Kari Lake's lawyers ask Arizona appeals court to 'set aside' 2022 election results

An attorney representing Arizona Republican Kari Lake told a panel of judges Thursday that the only way to fix what he views as errors made in Lake's case challenging her 2022 election loss is to set the election result aside.

Lake lost that race to Democratic Gov. Katie Hobbs, and has been unable to show evidence to any court in the 18 months since that fraud or misconduct altered the election result. Still, as she mounts a bid for the Republican nomination for Senate, her lawyers continued their claims during an oral argument Thursday before an Arizona Court of Appeals in Tucson.

The long lifespan of the case may pose a political problem for Lake, whose 2022 campaign mantra that elections were "rigged" was rejected by voters, including many in her own party. Now, she's gunning for one of the swing state's Senate seats in a race many observers call a toss-up, meaning either party could win.

A spokesperson for Lake's campaign did not respond to a question about how a voter should interpret Lake's quest for the Senate while her aides are still arguing that she won the Governor's Office.

The bulk of the approximately 45 minutes of courtroom argument dealt with court rules about new evidence, and in what circumstances judges should use that information to essentially change their minds after having already ruled in a case. The judges questioned whether Lake's legal team had found new evidence, as it claimed, or whether it had just provided a new analysis of information they had all along as the case wove its way through the court system.

While the case also involves Lake's claim that Maricopa County did not properly verify signatures on ballot affidavit envelopes, that issue received little attention in court Thursday. A judge ruled after a three-day trial last year that the county's verification procedures followed state law.

The three judges on the court did not issue an immediate ruling in the case.

How oral argument came about

Maricopa County Superior Court Judge Peter Thompson in May 2023 rejected an argument from Lake's lawyers Bryan Blehm and Kurt Olsen that they had new evidence that warranted reversing prior dismissals of their legal claims. Both Blehm and Olsen are facing possible discipline related to their licenses to practice law in Arizona because of their work with Lake.

The attorneys argued that the county did not follow state law in conducting logic and accuracy testing of ballot tabulators prior to the Nov. 2022 election, an argument they based on public records from the county and a county election official's testimony at a prior trial. But Thompson said Lake's original case challenged testing of ballot printers, and that her legal team was trying to make a new argument too late in the case.

Whether Thompson was right to refuse to revive the claim on that basis was one issue before the Court of Appeals.

Olsen argued the "election results cannot be trusted, based on new evidence of the mass debacle that defendants tried to downplay and basically said was a hiccup, (when) in fact, it was far greater."

Appeals Judge Karl C. Eppich asked Olsen a hypothetical question about what the court should do if the judges agreed Olsen did uncover new evidence to warrant reopening part of Lake's case.

"The remedy is to set aside the election," Olsen said.

Also contested by Lake and lawyers for the county is whether Lake needed to prove an actual number of voters were disenfranchised by Election Day problems to make her case, or needed only to show there was some uncertainty. Thompson, under the guidance of the Arizona Supreme Court, had previously ruled Lake's team had to prove actual votes impacted — and that they were unable to do so.

"Let me make one thing absolutely clear, not just to this judicial panel but to every single person in the state of Arizona: Not one ballot was rejected," Tom Liddy, the civil division chief in the Maricopa County Attorney's Office, told the judges in his argument. "Not a single ballot was rejected. Every single lawful ballot cast was tabulated."

He also rejected Olsen's claim that the information related to testing was new.

"Whatever evidence they say they have was evidence that existed right after Election Day," Liddy said. "Certainly existed on the day of the first trial, and any lawyer or any lay person (through) a public records request could have gotten it."

Dig into the case history

A former television news anchor turned politician, Lake in December 2022 filed the case disputing her 17,117-vote loss to Hobbs. Hobbs won by a margin of 0.7 percentage points.

Lake alleged a variety of misdeeds, spinning issues with ballot printers and long lines on Election Day into claims that tens of thousands of voters were disenfranchised. A new election should take place, or a judge should rule she was the rightful governor, she and her legal team argued.

The case has been pending in Arizona courts since, and previously made one trip to the state's Supreme Court, which affirmed that judges got it right in dismissing most of Lake's legal claims as unfounded. Her claims were "insufficient to warrant the requested relief under Arizona or federal law," the top state court's March 2022 opinion reads. The court later fined Lake's lawyers for making "unequivocally false" claims about 35,000 ballots added to the vote count.

The Arizona Supreme Court did find an error on one element of the case and reversed the prior decisions, giving Lake and her lawyers another shot at challenging the procedures Maricopa County used to verify signatures on ballot return envelopes.

After a three-day trial in May 2023, Thompson found the county's processes to compare signatures on the envelopes to signatures in a voter's record followed state law. Lake's lawyers had argued that the rapid pace at which some election workers verified signatures didn't meet a legal standard.

But Thompson disagreed, noting that state law does not set a minimum time for verification to occur. It just requires the verification to take place, Thompson ruled.

Arizona has two appeals court divisions, one that meets in Phoenix and one in Tucson. Lake's case was moved to Tucson because of a 2022 law trying to balance the courts' caseloads. Still, she alleged last year that the move left her case in "the most Marxist part of the state."

She filed a flurry of cases tied to her bid for the Governor's Office, including one that challenged the use of voting machines and was recently rejected by the U.S. Supreme Court. Another alleged Maricopa County was wrong to deny her access to more than 1 million voter signatures on ballot envelopes, a public records case rejected by another county judge. Lake gave up her appeal of that case in March.

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Reach reporter Stacey Barchenger at stacey.barchenger@arizonarepublic.com or 480-416-5669.

This article originally appeared on Arizona Republic: Kari Lake's lawyers ask AZ court to 'set aside' 2022 election results