By Howard Fischer
Capitol Media Services
PHOENIX -- Kari Lake shouldn't be required to pay legal fees of Katie Hobbs and others in connection with her appeal of the election results to the Arizona Supreme Court, at least in part because she "honestly believes that electoral misconduct and illegal votes determined the outcome of the 2022 gubernatorial election,'' her attorneys are arguing.
In new filings with the state's high court, Lake essentially is telling the justices that they were wrong last month when they said her claim that 35,563 unaccounted ballots were added to the total count is not reflected in the court record. She is presenting even more arguments that there were additional ballots inserted into the Maricopa County system by Runbeck Election Services, the private firm the county uses to help process ballots.
And legal fees aside, Lake's attorneys are asking the court to reconsider and reverse its refusal to consider her claim that the county did not follow chain-of-custody rules.
Her arguments come after the justices gave her one last chance to prove that the results of the 2022 gubernatorial election should be overturned.
They sent the case back to a trial judge to hear evidence she says she has that the county used improper procedures to verify the signatures on early ballot envelopes. That, Lake argued, allowed votes to be counted even though the signatures did not actually match the voter's registration record as she contends.
But the justices tossed out the other claims by the failed Republican candidate that there was misconduct in how the election was conducted. And that includes her contention that chain-of-custody laws were not followed, allowing 35,563 new ballots to show up -- more than twice as much as her margin of loss to Hobbs.
More to the point, the justices asked the parties to address the question of whether Lake should be sanctioned for making such a claim in her filings with the court.
In her new filings, Lake said that claim is not new.
She told the justices that the appellate court, which previously rejected her claim -- and whose decision she was asking the Supreme Court to overturn -- should have considered "the undisputed fact that 35,563 unaccounted for ballots were added to the total of ballots a a third party processing facility.''
The justices said that statement to them wasn't true.
"The record does not reflect that 35,563 unaccounted ballots were added to the total count,'' wrote Chief Justice Robert Brutinel for the court. "The motions for sanctions will be considered in due course.''
But Bryan Blehm, Lake's attorney, said it is the justices who are mistaken.
In the new filing, he claims the record "indisputably'' reflects that there were at least 35,563 early ballots for which there is no record of delivery to Runbeck. Blehm contends they were "added at Runbeck'' and that the issue was, in fact, raised at the Court of Appeals.
Beyond that, Blehm claimed its improper to seek sanctions against Lake -- and not just because she "honestly believes'' that the outcome of the race she lost to Hobbs by 17,117 votes was affected by electoral misconduct and illegal votes, regardless of court rulings to the contrary.
He said the attorneys for Hobbs as her foe and for the Secretary of State's Office, which also is a party to election challenges, are seeking sanctions under provisions of state law and court rules.
Blehm said those provisions govern appeals "brought without substantial justification or primarily for delay or harassment.''
"To warrant sanctioning a party or their counsel for exercising First Amendment rights, a court must find either that they brought a claim for an improper motive or that they pressed issues that are not supportable by any reasonable legal theory and for which there is no colorable legal argument about which reasonable attorney could differ,'' Blehm told the justices.
He said that is not the case here. He said the parties seeking sanctions "have no even attempted to show any evidence rebutting Lake's claims regarding the 35,379 ballots for which Runbeck has no record of receiving.''
That presumes, however, that the claim had been part of the trial court record -- and that there was something to which to respond.
And Deputy Maricopa County Attorney Thomas Liddy, in an earlier filing with the Supreme Court, argued that Lake has not even kept 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.
Later, Liddy said, she did acknowledge there are records. And only then did she argue to the Supreme Court that those records show there were 35,563 ballots illegally added to the system by Runbeck.
He said that it was only then -- after all the evidence was presented at trial -- that she "changed the allegation and mischaracterized the record to make yet another fantastical claim.''
The justices have set no date to decide whether to impose financial sanctions and, if so, how much.