The Ninth Circuit Court of Appeals rejected an appeal from Kari Lake and Mark Finchem alleging that Arizona officials made false statements to the courts regarding their lawsuit to stop the use of electronic voting machine tabulators. The panel of three justices, two of whom were appointed to the bench by Democratic presidents, gave no reason for their dismissal on June 20 and also denied a motion for sanctions by defendant Maricopa County, which was filed three days prior.
Lake’s and Finchem’s Motion to Recall Mandate, drafted by attorney Kurt Olsen, stated, “Maricopa’s violations of Arizona law mean its elections have not been shown to be any more reliable than a Ouija board.” The motion said the officials’ alleged lies and perjury, which involved lying about committing misdemeanors, were discovered after obtaining Maricopa County’s tabulator system log (SLOG) files, which the pair maintained contradicted the statements of officials.
The motion sought to reverse the courts’ dismissals based on there being “fraud upon the court, calling into question the very legitimacy of the judgment,” asserting that “Maricopa used software altered from the certified version with respect to “machine behavior settings” (‘MBS’) that govern how ballots are read and tabulated,” “illegally alter[ing] election software,” and committed misdemeanors by failing to test the voting machine tabulators used in the 2020 and 2022 elections. “Further, Maricopa and the SoS actively covered up these facts,” they asserted.
Lake and Finchem said the false statements were central to the Ninth Circuit’s affirmation of their case’s dismissal for lack of standing.
Various courts that previously ruled on the case found that the pair’s Article III injuries were “speculative and generalized,” not “imminent and particularized.” The motion laid out the grounds for why this was incorrect.
“Appellants’ new evidence shows imminent, particularized injury from Maricopa’s use of illegally altered election software and failure to conduct preelection L&A testing on its vote-center election equipment,” the motion said.
First, the motion alleged that officials lied when they said “Maricopa used election software certified by the Election Assistance Commission (‘EAC’) and approved by the SoS for use in Arizona elections pursuant to A.R.S. §16-442(A)-(C).” Second, the pair said it was a lie that “Maricopa conducted pre-election logic and accuracy (‘L&A’) testing on all tabulators used in its elections as A.R.S. §16-449(A)-(B) mandates.”
The motion said that “[t]o the contrary, new evidence produced by Maricopa shows that Maricopa uses illegally altered election software that is neither EAC-certified nor certified for use in Arizona, thus violating A.R.S. §16-442(A)-(B). Further violating Arizona law, Maricopa does not conduct L&A testing on any tabulators actually used in its elections, thus violating A.R.S. §16-449(A)-(B).”
The pair noted, “The Court’s reliance on these two misrepresentations arose from Maricopa and the SoS — initially Katie Hobbs, now Adrian Fontes — repeating them at least fourteen times in briefing to the district court and this Court.”
Additionally, “Maricopa submitted the sworn testimony of its Co-Director of Maricopa Elections, Scott Jarrett, who testified to these two issues.”
Jarrett said under sworn oath that “Maricopa used Dominion Voting Systems Democracy Suite 5.5B election software ‘certified by the Election Assistance Commission for use in elections on September 10, 2019’ in the configuration shown ‘at https://www.eac.gov/votingequipment/democracy-suite-55b-modification.’”
Contradicting Jarrett, cyber expert Clay Parikh testified that the version of Dominion software was the untested 5.10 MBS, not the approved 5.5B that officials claimed.
“The tabulator system log files reveal that the Dominion election software Maricopa County used in the 2020 and 2022 General Elections is an uncertified home-brew version that inserts Democracy Suite software version 5.10 MBS into the approved and certified Democracy Suite 5.5B,” he said. “This configuration has not been tested by the VSTL Pro V&V, nor been certified by the EAC, and has not been certified for use in Arizona by the Secretary of State.”
Lake and Finchem also discovered that the illegal software was again used in the 2022 election. “The SLOG files produced for the November 2022 election show that Maricopa used the same altered software in that election after the District Court dismissed Appellants’ complaint.”
Also, “Jarrett testified that Maricopa conducted L&A testing ‘to ensure the tabulation equipment is accurately counting the ballots as programmed.’”
Similarly, “Fontes captioned an entire section of its brief to this Court as ‘All Electronic Voting Systems, Tabulation Equipment, And BMDs For The 2022 Elections Were Tested And Certified.’” He said in the brief, “Each of Arizona’s fifteen counties perform logic and accuracy testing on vote tabulating equipment before and after an election.”
Regarding the L&A testing, Lake and Finchem discovered that Maricopa County conducted no L&A testing on the voting machine tabulators used prior to the 2020 and 2022 elections. Instead, only five backup tabulators that were not used were tested.
A.R.S. 16-452 states that all violations of the state’s Election Procedures Manual (EPM) are class 2 misdemeanors. The EPM requires L&A testing “all of the county’s deployable voting equipment.”
Lake and Finchem asked the officials to correct their filings, but they failed to do so.
The second half of their motion went over why the officials’ misrepresentations amount to fraud on the court, citing case law. “[A] finding of fraud on the court is reserved for material, intentional misrepresentations that could not have been discovered earlier,” the Ninth Circuit held in United States v. Sierra Pac. Indus., Inc.
“Exposing voters’ and candidates’ fundamental electoral rights to an unreliable, untested, and illegal system nullifies the right to vote, which is the type of ‘arbitrary or irrational’ government action that supports Article III standing,” the motion said, referencing the U.S. Supreme Court case Village of Arlington Heights v. Metro. Hous. Dev. Corp.
The motion said the officials knew their filings were false because Maricopa County states on its website that “[p]rior to each election, the 13 software and hash code are verified to confirm the software system being used for the election is the same system that underwent certification.” Additionally, the pair said the Arizona Secretary of State (AZSOS) knew that Maricopa County did not test the tabulators since Maricopa County stated on its website that the AZSOS was present when testing the five backup tabulators took place.
Lake and Finchem explained that they have standing for an Article III injury since candidates for office qualify for standing. They noted that the Ninth Circuit held in Wolfson v. Brammer, “Where — as here — candidates seek office in future elections, the passing of one election does not moot challenges to repeating election procedures.”
In ”United States v. Students Challenging Regulatory Agency Procedures, the U.S. Supreme Court held that Article III “allow[s] important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote,” they added.
The motion accused attorneys for the officials of violating the Arizona Rules of Professional Conduct for attorneys by failing to correct their misstatements and engaging in “willful deceit.”
The motion concluded by asking the court to “recall the mandate, reverse, and remand for expedited proceedings.” It is not clear yet whether Lake and Finchem intend to appeal.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Kari Lake” by Gage Skidmore. CC BY-SA 2.0. Photo “Mark Finchem” by Mark Finchem.
