Kari Lake filed her Petition for Review of a Special Action Decision of the Court of Appeals on Wednesday with the Arizona Supreme Court. The petition contended that the Arizona Court of Appeals panel ignored Arizona election laws, including previous court precedent, to dismiss her appeal.
Lake’s petition stated, “The Opinion directly contradicts this Court’s admonition that “election statutes are mandatory, not ‘advisory,’ or else they would not be law at all,” citing the Arizona Supreme Court’s 1994 decision in Miller v. Picacho Elementary School District No. 33.
Another violation by the lower court, the petition asserted, was applying the wrong standard of proof. “[B]y requiring clear-and-convincing evidence of outcome-determinative vote swings, the
Opinion conflicts with the longstanding requirement that violations “affect the result, or at least render it uncertain’ under Findley v. Sorenson.” That case involved the validity of numerous votes in an election for a Mesa Union High School District trustee.
Lake argued that “the panel ignored the sworn testimony of over 200 witnesses and disregarded expert testimony” which cast uncertainty on the election results.
The petition noted that the Arizona Court of Appeals went against its own previous decisions when it “recognized that the evidentiary standard is an open question for election cases — like this — with no express statutory standard or allegation of fraud.” Additionally, the petition pointed out that the Miller decision stated that election contests do not require proof of fraud.
Instead, the standard should be a preponderance of the evidence, Lake argued, since that is the applicable standard in civil lawsuits absent specific applicable statutes. Additionally, citing Garcia v. Sedillo, another Arizona case involving ballot challenges, “showing illegality can shift the burden to defendants.”
One of the main ways the lower court ignored election law, the petition contended, was it disregarded the chain of custody violations regarding ballots. The petition said there were 35,563 unaccounted-for ballots inserted into the election by Maricopa’s third-party ballot processor, Runbeck Election Services. Violating chain of custody is a class 2 misdemeanor.
The petition argued that this was more than the difference in votes between Lake and gubernatorial winner Katie Hobbs, so under Findley, uncertainty of the results is enough to call for a new election, not the standard of clear and convincing evidence.
The petition stated that the lower court ignored that batches of drop-box ballots retrieved on Election Day weren’t counted but only estimated. This contradicts the state’s Election Procedures Manual, which states, “the number of ballots inside the container shall be counted and noted on the retrieval form.”
Maricopa County estimated that at least 275,000 ballots were sent to Runbeck, after Runbeck counted them, the vendor found only 263,379 ballots. After Runbeck scanned and returned the ballots, the vendor said there were 298,942 ballots, a 35,563 increase from Maricopa County’s initial estimate. The petition added, “A Runbeck whistleblower testified that Runbeck allowed employees to insert ballots into the system, which is illegal and further establishes COC violations.”
The petition asserted that the second significant election law the lower court ignored was the Logic & Accuracy (L&A) testing requirements. Because of this, it “led to tabulators rejecting ballots at nearly two-thirds of Maricopa’s 223 vote centers over 7,000 times every thirty minutes, beginning at 6:00 am and continuing past 8:00 pm — causing massive disruptions, hours-long lines and disenfranchising thousands of predominantly Republican voters on Election Day.”
Instead, Maricopa County conducted “stress testing” the night before the election. The petition said “‘stress testing’ is not L&A testing and does not test to ensure that tabulators will read all ballots and correctly count the votes cast.”
Another election law the lower court ignored, the petition said, was signature verification requirements. The lower court said Lake failed to challenge the signature verification procedures before the election, so it was barred by laches. However, Lake said she wasn’t challenging existing signature verification policies but the ones used during the 2022 election.
Additionally, “Lake could not have brought her claim earlier than when the whistleblowers conducting signature verification at MCTEC came forward with the evidence that Maricopa disregarded Arizona law and allowed tens of thousands of uncured ballots with nonmatching signatures to be counted.” She cited case law backing this up, “One cannot be guilty of laches until his right ripens into one entitled to protection.”
Finally, the petition argued that the lower court should not have dismissed Lake’s Equal Protection and Due Process claims, claiming they were duplicative to other parts of her complaint since she was bringing them about separate issues, including “the targeting of Republican voters and the ‘patent and fundamental unfairness’ of targeted election disruptions.”
Lake is asking the state Supreme Court for an expedited review.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Kari Lake” by Kari Lake. Background Photo “Arizona Supreme Court” by davidpinter. CC BY 3.0.