Judge denies bid by Arizona Republicans to require ballots be counted by hand

By Howard Fischer
Capitol Media Services
PHOENIX -- A federal judge has tossed out a bid by the top Republican candidates for statewide office in Arizona to require ballots in this year's election be counted by hand.
In a 21-page ruling Friday, Judge John Tuchi said the claims by gubernatorial hopeful Kari Lake and Mark Finchem, who is running for secretary of state, that machine counting can produce inaccurate results are little more than speculation on their part, backed only by "vague'' allegations about electronic voting systems generally. The judge said that precludes their arguments from being heard in federal court.
And that's just part of the problem.
"Not only do plaintiffs fail to produce any evidence that a full hand count would be more accurate, but a hand count would also require Maricopa County to hire 25,000 temporary staff and find two million square feet of space,'' Tuchi said. "In fact, with the county's current employees it would be an impossibility to have the ballots counted in order to perform a canvass by the 20th day after the election, as required by law.''
The judge also pointed to existing requirements for both pre- and post-election audits to ensure the machines that tally the paper ballots report accurate results.
Finally, he said neither Lake nor Finchem showed any evidence they are being harmed by the current system, a necessary precursor to bringing suit in federal court.
"We are evaluating our options,'' Finchem told Capitol Media Services. And he scoffed at the judge's conclusion there was no basis for federal court action.
"The so-called 'lack of standing' seems to be the catchall for dismissing things that the court would rather not have to rule on,'' he said. "If we don't have standing, then who does?''
There was no immediate response from Lake.
In filing suit in April, the pair argued that tabulation machines are unreliable because they are subject to hacking. And they said that the use of components in computers from other countries makes them vulnerable.
Attorney Andrew Parker said what's worse is that the technology is kept secret from the public.
"This lack of transparency by electronic voting machine companies has created a 'black box' system of voting which lacks credibility and integrity,'' he wrote.
But what's also clear is that the lawsuit was a direct outgrowth of claims by both that the 2020 election was stolen from President Trump.
The official tally found Joe Biden outpolled Trump by 10,457 votes.
"We know how tragic it was that this election (was) corrupted the way it was here in Arizona,'' Lake said in an interview with Trump supporter Mike Lindell. "And we don't want it to happen again.''
The lawsuit also relied heavily on discredited claims by Doug Logan of Cyber Ninjas, whose firm was hired by the Senate to "audit'' the 2020 election, and Ben Cotton, founder of CyFir, who also was involved in the audit and who made misleading claims that records had been purged.
But Tuchi said the big problem with the arguments of why machine counts are unreliable is they are based on a lot of "what if'' speculations.
"A long chain of hypothetical contingencies must take place for any harm to occur,'' he wrote. That includes:
- The specific voting equipment used in Arizona must have security failures that allow a malicious actor to manipulate vote totals;
- Such an actor must actually manipulate an election;
- Arizona's specific procedural safeguards must fail to detect the manipulation; and
- The manipulation must change the outcome of the election.
"Plaintiffs fail to plausibly show that Arizona's voting equipment even has such security failures,'' the judge said. "And even if the allegations in plaintiff's complaint were plausible, their alleged injury is not certainly impending.''
Much of Tuchi's conclusion there is no risk of imminent harm from continued use of tabulation equipment is based on what he said are independent audits for each election.
It starts with "logic and accuracy'' tests before the election.
That involves running thousands of pre-marked ballots through the equipment, comparing the pre-determined batch with what the machines report as the count.
Tuchi said those tests are "blind'' to the county and observed from political parties who sign off on the results. And he said, the ones performed by Maricopa County ahead of the 2020 general election showed 100% accuracy.
Then, after the election, there is a hand count where representatives of political parties randomly select two polling locations and 5,000 early ballots. Tuchi said the one conducted in Maricopa County after the election found no disparities.
Finally, he said, there is a post election logic and accuracy test. Here too, Tuchi said, it "showed that the tabulators counted the votes with 100% accuracy.''
Parker, in the original lawsuit, sniffed at those procedures. He contended those tests don't prove anything to deal with what he said are "security problems inherent in the use of electronic voting machines.''
"All post-election audit procedures can be defeated by sophisticated manipulation of electronic voting machines,'' he argued.
Tuchi said, however, there is other evidence that the problems cited by Lake and Finchem do not exist.
He noted that Maricopa County had two separate audits performed in early 2021.
In both cases, he said, no malicious hardware or software discrepancies were detected. And Tuchi said the system was determined to be a "closed network'' and no internet connections were identified.
The lack of hard evidence aside, the judge said there are other legal flaws with the claim.
One, he said, is seeking relief in federal court. Only thing is, Tuchi said, nothing in the lawsuit alleges a violation of any federal law but only a demand to require ballots be counted by hand.
"There is no constitutional basis for federal courts to oversee the administrative details of local elections,'' the judge said. Anyway, he said, it's not within his power to bar the use of electronic tabulation equipment.
"There is no constitutional right to any particular method of registering and counting votes,'' Tuchi said.
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