Kari Lake’s election lawsuit contesting her loss to Democrat Katie Hobbs in the gubernatorial race is at the Arizona Court of Appeals after being dismissed by the trial court judge. Lake filed a reply on Tuesday to the responses from defendants Maricopa County and then-Secretary of State Hobbs.
The reply brief began, “Defendants ignore the trial court’s holdings, misstate the law, misstate material facts, and — unable to get their stories straight — contradict each other.”
It asserted that “the trial court wrongly required appellant-petitioner Kari Lake (“Plaintiff”) to prove by clear and convincing evidence that Defendants ‘intended to affect the result of the 2022 General Election’ and actually succeeded in that effort. … No Arizona case law supports that standard.” The brief cited case law showing that a preponderance of evidence standard applies to civil cases unless otherwise specified. The brief cited the Arizona Supreme Court case Miller v. Picacho Elementary Sch. Dist. No. 33, which held that “‘a showing of fraud is not a necessary condition’ in an election contest.”
The brief stated that the required logic and accuracy (L&A) tests of voting equipment were not conducted before Election Day, only “stress testing” which isn’t provided for in law. The latter type of testing did not ensure that the various ballot styles could be printed by the tabulators. Lake stated, “Maricopa’s failure to perform L&A testing is a per se violation of A.R.S. §16-449 and the EPM [Election Procedures Manual], constitutes misconduct under A.R.S. §16-672(A)(1), and was a direct cause of the massive disruptions on Election Day.”
The brief cited new testimony presented to the Arizona Senate Election Committee on Monday which revealed that “Maricopa’s vote center tabulators rejected over 7,000 ballots every thirty minutes … totaling over 217,000 rejected ballot insertions on a day when approximately 248,000 votes were cast.” This contradicted “Defendants’ claims of ‘hiccups,’” instead “the tabulator ballot rejections were massive, widespread and lasted all day.”
Maricopa County admitted it did not count the ballots received at Maricopa County Tabulation and Election Center (MCTEC), the brief asserted, which is a violation of the law. As a result, 25,000 new ballots were reported between November 9 and 10, more than the 17,117 margin of votes between Hobbs and Lake. Nearly 300,000 drop box ballots lacked a chain of custody, which was “a fatal deviation from a non-technical statute,” something the Arizona case Reyes v. Cuming held was enough to overturn an election.
Lake’s brief argued that the judge should not have dismissed the signature verification count in her complaint since she wasn’t challenging the procedures; she was challenging the fact the defendants failed to follow the procedures at all. Lake argued the counts alleging violations of equal protection and due process should not have been dismissed since the election chaos “affected Republicans to a statistically anomalous degree.”
The reply stated that the appeals court is not required to accept the trial court’s fact findings since case law provides that this is not required where the fact-finding was “induced by an erroneous view of the law.”
The brief rebutted the presumption of the defendants’ honesty and good faith by showing the county’s “dissembling about stress testing versus L&A testing,” “Maricopa withheld election evidence from a Senate subpoena,” and the county knowing about “defects in its equipment over three election cycles” but neither fixing nor reporting the issue.
The brief refuted the notion that it was necessary to prove illegal votes, citing Reyes. In that case, the court held “that there was no evidence that any ballots were cast by persons other than registered voters is irrelevant.” Similarly, ”courts have never required a specific number of disenfranchised voters to void elections.”
Lake said Miller established that her “burden is to show that the outcome was at least rendered uncertain, Lake need only provide evidence that a sufficient number of voters were disenfranchised to change the election’s outcome, not that a sufficient number of those voters would have voted for a particular candidate.”
The brief cited case law holding that it is not necessary to show fraud to prove election interference; “[a]ctionable misconduct does not require fraud.” Reyes held that “disregarding election laws can per se constitute misconduct.” Misconduct includes negligence, Lake argued.
Lake’s brief observed that “Maricopa and Hobbs do not dispute the sworn testimony of over 200 election workers, election observers, and voters, admitted into evidence by the trial court, describing the debacle on Election Day.” She cited 132 of the county’s 223 voting locations “as experiencing widespread BOD printer and tabulator failures causing chaos, hours long lines, and voters giving up and not voting.”
Lake noted that Hobbs claimed that Lake did “not identify a single voter who was unable to vote because of tabulator issues,” but Lake listed five witnesses who saw many voters give up and leave. She cited text messages from techs discussing how the tabulators continued to have problems throughout the day, unable to be quickly fixed.
The brief cited testimony by expert Clay Parikh, who “testified that [Maricopa County Elections co-Director Scott] Jarrett admitted to him during his inspection that Maricopa did not maintain the duplicate ballots together with the originals he inspected as is required by law. There is no way to tell if these ballots were counted.”
The last part of the brief defended the testimony from Lake’s witness, data analyst Richard Baris of Big Data Poll, who said during the trial that his exit polls revealed that many voters didn’t end up voting.
The brief concluded by asking the appeals court to reverse the trial court’s dismissal of Lake’s lawsuit and either vacate the election or order the lower court to redo the trial. Oral arguments at the Arizona Court of Appeals are scheduled for February 1.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Kari Lake” by Gage Skidmore. CC BY-SA 2.0.
After reading an article explaining the reason for the recent dismissal of Kari Lake’s lawsuit as “no evidence of fraud”, I finally realized how judges across America are turning their backs on election justice in violation of their oath of office to “protect the constitution”. How many times have we heard “no evidence of fraud”? Fraud is an action with intention of deception and criminal where there violation of law whether intentional or not. It does not have to be intentional to be a crime. I am confused if the fraud has to be tied to an individual. Elections are like a committee with many actions by many people to the point that when “everyone is responsible, no one is responsible”. Flawed procedures and lack of attention to detail becomes disastrous when repeated 1000s of times. The result exceeds any actions of individuals committing fraud even if intention can be proven. Another aspect to these elections is that there is no evidence trail consisting of data or paper. It seems such as obvious deficiency that it be intentional and by design. This latter tidbit was cited in an article by Fred Lucas, “10 Million 2022 California Ballots Unaccounted for, Report Finds”, dated 1/18/23 in The Daily Signal. The vote machines are unreliable and should be scrapped everywhere.