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Kari Lake Election Challenge: Two of Ten Counts Go to Trial [1]
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Date: 2022-12-23
It’s been an exciting week: The conclusion of the January 6th Congressional hearings and release of the final report; the release of Trump’s tax returns; a visit by Ukrainian President Zelenskyy.
With all that’s going on this week, it is easy to overlook the election challenge going on in Arizona. Yes, we are still playing whack-a-mole with election challenge litigation.
As many of you know, Republican gubernatorial candidate Kari Lake filed a lawsuit in Maricopa County (Phoenix) Superior Court, alleging a litany of election irregularities, all of which are alleged to have affected the outcome. As many of you also know, a federal judge in Phoenix dismissed an earlier suit filed by Lake and Mark Finchem that was filed even before the general election. This suit sought to ban the use of electronic tabulators and force a hand count of ballots. In stating his admonishments, Judge Tuchi said he would "not condone litigants ... furthering false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process."
Not only was this suit dismissed, U.S. District Judge John Tuchi sanctioned the attorneys representing Lake and Finchem; well-known Harvard lawyer Alan Dershowitz; three lawyers from Parker Daniels Kibort LLC, in Minnesota: Andrew Parker, Jesse Kibort and Joseph Pull; and Kurt Olsen, a Washington, D.C.-based lawyer who helped with a lawsuit challenging the 2020 election results that was rejected by the U.S. Supreme Court. Kurt Olsen also appears in the current Lake lawsuit, apparently learning nothing from prior admonishments.
This case does have a twist which could logically aggravate conspiratorial suspicion—Katie Hobbs was serving as Secretary of State, thus overseeing the election that made her Governor. Kind of like the Governor of a state being the brother of a Presidential candidate. As a practical matter, the nuts and bolts of election administration happens at the county level, with the Secretary of State’s office serving mainly as an information source (telling folks when and where to vote and how to register) and data reporting center (with the actual data being sent in by the local election offices).
Maricopa County Superior Court Judge Peter Thompson has been very open-minded and seems to be bending over backward to be fair. In an order dated 12/15, Judge Thompson granted Lake’s petition to inspect fifty randomly selected early ballots from six separate Maricopa County batches chosen by her representative. In order to conduct this inspection, Lake must post a bond to cover costs prior to inspection, and the inspection may not interfere with any ongoing recount. The court would appoint three persons, one selected by each party and one by the court, to conduct the inspection. Judge Thompson denied a request to inspect early ballot return envelopes because these were “beyond the statutory scope of permitted inspection.”
This is one of the few cases that has—at least partially—survived a Motion to Dismiss. Out of a total of ten counts, two have survived for trial:
Illegal tabulator configurations: Lake is alleging that the ballot-on-demand printers malfunctioned on election day due to “intentional action” of election officials. Here again, Lake’s suit suggests fraud, but fails to allege it with sufficient particularity. However, the pleadings have created a triable “factual issue” as to whether the printer malfunctions were caused by some as-yet-unidentified “malfeasant person” and whether any “lost” votes affected the outcome of the election.
Ballot chain of custody: Lake alleges that someone under the control of Maricopa County mishandled Inbound Receipt of Delivery forms. Lake also alleges that Runbeck, a third-party contractor, allowed its employees to add their own ballots and ballots of their family members outside the chain of custody. Judge Thompson ruled that this created a triable factual issue.
This is not necessarily bad news. If the purported “evidence” turns out to be BS, it is better to get it on the public record for all to see.
The following counts were dismissed:
Violation of Free Speech: “Not only does the verified statement fail to set forth an unconstitutional infringement on Plaintiff’s (or anyone else’s) speech, even if it did, it would not set forth misconduct under [Arizona’s applicable election challenge statute]”. This claim revolved around Hobbs’ (as Secretary of State) submitting requests to the Election Misinformation Reporting Portal. Lake suggests that this was “censorship,” when it was more like the Secretary of State doing her job.
Invalid signatures on mail-in ballots: Lake makes a lot of noise about an AZ AG report dated April 6, 2022, suggesting that early voting signature verification “may be insufficient to guard against abuse.” Judge Thompson ruled that Lake had sufficient time to challenge the signature verification process prior to the election, and doing so now would create “an exceedingly high degree of prejudice against both the parties and the public, which this Court is loath to excuse.”
Equal Protection and Due Process: These were many of the same arguments used by Rudy Giuliani in some of the 2020 challenges. “A bootstrapped constitutional argument takes the verified statement beyond the remedies provided by the election contest statute, which is impermissible.
Lake alleged that Arizona’s mail-in ballot procedure, which was adopted in 1991, violates Arizona Constitute Article VII, §1, which guarantees secrecy of voting. Judge Thompson dismissed this as barred by the doctrine of laches: Lake had over 30 years to challenge the mail-in ballot procedure, and “to do so now is to invite confusion and prejudice when absolutely no explanation has been given for the unreasonable delay.”
Incorrect Certification: This was dismissed because it “contains no new factual allegations” and “is not an independent cause of action itself.”
Inadequate Remedy: Lake is requesting a federal remedy for an alleged violation of an Arizona statute. “…the request for the court to concoct a new remedy is a straightforward invitation for judicial legislation, which must be denied.”
Constitutional Rights: Here again we see an attempt to allege that the remedies provided by the Arizona election challenge statute are inadequate to protect “federally guaranteed rights.” In Arizona, state superior courts may hear concurrent claims under 42 USC § 1983 (the federal Civil Rights statute), Lake’s complaints allege only violations of Arizona law, so the scope of any remedy is also limited to the Arizona election challenge statute.
You can read the entire preliminary ruling here.
Here is what happened during the Arizona general election in Maricopa County as best I can tell from the testimony of witnesses from both sides:
Maricopa County used the Dominion Democracy Suite 5.5 voting system. The election management system includes a “ballot on demand” function, where ballots are printed when a voter “checks in” to vote (i.e., has been verified on the roles). This same system is used whether the voter has requested vote by mail or has shown up at a “voting center.” Each voter receives a PDF ballot that has been printed with a unique list of contests and candidates based on the individual voter’s residency. The printers are not connected to the internet or to any of the rest of the vote-counting system (i.e., they are not subject to hacking, which was suggested by Lake’s attorneys).
During the election, some of the printers were printing 19 inch ballots on 20 inch pieces of paper. This resulted in the 19-inch ballots being rejected by the optical reader on the ballot counter. Stuff like this happens in every election, so the system has failsafe, workaround redundancies to ensure all votes are counted. Indeed, in many of the voting centers, the ballots are routinely not counted until they are taken back to a centralized place. Which is what happened with the rejected ballots—they were taken to the central “command center,” where they were re-scanned into the proper format and counted.
When these unscannable ballots were first popping up in voting centers, it created what Lake’s attorneys characterizes as “chaos” and long lines. Fortunately, no one blamed the poll workers. Poll workers (Lake’s witnesses acknowledged that they had to work a 16-hour day) were “doing their best” to deal with the problem, but they were also fragged and stressed because they had to deal with both the technical issue and lines of angry voters. Some testimony suggested that most of these problems were fixed by 3 pm—before the after-work rush.
One of Lake’s witnesses was an attorney from the RNC who was “observing” and reported wait times of up to 80 minutes. This guy was a bit of an a$$h@!e and alleged (without specific evidence) that it “suppressed” mostly Republican voters. Apparently, the snowflakes in Arizona would never stand a chance in some of the voting lines in Georgia.
Another Lake witness was Richard Baris. Baris is the CEO of Big Data Poll, which has been banned from 538 (don’t know the reason). Baris testified that there was a discrepancy of some 25 to 40 thousand voters who had agreed to conduct an exit poll and never returned. Unlike here in MN, where your only option on election day is to vote in your assigned precinct or drop your ballot at a designated ballot box, voters in Maricopa County can vote at multiple other locations (this is one of the benefits of the ballot-on-demand system). Again, with no real evidence how many voters—especially how many Republican voters—did not vote because of the long lines—Baris concluded that there was “no doubt Lake would have won.”
There was some other testimony that some of the ballot Inbound Receipt of Delivery Forms were not completely filled out, creating a chain of custody problem. There was also testimony about some Maricopa County employee named “Betty,” who no one could precisely identify. There was no evidence (to the best of what I could see) that any ballot had been lost or not counted.
In his instructions to Lake’s attorneys, Judge Thompson reminded them that they had the burden of proving (1) Maricopa County had failed to comply with AZ law and its own manual; (2) the lack of compliance was intentional and due to malfeasance by county agents rather than innocuous glitches; and (3) these actions resulted in changing the outcome of the election. It is my opinion that Lake did not prove any of this, and apparently other lawyers agree with me.
Moreover, Arizona law requires a court to apply all reasonable presumptions in favor of the validity of an election. Quoting from Findley v Sorenson (1929), Judge Thompson instructs:
“Honest mistakes or mere omissions on the part of election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain.”
During the presentation of evidence, Lake’s attorneys attempted to characterize election equipment malfunctions and other aggravating but innocuous things that sometimes happen during an election as some kind of nefarious plot. They also played the standard theme of victimhood, that somehow the chaos targeted Republican voters and “suppressed” them from coming out to vote on election day. In their closing argument, their main theme had been reduced to the county’s evidence “doesn’t make sense.” Lake’s attorneys alternatively argued that “Kari Lake won this election” and “we have shown that the outcome is uncertain.”
Katie Hobbs’ attorney closed by going through each witness/argument and explaining how Lake’s case is nothing more than speculation and conspiracy-addled interpretations. She pointed out the bias of Lake’s witnesses. But at the end of the day, there was no evidence of malicious intent, no evidence that any voter was disenfranchised by tabulator errors, and no evidence that any errors affected the outcome. “Kari Lake has been given a full opportunity to tell her story and make her case,” and she failed to do so.
Representing the Maricopa County Board of Supervisors—which ironically is comprised of mostly Republicans—was Thomas Liddy, the son of G. Gordon Liddy of Watergate fame. Liddy took a much more aggressive tone, and threatened a motion for sanctions. While acknowledging the “real headaches” caused by printer errors, he argued that this was compounded NOT by Maricopa County, but by “months and months of Republican propaganda” telling people not to vote early. Voters were “terrorized.” “That’s not on Maricopa County, that’s on Kari Lake for Governor….It’s political malpractice to tell all your voters to vote at the last minute. This is going on all over the country, and it has got to stop. And it stops right here in Maricopa County.”
Judge Thompson took the matter under advisement. He did not say when he would have a decision, but told everyone it would not be by 5 pm today.
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