Kari Lake gets trial in election misconduct allegation, other claims tossed

Kari Lake, seen here at an election night watch party during her losing bid to become governor of Arizona, has won a chance to a trial this week to try to prove problems at some Phoenix-area voting centers led to her losing the race to become Arizona’s next governor.

PHOENIX — Losing gubernatorial hopeful Kari Lake is entitled to try to prove in court that someone in Maricopa County illegally tinkered with ballot printers resulting in lost votes for her, a judge ruled late Monday.

In a 13-page decision, Maricopa County Superior Court Judge Peter Thompson said he was not deciding on the merits of Lake’s claim of intentional misconduct, one of the legal grounds in Arizona to contest an election.

That, he said, will come after a two-day trial set to start Wednesday.

The root of that complaint is that printers at many of the county’s 223 voting centers malfunctioned, 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.

But while allowing Lake to make those arguments, Thompson said she will need to show more to prevail and to get him to set aside the results of the election which showed her losing to Democrat Katie Hobbs by more than 17,000 votes.

“Plaintiff must show at trial that the ballot-on-demand printer malfunctions were intentional, and directed to affect the result of the election, and that such actions did actually affect the outcome,” the judge wrote.

In fact, Thompson said he is required by law to weigh the evidence in a way that, given any doubt, upholds the validity of the election. But he said that, at least for the time being, he has to view Lake’s complaint as valid.

‘Court will sift in vain’

Lake will have trouble proving the election results were affected, said Abha Khanna, representing the governor elect in her personal capacity.

“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 earlier Monday. Virtually all of those declarations were made by people who complained about Election Day problems but actually did vote, she said.

“At most, those declarations say that a handful of voters chose not to vote using the means available to them on Election Day,” Khanna said.

That refers to the fact that any voter who could not get his or her ballot instantly tabulated had the option of instead dropping it into a sealed box to be counted later at a central location.

And Deputy County Attorney Tom Liddy pointed out that many Arizona counties do not provide for on-site tabulation as it is not required under state law.

Thompson also said he will allow Lake to present any evidence she has 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.

Liddy said 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.

Lake: ‘this is far from over’

A trial is the place to determine whether the county complied with not just state statutes on custody documents but also its own manual, Thompson said.

But the judge also said that, even if Lake can show some noncompliance, she also will need to prove that “was both intentional and did in fact result in a changed outcome.”

The decision to allow a trial on these issues comes despite efforts by Hobbs, represented by separate attorneys in her capacity as secretary of state and as the governor elect who defeated Lake, to have the entire case tossed.

Lake, in a Twitter post, hailed the ruling.

“Katie Hobbs’ attempt to have our case thrown out FAILED,” she wrote.

“She will have to take the stand and testify,” Lake continued. “Buckle up, America. This is far from over.”

That claim about Hobbs having to go to court comes because Thompson, in a separate ruling, refused a bid by Hobbs’ attorneys to quash a subpoena to have her come to court and testify. The judge said there is reason to believe that Hobbs, as secretary of state, may have knowledge about some of the issues that he has cleared for trial.

Several claims dismissed

But Monday’s ruling was far from a clear victory for Lake.

The judge dismissed various other allegations including claims by Olson that 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 to a central reporting portal — he 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.

The judge also dismissed two separate but related claims about early ballots.

Lake argued that the only permissible method of determining the validity of signatures on early ballots 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.”

Mail-in vote challenge rejected

Thompson did not address the issue of whether the county’s signature-matching procedure was legal.

Instead, he pointed out, 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. But 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 ballot process is unconstitutional because 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.

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