As previously posted, Arizona gubernatorial candidate Kari Lake, who was widely predicted to win based on polling, filed legal challenges after she lost, focusing on pervasive problems on Election Day, particularly in Maricopa County. Among other things, an absurdly high number of voting locations experiences problems with ballot printing and processing, causing long waiting lines and many voters turned away and told to come back later.
Maricopa County Superior Court Judge Peter Thompson permitted two of Lake’s 10 challenges to go to trial:
The two counts that Judge Thompson ruled can go to trial involve printers malfunctioning on Election Day and ballot chain of custody. Lake claimed printers that malfunctioned were not certified and had “vulnerabilities” that made them “susceptible to hacking.” She also claimed the printers malfunctioned because of “intentional action.”Judge Thompson said Lake must prove at trial that someone interfered with the printers in violation of Arizona law, that the interference caused her to lose votes and that those lost votes affected the outcome of the election.As for the chain of custody issue, Lake claimed employees of the county’s ballot contractor violated the “County Election Manual” when they added ballots of family members and also failed to secure an “Inbound Receipt of Delivery.” Judge Thompson said whether the county complied with its own manual and applicable statutes is a dispute of fact rather than one of law.
Here is an account of some of the hearing testimony via The Hill:
Election officials acknowledged that some of the county’s Election Day vote centers experienced printer malfunctions that prevented tabulators from reading ballots, but they insisted voters could utilize backup options to ultimately have their ballot counted.Lake’s campaign noted that Election Day voters tend to support Republicans, leveraging witness testimony and affidavits to argue the issues were intentionally aimed at making Hobbs the winner and disenfranchised enough Lake supporters to cause the Republican’s defeat.When asked during the trial if he intentionally sabotaged the printers or was aware of anyone who did, Maricopa County Recorder Stephen Richer (R) responded, “absolutely not.”Lake then called a witness, Clay Parikh, who examined ballots on behalf of her campaign and said he inspected 14 ballots that printed a 19-inch image on 20-inch paper. Parikh suggested the discrepancy would cause the tabulation issues and required intentional printer setting changes.Maricopa County Co-Elections Director Scott Jarrett testified that the county’s root cause analysis remains ongoing, but officials identified that printer heat settings contributed to the problem.Jarrett said temporary technicians attempting to fix the malfunctions activated a shrink-to-fit print setting at a three vote centers, creating just under 1,300 ballots with the smaller image, but Jarrett insisted those ballots were ultimately tabulated.Lake’s campaign also called Richard Baris, who managed exit polling in Arizona for conservative firm Big Data Poll and argued the Election Day issues were enough to change the outcome. He said his firm made the conclusion in part based on historical data and an exit poll question asking voters if they experienced issues while voting.Baris during cross-examination acknowledged that the poll could not say whether the issues were related to the printer malfunctions or if they caused them to not vote.One of Hobbs’s attorneys also noted that Baris’s firm is one of 10 groups banned by prominent pollster aggregator FiveThirtyEight out of nearly 500 pollsters it assesses. Baris contended that FiveThirtyEight was not “an authority” on pollsters.Lake’s campaign also argued that Maricopa County violated chain of custody procedures for early ballots when they were transferred to Runbeck Election Services, a third-party that scanned images of ballot signatures so the county could verify them.Heather Honey, who testified on behalf of Lake’s campaign, said Maricopa County’s response to her public records request for chain of custody paperwork did not include documents for early ballots dropped off on Election Day.Joe Larue, an attorney for Maricopa County, said Honey misunderstood the different types of chain of custody documents and argued they did in fact exist.Honey also testified that a Runbeck employee told her that employees could bring their families’ ballots directly to the facility to be counted, and the employee saw about 50 ballots brought in that way.When pressed by Hobbs attorney Andy Gaona if Honey had any further evidence of other ballots being injected into the system, she said it wasn’t an “answerable question.”Rey Valenzuela, co-elections director for Maricopa County, testified he wasn’t aware of Runbeck allowing its employees to inject ballots.
In other words, voting was a mess, the issue was whether it was intentional and whether it made a difference since Lake lost by 17,000 votes per the official count.
The Court ruled last Friday night, and rejected Lake’s claims. From the Decision, the court first examined the burden of proof:
…. Plaintiff needed to prove by clear and convincing evidence, each element to be entitled to relief:1) That the alleged misconduct – whether the BOD printer irregularities, or the ostensible failure to abide by county election procedures – was an intentional act. See Findley, 35 Ariz. at 269.2) That the misconduct was an intentional act conducted by a person covered by A.R.S. §16-672(A)(1), that is – an “officer making or participating in a canvass.”3) That the misconduct was intended to change the result of the November 2022 General Election. See Findley, 35 Ariz. at 269.4) That the misconduct did, in fact, change the result of that election. See Grounds, 67 Ariz. at 189.It bears mentioning that because of the requested remedy – setting aside the result of the election – the question that is before the Court is of monumental importance to every voter. The margin of victory as reported by the official canvass is 17,117 votes –beyond the scope of a statutorily required recount. A court setting such a margin aside, as far as the Court is able to determine, has never been done in the history of the United States. This challenge also comes after a hotly contested gubernatorial race and an ongoing tumult over election procedures and legitimacy – a far less uncommon occurrence in this country. See e.g., Hunt, supra. This Court acknowledges the anger and frustration of voters who were subjected to inconvenience and confusion at voter centers as technical problems arose during the 2022 General Election.But this Court’s duty is not solely to incline an ear to public outcry. It is to subject Plaintiff’s claims and Defendants’ actions to the light of the courtroom and scrutiny of the law. See Winsor v. Hunt, 29 Ariz. 504, 512 (1926) (“It is the boast of American democracy that this is a government of laws, and not of men.”)…
After going through each witnesses testimony, the court concluded that Lake had not proven intentional misconduct that would have, even if proven, affected the outcome:
The Court makes the following observations about Plaintiff’s case as a general matter. Every one of Plaintiff’s witnesses – and for that matter, Defendants’ witnesses as well – was asked about any personal knowledge of both intentional misconduct and intentional misconduct directed to impact the 2022 General Election. Every single witness before the Court disclaimed any personal knowledge of such misconduct. The Court cannot accept speculation or conjecture in place of clear and convincing evidence.The closest Plaintiff came to making an argument for quantifiable changes resulting from misconduct, was Ms. Marie’s Affidavit as discussed by Ms. Honey. Again, she states that Runbeck Election Services employees were permitted to introduce about 50 ballots of family members into the stream. But even this is not sufficient. Such a claim – if the Court accepted the Affidavit at face value – would constitute misconduct but would not come close to clear and convincing evidence that the election outcome was affected. Though again, weighing her Affidavit against other testimony, the Court does not give the Affidavit much weight.Plaintiff failed to provide enough evidence with which this Court could find for her on either count by clear and convincing evidence….
Lake says she will appeal:
This demonstrates the problem with election challenges that are outside the normal recount process. You are asking a judge to overturn the certified election result – that’s a lot to ask. You need more than anecdotal evidence of problems or mishaps. You need to prove to a high degree of evidentiary proof, as opposed to speculation and statistical analysis, that a fraud took place and that it affected the outcome. That almost never is provable.
The time to address election misconduct and mischief is before the election, not after. There needed to be systems and procedures in place, and the personnel to enforce them, to prevent this Election Day debacle. That’s why voter and systemic integrity laws and procedures are so important.
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