US appeals court tosses Kari Lake, Mark Finchem lawsuit vs. voting machines

A federal appeals court tossed out claims by losing 2022 candidates Kari Lake and Mark Finchem that machines used to count votes are so inherently unreliable, they violate the candidates’ constitutional rights.

In an 11-page opinion Monday, the three-judge panel of the 9th Circuit Court of Appeals said Lake and Finchem never presented any evidence the machines used in Arizona to count ballots had ever been hacked. In fact, the judges noted, the losing Republican candidates “conceded that their arguments were limited to potential future hacking, and not based on any past harm.’’

At best, the judges said, their complaint cites “opinions by purported experts’’ on manipulation risk and alleges that “difficulties’’ have occurred in other states using electronic tabulation equipment.

Also, they noted that Lake, who ran for governor, and Finchem, who ran for secretary of state, first sought to bar the use of tabulation machines in the 2022 election. But that election is over, meaning they no longer have any claim that use of the devices would affect them as candidates, the judges said.

That leaves a more generic claim that the use of electronic tabulation systems denies them a “fundamental right’’ to vote.

But that isn’t enough to bring a constitutional challenge into federal court, the judges said.

“Plaintiffs simply have not plausibly alleged a real and immediate threat of future injury,’’ and instead advanced “only conjectural allegations of potential injuries.’’

Safeguards cited

There was no immediate response from Lake or Finchem.

In filing suit ahead of the 2022 election, the pair alleged the machines are unreliable because they are subject to hacking. They said the use of components in computers from other countries makes them vulnerable.

They sought to have the 2022 election conducted with paper ballots that would be counted by hand, calling it “the most effective and presently the only secure election method.’’

The appellate judges, however, noted that U.S. District Court Judge John Tuchi, who rejected their claims before the 2022 vote, did a deep dive into their allegations. Tuchi said they amounted to a “long chain of hypothetical contingencies’’ — ones that have never occurred in Arizona — that would have to take place for any harm to occur.

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The appellate judges also cited the safeguards in the system, starting with certification of tabulation machines and pre-election “logic and accuracy’’ tests in which a set of paper ballots with known total votes is fed through the tabulators and the results compared with what the machines report.

Then, after the election, party representatives select a sample of ballots for a hand recount under the oversight of each county’s elections department, the appellate judges noted. And they said the state’s Elections Procedures Manual requires the hardware from tabulators to be stored in secure locations and sealed with tamper-resistant seals.

Those regulations also say tabulators cannot be connected to the internet or any external networks and may not contain remote access software or any capability to remotely access the system.

Cyber Ninjas count

The judges also noted that Lake and Finchem cited as evidence of flaws in the system the hand count of ballots in Maricopa County by the consulting firm Cyber Ninjas ordered by Republican Senate President Karen Fann after the 2020 election.

The court pointed out that even that report, however, found “no substantial differences’’ between the Cyber Ninjas hand count and the official totals. In fact, it showed Democrat Joe Biden won Arizona’s presidential vote by a wider margin over Republican Donald Trump than the reported tally.

The judges were no more impressed by arguments by Lake and Finchem that there is a constitutional right to a certain level of accuracy in the Arizona tabulation system.

“That claim plainly fails,’’ the appellate judges said. “It is the job of democratically elected representatives to weigh the pros and cons of various balloting systems, recognizing that no balloting system is perfect. Indeed, the possibility of fraud can never be completely eliminated.’’

Monday’s ruling does nothing to affect Lake’s ongoing efforts to have state judges overturn her 17,117-vote loss to Democrat Katie Hobbs for governor or to order a new election.

Lake now seeking review of that effort at the state Court of Appeals.

Finchem, who lost to Democratic Secretary of State Adrian Fontes by more than 120,000 votes, has abandoned his appeal after losing at trial court.