By Howard Fischer
Capitol Media Services
PHOENIX -- Lawyers for Kari Lake told a judge Tuesday the defamation suit against her by Maricopa County Recorder Stephen Richer should be thrown out because the failed Republican candidate for governor believes her statements about injected ballots and sabotaged voting machines in the 2022 election she lost are true.
Jennifer Wright said that Richer, in pursing his claim, has to prove Lake acted with "actual malice,'' meaning that she knew or should have known that her statements were false.
"But not only does Kari Lake believe what she said is true, she will testify as such and will defend accordingly,'' she told Maricopa County Superior Court Judge Jay Adelman.
Lake's attorneys, however, are hoping it never actually gets to a trial. That's why they are asking the case be tossed now -- before Richer even gets a chance to present any evidence.
Jessica Banks, an Arizona State University law student who also is on Lake's team, says her client is protected by the state's anti-SLAPP law, short for Strategic Action Against Public Participation.
That law is designed to protect individuals who have been sued by public officials from having to retain expensive attorneys simply because they are criticizing that person. It would allow Adelman to dismiss the case without further hearings if he determines that Richer sued Lake primarily "to deter, retaliate against or prevent the lawful exercise of a constitutional right.''
And in this case, Lake's attorneys say, she had the right to criticize how Richer performed his duties in the 2022 election that she lost to Democrat Katie Hobbs by more than 17,000 votes.
"Richer is attempting to chill Kari Lake's speech by bringing this lawsuit against her and seeking injunctive relief,'' Banks said, what she said effectively is a bid to silence her.
That claim, however, isn't exactly true.
The injunction that Richer wants is not to keep her from making future statements. Instead he seeks a court order requiring her and her campaign to delete false and defamatory statements about him from any websites and social media accounts they control.
What he does want, though, is unspecified financial damages, saying that Lake "spread intentional or reckless falsehoods'' about his role in the election, actions he said harmed him and his family and resulted in threats of violence and death for family members.
Wright did not address during Tuesday's hearing whether Richer had been threatened. But she told Adelman that the fact that some people, on hearing Lake's rhetoric, may have done that is not her client's fault.
"She is not asking people to do violent things,'' Wright said. "The way people react to
her words is not her responsibility.''
Central to the lawsuit are two issues.
One involves statements that Lake repeated made that Richer inserted 300,000 "illegal,'' "invalid,'' "phony,'' or "bogus'' early ballots into the vote count. That is based on Lake's claim about disparities between preliminary and final counts of ballots dropped off on Election Day, ballots she continues to argue were not within the legal "chain of custody.''
The other says that Richer -- along with Maricopa County Supervisor Bill Gates -- "sabotaged election day.''
One post by her campaign, for example, says the pair "knew 75% of Kari Lake's voters would show up on game day, so they programmed the machines to print 19-inch images on 20-inch ballots.''
Adelman agreed that, in general, that phrases like "bogus'' or "steal,'' by themselves may be considered "descriptive language or rhetorical hyperbole'' and not rise to the level of a statement that allows someone to sue.
But he said the statements attributed to Lake were more specific, like whether 300,000 ballots were inserted into the count or whether the ballots were purposely printed the wrong size.
"Those would seem to be facts that are tested as either true or false,'' the judge said.
"They're either provably false or entirely true,'' Adelman continued. "Maybe a jury gets to decide that, maybe not,'' which is precisely what Lake hopes to prevent.
Cameron Kistler, one of Richer's attorneys, told the judge there is sufficient reason to allow the claims to go to trial where a jury can decide whether Lake's statements are false and whether she made them with knowledge or had reason to believe they were false.
He said one of those questions, for example, is whether Richer personally programmed the printers to produce wrong-size ballots, the ones that Lake said sabotaged the Election Day process by producing the long lines that turned away voters she presumed were her supporters.
"Those are events that either happened or they didn't,'' Kistler said. "And we will have the burden at trial that they didn't, which we have every expectation we will be able to do.''
But he said Lake's attorneys want Adelman to rule is that because the cause of the printer errors hasn't been proven to their satisfaction, that makes it impossible for Richer to disprove, undermining his defamation claim.
"That's not how defamation law works,'' Kistler said, saying Richer doesn't have to prove the cause of why the printers malfunctioned. "He just has to show it wasn't him.''
Consider, he told Adelman, what if Lake were to accuse Richer of killing Jimmy Hoffa who had been president of the International Brotherhood of Teamsters. He disappeared in 1975, his body was never found, and he was declared dead in 1982.
"He wouldn't have to find the body and prove who killed him before he could bring a defamation lawsuit,'' Kistler said. "He'd just have to show it wasn't him.''
Of note is that while Lake's attorneys say she stands behind her statements, Wright sought to put some distance between her and the words she used.
There are the ballots that Wright insists -- and Richer disagrees -- had no chain of custody. Yet there never was such a legal finding that they were illegally inserted into the system.
"That is her feeling as to what those ballots should be determined to be if properly litigated,'' Wright said.
And the misprinted ballots?
"There's nowhere in there that Richer personally programmed printers to do this,'' Wright said.
"What she said is the printers were sabotaged, that they, Maricopa County, sabotaged the printers,'' she continued. "And there is no determination at this point about precisely what caused the ballot-image problem.''
What that means, said Wright, is that it's a "question of opinion as to how Lake characterized them,'' an opinion she said Lake was entitled to express.
If Adelman refuses Lake's request to dismiss the case, that will lead to extensive pre-trial activities, including the chance for Richer's attorneys to question Lake under oath -- precisely what she is trying to avoid.
Lake is separately trying to convince the state Court of Appeals to void the results of the 2022 race and order a new election. At the same time she has announced her candidacy for the U.S. Senate in 2024.
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