Maricopa County Superior Court Judge Peter Thompson ruled late Monday that Kari Lake’s election contest lawsuit will go to trial on Wednesday.
The judge’s ruling came hours after attorneys for the defendants–Secretary of State Katie Hobbs, and the Maricopa County Board of Supervisors–and the plaintiff, GOP gubernatorial candidate Kari Lake, delivered oral arguments in court on both sides of the defendants’ motion to dismiss all ten counts set forward in Lake’s 70 page lawsuit.
Lake filed her lawsuit shortly after the results of the 2022 Arizona gubernatorial election, showing that Democrat gubernatorial nominee Katie Hobbs received 17,000 more votes (0.6 percent of all votes cast and counted) that GOP gubernatorial nominee Kari Lake, were certified by Hobbs, in her current capacity as Arizona Secretary of State.
Judge Thompson dismissed eight of the ten counts, but ordered a trial date of Wednesday on two of the counts: (1) illegal tabulator configurations and (2) lack of chain of custody documents for vote by mail ballots on Election Day.
Sources familiar with Arizona election law told The Arizona Sun Times that Judge Thompson’s ruling left intact two of the three strongest counts of the Lake lawsuit, but dismissed the third strongest count, invalid signatures on mail-in ballots.
In his ruling, Judge Thompson placed the burden of proof at trial to show that there were illegal tabulator configurations on attorneys for Kari Lake.
“Plaintiff specifically alleges that a person employed by Maricopa County interfered with BOD printers in violation of Arizona law, resulting in some number of lost votes for Plaintiff. Plaintiff is entitled to attempt to prove at trial that 1) the malfeasant person was a covered person under (A)(1); 2) the printer malfunctions caused by this individual directly resulted in identifiable lost votes for Plaintiff; and 3) that these votes would have affected the outcome of the election,” the judge ruled.
“Plaintiff must show at trial that the BOD [ballot-on-demand] printer malfunctions were intentional, and directed to affect the results of the election, and that such actions did actually affect the outcome,” he continued.
With regards to his decision not to dismiss the ballot chain of custody count, the judge clearly explained his reasoning.
“Plaintiff next claims that violations of the County Election Manual pertaining to chain of custody constitute misconduct pursuant to A.R.S. § 16-672(A)(1). Specifically, Plaintiff argues that: 1) the ability of employees of the county’s ballot contractor to add ballots of family members and 2) the lack of an Inbound Receipt of Delivery form both constitute misconduct,” the judge wrote.
“Plaintiff alleges that ballots, of some number, were added by Runbeck employees to the total in violation of A.R.S. § 16-1016. Further, Plaintiffs allege that the lack of Receipt of Delivery forms were violations of state law that permitted an indeterminate number of votes to be added to the official results, constituting misconduct. The Court, drawing inferences in the light most favorable to Plaintiff as it must at this stage, finds that Plaintiff has stated a claim of misconduct by a person under control of Maricopa County that affected the canvass under A.R.S. § 16- 672(A)(1),” he continued.
Judge Thompson dismissed the argument from attorneys representing Secretary of State Hobbs and the Maricopa County Supervisors, who argued that the ballot chain of custody count should be dismissed based on the legal theory of laches, which holds that claims not made in a timely manner should be dismissed.
“Defendants argue that laches applies. However, laches do not apply to contests arising from violation of election day procedures as opposed to challenges to the procedures themselves. See McComb, 189 Ariz. at 525-26 (laches inapplicable where “little time” existed before election to file suit). Delay, to the extent there was any, was reasonable here,” the judge stated.
Judge Thompson noted that attorneys for Hobbs and the Maricopa County Board of Supervisors assert that Election Day chain of custody documentation does in fact exist, but that Lake’s attorneys simply did not understand how that documentation occurs on Election Day.
“Defendants dispute the lack of compliance with chain of custody laws and claim that Plaintiff has misunderstood the forms required. As presented, whether the county complied with its own manual and applicable statutes is a dispute of fact rather than one of law. This is true as to whether such lack of compliance was both intentional and did in fact result in a changed outcome,” Judge Thompson wrote.
“Consequently, Plaintiff has stated a claim under A.R.S. § 16-672(A)(1),” the judge stated in allowing the ballot chain of custody count to proceed to trial.
In contrast to the first count that goes to trial, where the burden of proof is with Lake’s attorneys, the burden of proof to demonstrate that Election Day ballot chain of custody document exists will be the responsibility of attorneys for Hobbs and the Maricopa County Board of Supervisors.
It is worth noting that in most states that require chain of custody documentation for absentee ballots and vote by mail ballots, those procedures are the same on Election Day as they are for the early voting period leading up to election day.
Wayne Shutsky of the Arizona Capitol Times tweeted an interesting side note about Judge Thompson’s ruling, which means that both Secretary of State Katie Hobbs and Maricopa County Recorder Stephen Richer, will have to appear at trial:
Side note: judge also dismissed attempts by Katie Hobbs and Recorder Stephen Richer to have their subpoenas tossed out. Richer was scheduled to go out of town on long planned vacation. Said it’s his first vacay since elected.
— Wayne Schutsky (@WayneSchutsky) December 20, 2022
The judge then ruled that the court’s prior order that ballot inspection will take place at 8:00 am local time on Tuesday, December 20, will proceed.
He also ruled that a conference between all parties will be held at noon Tuesday to review the time and witnesses each party will need to present its case, and that he believes two days will be sufficient to conduct the trial.
The compressed timeline will allow the judge sufficient time to deliver his ruling by January 2, 2023 which will allow either side sufficient time to appeal the ruling, likely all the way to the Arizona Supreme Court, prior to the scheduled January 3, 2023 inauguration of Governor-elect Katie Hobbs.
BREAKING: Our Election Case is going to trial. Katie Hobbs attempt to have our case thrown out FAILED. She will have to take the stand & testify.
Buckle up, America.
This is far from over. pic.twitter.com/291EnXPP3U
— Kari Lake (@KariLake) December 20, 2022
Read the decision:
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Michael Patrick Leahy is the Editor-in-Chief of The Arizona Sun Times and The Star News Network.
Photo “Kari Lake” by Gage Skidmore CC 2.0. and “Maricopa County Superior Court” by Maricopa County Superior Court.