By Howard Fischer
Capitol Media Services
PHOENIX -- An expert witness hired by lawyers for losing Arizona gubernatorial candidate Kari Lake testified Wednesday he found ballots for the general election printed with the wrong size image.
And that, said Clay Parikh, could not have happened by accident.
The testimony is part of Lake's effort to show that problems that occurred on Election Day in Maricopa County were an intentional act by someone. That proof is critical to her case, as Arizona does not allow elections to be overturned based on mistakes.
No evidence was offered as to who might have done that.
But Assistant County Attorney Tom Liddy, in questioning Parikh, said even if the situation with how the ballots were printed with the wrong size was as he claims it would not matter. He said the votes eventually would have been counted anyway -- and that anyone who wanted to vote for Lake for governor was not disenfranchised.
At the heart of the issue is that ballots in Maricopa County, both those sent out early and those printed at voting centers, are on 20-inch paper.
Parikh, permitted by the court to examine some of the of ballots, said he found a number of the sample were printed out to just 19 inches, leaving excess area along the borders. In a Twitter post, Lake said that was 48 of 113 examined ballots.
What makes that significant, Parikh said, is that there would be no way for the tabulators, either at vote centers or at the Maricopa County Tabulation and Election Center, to read and tally them.
"Is there any way, in your opinion, for a 19-inch ballot image to be projected onto a 20-inch ballot by accident?'' asked Lake attorney Kurt Olson.
"No, sir,'' Parikh responded. "The settings and the configurations and the procedures that are used cannot allow that,'' he continued. "These are not a bump up against the printer and the settings change.''
Liddy, however, said the printer could have been placed in a "shrink to fit'' mode.
More to the point, he suggested there is a flaw in Parikh's contention that votes were not counted.
It starts, Liddy asked, with Parikh confirming that a 19-inch printed ballot would not be read by tabulators. Parikh agreed.
Liddy said that, in turn, would require the unreadable ballot, just like any other ballot with things like stray marks or tears, to be manually duplicated by election workers to a new ballot that could be scanned. And Parikh confirmed he had seen only the original ballots, not the duplicates.
"Whether it's accidental or inadvertent, if the shrink-to-fit 19-inch ballot has to be duplicated, once it's duplicated, would it be tabulated?'' Liddy asked.
"I'm unable to answer your question,'' he responded.
All this goes to the fact that Maricopa County Superior Court Judge Peter Thompson has left Lake to pursue just two of the 10 claims she made in contesting the election results.
One deals with her allegation that someone -- not named by Lake -- interfered with the settings on the printers that are located at voting centers.
That ballot-on-demand system exists because the county allows any voter to go to any site. And that, in turn, requires the ability to print out a ballot exclusive to that person, with only the races for which he or she is eligible to vote.
But even if Lake can prove to Thompson that someone did alter the settings, that, by itself, still would not be enough for her to overturn the election results which show her losing to Democrat Katie Hobbs by more than 17,000 votes. The judge, in a pretrial ruling, said she also would have to show that the problems with printers "resulted in identifiable lost votes'' for Lake.
And even at that point, Thompson said, Lake also would have to prove "that these votes would have affected the outcome of the election.''
The judge also is allowing Lake to present evidence during the two-day trial that started Wednesday to argue that the failure of the county to follow "chain of custody'' laws for ballots "permitted an indeterminate number of votes to be added to the official results, constituting misconduct.''
To make that argument, her attorneys brought in Heather Honey, identified as an investigator. She said the county failed to have what she said are legally required tracking forms at every stage of the tallying procedure, starting from the early voting drop boxes through transport to the county election offices, then to Runbeck Election Services for processing, and then back to the county.
"Failure to maintain chain of custody presents a situation where ballots could be added,'' Honey testified. "But ballots also could be removed.''
Honey also testified that Runbeck employees told her that they were permitted to submit early ballots from themselves and their families at the company's offices. But she said Arizona law requires ballots to be taken only to official drop-off locations.
"Runbeck is not one of them,'' Honey said.
All of that relates closely to claims by Lake that about 25,000 ballots were "illegally injected'' into the system after Election Day.
Among the evidence cited by Bryan Blehm, another of Lake's attorneys, were Twitter posts and statements by county officials the day after the election saying they had scanned and were prepared to tally more than 275,000 early ballots dropped off at polling places on Election Day. Only later did county officials peg the figure at closer to 292,000.
But Maricopa County Recorder Stephen Richer testified that 275,000-plus figure was only an early "estimate'' and never intended to represent the actual number that eventually were turned in.
Even if votes were illegally added, and even if chain-of-custody records are missing for 300,000 ballots, both of which Lake alleges, that still may not get her what she needs to overturn the election: To this point, there has been nothing introduced into evidence to show that those ballots -- assuming they exist -- altered the outcome of the election.
Also Wednesday, Olson attempted to get Robert Jarrett, the county's co-director of elections, to admit that errors were made in estimates of how many people would turn out on Election Day. The attorney suggested that resulted in some people being kept waiting in line for more than two hours.
That, in turn, goes to Lake's complaint that some people, frustrated with the lines, simply went home without voting.
Jarrett said a few vote centers approached that two-hour figure but did not exceed it. And he said that it was not like voters, finding long lines at one site, did not have other options, saying the county posts information on its website about waiting time at each site.
For example, he said, when wait times approached two hours at Biltmore Fashion Park, voters were told they could go to the nearby Faith Lutheran Church where wait times were about a minute.
The trial resumes Thursday morning.