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Kari Lake's last chance?

Lake and Lines Horizontal.jpg
Chris McDaniel/KAWC
Republican Kari Lake (left) called out her then Democratic opponent, Katie Hobbs during a press event in downtown Yuma. At right is Jonathan Lines, Yuma County Supervisor.

By Howard Fischer
Capitol Media Services

PHOENIX -- Attorneys for Katie Hobbs, Adrian Fontes and Maricopa County are urging the justices of the Arizona Supreme Court to send Kari Lake packing in her latest -- and possibly last -- bid to overturn the results of the 2022 gubernatorial race.

And they said she and her lawyer should be slapped with having to pay not only their legal fees but other financial sanctions for filing what they say is a wholly frivolous claim that already has been rejected by two lower courts.

In three new separate court filings, the lawyers cite a series of not just factual but legal issues in Lake's argument that the justices should either declare her the winner or order a new election despite the official vote tally showing her losing to Democrat Hobbs by 17,117 votes.

"Lake simply recycles the same arguments that have already been rejected by two Arizona courts,'' wrote Abha Khanna who is representing the sitting governor.

"The only things that are new are a handful of misrepresentation and distortion of the trial court record,'' she continued. "Neither the court nor the respondents (Hobbs, Fontes and the county) should be required to continue parsing through Lake's convoluted and unsubstantiated arguments.''

Craig Morgan, representing Fontes who is a party because he is secretary of state and therefore the state's chief elections officer, was less charitable in his description for the justices of what the filing is all about.

"This case involves Kari Lake's attempt to malign and undermine our election processes and those who administer them, sow deep-rooted distrust for our democracy, and unseat Katie Hobbs, who is our duly elected governor,'' Morgan told the court. "Ms. Lake continues to attest that the 2022 election was stolen, which is ironic, since it is she who seeks to steal the election and usurp the people's will through judicial fiat.''

And Deputy Maricopa County Attorney Thomas Liddy said that Lake can't even keep her stories straight.

He said when she first filed suit she alleged that the chain-of-custody records required for early ballots dropped off on Election Day did not exist.

Liddy said she has since acknowledged there are records. And Lake now is arguing that those records show a difference of 35,563 ballots that Lake contends were illegally added to the system by Runbeck Election Services which helps the county process early ballots.

"Now that Lake's allegation was definitively disproven and those records admitted at trial, she has changed the allegation and mischaracterized the record to make yet another fantastical claim,'' Liddy told the justices. "This court should reject Lake's invitation to try this case anew on completely new and unsupported facts.''

Not everything in Lake's bid to unravel the 2022 election is fact specific.

One of the key claims of her attorneys is that the lower courts erred in concluding that anyone seeking to set aside an election must produce "clear and convincing evidence'' of misconduct, something they found she never presented. Instead, Bryan Blehm said the court can overturn elections if a "preponderance of the evidence'' -- a lower legal standard -- shows that there were problems and that those problem altered the final outcome.

That, Khanna told the justices, is just flat-out wrong.

"After Lake's nearly 10 briefs in pursuit of her election contest and its subsequent appeals, Lake still has not cited to a single election contest applying a preponderance of the evidence standard -- perhaps because, to Gov. Hobbs' knowledge, none exists,'' she said.

Khanna acknowledged that there is some precedent for that lower standard of proof in cases of fraud.

Only thing is, she said, Lake never alleged there had been actual fraud but instead argued there were instances of misconduct. And Khanna said that means Lake cannot now claim she is entitled to the lower standard of proof that exists in cases of fraud.

Khanna told the high court they should also ignore Lake's claim that Election Day problems with printers and tabulators should require a new vote.

There were printers at many Maricopa County vote centers that could not be read by the on-site tabulators.

Would-be voters had the option of depositing their ballots into secure boxes to be tallied at the end of the day at a central location. But Lake said the issues resulted in a substantial number of people who would have voted for her being unable to cast a ballot.

Khanna said the justices should take notice that the Court of Appeals, hearing the same claims and evidence, concluded that it was "quite simply sheer speculation'' that the issues had any potential effect on election returns.

Aside from asking the Supreme Court to deny Lake's appeal, the attorneys opposing Lake's latest legal bid also want her and her counsel to be ordered to pay their legal fees -- and perhaps additional financial penalties.

Khanna called the ongoing legal efforts legally "frivolous,'' saying they "have been brought without substantial justification and unreasonably expanded and delayed the proceedings at issue.''

Morgan, representing Fontes, told the justices that Lake's misrepresentation of the record and the law justified some kind of sanctions "so others will not follow suit.''

"If this court sits silent in the face of what has occurred, then those who would due our union harm will continue to malign and erode the foundations upon which our great state stands,'' he said. "And if the people's faith in those foundations crumble, so go all we have worked so hard to build and maintain.''

The justices have not set a date to consider Lake's petition to review the lower court rulings.

They can -- but are not required -- to grant a hearing. And if they decide to reject her petition, they can do so either with a written opinion or simply an order affirming what the Court of Appeals decided in tossing her claim.