Kari Lake and Mark Finchem appeal their tabulator case to the U.S. Supreme Court

Photos by Gage Skidmore (modified) | Flickr and Flickr/CC BY-SA 2.0

Kari Lake has finally made good on her promise to appeal an election case to the U.S. Supreme Court. 

The Republican candidate for U.S. Senate, who still hasn’t acknowledged her loss to Democrat Katie Hobbs in the 2022 race for Arizona governor, has petitioned the nation’s top court to take up a case aimed at banning the use of machines to count ballots in two Arizona counties and forcing a hand count. 

Lake, along with then-candidate for Arizona Secretary of State Mark Finchem filed the suit in April 2022, alleging that the electronic ballot tabulators used in Maricopa and Pima counties were “hackable” and that the courts should place an injunction on their use ahead of the November 2022 election. 

Finchem, who also lost his election in 2022, and Lake each filed lawsuits after that election seeking to overturn the results. In both cases judges found that neither candidate could prove that there was any fraud, malfeasance or maladministration that changed the outcome. 

Attorneys for both Lake and Finchem have been sanctioned for making claims unsupported by facts or evidence.

In August 2022, U.S. District Court Judge John Tuchi threw out the tabulator case and issued a scathing ruling. He later ordered $122,000 in sanctions against the attorneys in the case, saying that Lake and Finchem’s claims amounted to mere “conjectural allegations of potential injuries.”

In October 2023, the 9th Circuit Court of Appeals concurred with Tuchi’s decision to throw out the case, agreeing that it was “frivolous.”  

“None of Plaintiffs’ allegations supported a plausible inference that their individual votes in future elections will be adversely affected by the use of electronic tabulation, particularly given the robust safeguards in Arizona law, the use of paper ballots, and the post-tabulation retention of those ballots,” the appellate court wrote. 

An attorney representing Lake and Finchem previously admitted in court that the Republicans had no evidence to support their claims that tabulation equipment or any voting equipment in the state had been hacked. Tabulators in Arizona are not connected to the internet and paper ballots are used across the entire state.

On Thursday, Lake and Finchem asked the U.S. Supreme Court to overturn the lower court’s decision.  

During a livestream Friday morning on the social media site X, formerly Twitter, avid Trump supporter and election conspiracy promoter Mike Lindell claimed that there was “explosive” and “shocking” new evidence in the case that wasn’t previously available. Lindell also claimed that his Lindell Defense Fund paid for the original suit. 

“New evidence from other litigation and public-record requests shows defendants made false statements to the district court regarding the safeguards allegedly followed to ensure the accuracy of the vote, on which the district court relied,” the attorneys for Lake and Finchem, Kurt Olsen and Lawrence Joseph, wrote in the petition to the Supreme Court. “That enables petitioners to seek to amend their allegations on standing…to show a non-speculative likelihood that the same harms will recur in future elections, which harms did indeed occur in the 2022 election.”

Even with their claims of new evidence, Derek Muller, a professor of law at Notre Dame Law School, told the Arizona Mirror that he believes the case is “a longshot.” 

“I think the 9th Circuit opinion is pretty much right, given how the Supreme Court has interpreted standing doctrine,” Muller wrote in an email. “Their injury is a ‘generalized grievance,’ which means it’s something that the public shares. They have not suffered any concrete or particularized harm. For that reason, I think the Supreme Court will probably refuse to hear the case and offer no comment on its refusal.”

In their appeal to the high court, Lake and Finchem harken back to the hanging chad debacle in the presidential race in Florida in 2000, but do so in a way that incorrectly implies Arizonans don’t use paper ballots. The overwhelming majority of voters in the state use paper ballots that are tabulated by an optical scanner. 

“At least there, humans could see and touch ballots and punch cards,” the attorneys wrote, referring to Florida in 2000. “By turning elections over to black boxes running software outside the public domain, we surrendered the ability to meaningfully verify the election process.”

In the petition, Lake and Finchem go as far as to accuse Arizona election officials of illegally altering the tabulator software — a crime under Arizona law — and concealing those alterations from the court when the case was originally filed. 

They also claim that Dominion Voting Systems equipment used in Maricopa County, and in many other counties across the country, “have a built-in security breach enabling malicious actors to take control of elections, likely without detection.”

Dominion and its software have been the target of right-wing election conspiracy theories for years now, and last spring Fox News agreed to pay Dominion $787 million over false claims it made about the company’s voting equipment. 

Lake and Finchem also pointed out that some of the components in the Dominion machines come from countries like China, “that are known adversaries that routinely use components, such as motherboards and microchips, to surreptitiously access computer systems.”

They also indicated that, because “most voters and election workers” don’t understand how the tabulators work, that they can’t be trusted. 

“The question is not how many times inaccurate results were discovered, but rather how many times have they not,” Olsen and Joseph wrote in the petition, seemingly highlighting a lack of evidence of Lake and Finchem’s claims. 

Finchem and Lake also continue to repeat the same allegations that tabulators and their software in Maricopa County were not properly certified, or put through mandated pre- and post-election logic and accuracy testing, making them “easily vulnerable to manipulation” that they’ve been making for more than a year now. 

They claim to have recently obtained system log files from the 2020 Maricopa County election that show that, instead of using certified software, “Maricopa’s election software has been surreptitiously altered with respect to components controlling how ballots are read and tabulated.”

Lake and Finchem continue in their appeal to rely on inaccurate or unreliable sources and information to form their case. 

In the petition, they cited the debunked partisan “audit” of Maricopa County’s 2020 election, saying there was a 11,592-ballot discrepancy between the official results and “final voted files” totalled. 

Cyber Ninjas, the firm that completed the audit on behalf of Senate Republicans and was run by a pro-Trump conspiracy theorist who was deeply tied to the Trump campaign’s effort to gin up evidence that voter fraud had led to Trump’s loss, had no experience in election audits, and was never able to fully make sense of its own counts, let alone confirm the accuracy of the official results. The company spent two months in the summer of 2021 hand-counting more than two million ballots and then another four months to determine who won, but never produced an accurate final number. 

“Looks like basically our numbers are screwy,” Cyber Ninjas CEO Doug Logan said in a text message sent during the “audit” that was later uncovered by the Arizona Republic. 

Lake and Finchem also point to tabulator problems on Election Day 2022, which they called a “massive disruption,” to show that their original claims about the tabulators “weren’t speculative.” 

While the tabulators at around 70 of Maricopa County’s 226 voting centers did have trouble scanning ballots on Nov. 8, 2022, an independent investigation found the cause was paper that was too thick and ballots that were too long for the printers to handle. The result was about 17,000 ballots that couldn’t be read by the tabulators at polling sites.

The issue did cause long lines and voter frustration, but even though thousands of ballots were rejected by tabulators that day, all legal votes were later counted and Lake’s claims that the tabulators were manipulated for the purposes of fraud were dismissed by the courts. 

She also failed to prove in court that any person was denied their right to cast a ballot that day. 

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