Lake Lost Her Election Contest. What Was The Court’s Evaluation of the Plaintiff’s Evidence?

The Maricopa Judge who heard Lake’s election contest, issued his findings on the two-day trial earlier today (PDF of Ruling). He rejected Lake’s contest of the election and permitted the Defense to file a motion in support of Rule 11 sanctions against the Plaintiff and her attorneys. The Judge’s Ruling was cogently reasoned and gave due weight and consideration to all the evidence presented by Plaintiff, in my view.

Lake has indicated that she will appeal, but based on my reading of the Ruling and understanding of the standards for such an appeal, any such effort is doomed, ab initio, in my opinion. There are simply no unreasonable conclusions drawn from the evidence and no mistake of law in this Ruling that I can find. Maybe a more “creative” lawyer could find otherwise, but I doubt it will convince any judge.

If that’s all you wish to know, you can stop reading: the rest of this post is an analysis/summary of the Judge’s ruling and orders.

To begin, the Judge laid out clearly the applicable legal standards regarding a contest of an election.

The Judge notes that he carefully considered all exhibits, all testimony of witnesses, every one of the 220 Affidavits attached to the Petition, and arguments by counsels.

Any claim that the Judge did not give fair consideration to the evidence Plaintiff presented is merely a lie, so naturally, that is exactly what Lake will claim – because she’s a notorious and prolific liar. (just my own observation, here, not part of the Judges ruling…)

In general, he points out that the evidentiary standard for such a challenge is, rightly, the high standard of ‘clear and convincing evidence’. This is a standard far above the mere preponderance used in most civil trials. The Judge notes that the strong nature of the prima facie evidence of votes actually cast and counted, and the presumption of good faith on the part of the officials conducting the election, must be overcome by the evidence presented by Plaintiff, i.e. the Plaintiff bears the entire burden to prove their case by clear and convincing evidence.

The Judge then notes that such an election challenge is not based on a “free-standing right” to challenge election results, but ONLY upon the statutory grounds provided by the AZ Legislature via statute. Those statutory grounds require Plaintiffs to prove by clear and convincing evidence:

“Misconduct on the part of election boards of any members thereof… or on the part of any officer making or participating in a cavass for a state election” ARS §16-672(A)(1).

The Court’s Order partially granting Defense Motion to Dismiss permitted Plaintiff to continue to trial two counts alleged in the petition meeting the stutory requirements:

1. The claim that ballot-on-demand printer malfunctions on election day were caused intentionally and resulted in a changed election outcome (Count 2 of the complaint).
2. The claim that Maricopa County (“MariCo”) violated its own Elections Procedures Manual (“EPM) as to the chain of custody (“CoC”) procedures in such a way as to result in a changed election outcome (Count 4 of the complaint).

Plaintiff is required by the same Order to present clear and convincing evidence as to each of the following elements on either Count before being entitled to relief:

1. That the alleged misconduct was an intentional act.
2. That the misconduct was conducted by a person covered under statute (i.e. an “officer making or participating in a canvass”)
3. That the misconduct was intended to change the result of the election.
4. That the misconduct did, in fact, change the result of the election.

The Judge then noted how monumentally important to Arizona’s voters a decision to set aside the result of a Gubernatorial election would be, that the current margin of over 17K votes is well beyond the margin required to trigger a statutorily required recount, and, so far as he could determine, such a setting aside of an election as Plaintiff’s requests has never been done in the history of the United States, let alone Arizona.

The Judge then begins his discussion of the evidence presented at trial by Plaintiff, noting that failure to present clear and convincing evidence above would decide the case.

The Judge goes through each of the Plaintiff’s witnesses, starting with:

Mark Sonnenklar:

The Judge outlines Sonnenklar’s testimony and finds it credible but for one conclusion which the Judge cannot follow: Sonnenklar ascribes intentional misconduct to officials, saying that conclusion was “common sense” that such widespread failures must have been the result of intentional misconduct. The Judge notes that MariCo sent technicians to affected polling locations to troubleshoot and fix the printer issues, which is not consistent with any “scheme by a person or persons to alter the result of an election.” The witness testified that he observed technicians engaged in their best efforts to fix the problems, that he had no technical expertise or personal observations leading him to the conclusion of misconduct, and that the witness had no personal knowledge of any voter being turned away from the polls as a result of the errors. The Judge concludes that there was nothing to substantiate the Plaintiffs’ claim of intentional misconduct in this witness’s testimony.

Heather Honey:

The Judge outlines Honey’s testimony, finding it credible, and making two main points, 1) MariCo did not produce Delivery Receipt forms for election day drop box packets (pursuant to a pending public records request), and 2) employees of MariCo contractor Runbeck were permitted to improperly submit about 50 ballots in those being processed. The Judge found little to support a finding of intentional misconduct in her testimony as she knows the Delivery Receipt forms do actually exist, and she had no personal knowledge of any permission given by MariCo allowing the roughly 50 ballots to be improperly inserted into the process.

The Judge then considers supporting Affidavits on these subjects by White and Marie. White’s statement is mainly that she was not able to see everything she could have wished as an observer at the MCTEC (election center). Marie’s averment regarding the 50 ballots must be balanced against the Defense witnesses’ testimony regarding the training of employees and lack of permission for such a violation.

The Judge concludes by noting that Defense has no burden to establish MariCo’s process or procedure was reasonable, and even if they did, this testimony would not be enough to set aside the election result and the testimony failed to prove element 1 regarding Count 4 by clear and convincing evidence.

Note carefully that the Judge does not give enough credence to this witness’s speculations about some 25K phantom ballots deduced by the witness solely from communications by Recorder Richer. Clearly, such speculation on so little actual information did not impress the Judge as to its reliability and factuality.

Clay Perikh:

The Judge outlines Parikh’s testimony that the printing of 19-inch ballot images on 20-inch paper must have been done intentionally. The Judge points out that were settings intentionally changed to create this effect, every ballot printed pursuant to the affected setting would have printed incorrectly, which was not the case. Parikh also testified he had no personal knowledge of internet behind what he believes was the error.

Most importantly, Parikh acknowledged in testimony that any ballot that could not be read as a result of tabulator or printer error could be submitted to Door 3 and thereby sent to a muti-party adjudication panel, reproduced, and tabulated. Thus any voters affected by the apparent errors identified “would nevertheless had their votes counted.” (emphasis in the original) The Judge concludes from this testimony that element 4 of Count 2 “could not be proven” (emphasis in the original)

As to the intent elements of Count 2, the Judge considered Parikh’s testimony in light of that of Plaintiff’s witness:

David Betencourt:

Betencourt, as a temporary employee technician for MariCo on election day, testified that he witnessed multiple technical issues. He testified that these issues were solved by several means including shaking ink cartridges, cleaning printer components, allowing more time for printers to ‘warm up’, cleaning tabulator components, and adjusting printer settings. The Judge notes that none of these solutions implicate any intent behind the errors. Further, all those affected ballots were ultimately counted, as noted above. Betencourt testified that he lacked any knowledge of anyone engaging in intentional misconduct and that all the technicians he worked with were diligent and expeditious in their efforts. Finally, the Judge notes that Betencourt (the Plaintiff’s own witness) testified that the printer errors were the result of “unforeseen mechanical failures.”

Richard Baris:

Baris is the Director of Big Data Poll who testified that as a result of the printing errors on election day, his polling and analysis indicate that a large number of voters were disenfranchised and opined that this resulted in Lake’s electoral loss. The Judge gives little weight to this conclusion, or any of the testimony regarding statistical sampling and analysis because the Judge finds no support in the law or precedent for setting aside an election result on the basis of a statistical estimate. The Judge pithily points out “election contests are decided by votes, not polling responses…” (bold emphasis added)

Finally, the Judge notes that Baris’ own testimony was that the estimated turnout suppression on election day of 25-40K voters could have affected the outcome in the range of a 2K vote margin for Hobbs to a 4k vote margin for Lake, and that such results “does not nearly approach the degree of precision that would provide clear and convincing evidence that the result did change as a result” of the technical issues. All testimony by Plaintiff’s witnesses indicated that no voter was turned away from the polls or refused a ballot: thus voters may have elected not to vote for whatever reasons, but that does not constitute a direct effect permitting a Court’s intervention.

In summation, the Judge discusses the Intentional Misconduct Standard:

The Judge notes that every one of the Plaintiff’s witnesses (and the Defendants’ as well) were asked about any personal knowledge of both intentional misconduct and conduct directed to impact the election result. “Every single witness before the Court disclaimed any personal knowledge of such misconduct.”  (bold emphasis added) The Judge notes he refuses to “accept speculation or conjecture in place of clear and convincing evidence.” Thus the Judge finds the Plaintiff had failed to provide sufficient evidence to establish any element of either Count 2 or 4 by clear and convincing evidence and thus failed to prove her election contest.

Sanctions:

There is much speculation as to whether the Court may levy sanctions against the Plaintiff or her attorneys in this case. The Court order deadlines for any motion for sanctions, but does not compel such a filing, as I have seen suggested elsewhere in the press. The Court does order the filing of a statement of costs by a deadline of 12/26, but deems any failure to do so as a waiver of costs. The Court seems mindful of the Defendants’ desire to impose sanctions but is certainly not telegraphing any intent as to such.

As I stated in my prior posting summarizing the trial itself, I think it unlikely that the Judge will ultimately levy any penalties on the Plaintiff, as he found sufficient allegations to proceed to a trial, but there may be some costs associated with the litigation awarded. We’ll see before the New Year, I suspect.