PHOENIX — Republican Kari Lake gets her day in court this week to try to prove that she should be installed as Arizona’s next governor despite election returns showing she lost to Democrat Katie Hobbs.
Maricopa County Superior Court Judge Peter Thompson has given her attorneys 5½ hours over Wednesday and Thursday to present evidence she contends will show someone interfered with both the ballot-on-demand printers and failed to maintain a “chain of custody” of about 300,000 ballots.
Either of those, Lake contends, is enough to bring into question her 17,000-vote loss.
But Lake will need to show more than that to win.
First, she has to prove that either — or both — acts were done intentionally. And Lake also has to show that the actions actually affected the outcome of the race.
And even if she can do it, what the judge would do remains unclear.
Lake has asked the judge to set aside the official results and declare her the winner. But if she can’t get that, Lake wants Thompson to require Maricopa County, where she lost by 37,638 votes, to conduct a new election. This time it would be under the direction of a special master that the judge would appoint.
That option would delay plans to swear in Hobbs as governor as scheduled Jan. 2. And that would keep incumbent Doug Ducey in office, as the Arizona Constitution says the terms of an official are automatically extended “until his successor shall be elected and shall qualify.”
All that presumes, however, that Lake can make her case.
Lake: Printer problems cost votes
One of her complaints that Thompson said she can pursue is that printers at many of the county’s 223 voting centers malfunctioned on Election Day, producing ballots that could not be scanned by the on-site tabulators. That, in turn, caused long lines as some people refused the alternate option of dropping their ballots into a sealed box to be counted later.
Lake also contends that an unknown number of people simply gave up without voting. More to the point, she said the fact that Republicans are more likely to vote on Election Day than Democrats means those were votes that would have gone to her.
Abha Khanna, representing the governor-elect in her personal capacity, said Lake will have trouble proving the election results were affected.
“The court will sift in vain through pages and pages of declarations for any evidence that any votes were unlawfully counted or that any voters we wrongfully turned away,” she told Thompson during a hearing Monday, with virtually all of those declarations being from people who complained about Election Day problems but actually did vote.
And there’s something else. Thompson said he is required by law to weigh the evidence in a way that, given any doubt, upholds the validity of the election.
The judge also is allowing Lake to pursue her contention that someone at Runbeck Election Services, which handles ballots for the county, purposely added “an indeterminate number of votes … to the official results.”
That goes to her claim that the county did not maintain a “chain of custody” of about 300,000 ballots, making those votes unreliable. And Lake also contends that more than 25,000 ballots were added to the total after Election Day.
Deputy County Attorney Tom Liddy has argued there were no legal violations. And he said that 25,000 figure simply reflects the difference between estimates the county made public on Nov. 8 of the number of ballots received and more accurate totals two days later after all the early ballots dropped off at polling places were counted.
Thompson, however, said a trial is the place to determine whether the county complied with not just state statutes on custody documents but also its own manual.
But, here too, the judge said that, even if Lake can show some noncompliance, she also will need to prove that it “was both intentional and did in fact result in a changed outcome.”
This won’t be a one-sided argument. Thompson also gave the attorneys for Maricopa County and for Hobbs — represented by two separate law firms, one as the governor-elect and one as secretary of state — 5½ hours to divide up among themselves to argue that the results of the election should be upheld.
The judge’s decision to allow Lake to pursue two legal theories was not a total victory for her. In fact, he threw out eight other claims for various reasons.
Hobbs won’t testify
“Katie Hobbs’ attempt to have our case thrown out FAILED,” Lake wrote. “She will have to take the stand and testify.”
That, however, appears to be untrue.
Lake’s attorneys Tuesday withdrew their request to subpoena Hobbs after Andrew Gaona, who represents Hobbs in her role as secretary of state, said there was no reason to let Lake call her as a witness now that the case has been narrowed to just two issues.
Gaona pointed out the claim of tampering with the printers involves allegations about “a person employed by Maricopa County.” And he said the other about the chain of custody deals with “the county’s ballot contractor” and the alleged “lack of an inbound receipt of delivery,” which is a county form.
“Neither of these claims have anything whatsoever to do with the secretary, any of her or her office’s duties or responsibilities, or any personal knowledge she may have,” Gaona said in a legal filing.
In allowing those two claims to go forward, Thompson dismissed various other allegations including arguments by Kurt Olson, Lake’s attorney, that the election results should be set aside because Hobbs was involved in “a secret censorship operation set up by the government that would make Orwell blush.”
That was based on an aide to Hobbs, as secretary of state, sending information in January 2021 to a central reporting portal — Olson claims operated by the federal government — about a Twitter post she wanted taken down because it said that the state’s voter registration rolls were in the hands of a foreign corporation. Twitter later complied.
Olson, however, said it really is allowing election officials “to immediately flag and take down information, to censor people, that they find objectionable.” Thompson wasn’t buying it.
“Not only does the verified statement fail to set forth an unconstitutional infringement on plaintiff’s (or anyone else’s) speech; even if it did, it would not set for misconduct under election laws,” Thompson wrote.
Claims about ballots dismissed
The judge also dismissed two separate but related claims about early ballots.
Lake argued that the only permissible method of determining the validity of a signature on an early ballot is to see if it matches what the county has on the person’s voter registration record. But county officials have admitted they also use other documents on file, such as prior requests for early ballots.
The result, according to Olson, is that “tens of thousands of illegal votes were brought into the system.”
Thompson did not address the issue of whether the county’s signature-matching procedure was legal.
Instead, he pointed out that Lake has known since at least April — when Attorney General Mark Brnovich publicly raised the issue — that the county might not be following the law. Thompson said that, having waited, she cannot now use that to try to overturn the election.
Similarly, Thompson brushed aside Lake’s claim that the mail-in voting is unconstitutional because she contends there is no way to ensure that a person’s vote remains secret.
Only thing is, the judge said, this isn’t a new issue: Arizona’s current laws allowing anyone to request an early ballot were approved in 1991.
“Lake could have brought this challenge at any time in the last 30 years,” Thompson wrote. “To do so now is to invite confusion and prejudice when absolutely no explanation has been given for the unreasonable delay.”
Lake isn’t the first one to raise the issue.
Earlier this year, Mohave County Superior Court Judge Lee Jantzen rejected claims by the Arizona Republican Party that lawmakers violated the Arizona Constitution when they approved the 1991 law. The state GOP is appealing that ruling.
NBC News reports that GOP-controlled Cochise County was sued by AZ Secretary of State Katie Hobbs on Nov. 28. The state's statutory deadline for certifying midterm election results fell on the same day.
