Judge orders 2-day trial in Kari Lake’s lawsuit, but dismisses some claims

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A judge declined Monday to dismiss Kari Lake's election challenge after oral arguments by attorneys, giving her a chance to try to prove her claims of misconduct by election officials.

Maricopa County Superior Court Judge Peter Thompson tossed eight of the claims in Lake's lawsuit, but allowed two to remain that alleged an intentional plot by officials to manipulate the election in favor of Lake's Democratic opponent, Secretary of State Katie Hobbs. In two separate orders, he ruled that a two-day trial will take place before Jan. 2, and that Hobbs and County Recorder Stephen Richer would be required to testify as Lake wished.

Lake has "alleged intentional misconduct sufficient to affect the outcome of the election and thus has stated an issue of fact that requires going beyond the pleadings," the ruling stated. It continued that Lake must show at trial that the county's printer malfunctions were intentionally rigged to affect the election results, and that the actions "did actually affect the outcome."

Thompson didn't immediately set the time for the trial, but ordered the attorneys for Lake and defendants including Hobbs and county officials to submit a list with the anticipated time required for the proceedings no later than 12 p.m., Dec. 20.

Last week, he agreed to allow Lake's legal team to inspect a small number of printed and early ballots from the election, including 50 that were marked "spoiled" on Election Day. That inspection was scheduled to begin Dec. 20.

Here's what the lawyers argued in court

Lawyers for Gov.-elect Katie Hobbs and Maricopa County officials told a judge earlier Monday that Lake's lawsuit is full of unproven speculation that isn't allowed for election challenges under state law.

The lawyers, who appeared before Thompson alongside attorneys for Lake, gave a forceful rebuttal of claims by the unsuccessful governor candidate, saying her lawsuit fails to meet legal standards for an election complaint and contains baseless claims of fraud.

The Trump-endorsed Republican is contesting election results that show she lost to her Democratic competitor and current Secretary of State Hobbs by just more than 17,000 votes. Her 70-page lawsuit, filed Dec. 9 in Maricopa County Superior Court, contends that "hundreds of thousands of illegal ballots infected" the Nov. 8 election, relying on so-called expert analysis and witness declarations.

Lake hopes the court will declare her the rightful winner of the Nov. 8 election or order a new election.

Exclusive:Here are key facts and additional information behind the claims in Kari Lake's election challenge

Lawyers for the officials named in Lake's lawsuit − including Hobbs, Richer and five members of the county Board of Supervisors − said at Monday's hearing Lake's case should be thrown out because it doesn't adhere to state standards for a valid election complaint. They also asked for sanctions against Lake.

Kurt Olsen, one of Lake's attorneys, meanwhile portrayed the lawsuit as an expose of systemic problems, failures and possible illegal acts by election officials that led to "massive failure" at the polling stations and "tens of thousands" of disenfranchised voters.

Hobbs team: Standards not met

Hobbs' attorney, Abha Khanna of the Democrat-allied Elias Law Group, told Thompson that Lake's lawsuit was part of a "sustained assault" on election processes by losing candidates and should be immediately dismissed.

The lawsuit's theory of a "master plot" to target Lake by county officials, who like Lake are Republican, somehow happened "without a single trace: no documents, no emails, no leaks," Khanna said.

Glitches did strike machines at about a third of polling places in Maricopa County during the election, providing talking points for election-denying candidates such Lake and losing GOP Secretary of State candidate Mark Finchem but so far no proof that voters were disenfranchised.

When tabulators began rejecting some printed ballots on Nov. 8, creating frustration and long lines at some polling places, county officials instructed voters who worried their ballots might not count to leave them in a batch called "door three," where they were retrieved later and counted.

Large numbers of Republican voters followed the instructions of Lake and other conspiracy-minded candidates to vote in-person on Election Day rather than to mail their ballots, which made them more vulnerable to any polling-place issues. Until the Trump era, Republicans had used mail-in ballots more than Democrats in Arizona.

Out of 220 witnesses offered by Lake's lawsuit, the county's motion to dismiss the case notes that only three of those were unable to cast a ballot after choosing not to wait in line or go elsewhere.

The voter declarations contain nothing that suggests any votes were counted unlawfully or any voters "were wrongfully turned away," Khanna said, adding that "at most, those declarations state a handful of voters chose not to vote using the means available to them on Election Day."

The key point in the case is that Arizona law requires a complaint to contain specific allegations of fraud, a standard developed to prevent unproven, "free-wheeling" speculations that unfairly hold up the democratic process, she said. The law requires "credible, positive, and unequivocal evidence" of perceived problems, with presumptions in favor of the election results, but Lake's lawsuit offers only insinuations, she said.

The lawsuit says that it is not alleging fraud, therefore striking out one of two legal criteria needed, she said. The other requirement is to show that alleged misconduct or illegal votes actually affected the outcome of the election, but Lake didn't do that either, Khanna said.

"Ms. Lake does not come close" to meeting the standards," she said. "The lawsuit requires immediate dismissal."

Lake lawyer fights back

Lake's attorneys for the suit include Bryan Blehm, who was a lawyer for Cyber Ninjas, the contractor hired by the state Senate for its review of the 2020 election, and Olsen, a Washington, D.C., lawyer who recently was ordered to pay sanctions in a federal suit brought by Lake and Finchem that a judge said contained frivolous and baseless claims.

Olsen, who spoke after the county lawyers, said the judge should put stock in the affidavit of "top cyber expert" Clay Parikh, whose analysis concluded that the county's "system-wide" failures could only be explained by intentional manipulation of county officials. An analysis "based on science" also showed that 15,000 to 29,000 votes were disenfranchised, Olsen said. He also claimed the county mysteriously "found" 25,000 "extra voters" two days after the polls closed.

Drawing from the lawsuit, Olsen discussed various factors that he said led to "massive failure" on Nov. 8, such as Hobbs' reporting of misinformation on Twitter, a PAC started by Richer, alleged ballot "chain of custody" problems and what he implied was a suspicious voter-signature verification process.

He appealed to the affidavits of three "whistleblowers" on the last point, claiming that "tens of thousands of ballots were being pushed into the system that should never have been counted" because of sloppy signature checks.

One of the county's lawyers, Tom Liddy, ripped Olsen's claim that Parikh was a "cyber expert," saying someone who maintained printers at a Staples office-supply store would have impressed him more.

Liddy said Olsen's notion of 25,000 "ghost ballots" was simply because the county gave one early estimate of mail-in ballots that were dropped off at the polls on Nov. 8, and then released the actual number a few days later.

He offered an answer to Olsen's "challenge" to find another election in which tabulators failed to read ballots: Liddy said those problems "happen all the time" because of printer issues, wet ink on a ballot, or ovals that weren't filled in.

On the issue of signatures, Khanna said they were not rejected at a rate of 30% to 40% as Olsen asserted, and that in reality, ballot rejection typically amounts to fewer than 1% of ballots checked.

Here's what the judge's ruling said

Thompson, who presided over Monday's live-streamed, hour-plus hearing, listened to each side without asking questions and ended by saying he would make a ruling on the county's motion to dismiss as soon as possible.

His ruling, released just before 8 p.m., dismissed eight of Lake's 10 counts in her lawsuit. The legal doctrine of laches, which forbids claims that could have been brought much earlier in time, applies when considering the county's signature-verification process or Lake's claim that the Arizona Constitution's Secrecy Clause bars mail-in ballots, he wrote.

In other dismissed counts, Lake didn't state a claim sufficiently or asked for relief that the court could not provide such as "ordering a new election."

But she did state a valid claim in alleging that a county employee interfered illegally with the printers, "resulting in some number of lost votes" for Lake, and she's entitled to try to prove that, Thompson ruled.

Likewise, she made a specific allegation that an unknown number of ballots were added to the county's total by employees of Runbeck Election Services, a Phoenix company that provides election equipment for the county, and that receipts of delivery were not maintained in violation of state law. Thompson allowed that claim to proceed, too.

The hearing came days after a judge dismissed a similar lawsuit by Mark Finchem, another Trump-endorsed candidate. Finchem, who was defeated by Democrat and former County Recorder Adrian Fontes, claimed Hobbs failed to ensure tabulation machines were approved by the Election Assistance Commission and that she helped cause suspension of his Twitter account.

Judge Melissa Julian said Thursday that Finchem's claims of misconduct were insufficient to survive dismissal and granted a request for sanctions by attorneys for Hobbs and Fontes.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on Twitter @raystern.

This article originally appeared on Arizona Republic: Judge orders 2-day trial in Kari Lake’s lawsuit, dismisses some claims