Howard Fisher Capitol Media Services
PHOENIX — An attorney for failed gubernatorial candidate 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.
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 Superior Court Judge Peter Thompson. “This could not be caused by a printer setting change on site.”
But Deputy Maricopa County Attorney Joseph La Rue told the judge the claimed bombshell was nothing more than a dud. He said Olsen knows that because the county responded point-by-point to each of the allegations.
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Thompson has not said when he will issue a ruling.
Lake’s new claims
Olsen said 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 happened,” he said. “That’s malware or it is someone remotely accessing the printer.”
Another new piece of information, Olsen said, was that printers failed on Election Day at 58% of vote centers, far more than known at the time of a trial over Lake’s lawsuit against the election results, when Thompson previously threw out that claim.
Changes made to equipment prior to Election Day voided the legally required “logic and accuracy” tests, Olsen said.
He contended that’s all “clear misconduct and intent.”
“This evidence would support our allegation that this election was rigged,” he said.
However, Thompson ruled in December that Lake’s legal team presented no evidence of misconduct that would allow him to overturn the results, in which Republican Lake lost the governor’s race to Democrat Katie Hobbs in November. 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 it would allow him to religate the issue and give Lake a new chance to seek to overturn the results.
The county’s rebuttal
Maricopa County’s La Rue disagreed.
“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 the same election program 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.
Also, 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 Hobbs was already installed as governor.
Lake alleges misconduct
Whether Lake gets a do-over is only part of what Thompson needs to decide.
The Arizona Supreme Court directed him to look at whether there is evidence that Maricopa County did not follow its own procedures to verify the accuracy of signatures on early ballot envelopes.
Olsen told the judge there is evidence to show 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 Hobbs’ 17,117-vote margin of victory — because the county ignored signature verification requirements .
“We have a mathematical basis to show that the election should be overturned,” Lake’s attorney said. Olsen said the county’s actions constitute misconduct, which is a basis to set aside the results.
But an attorney for Hobbs, Abha Khanna, told the judge the evidence Olsen claims simply does not exist.
Three part-time workers who were doing first-level signature verifications claimed they rejected anywhere from 15% to 40% of signatures as not matching voter registration records.
Khanna said even if that is true, it ignores that this is a multi-level process. She said other, better-trained individuals then reviewed the signatures on the envelopes with others already on file from the same voters.
She acknowledged that Lake contends there were not enough observers overseeing that second-level verification. 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 isn’t enough to sustain a claim and overturn an election, Khanna said.
“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 the various claims Lake made about the 2020 election, including the findings by then-Attorney General Mark Brnovich, a Republican, that it would have been impossible for the county to verify as many signatures as it was 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 (2022) election than is an election that took place in New Mexico or Florida,” he said.
Olsen disagreed, saying that, if nothing else, it shows Maricopa County has a pattern and practice of ignoring signature requirements.
He said 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. As a consequence, clearly mismatched signatures which were not cured and were illegal, were entered into the system.”
But Khanna said Lake has yet to provide any evidence this would affect the results of the 2022 election.
“Ms. Lake, I think, misunderstands the standards to think that by throwing out a host of numbers 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 is under some time 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 Wednesday.