Arizona Gubernatorial Election Contest (Lake)

On Monday, Dec. 19, an Arizona judge heard arguments in this election contest. Specifically, the defendants, through their attorneys (hereafter referred to as Gov.-elect Hobbs’ attorney, Secretary Hobbs’ attorney and Maricopa County’s attorney) argued that the contest should be dismissed while Kari Lake’s attorney (hereafter referred to as Lake’s attorney) argued that the case should go to trial this week. 

Gov.-elect Hobbs’ attorney opened with the argument by stating that the case should be dismissed based on laches (the legal principle that a lawsuit has to be brought in a timely manner). She then argued that Lake’s claims do not meet election contest standards under Arizona law because an election contest may only be brought if there is fraud, misconduct or if illegal votes impacted the outcome of the election and if these alleged errors would have changed the results. Since Lake explicitly states in her complaint that she is not alleging fraud, Gov.-elect Hobbs’ attorney argued the fraud point is moot in this case. Gov.-elect Hobbs’ attorney argued that, in most election contests, “the contest hinges on 10, 20 or 50 votes that decide an election and whether they were lawfully counted or impermissibly excluded. Here, by contrast, Ms. Lake must overcome over 17,000 votes.” Gov.-elect Hobbs’ attorney concluded by rebutting Lake’s allegations of rot in the electoral system by stating: “If there’s anything rotten in Arizona, it is what this contest represents. For the past several years, our democracy and its basic guiding principles have been under sustained assault from candidates who just cannot or will not accept the fact that they lost.”

Next, the judge heard from Maricopa County’s attorney, who also argued that the case should be dismissed. He argued that Lake did not make “a single allegation of misconduct that’s supported by a single fact.” Additionally, he argued that any litigation about election procedures should have been brought before the election, not after. Maricopa County’s attorney then turned to rebutting the validity of the affidavits that Lake provided. He explained that although voters may not have been “happy” with their experience, these voters still successfully cast their ballots. He argued that it is offensive to describe what Maricopa County voters allegedly experienced as “voter suppression.” 

Then, the judge heard from the attorney representing Secretary Hobbs in her official capacity. He argued that if this case moved forward to trial, it would “open the litigation flood gates” and every future election could “be contested and proceed to trial.” 

Next, the judge heard from Lake’s attorney (who might be remembered by his stint representing the controversial Cyber Ninjas during Arizona’s 2020 election “audit”), who argued that Maricopa County failed to follow its election procedures and chain of custody rules for ballots. He claimed that “mysteriously, 25,000 extra ballots appeared” in Maricopa County after the election and these ballots are “outcome determinative.” He then made the argument that Maricopa County officials are engaged in a “secret censorship operation set up by the government that would make Orwell blush.” In support of this allegation of a conspiracy, Lake’s attorney suggested that “you have the federal government creating an election misinformation reporting portal, specifically for state and local election officials, which ties them directly with social media companies like Twitter and Facebook and allows these election officials to immediately flag and take down information to censor people that they find objectionable. They call it misinformation, but this is a secret operation” that is allegedly an “affront to the First Amendment.” Lake’s attorney then referred to a pollster for the Epoch Times who said the total number of disenfranchised voters in Maricopa County would be “outcome determinative.” 

Next, Lake’s attorney argued that signature matching for mail-in ballots is both deeply flawed but necessary to prevent voter fraud. He argued that, after the 2000 presidential election, the 2005 Carter-Baker Commission determined that mail-in voting was one of the “most likely areas of voter fraud.” Notably, former President Jimmy Carter has since refuted these claims and said that the commission’s report on mail-in voting is outdated and that mail-in voting is a secure and safe voting method. Lake’s attorney argued that their account of Election Day “paints and tells a completely different picture than what defendants have tried to portray.” He claimed that he has access to “screenshots…of text messages…where [election workers were] exclaiming ‘I’m having a 911 here. You know there are lines are out the door over 100 people; get me coffee please.’” Lake’s attorney then argued that this is indicative of systemic issues during the 2022 election, concluding that “we have shown [in] this election that there are 25,000 unexplained votes” and that Lake’s “complaint is well sourced, it’s under oath, it’s detailed…You should accept all those allegations as true…and not dismiss this case.” 

Gov.-elect Hobbs’ attorney began her rebuttal by reiterating that the Arizona Supreme Court has held that “honest mistakes, even gross irregularities, absent a showing of fraud or that they actually affected the outcome of the election are not sufficient to sustain a contest.” Gov.-elect Hobbs’ attorney discussed the conflict between Lake’s written complaint and the argument her counsel made today: “The complaint, I believe, alleges discrimination against Republicans. Counsel’s shifting theory today is that it was actually not about Republicans or even about Republican voters, but about Kari Lake.” She argued that the math that Lake’s attorney presented “doesn’t add up.” Gov.-elect Hobbs’ attorney suggested that the “chaos and mayhem” that Lake alleges “doesn’t even begin to describe what [Lake] seeks to unleash upon this court in the course of a trial over the next two days if this court were to allow it.” Gov.-elect Hobbs’ attorney  concluded by stating that the “court should not indulge this kind of a show that plaintiffs want to put on in a courtroom. It is not a theater; it is not a public broadcast and it is not a political platform. It is a court of laws and evidence and rules of procedure and the court should not allow this case to proceed.” 

After that, Maricopa County’s attorney rebutted the argument that 25,000 ballots “mysteriously” came out of nowhere by explaining how results are reported on and after Election Day. He stated that he would have been more impressed with Lake’s witness on election equipment if the witness “maintained the printers at Staples.” Maricopa County’s attorney then turned to the arguments Lake’s attorney made about the signature verification process and vote tabulation machines, rebutting both of them by stating that the tabulators have rejected ballots before, not just in 2022. Lastly, he ended by asking the judge to consider allowing sanctions briefing against Lake’s attorney for bringing this lawsuit. 

Lastly, the judge heard from Secretary Hobbs’ attorney, who disputed Lake’s claim that election officials who dispute election misinformation violate the First Amendment. Further, Secretary Hobbs’ attorney argued that even “if the court were to accept plaintiffs’ rampant and unreasonable speculation of what occurred [on Election Day in Maricopa County], that doesn’t invalidate the votes at issue.” He concluded by stating that for “four years the secretary has served as chief elections officer. And in that role, she wants to ensure that all legally cast ballots are counted. And that’s why she’s here today, to urge the Court to reject plaintiff’s invitation to disenfranchise hundreds of thousands of Arizonans who did nothing wrong and who are eligible to vote.”

On Wednesday, Dec. 21, an Arizona judge oversaw the first day of trial in the election contest filed by Kari Lake, the failed Republican candidate for Arizona governor and a known election denier. The contest was brought against current Arizona Secretary of State Katie Hobbs (D) in both her current official capacity and as the newly elected governor and Maricopa County election officials and board of supervisors. 

On Monday, Dec. 19, Judge Peter Thompson dismissed eight out of the 10 claims Lake originally made in her lawsuit. Two much narrower claims were argued before the judge on Wednesday. The first claim considers ballot-on-demand (BOD) printer malfunctions that occurred in Maricopa County, home to Phoenix, on Election Day. In order to succeed, Lake “must show at trial that the BOD printer malfunctions were intentional, and directed to affect the results of the election, and that such actions did actually affect the outcome.” The second claim Lake has to prove at trial is that Maricopa County mishandled ballots during canvassing in a way that affected the canvass.

Lake’s attorney called six witnesses to try to prove that intentional wrongdoing would make up the over 17,000 vote difference currently between Lake and Hobbs. The defendants’ attorneys (hereafter referred to as Gov.-elect Hobbs’ attorney, Secretary Hobbs’ attorney and Maricopa County’s attorney) worked to disprove Lake’s allegations.

The first witness called was Stephen Richer (R), the Maricopa County recorder; Richer is an elected official who takes a large role in managing elections, specifically early voting, though he clarified that he is “not responsible for Election Day operations…or ballot tabulation.” Lake’s attorney then zoned in on the chain of custody forms, which Richer revamped earlier this year. In explaining those changes, Richer explained that his office altered the forms “for the same reason that we revisited all of our processes…” and added: “Because I’m in this office to try and move it forward. I hope to leave it better than I inherited.” Lake’s attorney appeared discontent with the fact that chain of custody documents do not indicate how many ballots are within a given bin. Richer pushed back and explained that ballots are not counted at individual vote centers but at separate locations later on, hence why information would not be on the form. Lake’s attorney also asked Richer about his statement that there were 275,000 early ballots received via drop boxes on Election Day in Maricopa County. Richer explains that this was an estimate, and that he said “275,000 plus.” The total number ended up around 292,000. Maricopa County’s attorney began a cross examination, asking questions that allowed Richer to better explain the county’s procedures. The county’s lawyer ended his questioning with “a very direct question: Did you personally do anything to sabotage the 2022 election, including some type of activity performed on the printers to make the printers not print correctly?” Richer responded, “Absolutely not.” Lake’s attorney’s short re-direct tried — and failed — to paint Richer as an anti-Lake partisan.

Next up on the witness stand was Scott Jarrett, the co-elections director for Maricopa County who oversees in-person voting and ballot tabulation. In a back and forth over the BOD printer malfunctions on Election Day in Maricopa County, Jarrett disagreed with Lake’s attorney’s characterization of the issues as a “disruption.” Jarrett described what happened: “We had some printers not printing some tiny marks on our ballots dark enough to be read in by the tabulation equipment. Voters had legal and valid options to still be able to participate within our elections.” In between questioning about the different ways the election department plans for Election Day — including turnout forecasting and calculating vote center wait times — Lake’s attorney repeatedly brought up a hypothetical situation where a 19-inch ballot image was printed on a 20-inch ballot. Despite Jarrett noting that he had not heard of that type of issue occurring, Lake’s attorney pressed whether it could have been a deliberate act. Jarrett concludes: “Again, you’re asking me to speculate about things that I have no knowledge of occurr[ing]. So I don’t know if it could have been a deliberate act or not. I don’t believe that that occurred.”

The third witness called by the plaintiffs was Clay Parikh, an information security officer who has worked for defense contractors and a “certified ethical hacker.” He also has degrees in cybersecurity. After Lake’s attorney asked to submit Parikh as an expert witness, the judge responded that “Arizona doesn’t do that.” Lake’s attorney was able to ask Parikh any question, which could be objected to by the defense. Parikh inspected ballots from six Maricopa County vote centers, including original ballots that were duplicated. Ballots are duplicated when they can’t be read by the tabulator machine. Parikh took issue with the fact that he only inspected original ballots, noting that Maricopa County did not provide the duplicates (later on in cross examination, he would admit that he never asked to see the duplicates). According to Parikh, some of the ballots had to be duplicated because they had 19-inch ballot images printed on 20-inch paper, a fact Parikh determined by taking a ruler and measuring them himself. Parikh then explained that he believed there are only two possible reasons why a ballot could be misprinted in such a way, neither of which he believes could happen by accident. This line of questioning by Lake’s attorney aimed to show that ballots were intentionally misprinted, a high bar the plaintiffs must reach to prove their first claim of wrongdoing. To counter this point, Maricopa County’s attorney confirmed that Parikh understood that a ballot that could not be tabulated would be duplicated and then re-run and counted. The attorney and Parikh then had a back and forth because Parikh tried to avoid acknowledging that an incorrectly printed 19-inch ballot would ultimately be tabulated. Parikh continued to avoid the question and discussed the two possible — and intentional — ways that the 19-inch ballot misprint could occur. He ends his testimony with: “I am unable to answer your question.”

After shuffling through their witness list, Lake’s attorneys called Heather Honey as their next witness, who testified about an alleged voicemail from a Maricopa County election worker named Betty. The defendants’ attorneys objected, saying that Honey’s testimony would be hearsay and that “Betty” is an unknown person who isn’t a party to this lawsuit. Honey took the stand nonetheless and identified herself as an investigator, auditor and supply chain consultant. Honey said she got into “election integrity work” about two and a half years ago and has done work in Pennsylvania, Michigan, Arizona and Georgia. Honey’s investigative firm, based in Pennsylvania, was involved in the Arizona state Senate’s “audit” of the 2020 election. The judge ultimately permitted the voicemail from “Betty” to be played before the court; the protracted disagreement in court was over a benign voicemail message that said that Maricopa County is still waiting on records from Honey’s information request. Honey testified that she filed a public records request for chain of custody documents and that the county provided everything requested except for the Maricopa County Delivery Receipt Form. Honey alleged that Runbeck, a third-party company that works with Maricopa County, says no such forms were created. Honey’s testimony also relied on comments from two more individuals; she described a conversation with Leslie, an employee at Maricopa County Tabulation and Election Center (MCTEC), who said that seals were removed from ballot transport containers and ballots were not counted before going to Runbeck. Richer testified earlier that ballots aren’t counted at MCTEC; they’re counted at Runbeck. Honey also noted a conversation with Denise, a Runbeck employee who described a process where “Runbeck employees were permitted — almost like it was a perk of employment — to bring their ballots from homes, so their family members’ ballots…and add them to the inbound scans.” Lake’s team needs to prove that a specific number of ballots were affected.

The final two witnesses of the day spent little time on the stand. First up was Bradley Bentencourt, a temporary worker hired by Maricopa County as a technician during the 2022 elections. He set up poll sites beforehand and watched sites on voting days, characterizing the day as “chaotic.” Bentencourt testified to the issues he saw on Election Day but could not attest to any personal knowledge about intentional misconduct or the scope of the issues. Lastly, plaintiffs called up Mark Sonnenklar, an attorney who served as “a roving attorney in the Republican National Committee’s election integrity program.” Sonnenklar took it upon himself to create a report based on what he witnessed on Election Day. He described long lines at vote centers. He says because of tabulator issues, there were “angry and frustrated voters who did not want to put their ballots in box three,” referencing the fail safe option for voters when precinct-level tabulators failed to properly scan ballots. Sonnenklar concluded his testimony with his belief that “common sense tells me that there was a cover up here.”

The trial resumed on Thursday, Dec. 22. The plaintiffs have indicated they have one more witness to call; the defendants will then call four witnesses and both sides will likely give concluding statements.

On Thursday, Dec. 22, an Arizona judge oversaw the second day of trial in the election contest filed by Kari Lake, the failed Republican candidate for Arizona governor and a known election denier. The contest was brought against current Arizona Secretary of State Katie Hobbs (D) in both her current official capacity and as the newly elected governor and Maricopa County election officials and board of supervisors. 

On Monday, Dec. 19, Judge Peter Thompson dismissed eight out of the 10 claims Lake originally made in her lawsuit, allowing two much narrower claims to move forward. We describe these claims and give a recap of the first day of the trial here.

Thursday’s courtroom proceedings began with Lake’s attorneys calling their final witness, Richard Baris, a pollster. In an effort to build his credibility, Baris said he has never inaccurately predicted the winner of an election outside of the sampling error in the past six years. However, the defendants’ lawyers later pointed out that Baris’ firm, Big Data Poll, is banned from FiveThirtyEight’s aggregate polling analysis, receiving an “F” grade from the news source based on its methodology and process. During direct examination by Lake’s attorney, Baris presented his data: He determined that “between 25,000 to 40,000” voters, largely Republicans, were disenfranchised because of Election Day issues in Maricopa County. When asked if “plaintiff Kari Lake would have won this race, but for the Election Day chaos?” Baris responded: “I have no doubt. I believe that strongly, in my opinion.” Gov.-elect Hobbs’ attorney tore down some of Baris’ credibility before exposing how his calculation of the percentage and number of voters who did not turn out — but apparently would have if not for Election Day issues — was determined based on low response rates to his poll of 813 Maricopa County voters. Gov.-elect Hobbs’ attorney ran through several hypotheticals about issues voters might have run into on Election Day that would’ve caused a voter to say on Baris’ survey they ran into a problem voting. Baris reported that his survey indicated about 32.7% of Maricopa County voters faced an issue on Election Day and Gov.-elect Hobbs’ attorney clarified that this statistic does not specify what type of issues voters might have faced. After Baris was dismissed as a witness, the plaintiffs rested their case.

The defendants’ attorneys (hereafter referred to as Gov.-elect Hobbs’ attorney, Secretary Hobbs’ attorney and Maricopa County’s attorney) called their first witness, Kenneth Mayer, a political scientist at the University of Wisconsin, Madison. Gov.-elect Hobbs’ attorney asked a series of questions establishing Mayer’s credentials as an expert in elections and polling. Mayer explained that he has served “many times” as an expert witness and a court has never rejected his testimony. Gov.-elect Hobbs’ attorney raised the example of voters who may have checked in at one vote center, but then checked out and went to another vote center. Crucially, Mayer noted that all but 13 of the around 200 voters who checked out were able to successfully cast a ballot that was counted. Mayer was asked whether there is “any reason to believe that large numbers of voters abandoned their efforts to vote after encountering difficulties with tabulators,” to which he responded: “Not only is there no evidence that happened, the evidence…suggests strongly that did not happen.” Gov.-elect Hobbs’ attorney returned to the polling conducted by the prior witness, Baris. Mayer debunked the major issues in Baris’ testimony, noting that “there are about five logical leaps that you have to go through to get from that premise to the conclusion.” Mayer explained that virtually all of Baris’ conclusion rested on an inference that people who said they would vote, but then failed to respond to his poll, did not respond because they were disenfranchised, adding that there was also “a little bit of sleight of hand that [Baris] did in doing the calculation.” Lake’s attorney began cross examination by presenting the report Mayer submitted to the court. Lake’s attorney tried to get Mayer to retract his statement that Lake’s legal claims are “absurd, fanciful conspiracy theories.” Mayer maintained that these claims are incorrect. In explaining to the judge why he was bringing up claims that have since been dismissed, Lake’s attorney made it clear that he was trying to allege “bias” on part of Mayer. Lake’s attorney asked Mayer a few other questions, but it was unclear what the line of questioning was attempting to accomplish.

The next two witnesses called by the defense were Reynaldo Valenzuela and Scott Jarrett, co-directors of the Maricopa County Elections Department. First up was Valenzuela, who is largely responsible for overseeing candidate filing and early voting. On the stand, Valenzuela described the secure procedures for retrieving ballots from drop boxes, including all of the required documentation that accompanies collected ballots to the Maricopa County Elections Department. Valenzuela clarified that every early ballot must go through the signature verification process; he was unaware of any Runbeck policy permitting employees to deliver their own early ballot packets directly to Runbeck as the county has never authorized such a policy. (Runbeck is the third-party vendor with high-capacity machines for processing ballots that Maricopa County employs.) Jarrett, who oversees in-person voting and tabulation operations, also took the stand yesterday as a witness for the plaintiffs. Today, Jarrett began by explaining Maricopa County’s vote center model, which allows a voter to vote at any Maricopa County location, of which the county had 223 in the November midterm elections. Due to the range of local races and several thousand ballot styles possible within Maricopa County — the fourth largest county in the United States — the only way to offer this vote center model, Jarrett testified, was to have ballot-on-demand (BOD) technology. BOD printers produce a unique ballot as a given voter checks in.

Yesterday, Lake’s lawyers and one witness zoned in on the existence of 19-inch ballot images on 20-inch paper, which would allegedly create an improperly printed ballot that a tabulator would be unable to read. Today, in addressing this 19-inch ballot debacle, Jarrett provided a potential answer to the plaintiff’s conspiratorial theory about deliberate misprinting. Jarrett noted that there were three vote centers where some ballots were improperly printed with a “fit-to-print” setting. While this setting didn’t change the paper size, it slightly shrunk the ballot image. Jarrett explained further: “That was due to our temporary technicians…adjusting a setting. This was not [a] direction we provided from the Maricopa County Elections Department.” Since Jarrett testified yesterday that he was unaware of any 19-inch images, Lake’s attorney pushed him on the fact that today he spoke about a smaller image on ballots due to “fit-to-print” printing issues. Jarrett denied the assertion that he was contradicting himself. Lake’s attorney also returned to the over-emphasized fact that certain ballots were not counted until they reached Runbeck; during direct examination, Jarrett described — in great detail — the mechanics of chain of custody procedures, explaining all required documentation and security measures. On the redirect by the Maricopa County’s attorney, Jarrett confirmed that there were under 1,300 accidental “fit-to-print” ballots, testifying that these ballots were ultimately tabulated and “reported in that bipartisan adjudication board process that is observed” by both political parties.

Defendants’ attorney called their final witness, Ryan Macias, a subject matter expert in election technology, infrastructure and administration. Macias has worked for the U.S. Election Assistance Commission, most recently as the agency’s acting director of voting system testing and certification. Macias explained how Maricopa County’s BOD system interacts with the Election Management System to refute the idea that only intentional manipulation of data could create 19-inch ballot images. “If that were the case,” he added, “Maricopa County would have seen every ballot of that ballot style printed on a 19-inch ballot.” To wrap up, Sec. Hobbs’ attorney asked Macias whether he “sees any security or chain of custody problems with the practice of not counting the number of early ballots at the vote center.” He did not. On cross examination, Lake’s attorney targeted Macias over the fact that Hobbs’ office retained him (pro bono) to serve as an expert observer during logic and accuracy testing. The defendants rested their case.

In his closing argument, Lake’s attorney began by discussing Jarrett’s supposedly contradictory claims on the stand. Throughout his soliloquy, Lake’s attorney repeated that the defense’s evidence just “doesn’t make sense.” In contrast, the attorney for Gov.-elect Hobbs laid out the legal thresholds that the plaintiffs needed, but failed, to meet: “The court ruled that plaintiffs must show at trial that the BOD printer malfunctions are intentional and directed to affect the results of the election, and that such actions did actually affect the outcome. Plaintiffs established none of this.” Gov.-elect Hobbs’ attorney pointed to three flaws in Parikh’s testimony from the first day of the trial, noting that he didn’t prove that: the 19 versus 20-inch discrepancy was the cause of printer issues; there was an intent to alter the election and the issues had an impact on the outcome. Gov.-elect Hobbs’ attorney rejected the arguments presented by the plaintiff’s other witnesses and any basis for the second legal claim over chain of custody issues.

Gov.-elect Hobbs’ attorney concluded: “Kari Lake lost this election and must lose this election contest. The reason she lost is not because of a printer error, not because of missing paperwork, not because the election was rigged against her and certainly not for lack of a full opportunity to prove her claims in a court of law. Kari Lake lost the election because, at the end of the day, she received fewer votes than Katie Hobbs. Katie Hobbs is the next governor. The people of Arizona said so it is time to put this contest and the spurious claims to bed.”

The trial concluded and the judge said that he hoped to issue a ruling “forthwith.”