WASHINGTON, D.C. — 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On Monday, Dec. 19, Judge Peter Thompson dismissed eight out of the 10 claims Lake originally made in her lawsuit, allowing two much narrower claims to move forward.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.”