Judge lets one of Kari Lake's election claims proceed to trial

PHOENIX — A trial judge will give Kari Lake one more chance to try to prove that Maricopa County did not properly verify signatures on early ballot envelopes.

But in so ruling late Monday, Maricopa County Superior Court Judge Peter Thompson threw out Lake’s separate claims that problems with equipment at voting centers led to some ballots cast on Election Day not being counted. He said that Lake, having failed to convince him the first time — and after his decision was upheld by the Arizona Supreme Court — is now improperly trying an entirely new theory in a bid to convince him to overturn the 2022 election results.

Thompson also took a swat at Lake’s attorneys for claiming at a hearing last week they had new “bombshell’’ evidence of fraud and lying by county election workers.

Some of that “proof’’ was based on a report about Election Day problems prepared for the county by retired Supreme Court Chief Justice Ruth McGregor. Lake’s attorney Kurt Olsen claimed McGregor’s report backs Lake’s contention the county knew the equipment would fail on Election Day.

But the judge said that claim “is 180 degrees from what the report actually says.’’

Lake, the Republican candidate for governor who lost in November to Democrat Katie Hobbs, had no comment on having that claim thrown out, again, by the judge.

But in a Twitter post, Lake immediately hailed the first part of the ruling late Monday as giving her “the opportunity to EXPOSE election fraud IN COURT.’’

This is based on her contention first-level reviewers of the signatures on ballot envelopes found anywhere from 15% to 40% of them did not match an individual’s voter registration record, yet most of the ballots were still counted after higher-level reviews.

Attorneys for the county said this is no surprise. They said the second-tier reviewers had not just more training on signature verification, but also access to more examples of each voter’s signature beyond the original voter registration effort. They said there was a third level of review, called “curing,’’ where election workers contacted voters — their phone numbers are on the envelopes — to determine if the ballots were theirs and whether there might be a reason for a signature mismatch, including age or ailments.

The trial, set to begin Wednesday, will allow both sides to present evidence.

Must prove it changed election outcome

But in agreeing to hear Lake’s arguments, Thompson said it will take far more than her mere claims for him to conclude the laws on signature verification were broken and that he should set aside the results in which Lake lost to Hobbs by 17,117 votes.

“She must demonstrate at trial ... that Maricopa County’s higher level signature reviewers conducted no signature verification or curing and in doing so had systematically failed to materially comply with the law,’’ the judge said.

That’s just part of the hurdle.

Thompson said she also would need to prove all this changed the outcome of the election. Relying on a directive he got from the state Supreme Court to take another look at the issue, he said Lake must prove it by “competent mathematical basis,’’ and not by a theory.

He also said Lake must prove that by “clear and convincing evidence.’’

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That is less than “beyond a reasonable doubt,’’ the standard for criminal cases. But it is more difficult to prove than the normal standard in civil trials of “preponderance of the evidence,’’ meaning it is more likely than not that something occurred.

In a written statement, Clint Hickman, Republican chairman of the Maricopa County Board of Supervisors, said the county has beaten back numerous challenges to its election procedures.

“I look forward to once again showing our work,’’ he said. “We have nothing to hide.’’

Too late to change theory

While Lake will be able to present her evidence and arguments about signature verification, Thompson said there is no reason she should get a do-over of her claims that Election Day problems at vote centers disenfranchised some Maricopa County voters.

He pointed out that her initial lawsuit — which was dismissed — contended the on-site printers at vote centers were not certified and had vulnerabilities that left them susceptible to hacking.

But now, the judge said, Lake is saying the problem was with on-site tabulators that refused to read many of the ballots fed into them.

“Suggesting that the tabulators were maliciously configured to not read ballots is different in kind from alleging that the printers could not write the ballots correctly,’’ Thompson said. He said if Lake was changing her theory, that should have been done before the first trial in December, not now.

“In fact, the law does not permit amendments of election contest complaints at any time after the contest filing deadline has passed, even to conform to the evidence,’’ he wrote.

Thompson was no more impressed by Lake’s claim the equipment failures were the result of fraud.

Clay Parikh, an expert witness called by Lake, said at the December trial that the only possible cause of the malfunctions on Election Day could be willful and intentional systemic manipulation.

Yet Thompson said another expert testifying the very next day — and also a witness called by Lake — undermined that theory. That expert said the problems with the printers and tabulators were mechanical issues, which could often be resolved by such actions as cleaning the tabulators and adjusting the settings on the printers.

Thompson said that was the same conclusion reached by McGregor after review, testing and evaluation of the equipment — even if Lake’s lawyers falsely stated otherwise, he said.

Finally, there’s the question of whether any of this could have affected the outcome.

The judge pointed out that even if ballots could not be read by the tabulators at the voting centers, individuals had the option of putting their ballots into a locked box to be taken to a central location and counted later, meaning there was no evidence anyone who wanted to vote did not get the opportunity.