By Howard Fischer
Capitol Media Services
PHOENIX -- Katie Hobbs was confirmed Saturday as the winner of the Arizona governor's race as a judge rejected claims by Kari Lake that there was misconduct in the race.
Maricopa County Superior Court Judge Peter Thompson issued a detailed report on how all of the testimony on behalf of the Republican gubernatorial hopeful provided no evidence that she should have been declared the winner despite the final tally showing her with 17,117 fewer votes. And he said some of her theories about what went wrong -- and why -- simply at not backed by facts.
"A court setting such a margin aside, as far as the court is able to determine, has never been done in the history of the United States,'' the judge said, noting Hobbs' margin of victory was outside the margin for an automatic recount under state law.
Thompson said he is aware of the problems reported that tabulators at some of Maricopa County's 223 vote centers were unable to read the ballots printed out by on-site printers. That, in turn, led to long lines at some sites.
"This court acknowledges the anger and frustration of voters who were subjected to inconvenience and confusion at voter centers as technical problems arose during the 2022 general election,'' he wrote in his 10-page ruling.
"But this court's duty is not solely to incline an ear to public outcry,'' the judge continued. "It is to subject plaintiff's claims and defendants' actions (which included both Hobbs and Maricopa County) to the light of the courtroom and scrutiny of the law.''
And Thompson said his review of the evidence shows that Lake did not prove her case.
Lake clearly disagreed.
"My election case provided the world with evidence that proves our elections are run outside the law,'' she said in a Twitter post. And Lake said she will appeal "for the sake of restoring faith and honesty in our elections.''
But Lake will have to convince the Arizona Supreme Court that Thompson's detailed findings were flawed.
Lake relied heavily on the testimony of Clay Parikh who opined that a problem with some ballot printers -- spitting out undersized images -- must have been done intentionally.
The judge said Parikh has "an impressive technical background as a cybersecurity expert for Nortrup Grumman.'' But he said that Parikh's conclusion about how that happened is undermined by the actual evidence.
"If the ballot definitions were changed, it stands to reason that every ballot for that particular definition printed on every machine so affected would be printed incorrectly,'' Thompson said, putting out a 19-inch ballot on 20-inch ballot paper. He said that wasn't the evidence.
The judge also said that David Betencourt, another witness called by Lake, undermined that theory.
Betencourt, a T-Tech -- a temporary technical worker for the county -- testified that problems with printers could be solved by several means, including taking out and shaking the printer cartridge, cleaning the corona wire, letting the printers arm up and adjusting settings on the printer. And the judge said that, apart from the last, none of those suggest an intent to produce an image unreadable to the tabulators at each polling place.
In fact, Thompson said, Betencourt not only said he had no knowledge of anyone engaged in intentional misconduct but that the techs he worked with "diligently and expeditiously trouble-shot each problem as they arose, and they did so in a frenetic Election Day environment.''
The judge also said that there was no evidence anyone's vote was not counted, even if it was cast on one of those 19-inch ballots. He said any undersize ballot that could not be immediately read by the tabulator could be placed by the voter in a sealed box to be taken to a central location at the end of the day where it would be "duplicated by a bipartisan board onto a readable ballot, and -- in the final analysis -- counted.''
The judge said the testimony of Richard Baris was no more helpful to Lake's claim that the election was rigged.
Baris, director of Big Data Poll, testified that the printer failures on Election Day disenfranchised a number of voters who, he opined, simply gave up. He based that on the fact that he had contacted a certain number of voters prior to the election but that many of them did not check back in with him afterwards for an exit poll.
But Thompson, even giving credit to Baris' polling techniques, said nothing in his testimony showed an actual effect on the election.
That is critical: Thompson said anyone seeking to overturn an election must show that not only that there was an intentional act, but that it was committed by someone who is involved in the election, that it was intended to change the result, and, crucial here, that it did, in fact, alter the results.
"Mr. Baris admitted at trial that 'nobody can give a specific number' of voters who were put off from voting on Election Day,'' the judge said.
What Baris did suggest is that the number of ballots cast was anywhere from 25,000 to 40,000 less than would have been expected without those printer and tabulator problems. But Thompson said even Baris acknowledged that could have created anywhere from a 4,000-vote margin for Lake -- to adding 2,000 votes for Hobbs.
Thompson said he is not saying that statistical evidence can never be used to demonstrate a direct effect on the outcome of an election. But he said "a statistical analysis that shows the current winner had a good chance of winning anyway is decidedly insufficient.''
And the judge said there's something else.
"No election in Arizona has ever been set aside, no result modified, because of a statistical estimate, Thompson said.
He said it would be one thing if this had been a case where someone had been able to prove malfeasance to the point where the effect could actually be quantified. But the judge called it a "quantum leap'' for a court to set aside an election where the effects are unknown.
Nor was Thompson willing to accept Baris' estimates.
"Election contests are decided by votes, not by polling responses,'' he wrote.
"This court has found no authority suggesting that exit polling ought to be used in this manner,'' the judge continued. "Given that exit polling is done after a vote has been cast, the weight of authority seems to be contrary to this proposition.''
Thompson also said that Lake's claims got no help from testimony by Mark Sonnenklar, a roving attorney with the Republican National Committee, who went to eight polling sites on election day.
He testified about the failure of tabulators at multiple locations, his own personal estimate on the rate of failure, the efforts of county election workers to fix the problems, and the frustration and anger of voters who had to wait in longer lines due to the failures. And Sonnenklar called it "common sense'' that such widespread failure must have been the result of intentional conduct.
"But this intuition does not square with Mr. Sonnenlkar's own observations,'' the judge said.
"For one thing, county T-Techs being sent to troubleshoot and fix the issues with tabulators are not consistent with a scheme by a person or persons to alter the result of an election,'' Thompson said.
He also said Sonnenklar admitted he did not observe anything that supports his intuition that someone had engaged in intentional misconduct. And the judge said Sonnenklar admitted he had no personal knowledge of any voter being turned away from polls as a result of printer failures.
The judge also brushed aside testimony from Heather Honey, a supply chain auditor and consultant, who claimed the county violated chain-of-custody rules for ballots. He said that was based on the county failing to give her copies of "delivery receipt forms.''
But Thompson said Honey testified under cross examination that she knows these forms do exist. What that leaves, the judge said, is a claim that the county has not complied with law for producing records -- but no basis for a claim of violations of election laws.
Finally, the judge noted there was testimony that the county did not know on election night how many ballots it had received, a fact that Lake's attorney Kurt Olson said "does not make sense.''
That formed the basis of Lake's claim that perhaps 25,000 extra ballots had been injected into the system after the vote.
County officials said the numbers released that night were simply estimates.
"It was not Maricopa County's burden to establish that its process or procedure was reasonable, or that it had an accurate unofficial count on election night,'' Thompson wrote. "Even if the county did bear that burden, failing to carry it would not be enough to set aside election returns.''