Court ruling for Lake in election fight leaves a lot for her to overcome

PHOENIX — The wording of a decision by the Arizona Supreme Court to let Kari Lake pursue one remaining election claim might make it difficult, if not impossible, for her to prove.

Still, Lake believes even with the restrictions the high court has imposed, that she can meet her burden of proving the counting of election results was tainted and that the outcome in last year’s race to be Arizona governor should be declared void, a spokesman for the failed Republican gubernatorial hopeful told Capitol Media Services.

In a brief order Wednesday, the justices rejected most of Lake’s claims that the election was not properly run. They also concluded Lake had not met her burden to provide “clear and convincing evidence” that even if her allegations about chain-of-custody requirements and misconfigured ballot tabulators were true it would have altered the outcome of the race.

The official vote total for Arizona shows Democrat Katie Hobbs beat Lake by 17,117 votes.

But the justices said Lake is entitled to try to show that Maricopa County did not follow its own procedures in deciding the veracity of signatures on early ballot envelopes. That goes to her claim that an undetermined number of votes were counted that should not have been included in the tally.

Chief Justice Robert Brutinel, however, refused to let Lake try to prove that the procedures used by the county did not comply with state law or the Election Procedures Manual. He said that claim should have been brought before the November election.

That requirement for her to show that the county did not follow its own procedures, however, is just part of the series of hurdles as the case is returned to Maricopa County Superior Court Judge Peter Thompson. And they largely center around what could be an inconvenient truth for Lake: The envelopes with the signatures she is questioning have long since been separated from the ballots they held.

The first is that even if Thompson allows her to review envelopes, and even if she can make a showing that some signatures did not match, there is no way to know whether county election workers had “cured” the problem.

That occurs in situations where election workers have questions about the signatures. They reach out to the voters using information they have, including the phone numbers that voters are supposed to put on the envelope, to ask them if, in fact, the ballot is theirs.

Signatures sometimes do not match for a variety of reasons, ranging from the voters having had an accident or stroke or simply the fact that it has been years since the original registration form was submitted and signatures can change over time.

It is only after a signature is considered “cured” that the envelope is opened and the ballot taken out and separated for counting.

About 15,000 envelopes were set aside when election workers could not verify signatures, Maricopa County Recorder Stephen Richer told Capitol Media Services Thursday. But he said about 13,000 of those ballots were processed when the voters verified their identities.

Potentially more acute is the fact that the separation of the ballots from the envelopes means that even if Lake can prove a certain number of signatures did not match, she cannot determine whether those ballots contained a vote for her or for Hobbs.

The envelopes each have voters’ names. And that would enable Lake to determine a person’s political affiliation and, potentially, look up other demographic information, such as the part of the county in which they live.

But as of the November 2022 election, Republicans made up only 34.5% of registered voters, compared with 30.0% for Democrats and about 34.6% independents, with a smattering of Libertarians.

And there’s something else: the lack of a firm link between party registration and how someone actually voted.

“For instance, I was a registered Republican who voted for some Democrats,” Richer said.

He wasn’t alone.

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An analysis of the record in Maricopa County by the Arizona Republic found that Hobbs picked up the support of 33,000 Maricopa voters who cast ballots for Republicans in “down-ballot” races, like treasurer and county attorney. And the paper concluded there were another nearly 6,000 “Republican-leaning voters” — people who supported other GOP candidates — who either left the governor’s race blank or wrote in a candidate.

All that is critical because Brutinel said to win her case she must show “that votes were affected in sufficient numbers to alter the outcome of the election based on a competent mathematical basis to conclude that the outcome would plausibly have been different, not simply an untethered assertion of uncertainty.”

Lake, for her part, is convinced she can meet the burden.

But some of that is based on the way she is interpreting that last point made by Brutinel.

“Arizona law does not require that a contestant show what the election result would have been but for the illegal votes or for which candidate the illegal votes were cast,” according to a statement from the Lake campaign passed on by spokesman Ross Trumble.

“Rather, Arizona law requires that the outcome of the election is shown to be at least ‘uncertain’ in light of the violations of law,” he said. “The evidence here shows that standard was clearly met.”

That evidence, the statement from Trumble said, includes what he said is the sworn testimony of three whistleblowers who did signature checks for Maricopa County in the 2022 election which “showed a systemic breakdown in the signature verification process.”

The basis for that is Lake’s claim that “tens of thousands of ballots were rejected for mismatched signatures.”

Some of that already has been contested by the county which said the number reflects only what was found by first-level reviewers and not more highly trained verifiers who made the final decision. And they argued that also does not take into account the process to “cure” those ballots.

Lake’s campaign, however, said the rejection rate shows a larger problem.

“Given the extraordinary number of ballot signature rejections, there simply was not enough time in the day for these ballots to be reviewed or cured by Maricopa, indicating that these required procedures were not performed as required by Arizona law,” he said.

Yet the campaign also is citing a report by then-Attorney General Mark Brnovich that in the 2020 General Election — which is not at issue here — the county rejected only 587 ballots for bad signatures. He called that “a number so low that raised doubt that signature verification procedures were being followed.”

Thompson still has to set a date to decide how to proceed with the case.

Lake has legal problems regardless of the outcome of the questions of the ballot signature verification.

In their Wednesday order, the justices pointed out that Lake claimed there was an “undisputed fact” that 35,563 ballots were added to the total count at Runbeck Election Services, a private firm Maricopa County uses to help process ballots.

But Brutinel said there is nothing in the record to back that claim. And he said the high court will consider any bid “in due course” by attorneys for Hobbs or the county to impose sanctions on her or her attorney for making that claim.