Howard Fischer/Capitol Media Services

Kari Lake on Friday, March 15, 2024.

Kari Lake deserves a do-over of her 2022 loss in the governor's race to Democrat Katie Hobbs because new evidence shows Maricopa County election officials did unannounced tests on vote-counting equipment and knew they would fail on Election Day, her attorney told the state Court of Appeals.

In arguments before the three-judge panel on Thursday, attorney Kurt Olsen also claimed Maricopa County's election director gave false testimony to a judge hearing her election contest lawsuit. And Olsen said the judge improperly discounted testimony from Lake's expert and used the wrong standard in determining that Lake’s claims failed.

Olsen told the panel that the county knew about problems with ballot printers and vote tabulators that triggered long polling place lines and "chaos'' on Election Day.

He said the lines led many, mostly Republican, voters to leave, and that created enough doubt in the results that they should be set aside. Most voters in Arizona and Maricopa County vote by mail, but about 15% voted in-person in the county in 2022.

"Hogwash,'' Deputy Maricopa County Attorney Thomas Liddy said of the argument that enough voters left to change the result. 

Part of what the Court of Appeals has to wrestle with is that even Olsen conceded some of that evidence was never presented to Maricopa County Superior Court Judge Peter Thompson, who had rejected Lake's bid for a new trial. But, in general, appellate courts don't consider new evidence — only whether a trial judge acted in error.

Clay Parikh, an expert called by Lake, testified at the trial that the only possible cause of the malfunctions on Election Day could be willful and intentional systematic manipulation.

But Thompson rejected that claim, pointing out that another witness called by Lake undermined that theory, saying the problems with printers and tabulators were mechanical issues. 

That puts Olsen in the position of having to prove that Thompson acted in error.

"And counsel, I'm sure you’re aware we’re not actually a fact-finding court,'' Chief Judge Peter Eckerstrom told Olsen. "So I wonder if you could direct your comments to why you think the trial court erred.''

Most importantly, Liddy said, all the ballots cast in the election were counted, either by the table-top counting machines at vote centers or, for those rejected because of printer problems, at the county’s central counting location.

"Not one ballot was rejected,'' he said. "Not a single ballot was rejected. Every single lawful ballot was tabulated.''

He said the only reason the case is at the appeals court is because Lake's team is trying to resurrect a claim that the printer problems led to Lake’s loss.

"The original theme of plaintiff Lake was that somebody hacked into Maricopa County’s ballot-on-demand printers and (intentionally) messed with the software in such a way that they wouldn't print the ballots correctly in vote centers where they knew Kari Lake’s voters were going to go,'' Liddy said. "Absurd, yes.''

He said that Lake’s lawyers are now trying some "sleight of hand'' by pointing to another cause for her loss.

"Now they're saying, 'OK, over here there’s a problem with the tabulators,''' he continued. "Well, that’s not even an amendment to the claim — that’s a whole new election contest.''

In Lake’s filings with the Court of Appeals, she also said the trial court judge got it wrong when he rejected her claims that Maricopa County's process for verifying signatures on mail-in ballots was rushed and illegal.

But most of Thursday’s legal sparring was over whether Maricopa County properly tested the vote tabulation machines.

Under the law, election equipment must go through "logic and accuracy testing'' less than 30 days before the election. That happened Oct. 11. 

But that didn’t prevent ballot printer issues on Election Day, when many of the printers created ballots of either the wrong size or with improper "timing marks'' that the tabulator uses to help read specific ballots on Election Day.

Olsen said the law requires all election equipment to be tested, and the county sidestepped that process.

And there's an overriding issue: Liddy said that even if the Appeals Court justices accepted all of Lake's arguments, she still remains on the losing end of the ballot count, which showed Hobbs outpolling her by 17,117 votes.

"None of those allegations, if they were permitted before this court, and if they were proven true, would lead to a result that Kari Lake got more votes than Katie Hobbs,'' Liddy said. "They don’t even allege it.''

Court of Appeals Justice Sean Brearcliffe then asked Liddy: "But wouldn’t it at a minimum lead to the conclusion that there was sufficient uncertainty about the accuracy of the election? If we accept everything that Lake alleges, (is) that uncertainty is enough?''

Liddy said he didn’t believe so, but Judge Karl Eppich asked about a years-old case that threw out an election for just those reasons.

That could be a valid argument, Liddy said, if Lake had come to the court right after the election with evidence showing that. Now, he said, it’s just too late under Arizona laws that require election contests to be filed quickly.

"Is that enough? No, not on May 2, 2024,'' Liddy said. "Not when they come this late with this alleged new evidence.''

Olsen said that's simply not the case. He said the county did not acknowledge that they had done additional testing on the tabulators until seven months after the election.

"And when they say that all ballots were calculated, we don’t know how they were tabulated,'' he said. "That’s the point of logic and accuracy testing.''

And Olsen told the panel that it all comes down to the trial judge making errors — misapplying the law on election contests by saying Lake had to prove fraud and by ignoring other evidence about the "chaos'' with the tabulator rejections.

"On what planet can you have an election where over two-thirds of the vote centers completely fail because Maricopa County did not perform logic and accuracy testing as required by the statute?'' he said.

That claim, however, is in direct conflict with a report issued following the election by retired Arizona Supreme Court Justice Ruth McGregor.

She said there were problems with printers on Election Day that were widely reported and inconvenienced some voters. But she said they also were not widespread.

"Two-thirds of the general election vote centers reported no issues with misprinted ballots,'' she wrote. "Approximately 94% of Election Day ballots were not faulty.''

Eckerstrom said the judges would consider Thursday’s arguments and issue a ruling “in due course.”

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