Kari Lake filed an opening brief with the Arizona Supreme Court last week, appealing the Arizona Court of Appeals’ denial of her second election lawsuit, a Rule 60(b) challenge containing new evidence.
Most of it emphasized that over 275,000 signatures were not verified on early ballot envelope affidavits. Rule 60(b) of the Rules of Civil Procedure allows a court to “relieve a party or its legal representative from a final judgment, order, or proceeding” based on certain factors, such as new evidence or wrongdoing.
Lake’s opening brief, drafted by attorneys Jennifer Wright and Tim LaSota, emphasized “new information showing that, contrary to Maricopa’s claims of an ‘Election Day hiccup,’ nearly two-thirds of Maricopa’s 446 vote center tabulators failed on a massive scale — averaging over 7,000 ballot rejections every thirty minutes shortly after polls opened to polls closing.”
The new evidence came from tabulator system log (SLOG) files, which revealed two key findings. “[C]ontrary to Maricopa’s testimony, Maricopa did not conduct pre-election logic and accuracy (‘L&A’) testing required by A.R.S. § 16-449(A) and the 2019 Elections Procedures Manual (‘EPM’) on any vote center tabulators used on Election Day,” the brief said.
The second finding was that “Maricopa conducted unannounced nonstatutorily compliant testing on vote center tabulators, with the SLOG files recording that 260 of the 446 tabulators rejected ballots with the same error codes that arose on Election Day.”
As a result of these two problems, the brief said, “There is no assurance that Election Day ballots were correctly counted” and “Maricopa had advance notice that tabulators would reject ballots on Election Day and did nothing to fix it.”
The other aspect of the appeal emphasized the county’s flawed signature verification process.
“Maricopa’s keystroke logs showed that its signature reviewers compared 275,000+ early ballot signatures with record signatures in under three seconds per signature, and 70,000 signatures in under two seconds per comparison,” the brief said. “Petitioner’s expert testified, and common sense dictates, that it is impossible to ‘compare’ ballot-envelope signatures with record signatures, as required by A.R.S. § 16-550(A) and Maricopa’s stated signature procedures at those speeds.”
A video was released last year showing a Maricopa County level one signature reviewer comparing and approving voters’ signatures in less than one second. It spawned reactions like a gif of a baboon mindlessly clicking a mouse button very quickly.
Safe and secure…. 2020 signature verification in Maricopa County. 👇 pic.twitter.com/w2fQb6jH7e
— 2+2=5 (@slater1182) July 9, 2024
The brief cited the county’s “failure to conduct L&A testing on its vote-center tabulators under A.R.S. § 16-449(A)” and the state’s Election Procedures Manual (EPM), which “constitute[s] misconduct under A.R.S. § 16-672(A)(1).” A.R.S. § 16-449, entitled “Required test of equipment and programs; notice; procedures manual,” lays out extensive procedures in Section (A) with deadlines for conducting the L&A testing. A.R.S. § 16-672(A)(1) allows for lawsuits based on misconduct by election departments.
As a result of the tabulators failing to scan ballots, Lake’s expert Clay Parikh testified that the “voting rights of tens of thousands of predominantly Republican voters” were interfered with since the tabulators “reject[ed] an average of over 7,000 ballots every 30 minutes from shortly after polls opened until polls closed — causing massive lines and wait times.”
A report by The Arizona Sun Times found that Maricopa County voting centers that experienced tabulation errors that day affected areas averaging well over 300 percent more Republicans than Democrats.
The brief explained the errors in the county’s testing of the tabulators.
“Maricopa began unannounced ‘testing’ three days after Maricopa and the Secretary certified the tabulators following purported statutorily compliant L&A testing on October 11, finding that 260 of the 446 tabulators 4 experienced the same ‘Ballot Misread’ and ‘Paper-Jam’ error codes that arose on Election Day,” the brief said.
If the county had followed the law, the brief argued, “altering election equipment would have required new L&A testing under A.R.S. § 16-449(A).” That new testing “would have detected and corrected the ballot-reading errors that caused the Election Day chaos.”
Parikh’s new examination of the SLOG files found that “Maricopa revealed seven months after the fact, that — without any public announcement, after the tabulators were purportedly certified on October 11, 2022 — Maricopa broke the ‘tamper evident seals’ on all 446 vote-center tabulators and removed, reformatted, and replaced the memory cards between October 14-18, 2022, for all vote-center tabulators used on Election Day.”
The brief said that the county failed to conduct any meaningful signature comparison on many early ballot affidavit signatures.
“Under the Secretary’s Signature Verification Guide (‘SVG’), Maricopa’s Election Plan, and Maricopa’s own guidance, ‘compare’ means — at least — evaluating signatures for consistency across six broad characteristics,” Lake argued. Parikh testified that “Maricopa compared over 70,000 ballots in 0-2 seconds and 205,000+ in 2-3 seconds, speeds at which comparison is humanly impossible.”
The Arizona Court of Appeals dismissed Lake’s new evidence, claiming that it did not fall within Rule 60(b)(2)-(3) or (b)(6)’s grounds for appeal. However, her brief explained how the evidence is enough to satisfy multiple prongs in that rule, not just one. Rule 60(b)(2) allows for a new trial if there is “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)(1).” Rule 60(b)(3) allows for a new trial if there is “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing party.” Rule 60(b)(6) allows for a new trial for “any other reason justifying relief.”
The brief explained how the new evidence appeared after the judgment was issued in the initial trial. It said Maricopa County committed misconduct by giving false testimony in court regarding the L&A testing and “that Lake had not requested system log files ‘predating October 14.’”
Also, in regards to the catchall Rule 60(b)(6), the brief cited the county’s “failure to conduct L&A testing, installing reformatted tabulator memory cards after certifying purported L&A testing, advance notice of the Election Day chaos.” As a result, “no court reviewed Lake’s claim that Maricopa’s altered tabulators resulted in an illegally conducted election and Maricopa’s subsequent coverup triggered Rule 60(b)(6).”
The brief cited the relevant case law in Arizona, Miller v. Pichaco Elementary School District No. 33 and Reyes v. Cuming, which held that an election must be set aside when nontechnical requirements of an election statute are disregarded. There weren’t just a few violations, Lake argued, but all tabulators were affected. “The issue here is not whether some unspecified ‘tabulators’ underwent L&A testing on October 11, 2022,” she said in the brief. “The issue is whether all vote-center tabulators used on Election Day underwent the statutorily required L&A testing.”
The brief concluded by asking the court to accept the review.
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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 Kari Lake.
