By Howard Fischer
Capitol Media Services
PHOENIX -- An attorney for failed gubernatorial hopeful Kari Lake told a judge Friday he has new "bombshell'' evidence that on-site ballot tabulators either were intentionally tinkered with or infected with malware, requiring the results of the election be thrown out.
Kurt Olsen said Maricopa County says the reasons many ballots printed at vote centers could not be read by the tabulators was due to unauthorized changes to the settings on the printers.
That resulted in many ballots being printed at the wrong size.
"The new evidence ... shows that that was absolutely false,'' he told Judge Peter Thompson. "This could not be caused by a printer setting change on site.''
Olsen also said that a post-election review of the problems performed by a team headed by former Arizona Supreme Court Justice Ruth McGregor found machines malfunctioned.
"None of the technical experts that they consulted with could explain how or why that occurred,'' he said. "That's malware or it is somebody remotely accessing the printer.''
Another new piece of "bombshell'' information, Olsen said, was that printers failed on Election Day at 58% of vote centers, far more than known at the time of the trial when Thompson had previously thrown out that claim.
And he said that changes made to equipment prior to Election Day voided the legally required "logic and accuracy'' tests.
All that, Olsen said, is "clear misconduct and intent.''
"This evidence would support our allegation that this election was rigged,'' he said.
Only thing is, Thompson ruled in December that Lake's legal team presented no evidence of misconduct that would allow him to overturn the results. And that decision was upheld by the Arizona Supreme Court.
Olsen said Friday, however, all this information was not available at the time, telling Thompson that allows him to relitigate the issue -- and give Lake a new chance to seek to overturn the results.
But Deputy Maricopa County Attorney Joseph La Rue said that the claimed bombshell is nothing more than a dud. And he said that Olsen knows that because the county responded point-by-point to each of the allegations.
"What we said was either ignored or misrepresented,'' La Rue told the judge.
"There was no shocking bombshell,'' he said. "There was no violation of logic and accuracy tests.''
In fact, he said, those tests were observed by members of Lake's own Republican Party.
La Rue said that same election program -- the one that passed the tests -- was placed in each of the tabulators used in the election.
"That's the shocking bombshell that Lake wants to grab hold of,'' he said.
And there's something else. La Rue said Lake effectively is presenting entirely new legal arguments about equipment malfunctions, something he said cannot be done months after the case was decided -- and months after Katie Hobbs already was installed as governor.
Whether Lake gets a do-over is only part of what Thompson needs to decide.
The Arizona Supreme Court did direct him to look at whether there is evidence to show that Maricopa County did not follow its own procedures to verify the accuracy of signatures on early ballot envelopes. And Olsen, told the judge there is evidence to show that at least 175,000 early mail-in ballots out of more than 1.3 million cast in Maricopa County were illegally counted -- far more than the 17,117 margin of victory by Hobbs -- because the county ignored signature verification requirements.
"We have a mathematical basis to show that the election should be overturned,'' he said. And Olsen said the county's actions constitute misconduct, which is a basis to set aside the results.
But Abha Khanna, an attorney for Hobbs, told the judge that the evidence Olsen claims simply does not exist.
It starts, she said, with the claims of three part-time workers who were doing first-level signature verifications. They claimed they had rejected anywhere from 15% to 40% of signatures as not matching voter registration records.
Khanna said even if that is true, that ignores that this is a multi-level process. She said other, better-trained individuals then reviewed the signatures on the envelope with others already on file from the same voter.
She acknowledged that Lake contends there were not enough observers overseeing that second-level verification. And Lake makes a similar allegation about people watching the "cure'' process, where county election workers contact the voters and verify if, in fact, they submitted the ballots with the questioned signatures.
But that, said Khanna, isn't enough to sustain a claim -- and overturn an election.
"Absent from these declarations is any allegation that Maricopa County failed to comply with the signature-matching statute, with the Elections Procedure Manual or the Maricopa County elections plan,'' Khanna said.
She similarly told the judge to ignore various claims Lake made about the 2020 election, including findings by then-Attorney General Mark Brnovich, a Republican, that it would have been impossible for the county to verify as many signatures as they claimed.
Even if all that is true -- and Khanna makes no concession -- she said it doesn't legally matter.
"The 2020 election is no more relevant or informative of what happened in this election than is an election that took place in New Mexico or Florida,'' she said.
Olsen disagreed, saying that, if nothing else, it shows Maricopa County has a pattern and practice of ignoring signature requirements.
And what remains, he said, is that anywhere from 325,000 to 540,000 early ballots were flagged by first-level reviewers as not matching, all of which had to be reviewed by higher-level staff.
"There was simply not enough time, minutes in the day, for the Level 2 reviewers to do a review,'' Olsen said.
"The math simply doesn't add up,'' he said. "As a consequence, clearly mismatched signatures which were not cured and were illegal, were entered into the system.''
But Khanna said even if the claims of are true, Lake has yet to provide any evidence this would have affected the results of the 2022 election, one of the things Lake has to show if she is to overturn the results.
"Ms. Lake, I think, misunderstands the standards to think that by throwing out a host of numbers that that somehow provides a competent mathematical basis,'' Khanna said. What Lake offers instead, she said, are "untethered assertions of uncertainty.''
"They're untethered to actual ballots, they're untethered to this election, and they're wholly untethered to reality,'' she said.
Thompson has not said when he will issue a ruling. But he is under some pressure: If he agrees to allow Lake to pursue either the claims about the ballot printers or the mismatched signatures, a trial is set to begin this coming Wednesday.
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