Judge rejects Shaw’s election challenge in Tucson Council primary

Moments after closing arguments Monday, a Pima County Superior Court judge rejected Sadie Shaw’s request to throw out the results of the Aug. 5 Tucson primary election against incumbent Councilmember Kevin Dahl.

Following a two-hour hearing, Judge Wayne Yehling ruled from the bench and denied Shaw’s request to toss the
results and re-do the primary, and pause the printing of ballots for November’s general election.

Shaw challenged the election results with a lawsuit on Aug. 15 after the final tally showed she lost by just 19 votes—earning 3,277 votes to Dahl’s 3,296 votes. With a margin within one-half of 1 percent, this triggered a recount under state law.

The decision means the recount — which was put on hold pending the election challenge — will resume.

The winner of the race will face Janet Wittenbraker, who had 1,513 votes in the uncontested Republican primary for Ward 3.

Both Democratic candidates attended the court hearing on Monday, but each quickly left the courtroom and did not make a public statement after the judge’s ruling.

The lawsuit, filed by Shaw’s attorney, James E. Barton of the Tempe-based law firm Barton
Mendez Soto, asked the court to throw out the election results.

“The number of Ward 3 Democratic primary voters who erroneously
received incorrect primary ballots, or whose vote was not counted (76)
exceeds Contestee’s margin of victory (19),” Barton wrote in the
lawsuit. “Defendants’ mistake affected the purity of the August 5, 2025
primary election and deprived Ward 3 voters of the opportunity to
exercise their fundamental right to vote.”

“Since
the ‘illegal votes’ or disenfranchisement was sufficient to affect the
outcome of the election and is an erroneous count of the final vote, the
correct remedy is to set aside the August 5, 2025, election,” Barton
said in the legal filing.

Tucson City Clerk Suzanne Mesich told the court that re-doing the primary would cost nearly $400,000 for just Ward 3. And, under Arizona state law, which strictly limits election dates, the city would have to wait until March 11, 2026 to hold another primary — with the general election scheduled in May 2026.

‘Small errors have a
major impact’

Among several stipulations, the city told Yehling the city must get ballots to a printer before Sept. 3 for November’s election.

Shaw, who is serving her second term on the Tucson Unified School District Governing Board, was joined by Ward 3 voter Timothy Hobson as a plaintiff in the lawsuit against Pima County Recorder Gabriella Cázares-Kelly, Mesich and Dahl.

Over the summer, a data error by the Pima County Recorder’s Office meant the city of Tucson — which was running the primary election — sent out the wrong ballots to 358 voters across three of Tucson’s voting wards.

Of those, 76 voters were Ward 3 voters received an incorrect ballot: 18 ballot for the wrong party, and 58 who received a primary ballot without requesting one.

Barton, arguing for Shaw, told the judge that “because this election is so close, the small errors have a
major impact.” 

“There has to be a way when qualified people are not allowed to vote,” he said, adding that Yehling had no choice but to vacate the election, or he would leave some voters disenfranchised. “We have to have another vote. I understand this is expensive, but we can’t disenfranchise votes,” Barton said.

Daniel Jurkowitz, an attorney for Pima County, argued there was no disenfranchisement because “no voter was prohibited from voting.”

“Just the opposite,” he said. “Every single one of them had the ability to vote.” 

Jurkowitz told Yehling that among the 18 people “not one of them returned a ballot.” Nor did they attempt to cast ballots on Election Day. “There were just no efforts,” he said, adding the court shouldn’t order another election that could disenfranchise the 6,573 voters who did cast a ballot for the Ward 3 Democrats.

He said the 58 people who received a ballot without requesting one were “never eligible voters.” Of those, 55 never voted, he said, and just three people sent their ballots back, but never affirmed they had requested a ballot. Non-party “independent” voters must request a ballot to participate in a party’s primary election.

“Those 58 are irrelevant and are a red herring,” Jurkowitz argued.

Shaw’s attorney presented four witnesses, including Alexandra Wright, who sought public records from city officials after they announced on July 29 they would reach out
to the 358 voters who received the wrong party ballot.

Following Wright, Hobson, a Tucson teacher, said he returned from a vacation on Saturday, just days before the election and started work on Monday. He said with teacher prep and errands, he didn’t vote in the election. Hobson blamed the “friction of this ballot issue,” calling it a “game-changer for me in showing up.”

Under state law, the voters could not tell the court who they would have chosen, but Hobson said without the ballot issue, he would have voted.

‘Procedure was wrong’

Marion Chubon, chief deputy recorder for Pima County, explained the failure was caused in part by the primary election for Congressional District 7—made necessary after the death of U.S. Rep. Raúl Grijalva in March. 

She said her office had to hold up on changing voter registration records during July’s primary for CD7. During this period, a data developer created a data table that captured voter changes, including voters who moved or changed party affiliations during this period. When it was time to create the file for the Ward 3 election, the “procedure was wrong,” Chubon said.

This file was sent to the Tucson City Clerk, who created files for all three Tucson ward elections and sent those to ballot printer, Chubon explained. After the ballots went out, the county received notices some voters had received an incorrect ballot, which turned out to be 358 voters, she said.

The city was running the election, including sending out ballots and counting votes, while the county was responsible for maintaining voter records.

After discovering the problem, the county began reaching out to voters. Because it was too late to mail new ballots, the county and city both acted to assist voters and send them to vote centers where they could vote early, or receive replacement ballots.

Chubon said there were 18 voters, including Hobson, who were registered Democrats and received the wrong party ballot.

Randy Hammel, a systems analyst for the city of Tucson, said the city sent out ballots in two waves — the first on July 9, followed by a “supplemental” on July 18 — and the data error occurred on July 17.

This meant the city originally thought as many as 1,294 ballots had problems, however they narrowed that down to just 358 ballots in the three wards holding primaries this year.

Hammel said they became aware of the problem after a voter complained on July 23 they received the wrong ballot. The city later focused on 76 ballots that had problems in Ward 3.

Of those, 18 were Democrats who received a ballot for a different political party. 58 others were independents who received a Democratic ballot — this included one of Shaw’s witnesses, Candice McCann, who told the court she believed her vote was never counted.

Hammel said the 18 people were new Democratic voters who registered within city limits between June 12 and July 17.

He said city officials sent out a letter for people who had concerns, along with a phone and email contacts. City officials also urged people come in personally to fix their ballots.

Of the 18 Democrats who received the wrong ballot for Ward 3, none of them voted, Hammel said. Out of the 58 people who incorrectly received Democratic ballots, but were registered as independents —known as party-not-designated voters — or another party, just three people returned their ballots, including McCann.

As Hammel spoke, McCann sat in the courtroom gallery and repeatedly shook her head “no.”

Hammel said the clerk’s office tried to “cure” the ballots by reaching out to voters, but those three votes in Ward 3 were not sent to be counted and were ultimately spoiled, he said.

He added while McCann testified she reached out to either county or city employees, there was no record she made contact city employees  as part of the process.

Tucson City Clerk Mesich outlined the costs for re-doing the election, telling the court the city spent at least $350,000 on this last election, but “not all invoices are in, yet.” 

She said a re-do would cost another $350,000 or more, rising to around $400,000 depending on costs for paper stock, with another $875,000 for the general election.

She testified this would disenfranchise the 6,573 voters who voted this August, along with the Republicans who would have to wait until May, a hold-up that affects more than 800,000 voters in what will be a citywide general election for the seat. She also noted both Dahl and Shaw would be eligible for another round of city matching funds if the court decided to start the whole process over.

Shaw has also filed a campaign finance complaint against Dahl regarding whether he properly reported his use of campaign signs from a previous run for the Council, and a software program.

The Shaw campaign alleged that the value of those in-kind contributions, combined with the amount of money Dahl and his family gave to his campaign, exceeded the amount of personal contributions he could legally contribute under the city’s rules for its publicly funded campaign program.

Dahl gave $3,179 to his campaign and family members gave $530. Overall, he raised $89,873 for his campaign, including $41,306 in public matching funds, and had spent $71,503 as of Aug. 11, according to a campaign finance report filed with the City Clerk’s Office.

Shaw asked Dahl to drop out of the race ahead of the primary based on her allegations, saying he could be disqualified from holding office if they were confirmed.

‘None of them did’

During closing arguments, Barton said 18 people “unlawfully did not receive” their ballot, and another three folks voted, but the city took steps to make those ballots not count.

“I think we are over the margin. We have no way to fix it other than to have a second election,” he said. “I think is important, and I think it’s worth the cost materially and physically,” he said.

Dennis McLaughlin, assistant city attorney, said the voters “were able to go and vote. None of them did.”

“You’re going to take away all the votes that were cast in this election,” he said. This “may disenfranchise many of the votes that were cast in this election because of these individuals who did not take the initiative to go and either call and ask questions, or go to a voting location and cast a ballot.”

McLaughlin said Shaw asked the court to “leapfrog to the most extreme relief imaginable and immediately overturn an entire election not yet finally determined.” 

After closing arguments, Yehling made the rare move of quickly ruling from the bench rather than announcing a decision later, and ruled the voters were not disenfranchised, and rejected Shaw’s request to void the election because she failed to meet the burden of proof.

Barton told reporters outside the court that he could seek an appeal, but noted this
would have to be “super-accelerated” because the deadline for printing
ballots is looming, but the end result means some voters were disenfranchised. “The law says you get a democratic ballot, ballot, you can vote.” 

“They did not; they were not given the opportunity to vote,” Barton said. “Yes, they could have done other things above and beyond, but the city had certain obligations, and they didn’t follow those obligations.”

“We had 18 people who unlawfully got no ballot, or
did not get the ballot they were supposed to get,” said Shaw’s attorney. “We had three people who
got a ballot that was the party ballot they wanted.” 

They voted but city officials “yanked those ballots out of the system,” he said. “So, that’s 21. Even a lawyer can do that math.”