Attorney: Kari Lake believes statements that lawsuit calls defamatory

PHOENIX — Kari Lake’s lawyers told a judge Tuesday a defamation suit against her should be thrown out because she believes her statements about injected ballots and sabotaged voting machines in the 2022 election she lost are true.

Lake’s attorneys said Maricopa County Recorder Stephen Richer, in pursing his defamation claim, must prove she acted with “actual malice,’’ meaning she knew or should have known her statements were false.

All of Lake’s statements about why she claims the election she lost for governor should be overturned have been rejected by courts.

“But not only does Kari Lake believe what she said is true, she will testify as such and will defend accordingly,’’ Jennifer Wright, an attorney for the failed GOP candidate for governor, told Maricopa County Superior Court Judge Jay Adelman.

Richer’s attorneys say Lake’s statements about his role in the 2022 election are absolutely false and they will prove that at trial.

Lake’s attorneys, however, are hoping it never actually gets to a trial. That’s why they are asking the case be tossed now — before Richer even gets a chance to present any evidence.

Anti-SLAPP law

Jessica Banks, an Arizona State University law student who also is on Lake’s team, says Lake is protected by the state’s anti-SLAPP law, short for Strategic Action Against Public Participation.

That law is designed to protect individuals sued by public officials from having to retain expensive attorneys simply because they are criticizing that person. It would allow the judge to dismiss the case without further hearings if he determines that Richer sued Lake primarily “to deter, retaliate against or prevent the lawful exercise of a constitutional right.’’

Lake’s attorneys say she had the right to criticize how her fellow Republican Richer performed his duties in the 2022 election she lost to Democrat Katie Hobbs by more than 17,000 votes.

“Richer is attempting to chill Kari Lake’s speech by bringing this lawsuit against her and seeking injunctive relief,’’ Banks said.

That claim, however, isn’t exactly true.

The injunction Richer wants is not to keep her from making future statements. Instead he seeks a court order requiring her and her campaign to delete false and defamatory statements about him from any websites and social media accounts they control.

He also wants unspecified financial damages, saying Lake “spread intentional or reckless falsehoods’’ about his role in the election, actions he said harmed him and his family and resulted in threats of violence and death for family members.

Wright told Adelman at Tuesday’s hearing that the fact some people, on hearing Lake’s rhetoric, may have threatened Richer is not Lake’s fault.

“She is not asking people to do violent things,’’ Wright said. “The way people react to her words is not her responsibility.’’

Testable facts

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Central to Richer’s defamation lawsuit are two issues.

One involves statements Lake repeatedly made that Richer inserted 300,000 “illegal,’’ “invalid,’’ “phony,’’ or “bogus’’ early ballots into the vote count. That is based on Lake’s claim about disparities between preliminary and final counts of ballots dropped off on Election Day, ballots she continues to argue were not within the legal “chain of custody.’’

The other says that Richer, along with Republican Maricopa County Supervisor Bill Gates, “sabotaged election day.’’

One post by Lake’s campaign, for example, says the pair “knew 75% of Kari Lake’s voters would show up on game day, so they programmed the machines to print 19-inch images on 20-inch ballots.’’

Judge Adelman agreed that, in general, phrases like “bogus’’ or “steal’’ by themselves may be considered “descriptive language or rhetorical hyperbole’’ and not rise to the level of a statement that allows someone to sue.

But he said the statements attributed to Lake were more specific, like whether 300,000 ballots were inserted into the count or whether the ballots were purposely printed the wrong size.

“Those would seem to be facts that are tested as either true or false,’’ the judge said.

“They’re either provably false or entirely true,’’ Adelman continued. “Maybe a jury gets to decide that, maybe not.”

One of Richer’s attorneys, Cameron Kistler, told the judge there is sufficient reason to allow the claims to go to trial where a jury can decide whether Lake’s statements are false and whether she made them with knowledge or had reason to believe they were false.

He said one of those questions, for example, is whether Richer personally programmed the printers to produce wrong-size ballots, the ones that Lake said sabotaged the Election Day process by producing the the long lines that turned away voters she presumed were her supporters.

“Those are events that either happened or they didn’t,’’ Kistler said. “And we will have the burden at trial (to show) that they didn’t, which we have every expectation we will be able to do.’’

But he said Lake’s attorneys want Adelman to rule is that because the cause of the printer errors hasn’t been proven to their satisfaction, that makes it impossible for Richer to disprove, undermining his defamation claim.

“That’s not how defamation law works,’’ Kistler said, saying Richer doesn’t have to prove the cause of why the printers malfunctioned. “He just has to show it wasn’t him.’’

Of note is that while Lake’s attorneys say she stands behind her statements, Wright sought to put some distance between her and the words she used.

For instance, Wright said of one of Lake’s claims that it was a “question of opinion,” not necessarily fact, “as to how Lake characterized” it.

If Adelman refuses Lake’s request to dismiss the case, that will lead to extensive pre-trial activities, including the chance for Richer’s attorneys to question Lake under oath.

Lake is separately trying to convince the state Court of Appeals to void the results of the 2022 race and order a new election. At the same time, she has announced her Republican candidacy for the U.S. Senate in 2024.