By Howard Fischer
Capitol Media Services
PHOENIX -- An attorney for failed Arizona gubernatorial hopeful Kari Lake asked a judge Monday to give her her day in court to argue that there were enough errors to overturn the election.
Kurt Olson is basing much of his case on the conclusions by Clay Parikh, a cyber security expert, that the problems that occurred with printers and tabulators at some of the 223 vote centers in Maricopa County were not mere technical problems that could not have been avoided.
The county has acknowledged issues at 70 vote centers; Olson contends it is 132.
"You do not get that systemwide failure without intentionality,'' Olson told Maricopa County Superior Court Judge Peter Thompson. He said that includes violations of the state Elections Procedures Manual about using a ballot-on-demand printing system at each voting center without testing it first.
"And that is at the heart of that chaos that was created on Election Day at all of those vote centers,'' Olson said.
What makes that relevant, according to Lake's legal team, is that it was well known that Republicans are more likely to wait until Election Day to cast their ballots. And by creating this "chaos'' of having on-site tabulators not able to read those on-site printed ballots, that effectively deterred Republicans from waiting in line, meaning they did not vote, with the argument being those would have been votes for Lake.
But Abha Khanna, representing Katie Hobbs as the governor-elect, said there are a series of flaws in that logic.
It starts, she said, with the contention that Maricopa County Recorder Stephen Richer, who is a Republican, and the Board of Supervisors, where four out of five are members of the GOP, purposely took actions to keep Lake from getting elected.
"Somehow these officials were able to target their intentional discrimination to a single race on the ballot that included many Republican candidates and target only Kari Lake,'' Khanna said.
And she said even assuming Parikh's conclusion of "intentionality'' were true because of the widespread failure of tabulators to read the ballots, it doesn't answer the other questions that need to be addressed to sustain a legal challenge.
"By whom?'' Khanna asked.
"Who's intentions are we talking about?'' she continued. "Intention to do what? What was the motive? How did they actually effectuate their intent?''
And there's something else missing that Khanna told Thompson is necessary for him to allow the case to go to trial, much less overturn the election results showing Hobbs defeating Lake by more than 17,000 votes.
"The court will sift in vain through pages and pages of declarations for any evidence that any votes were unlawfully counted or that any voters we wrongfully turned away,'' she said, with virtually all of those declarations being from people who complained about Election Day problems but actually did vote.
"At most, those declarations say that a handful of voters chose not to vote using the means available to them on Election Day,'' Khanna said.
That refers to the fact that any voter who could not get his or her ballot instantly tabulated had the option of instead dropping it into a sealed box to be counted later at a central location. And Deputy County Attorney Tom Liddy pointed out that many Arizona counties do not provide for on-site tabulation as it is not required under state law.
Olson said that even as the county was suppressing Election Day Republican votes it was doing the exact opposite with early votes -- a system used more by Democrats -- by allowing ballots to be processed even though the signatures on the envelopes did not match voter registration records.
That is based on affidavits from three people who were working on preliminary signature comparison at the Maricopa County Tabulation and Election Center. Olson said they saw anywhere from 30 percent to 40 percent of those signatures not matching.
He said there was no way a higher-level review could have adequately checked over the ballots, reported as initial mismatches, and gave the go-ahead to have virtually all of them counted.
"Tens of thousands of illegal votes were brought into the system,'' Olson said.
Liddy, however, said Olson is misrepresenting the review process.
"They will have more than just the 2022 (ballot) signature and the signature when the individual registered to vote,'' he told the judge of the second-level review. "They will have the signature of every single time the voter voted by mail.
Liddy said they also often have the phone numbers of the voters, something county officials say can be used to verify that the person whose name is listed on the outside of the ballot to verify that they did, in fact, send back an early ballot. And voters can explain why a signature might look different now than it did in the past.
"There's nothing mysterious about that, other than it should come as no surprise ... that not every employee is going to witness that process or be aware of that process or have training in that process,'' he said.
Olson also claimed that up to 25,000 ballots were injected into the system after Election Day. But Liddy said that number simply reflects the difference between estimates the county made public on Nov. 8 of the number of ballots received and more accurate totals two days later after all the early ballots dropped off at polling places were counted.
Lake's attorney also contends that about 300,000 ballots lack a proper "chain of custody'' to track them from the point of being deposited into the system until they were counted. Olson said that is fatal as failure to maintain that chain is a violation of criminal law.
The county disputes there are missing chain of custody documents. But even if those documents were missing, the attorneys said that's irrelevant, saying Arizona law allows only "illegal ballots'' to be excluded from the count, meaning those cast by someone ineligible to vote.
"Arizona law does not declare that ballots lacking chain of custody documents are illegal,'' they said.
And Andrew Gaona, separately representing Hobbs in her position as secretary of state, said what Lake wants would effectively disenfranchise all those people who no one questions voted legally based simply on that question of chain of custody.
Olson also is trying to convince Thompson that Hobbs was involved in "a secret censorship operation set up by the government that would make Orwell blush.''
That was based on an aide to Hobbs, as secretary of state, sending information to a central reporting portal -- he claims operated by the federal government -- about a Twitter post she wanted taken down because it said that the state's voter registration rolls were in the hands of a foreign corporation. Twitter later complied.
Olson, however, said it really is allowing election officials "to immediately flag and take down information, to censor people, that they find objectionable.''
But defense attorneys urged Thompson to take note of a decision last week by Maricopa County Superior Court Judge Melissa Julian who rejected identical claims by Mark Finchem in his bid to overturn the race he lost for secretary of state.
"How do you get from the Twitter communication to misconduct under the elections statute?'' she asked.
Thompson has to decide by the end of the day Tuesday whether he will toss the case now or allow it to proceed to two days of hearings he has scheduled for Wednesday and Thursday.