.

the democrats pointing out that the information from the autofill information constituted a data breach for thousands of arizona voters who showed up in-person to vote. the response is that the witness "has heard the allegation"

the lesson from this witness is that cross-examination is important, which is why hearsay is typically excluded, which is why the declarations were excluded in the first place

the trump campaign rests. they're working out procedural issues about time splitting now

time splitting issues solved. the county has one witness, the secretary of state will have two. hopefully this is quick, arizona judges tend not to stay long (because they don't want to keep their staff long)

this witness is the woman in charge of recruiting and training poll workers, which seems like an absolute nightmare

"did your team instruct the poll workers that it's the voter that decides [whether to press the green or red button]?" "yes"

i mean that's what this boils down to. what is the county supposed to do, exactly? what is the "problem" that the trump campaign is trying to fix here?

ooooh, a twist! the secretary of state is calling gina swoboda, who works for the trump campaign (and who i thought wasn't testifying because the trump campaign didn't call her as a witness)

the secretary of state's office is establishing that ms. swoboda (who was in charge of election day operations for the trump campaign) never raised the "green button" issue on election day. she says she raised that the tabulator wasn't taking the ballots, though

just admitted she didn't raise any issue with poll workers with the secretary of state on election day. also admitted that she didn't draft the declaration that was submitted with her complaint

also admits there were no consistent, regular, or systematic problems with poll workers on election day

gina swoboda has zero idea what races would've been affected, what the problems even were (overvotes or undervotes), whose ballots were rejected, or basically anything at all

"where we are now, in my opinion, is that there are a lot of people who have a concern that their votes weren't counted" so we should look at the process to make sure everyone's votes are counted

she says there were a "lot of equipment issues" but no one did anything maliciously, but there were issues that caused people to "have concerns"

worth noting that this witness isn't even a trump campaign lawyer. she's a trump campaign *employee.* she's not tethered to ethical obligations in the way an attorney is (though she can't lie under oath). she won't even say that she *believes* the election was not fair

the government parties are out of time. the trump campaign tries objecting to giving everyone 15 minutes more time. it, predictably, fails

if i never hear the phrase "green button" ever again it will be too soon

the government defendants decide not to call their last witness to save their remaining time for argument. closing time

trump campaign says that the "critical moment" came when the maricopa county elections director admitted that an early ballot and an election day ballot with identical marking would be "tabulated differently."

buddy, let me tell you: that was not the critical moment.

again, this case is ultimately about whether an "overvote" should be reviewed by an adjudicator in the elections office or whether the voter should have the opportunity to override (or fix!) the overvote.

the only relief that the trump campaign/RNC is asking for is manual review of the ballots that have overvotes. counsel for the campaign emphasizing this is a "modest" claim and that it is "not about fraud"

i will say that the attorney for the trump campaign is going out of his way to make clear that this is not about fraud and that we're talking about a very small number of votes. he says this is to "reduce tensions somewhat," which is one way to say "i want to avoid sanctions"

that's right. basically, the campaign is saying that the witnesses are mistaken and that there actually is an overvote somewhere on there https://twitter.com/elle_bee_are/status/1327030931484446721

the thing about this "modest ask" is that i'm not sure it is actually feasible to go back and find all of the "overvotes" and manually review them. also, the voter pressed the green button saying "go ahead and submit it anyway"

trump campaign says it's not asking for a recount - it's asking for a *count* of the overvoted ballots, since they've never been counted in the first place.

if i'm the government defendants, by the way, i flip the trump campaign's "critical moment" language back at them during my own closing argument

they are talking about the "laches" argument right now and i have no interest in talking about laches. the easier argument is that this is a fake issue that the trump campaign didn't even raise on election day, so you should treat all of this with skepticism

the judge is "questioning" the trump campaign right now. there are 191 ballots that contain an "overvote" of some kind for the office of president. 950 overvotes for partisan elections of some kind or other

i will say that the best argument the trump campaign has is to limit this as much as possible to force manual review of these overvotes. it won't make a difference, but you get a "win" on paper and cast doubt on the system

the trump campaign is now limiting its claim even *further*, saying that it should only manually review ballots with an overvote if, after the ballots are counted, the margin of victory or loss is smaller than the number of overvotes at issue

this is effectively waving the white flag on the claim with respect to the presidential race (which is not going to be that close) but maybe giving life to a state legislator, kate brophy mcgee, who is down a couple of hundred votes in her re-election campaign

the secretary of state arguing now, and is trying to make as crystal clear as possible that "PRESSING THE GREEN BUTTON CASTS YOUR BALLOT."

the secretary of state is relying heavily on the elections procedure manual and arguing it was followed, but the judge points out that some witnesses (the ones the trump campaign brought it) testified that the poll workers didn't explain that process to them correctly

the secretary of state makes a great point: ordering the county to go back and adjudicate overvotes may actually *contradict* voter intent, since the voters were given notice of their overvote and made the decision to cast it anyway. so how do you determine "voter intent"?

if i'm reading the tea leaves: the court is seriously, seriously considering ordering review of the limited number of overvotes. the judge doesn't seem to think it's a big ask. the county needs to hammer that argument above (about voter intent)

the judge emphasizing the limited relief that the trump campaign/GOP are now seeking (limited review of overvotes in those cases where the margin of victory is less than the overvotes in that partisan race)

counsel for maricopa county (tom liddy) leads off with kelli ward's "stop the steal" language and fundraising efforts. liddy is displeased with the fact that this proceeding is occurring at all

the county hitting hard the fact that this *is* a recount. the votes have already been tabulated. there are rules about when a recount can occur. this would affect every county in the state.

also hitting hard that the trump campaign has moved the goal posts; it used to be systematic error, now it's just minor issues

the county emphasizing that many overvotes are deliberate, citing florida in 2000.

the county: 99.9989% of the ballots cast have a valid vote for president. it is impossible to show systematic error.

the county emphasizing (based on questioning by the judge) that the ballots, even with overvotes, have been *counted,* so this is a recount, no way around it

the county: "i'm glad the court has recognized that the claim for relief by the plaintiffs, in the last hour, has changed." also points out: the county should not determine whether a vote needs to be counted based on the results of the election. not a good road to go down

that's a great point: we shouldn't determine how to proceed based on the results of the election. either count them or don't.

the democrats emphasizing that the plaintiffs have "zig zagged wildly." there is testimony about green buttons. declarations about sharpies. motions about overvotes being "damaged" ballots. public statements about fraud. and now, what?

counsel for the democrats emphasizes that the bedrock of the election is voter intent, and the reason for hand adjudication of early ballots is that the voter isn't right in front of you. here: the voter is right in front of you! they can choose how to proceed!

counsel for the DNC is cutting apart the trump campaign's arguments. there are limited remedies available, and allowing the relief the campaign seeks here opens a can of worms for all sorts of other novel theories of election law (that the legislature hasn't provided for)

that was the best of the defendants' arguments. emphasize to the court that the "limited" ruling here isn't limited at all, but will open up a flood of new election law claims next cycle

the trump campaign up again, now leaning heavily on some of their witness testimony (that these witnesses did not intend to overvote). that's the right line to take. still have to somehow rebut the democrats' argument about whether this remedy is even available

"the phrase 'stop the steal' is not in evidence, it is not this case." - counsel for the trump campaign

ooooh, the judge picking up on the argument that the legislature has codified the remedies available under election law. the trump campaign is trying to tie this to a very recent arizona supreme court decision, though that dealt with pre-election conduct

the trump campaign argues that, before certification (but after the "vote"), the remedies are more wide open and not limited

we're done. the court takes this under advisement, will rule ASAP

in sum: seems like the court could order review of the overvotes in cases where it's close enough to matter. i can't imagine the relief going beyond that, and the judge may be gun-shy to create a new remedy when he knows this is going to the court of appeals regardless