What Will be Determined at Trial in Lake v. Hobbs? A Plain Talk Analysis.

Unexpectedly – at least to any of the attorneys familiar with election contests with whom I am in contact – Kari Lake’s case was allowed to proceed to trial on 2 of the 10 counts alleged in Lake’s complaint.

What are those two counts and how likely is Lake to establish either or both of them? All quotes below are from the Court’s Order.

Count 2, which survived the defense Motion to Dismiss, is entitled “Illegal Tabulator Configurations“.

The Court found the following (bold font added for emphasis):

“While the Court finds that Plaintiff does not state a claim under A.R.S. § 16-672(A)(4), the Court finds that Plaintiff does state a claim under (A)(1). Viewing the Complaint in the light most favorable to the non-movant, Plaintiff specifically alleges that a person employed by Maricopa County interfered with BOD printers in violation of Arizona law, resulting in some number of lost votes for Plaintiff. Plaintiff is entitled to attempt to prove at trial that 1) the malfeasant person was a covered person under (A)(1) [Ed.: That statutue requires “misconduct on the part of election boards or any members thereof in any of the counties of the state”, so Lake will have to establish that the person who set the printer settings comes under that statutory scope…]; 2) the printer malfunctions caused by this individual directly resulted in identifiable lost votes for Plaintiff; and 3) that these votes would have affected the outcome of the election.

Plaintiff has, nonetheless, also alleged intentional misconduct sufficient to affect the outcome of the election and thus has stated an issue of fact that requires going beyond the pleadings. The Court takes no position as to the evidentiary weight it will give Plaintiff’s proffered experts at trial and notes that, at trial, it must indulge all reasonable assumptions in favor of the election when weighing the evidence before it. However, evidence is not before the Court at the motion to dismiss stage—pleadings, made under the auspices of Rule 11 are. Accordingly, Plaintiff must show at trial that the BOD printer malfunctions were intentional, and directed to affect the results of the election, and that such actions did actually affect the outcome.”

Those are some pretty big evidentiary hurdles the Court lays out. Lake’s attorneys will have to provide preponderant evidence that 1) the printer malfunctions (which printed some ballots too lightly to be read by scanners in the polling locations) were intended, not accidental; that 2) that the purpose of those intentional malfunctions was to affect the results of the election,; and that 3) those affected votes would have affected the outcome of the election – i.e. Lake losing by over 17K votes.

Given that all reports and discussion of said errors indicate that the printer settings were not in any way intentional, that no one who configured those print settings had any intention of affecting the election in any way, and that all the votes thus affected were, in fact, counted outside of the polling locations, either by human interpretation or recreation and scanning of the affected ballots, it seems quite impossible that any of those points can be proven, especially point 3.

I, therefore, predict Lake will fail on Count 2.

Count 4, which survived the defense Motion to Dismiss, was entiteld “Ballot Chain of Custody“.

The Court made the following findings regarding this count:

“Plaintiff next claims that violations of the County Election Manual pertaining to chain of custody constitute misconduct pursuant to A.R.S. § 16-672(A)(1). Specifically, Plaintiff argues that: 1) the ability of employees of the county’s ballot contractor to add ballots of family members and 2) the lack of an Inbound Receipt of Delivery form both constitute misconduct. This is in addition to complaints about the handling of ballots in the 2020 election. The allegations concerning 2020 have no bearing on this contest, and the Court does not consider them.

Plaintiff alleges that ballots, of some number, were added by Runbeck employees to the total in violation of A.R.S. § 16-1016. Further, Plaintiffs allege that the lack of Receipt of Delivery forms were violations of state law that permitted an indeterminate number of votes to be added to the official results, constituting misconduct. The Court, drawing inferences in the light most favorable to Plaintiff as it must at this stage, finds that Plaintiff has stated a claim of misconduct by a person under control of Maricopa County that affected the canvass under A.R.S. § 16- 672(A)(1). Defendants argue that laches applies. However, laches do not apply to contests arising from violation of election day procedures as opposed to challenges to the procedures themselves. See McComb, 189 Ariz. at 525-26 (laches inapplicable where “little time” existed before election to file suit). Delay, to the extent there was any, was reasonable here.

Defendants dispute the lack of compliance with chain of custody laws and claim that Plaintiff has misunderstood the forms required. As presented, whether the county complied with its own manual and applicable statutes is a dispute of fact rather than one of law. This is true as to whether such lack of compliance was both intentional and did in fact result in a changed outcome. 

Consequently, Plaintiff has stated a claim under A.R.S. § 16-672(A)(1).”

The main problem with Count 4 is that the number of votes alleged by Lake to have been “added” by employees of county contractor Runbeck is admittedly “indeterminate“. Lake’s team will have a devil of a time providing any evidence – assuming they can produce any evidence such was intentional, or, in fact, even happened (which I doubt, as Lake’s attorneys’ track history on understanding what elections documents actually mean is spotty, at best) – that those votes affected the outcome of the election. If you can’t tell the court how many votes were “added to the official results”, you can hardly claim those votes affected the outcome of the election.

It would seem to be next to impossible for Lake to meet her evidentiary burden on Count 4 unless she can credibly and preponderantly establish all the predicates (that it happened at all, that it was intentional, that it was aimed at affecting the race) and the ultimate question (did those votes affect the outcome) if she does not know, and can’t establish, how many votes were “added” to the results.

I, therefore, predict Lake will also fail to establish Count 4.

The Court allocated two days for the trial of this election challenge. The time allocated means each side will have “five and a half hours available for opening statement, direct examination of witnesses, cross-examination of opposing witnesses, re-direct examination of witnesses and closing argument”.

Having dismissed 80% of the Counts, the Court deems this adequate time for both sides. The court indicated that “[t]he compressed time for presentation is based not only on the time constraints imposed by A.R.S. § 16-676 and the short time frame before January 2, 2023, but the parties’ expressed desire to leave at least some time to file an appeal of this Court’s rulings before January 2, 2023.”

It seems clear that, regardless of the outcome, there will likely be some post-trial motion practice, by Lake’s team at least. So don’t expect this matter to be entirely resolved before Hobbs is sworn in as Governor.

It should be an entertaining trial. Keep an eye out here on BlogForArizona.net, on our Twitter account (@BlogForArizona), and on our sister site ArizonasLaw.blogspot.com and DemocracyDocket.com for ongoing coverage of these election contests.