The Arizona Republican Party (AZGOP) submitted a joint Amicus Curiae brief on Thursday with the Georgia Republican Party and the Republican State Committee of Delaware supporting Kari Lake’s and Mark Finchem’s Petition for Certiorari with the U.S. Supreme Court. The pair are appealing the lower courts’ decisions against their lawsuit challenging the use of electronic voting machine tabulators in elections. Under the new leadership of AZGOP Chair Gina Swoboda, who has a lengthy history in election integrity work including heading the Voter Reference Foundation, the AZGOP is heavily focused on election integrity.
Authored by attorney William J. Olson (pictured above), the brief argues that the Ninth Circuit Court of Appeals erred by dismissing the case claiming Lake and Finchem lacked standing. The court affirmed the trial court’s granting of the defendants’ motion to dismiss, asserting that the pair lacked standing because “speculative allegations that voting machines may be hackable are insufficient to establish an injury in fact under Article III.” The complaint emphasized that the lower courts “conflated standing with merits, twisting the standing rules to require much more — that the complaint prove facts sufficient to grant relief.”
Lake and Finchem filed the lawsuit prior to the 2022 election. They are again candidates; Lake is running for the U.S. Senate and Finchem is running for the Arizona Senate. The brief noted that the two “filed a motion to expedite, as the serious election problems that occurred in 2022 are being repeated, with the 2024 general election now only seven months away.”
The amicus brief pointed out a new trend since the 2020 election of courts refusing to grant standing in election cases. “In the short time since the 2020 election cycle, many of this nation’s federal and state courts have implemented a major modification in this Court’s standing jurisprudence which severely limits the election challenges they are willing to consider on the merits,” the brief said. “These recent decisions, requiring plaintiffs in election challenges to meet unreasonable standards to demonstrate standing, violate a basic duty of the federal courts.”
The brief quoted law professor Steven J. Mulroy’s analysis of the problem. He said, “[I]n many [cases], courts took an unjustifiably strict view of standing as applied to both voters and candidates…. And they further exemplified the unique overlap between standing analysis and the merits of election cases, while in some cases also exemplifying the dangers involved in confusing the two.”
The AZGOP brief said the lower courts’ “elevated rules of standing” err by “often conflat[ing] standing with the merits of the case.” They accused the appeals court, “The circuit court set an unattainable and unreasonable standard for standing, and Petitioners’ Complaint was dismissed before any discovery could be conducted to collect evidence necessary to prove the allegations.”
Similarly, regarding the trial court, the brief said that “the district court … invented its own test which allowed it to dismiss the complaint, and which would make it nearly impossible for anyone to challenge the manner in which any future election was conducted. Election challengers had not previously been required to prove their case in their complaint — but that is what the courts below required of Petitioners.”
The trial court admitted that Lake and Finchem (pictured here) “have a cognizable interest in ensuring that the final vote tally accurately reflects the legally valid votes cast,” but said that wasn’t “sufficient to establish standing because they had not alleged facts to show the election was being ‘tilted.’”
The circuit court “disregarded all of this Court’s relevant precedents, including Storer v. Brown, to assert that a candidate’s standing ends on election day.” Storer v. Brown held that political candidates have standing to challenge election procedures where they will be on the ballot, allowing the lawsuit from two candidates to go ahead even though it was filed prior to the election, similar to Lake’s and Finchem’s lawsuit.
Additionally, that court stated, “The 1972 election is long over, and no effective relief can be provided to the candidates or voters, but this case is not moot, since the issues properly presented, and their effects on independent candidacies, will persist as the California statutes are applied in future elections.”
The brief quoted from two more cases which held that candidates qualify to show a particularized injury required for standing in order to bring election related lawsuits. The Eight Circuit Court of Appeals held in the 2020 Carson v. Simon case that “[a]n inaccurate vote tally is a concrete and particularized injury to candidates.” In Trump v. Wisconsin Elections Commission, the Seventh Circuit Court of Appeals ruled, “As a candidate for elected office, the President’s alleged injury is one that ‘affect[s] [him] in a personal and individual way.’”
Lake and Finchem listed several election related cases that SCOTUS has accepted from candidates: McPherson v. Blacker, Moore v. Ogilvie, Anderson v. Celebrezze Bush v. Gore Bush v. Palm Beach City Canvassing Board, and New York State Board of Elections v. Lopez Torres.
Lake and Finchem pushed back on the lower courts’ accusation that their injuries were too speculative. “Petitioners’ complaint was anything but speculative. It included numerous allegations of violation of Arizona state election law, both general and specific,” they asserted. “The courts below virtually ignored these specific allegations of the violation of Arizona election law, preferring to address only those portions of the Complaint explaining the vulnerabilities of the use of machines generally.”
They said the lower courts “adopted verbatim the defense strategy advanced by the Secretary of State that four ‘hypothetical contingencies’ must take place.” Those contingencies come about after a party has engaged in discovery, not before filing the lawsuit, the brief said.
One of those contingencies was that “an actor must actually manipulate an election.” However, even some of the judges in the 2020 election cases did not rule that was required in order to rule in favor of the Republican plaintiffs, much less require it for standing. In RNC v. Weipert, a judge found that the mere possibility of fraud was enough to grant an injunction stopping an illegal action by an election official.
“What the Defendants want the Plaintiffs to be required to do is to prove that fraud has already occurred before they can establish their injury,” he said. “While the Defendants claim that voter fraud with absentee ballots is almost nonexistent, it is also the type of fraud that is almost impossible to detect. … From a practical perspective, once fraud has occurred it will already likely be too late.”
Similarly, the brief stated, “[I]t should be obvious that efforts to surreptitiously change the outcome of an election would be designed in a way to ensure that they are undetectable.”
A second contingency the judges adopted from the defendants was “the manipulation must change the outcome of the election.” This wasn’t the standard in previous Arizona election lawsuits, which merely held that there must be a possibility that the wrongdoing could have changed the election outcome. Additionally, that standard was applied to the merits of the lawsuits, not in the beginning to determine whether the complainant had standing.
The pivotal Arizona case in this area, Reyes v. Cuming, held, “[B]ecause A.R.S. section 16-550(A) is a non-technical statute and because absentee ballots counted in violation of that statute have rendered the outcome of this election uncertain, we reverse the trial court’s judgment and remand with directions to set aside the election.”
A third contingency required showing “security failures.” The brief pointed out that this kind of finding results from investigating the machines during discovery, it’s impossible to show that in the beginning of the case. “It should have been sufficient that there were well-pled allegations that Arizona laws designed to prevent ‘security failures’ were being violated.“
Lake and Finchem observed that the circuit court said they no longer had standing because the election was over and “then-Secretary of State Hobbs had declared herself the winner over Lake and declared Respondent Fontes the winner over Finchem.” However, the court cited only one case, which had nothing to do with elections. “If election challenge cases ended on election day, errors committed by district courts would never be corrected,” the brief said. “Election law challenges involve issues which are ‘capable of repetition, yet evading review,’” citing case law.
The pair also made a legal argument why they have standing as voters, citing precedent. “[W]ithout voter standing, many of this Court’s most critical cases preserving proportional representation and equal protection by race in reapportionment cases could never have been heard.”
Next, the brief went over how new evidence was discovered after the court dismissed the case. The declaration of Ben Cotton, an IT expert proficient in forensics and digital systems analysis, was included in their supplemental filing with SCOTUS. Cotton found, among other breaches of security, that unauthorized executable programs were installed on the machines at least three times during the 2020 election, which could be used to alter election results without detection.
Another new finding Lake and Finchem made after the lower courts dismissed their lawsuit was that Maricopa County never conducted statutorily required Logic & Accuracy testing on the machines used on Election Day in 2022. The county stated in sworn pleadings that they did, but they only tested five backup machines that were not used. Finally, the brief pointed out newly discovered evidence that the county failed to use properly certified software in both the 2020 and 2022 election, and “the machines included their own decryption keys in plain text in a table that could be readily accessed, giving third parties control over the results.”
The brief concluded, “The courts below virtually ignored these specific allegations of the violation of Arizona election law, preferring to address only those portions of the Complaint explaining the vulnerabilities of the use of machines generally.” It asked SCOTUS to speedily accept and review the case, then remand it to the trial court to consider the complaint on the merits. Last week, SCOTUS rejected Lake and Finchem’s supplemental brief containing the new evidence of wrongdoing.
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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 “William J. Olson” by William J. Olson.
