Lake v. Hobbs: Lake Special Action - Election Appeal
Lake v. Hobbs: Lake Special Action - Election Appeal
_____________
KARI LAKE,
Plaintiff-Contestant/Appellant,
v.
and
Introduction ................................................................................................................ 1
Statement of Jurisdiction............................................................................................ 3
Statement of Issues................................................................................................... 21
Argument.................................................................................................................. 22
i
3. The trial court’s required showing of an outcome-changing
impact misstates Arizona law. ..................................................28
II. The trial court erred by dismissing Count III on laches. ............................... 34
III. The trial court erred in dismissing the constitutional claims. ....................... 40
C. The trial court erred by dismissing due process (Count VI) outside
the election-contest statute. .................................................................43
Conclusion ............................................................................................................... 45
ii
INTRODUCTION
The margin between Kari Lake and Secretary of State Katie Hobbs in the
2,559,485 votes cast). The number of votes affected by the clear and massive
uncertain. The election in Maricopa County must be set aside. A.R.S. §16-676(B).
But the evidence shows something far worse: The chaos on November 8, 2022
demand (“BOD”) printers. These failures occurred at 132 of the 223 vote centers in
tabulator failures arose out of deliberate acts. Maricopa’s only response to the
widespread chaos has been to gaslight the public—and the trial court—by claiming
1
nothing unusual happened. Maricopa’s disingenuous response is a slap in the face to
the thousands of voters who were compelled to endure the chaos caused by Maricopa
that day.
The evidence put forward in this case, including the changing and conflicting
by Maricopa and Runbeck Election Services proved that Maricopa officials: (1)
caused the chaos arising at nearly two thirds of Maricopa’s 223 vote centers where
BOD printer failures occurred and where illegally misconfigured ballots were
injected into the election, causing tabulators to reject tens of thousands of ballots;
respect nearly 300,000 Election Day drop box (“EDDB”) ballots, including the
10; and (3) counted tens of thousands of ballots with voters’ signatures which clearly
did not match the record signature and were not properly cured in the 2022 general
ruled that Plaintiff needed to prove by clear and convincing evidence that Secretary
of State Hobbs and Maricopa officials intentionally acted to, and did in fact, change
the outcome of the 2022 general election. That is not the correct standard. Rather,
2
Findley v. Sorenson, 35 Ariz. 265 (1929), and its progeny require election
votes render the outcome of the election at least “uncertain.” Plaintiff easily met that
standard. This Court should reverse the trial court and grant the injunctive relief of
STATEMENT OF JURISDICTION
Plaintiff’s petition for special action relief is warranted because she has “no
equally plain, speedy and adequate remedy by appeal.” See Rule 8(a), Ariz. Spec.
Act. R.P. An election contest is a classic example of a case that is ripe for Special
The election-contest statute sets strict timelines for the institution and
resolution of these types of cases at the trial level. The initial cause of action must
be—and was—filed within five days of the canvass, then the trial court needed to—
and did—render a decision within tight statutory deadlines. A.R.S. §§16-672(A); 16-
apply, but not here. Respondent Hobbs would assume the governorship early next
week, notwithstanding the significant and important legal errors underpinning the
trial court’s decision dismissing all but two claims as a matter of law and deciding
3
the remaining two claims under a legally defective standard of review.
This case is further appropriate for review by special action because the denial
of relief on all counts that Plaintiff seeks to review was premised on pure questions
of law. See Sierra Tucson, Inc. v. Lee ex rel. County of Pima, 230 Ariz. 255 (App.
2012) (motion to dismiss); Mendez v. Robertson, 202 Ariz. 128, 129, ¶¶1-3 (App.
2002) (standard of review). Further, the case turns on applying state statutory and
434, 438 (App. 2006) (interpretation and application of statutes raise questions of
law, well-suited for special-action review); Dobson v. State ex rel., Comm'n on App.
Ct. Appointments, 233 Ariz. 119, 121 ¶7 (2013) (special action jurisdiction
Rehab., & Pub. Safety v. Hobbs, 249 Ariz. 396, 404-05 (2020) (electoral calendar’s
exigencies contribute to need for special review). Finally, because this special action
importance that favors special action review. Yuma Cnty. v. Keddie, 132 Ariz. 552,
553 (1982).1
1
Alternatively, for the reasons set forth in this section, Lake requests that this
Court treat this petition as her appellant’s opening brief in No. 1 CA-CV 22-0779
and expedite that appeal pursuant to RPSA 8(a) (“the court in which the appeal is
pending may waive or order an acceleration of any or all appeal procedures.”). In
this event, Lake requests that an accelerated briefing schedule be set, that the Court
4
STATEMENT OF THE CASE
2022 in Maricopa’s superior court. The Complaint pled violations of A.R.S. §16-
672(A)(1), (4)-(5) and several related state and federal constitutional claims.
Custody). On December 21-22, the court held a bench trial at which evidence and
fact and expert testimony was taken on Counts II and IV. On December 24, the court
issued its Under Advisement Ruling and dismissed Plaintiff’s claims in Counts II
and IV. Appx:682. The court described its findings relating to the testimony of
Plaintiff’s witnesses finding that none had satisfied the court as to show Defendants’
On December 27, 2022, the court entered final judgment in accordance with
Rule 54(c). Appx:692. The December 27, 2022 Ruling is a final appealable order
that disposes of all of the issues presented in the case. A.R.S. §12-2101(A)(1).
dispense with the requirement that the record on appeal have been transmitted prior
to the filing of this Opening Brief and decide the case as expeditiously as possible.
5
STATEMENT OF FACTS
Because the court granted a motion to dismiss Counts III, V, and VI, this Court
must accept all well pled factual allegations made by the Plaintiff as true when
evaluating those counts. Petolicchio v. Santa Cruz County Fair and Rodeo Ass'n,
Inc., 177 Ariz. 256, 258 (1994). For the bench trial on Counts II and IV, this Court
A. Voting in Maricopa
60% of the 2,592,313 votes cast in the 2022 Arizona general election came from
Maricopa. Of that figure, Maricopa reported that approximately 248,000 votes were
cast on Election Day, by in-person votes at one of Maricopa’s 223 vote centers.
Maricopa reported that more than 1.3 million early ballots were returned via drop
Maricopa, while Hobbs received 790,352 votes there. That 37,638-vote margin is
larger than the 17,177-vote margin dividing the candidates statewide. ¶37.
resulting tabulator rejections of ballots at 132 of 223 vote centers. These issues began
6
almost immediately on Election Day with the County receiving complaints starting
Committee’s Election Integrity Program for the 2022 Primary and the General
roving attorneys’ function was to visit Maricopa’s vote centers and observe the
voting process on Election Day and ensure local officials were complying with
animal” than what he had seen in any other election with “lines out the door” and
“angry and frustrated voters who did not want to put their ballots in the Box 3 [where
7
ballots rejected by tabulators were placed to be counted later]. … Everyone was just
freaked out”. Appx:363 (id., 266:08-25). Sonnenklar created a written report based
on interviews of eleven other roving attorneys who in total visited 115 out of the 223
Appx:365 (id., 268:01-10). Sonnenklar also oversaw the creation of a chart admitted
into evidence at trial as Exhibit 53 (based on 219 sworn declarations from Inspectors,
judges, clerks, poll workers, and voters also admitted into evidence), showing that
the ballot tabulators and ballot printers experienced rampant breakdowns at no less
than 132 out of the total 223 Maricopa vote centers (59.2%). Appx:105 (Day 1 Tr.,
8:09-23).
When asked “if somebody were to characterize the events of that day as minor
technical difficulties that should be expected in any election, what would you say to
Brad Bettencourt a “T-Tech” hired by Maricopa for the 2022 general election
to set up vote centers and assist with problems during Election Day testified
8
similarly. Appx:345-46 (Day 1 Tr., 248:06-249:09) (Bettencourt). Bettencourt was
one of a group of 15 T-Techs in group text chat set up by his supervisor, a full time
group text chats also T-Techs describing tabulator rejections of ballots as causing
downplayed the events that day at trial. Jarrett characterized the events on Election
Day as simply “some printers that were not printing some tiny marks on our ballots
dark enough to be read in by our tabulation equipment” and that was not a
200 witnesses with first-hand knowledge directly to the contrary. Appx:161 (Day 1
Maricopa vote centers. Thousands of these misconfigured ballots could not be read
by the tabulators at the vote centers because the tabulators are programed to read a
precisely pre-configured ballot to allow the tabulator to know exactly which filled
9
in oval corresponds to a particular vote. These tabulator rejections of ballots were a
Specifically, on the first day at trial, Plaintiff called Jarrett testify. Jarrett
testified that Maricopa’s tabulators were configured to only read a 20 inch ballot
image in the 2022 general election. Appx:148-51 (id., 51:13- 54:1-8). Any other
sized ballot image could not be read by a tabulator and would be rejected. Appx:152
(id., 55:2-10). Jarrett testified at least four times that he did not know of, nor did he
hear of, a 19 inch ballot image projected onto 20 inch paper in the 2022 general
A. I did not.
***
10
A. It would -- if something like that happened, which I
don't know how it would, yes, it would have been a
mistake.
admitted that extensive logic and accuracy testing is performed to ensure the
tabulators can properly read all ballots, including BOD printed ballots, on Election
Clay Parikh, took the witness stand. Parikh is a qualified cyber expert, including
with respect to electronic voting machine equipment. The same voting systems
testing lab that certified Maricopa’s voting systems had retained Parikh for nine
years to certify voting systems. Parikh has worked on and analyzed cyber related
system failures at the highest levels of the U.S. Government, including classified
Parikh testified that the day before trial, he had inspected a sampling of ballots
2
Appx:152 (id., 55:09-10) (“there was no 19-inch ballot images installed on
ballot on-demand printers.”), 174 (id., 77:14-24) (“Your first question [how a 19
inch ballot could be printed on 20 inch paper] asks if I have any idea how it could
occur and I said I do not.”).
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from six Maricopa vote centers pursuant to A.R.S. §16-677. Appx:187 (Tr., 90:15-
20). In direct contradiction to Jarrett’s sworn testimony above, Parikh testified how
he found 19 inch ballot images printed on 20 inch paper at all six vote centers from
which he inspected ballots; and that the 19 inch ballot issue affected 48 of 113 of the
combined spoiled3 and duplicated original ballots4 he had inspected (42% of spoiled
but left by voters to be counted later. Appx:709. This figure does not include spoiled
ballots. Moreover, Parikh testified that Maricopa did not maintain the duplicates of
the original ballots he inspected as is required by law. Thus, he could not confirm
the duplicate ballot matched the original ballot he inspected. Appx:189-90 (Tr.,
92:14-93:21).
Parikh testified that the printing of a 19 inch ballot image on 20 inch paper
could only happen two ways: either the printer settings were set to override the ballot
3
“Spoiled” ballots are ballots that a voter returns back to an election judge in
return for a new ballot and are not counted. A.R.S. § 16-585.
4
“Duplicated” ballots are original ballots that are damaged or cannot be
processed by the tabulator thereby requiring a separate duplicate ballot be created to
be counted by the tabulator. The original ballot must be duplicated with witnesses
present and both the original and duplicate must be labeled with the same serial
number. A.R.S. § 16-621(A).
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definition programmed into the voting system, or two different ballot images were
illegally programmed into the voting system Appx: 196-99 (Parikh 99:13-102:06).
Either way, a 19 inch ballot image projected on 20 inch ballot paper would be
testified that this misconfiguration could only be done by a deliberate act. Appx:197-
98 (Tr., 100:17-101:05).
Defendants called Jarrett back to the stand the next day. Jarrett directly
contradicted his testimony from the previous day. Specifically, Jarrett changed his
prior testimony and testified that: just after Election Day, Maricopa discovered that
19 inch ballots were found in three vote centers purportedly caused by certain onsite
technicians changing BOD printer settings to a “shrink to fit” setting; and that
Maricopa was performing a root cause analysis of this issue, and that “temporary
not disclosed the new “shrink to fit” setting excuse when he testified the day before
that 19 inch misconfigured ballot images on 20 inch ballot paper never happened.
Jarrett became evasive claiming he did not “know the exact measurements of a fit to
-- fit-to-paper printing”, that “he wasn’t asked” about “a slightly smaller image of a
20-inch image on a 20-inch paper ballot—despite the fact that 19 inches is clearly
13
Jarrett also admitted that Maricopa had not disclosed this issue to the public,
nor is this issue discussed in Maricopa’s November 26, 2022 written response to the
Arizona Attorney General’s inquiry into the Election-Day chaos. Appx:614 (id.,
213:06-16); Appx:696-705. Incredibly, despite denying four times the prior day that
a smaller ballot image such as a 19 inch ballot could ever be imposed on larger ballot
paper such as a 20 inch ballot, Jarrett also testified that the “fit-to-print” issue also
“happened in August 2020 Primary Election, the November 2020 General Election,
and the August 2022 Primary Election” in an apparent attempt to show that such
ballot misconfigurations are nothing more than a “Election day hiccup” (Appx:618
(id., 217:06-19)).
Nonetheless, Jarrett still could not explain the existence of 19 inch ballot
images on 20 inch paper found by Parikh at all six vote centers he inspected as
opposed to the three vote centers identified by Maricopa’s purported root cause
analysis.
surveys and polls for political campaigns, election officials, and news organizations.
(Baris). The bipartisan Election Recon evaluated his work number two out of more
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than 200 pollsters in terms of its accuracy rate and bias. Appx:507 (id., 106:2-24).
In the six years since his firm began releasing public election polling on a steady
basis, it has never failed to accurately predict the winner, within the sampling error
significant sample of likely voters, which he adjusted on Election Day to reflect the
testified that—but for the chaos—sufficient numbers of additional voters would have
margin would have conservatively changed from the 17,117-vote margin for Hobbs
to a result within the range of a 2,000-vote margin for Hobbs and a 4,000-vote
80:2-10, 81:21-82:13).
Arizona law requires the County Recorder to implement secure drop box
ballots inside the container shall be counted and noted on the retrieval form.”
Election Day drop box (“EDDB”) ballots. The EPM requires EDDB ballots to be
15
counted and recorded at the time of retrieval on Election Day “unless ballots are
transported in a secure and sealed transport container to the central counting place
ballots can be deferred only until containers arrive at the central counting place,
MCTEC.
Absent valid, legally required CoC that there are multiple opportunities for
Unrebutted evidence showed that Runbeck allowed employees to insert ballots into
Richer’s failure to maintain CoC makes it impossible to know how many ballots
Recorder Richer testified that on Election Day, EDDB ballots are not counted at
MCTEC, and instead are counted at Runbeck because there are too many ballots.
(testifying EDDB ballots are counted at Runbeck, not MCTEC). Richer’s testimony
testified that on Election Day bins of ballots were delivered to MCTEC, ballots were
16
separated from the bins and were not counted. Appx:72-73 (White Declaration,
¶¶12-21).
from Maricopa to Runbeck, the ballots leave Maricopa’s possession, breaking CoC
Richer also contradicted his prior testimony above to state that EDDB ballots
Tr., 21:17-20). Richer testified that CoC forms were created at MCTEC prior to the
transfer and that his office produced those forms in response to Public Records
documents for EDDB ballot retrieval counts exist. Appx:138 (Tr., 41:06-10)
(Richer).
ballots been done the previous day, no estimates would be necessary on November
9 as the precise count would have been known. Richer testified that all EDDB ballots
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press conference on November 9, Richer reported 275,000 EDDB ballots were
County officials did not count EDDB ballots and did not create any documents
Declaration) (testifying that no CoC forms were received from MCTEC for EDDB
EDDB ballots scanned at Runbeck. Ex. 46. The Runbeck whistleblower reported
back with 298,942, an increase of nearly 25,000 EDDB ballots that Maricopa cannot
account for. Appx:318-19 (Tr., 221:24-222:20) (Honey). Further, after this call to
Runbeck, the number of total ballots reported by Maricopa to the Secretary of State
(Appx:51).
November 10, 2022, at 2:13p.m. that he is “unable to currently reconcile SOS listing
Maricopa failed to maintain CoC is the fact Maricopa has not been able to produce
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D. Maricopa Violated Signature-Verification Requirements and
Accepted Illegal Ballots with Signature Mismatches
Absentee ballots are “the largest source of potential voter fraud.” BUILDING
ELECTION REFORM, at 46 (Sept. 2005). Compl. ¶12 (Appx:5). In a report dated April
Arizona’s Attorney General Brnovich found that “the early ballot affidavit signature
insufficient to guard against abuse,” stating that “[r]equiring a match between the
signature on the ballot affidavit and the signature on file with the State is currently
the most important election integrity measure when it comes to early ballots.” Id.
determinative number of illegal votes from mail-in ballots in 2020 and 2022.” Id.
In a 2022 signature review of absentee ballots from the 2020 general election
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Id., 5 (Appx:6). Notwithstanding the 37,653 mismatched signatures in 230,339
sample ballots (12.12% of total ballots), Maricopa rejected only 587 total ballots in
In the 2022 general election, over 1.3 million ballots were cast through the
signature verification and signature curing process during the 2022 general election.
Those three whistleblowers testified that 15-40 percent of the 2022 ballots had
and tabulation” notwithstanding that the “affidavit signature … did not match the
mismatches (e.g., by cycling the same ballots back through the signature-verification
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process) without contacting the voters, as the EPM requires. Compl. ¶59 (Appx:19).
STATEMENT OF ISSUES
1. Whether the trial court erred in requiring plaintiff to show by clear and
election result and that, factually, the conduct did alter the result.
2. Did the trial court err in concluding that Plaintiff’s expert opining as to the
Plaintiff would have won the election but for the misconduct as opposed the
3. Whether the trial court erred in failing to consider claims of “illegal votes”
5. Whether the trial court erred in finding Counts V and VI either merely
STANDARD OF REVIEW
v. City of Mesa, 230 Ariz. 352, 355, ¶7 (2012), with “all well-pleaded material
allegations of the [complaint] … taken as true.” Young v. Bishop, 88 Ariz. 140, 143
21
(1960). “Dismissal is appropriate under Rule 12(b)(6) only if as a matter of law
plaintiffs would not be entitled to relief under any interpretation of the facts
susceptible of proof.” City of Mesa, 230 Ariz. at 356, ¶8. This standard applies to
election contests, Griffin v. Buzard, 86 Ariz. 166, 169-70 (1959), so that dismissal
“should never be granted unless the relief sought could not be sustained under any
Appellate courts review all legal questions de novo. Fitzgerald v. Myers, 243
Ariz. 84, 88 ¶8 (2017). Following a bench trial, appellate courts defer to the trial
court’s factual findings unless clearly erroneous, Ariz. Bd. of Regents v. Phx.
Newspapers, 167 Ariz. 254, 257 (1991), but that “unless clearly erroneous doctrine”
“does not apply … to findings of fact that are induced by an erroneous view of the
law nor to findings that combine both fact and law when there is an error as to law.”
ARGUMENT
The trial court found Counts II and IV to state a claim, Appx:96, but withheld
22
intent that their misconduct alter the election result; and lastly that the violations did,
in fact, alter the result. Appx:684. These compounded errors infected the court’s
rulings. For example, the trial court improperly rejected expert testimony that the
Election-Day chaos depressed turnout that would have swung the result from a
rendering the outcome uncertain under Findley, 35 Ariz. at 269. The trial court’s
discomfort with ranges is unsustainable, given that courts dealing with statistics
necessary consider intervals, see, e.g., State v. Escalante-Orozco, 241 Ariz. 254,
290-91, ¶¶151-152 (2017); State v. Johnson, 186 Ariz. 329, 333-34 (1996), including
in election cases. Moore v. City of Page, 148 Ariz. 151, 159 (App. Ct. 1986)
Although “the usual rule [is] that a plaintiff must establish each element of a
Maricopa Cty., 208 Ariz. 286, 291 (2004), the trial court cited Oakes v. Finlay, 5
Ariz. 390, 398 (1898), and McClung v. Bennett, 225 Ariz. 154, 156, ¶7 (2010), for
23
election contest. Appx:684. While this Court has indeed applied that standard to
some aspects of election litigation, see, e.g., Buzard v. Griffin, 89 Ariz. 42, 50 (1960)
218 Ariz. 561, 563 (2008) (requiring clear and convincing evidence to strike
signatures from nomination petitions as not being qualified electors), this Court has
issues.
issues would undermine the holdings that the standard applies in specific contexts.
Certainly, Oakes cannot control because that common-law decision from Arizona’s
unknown to the common law, and are neither actions at law nor suits in equity, but
are special proceedings.” Griffin v. Buzard, 86 Ariz. 166, 168 (1959). Similarly, the
cited portion of McClung v. Bennett is dicta: “Apart from the due process concerns,
we would deny McClung’s appeal for two additional reasons,” 225 Ariz. at 157,
based on the inapposite decision in Jenkins, supra. Arizona courts generally impose
McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 3 (1997) (“voter’s
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(presumption “may be rebutted only by clear and convincing evidence”). No statute
Buzard v. Griffin is simply not the test for misconduct under the election-contest
balloting.” Miller v. Picacho Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180
(1994) All that the election-contest statute requires for misconduct is “that an express
non-technical statute was violated, and ballots cast in violation of the statute affected
the election.” Id. The question is a factual question that courts resolve without resort
v. Sedillo, 70 Ariz. 192, 198 (1950), but a contestant’s showing of illegality can shift
5
This Court discussed clear and convincing evidence in Renck v. Superior
Court, 66 Ariz. 320, 327 (1947), which was not an election contest case. Moore, 148
Ariz. at 155, abrogated in part on other grounds, Huggins v. Superior Court, 163
Ariz. 348, 350 n.1 (1990); cf. Kromko v. Superior Court, 168 Ariz. 51, 55 (1991)
(“Renck … was decided solely upon mootness grounds”).
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probability that the ballots have been disturbed or
tampered with[.]
Averyt v. Williams, 8 Ariz. 355, 359 (1904). Plaintiff alleged noncompliance with
Arizona law in great detail with substantial expert and fact affidavit support, but the
“clear and convincing” standard is not the standard that the election-contest statute
official under §16-672(A)(1) with the election official’s intent to affect an election’s
outcome. Appx:684. The trial court’s standard for “misconduct” is a felony, Ariz.
Rev. Stat. §16-1010, and thus certainly misconduct. But this Court has set the bar
far lower for the type of misconduct that is actionable in election contests.
definition applies. State ex rel. Frohmiller v. Hendrix, 59 Ariz. 184, 189 (1942).
“affect[s] the result, or at least render it uncertain.” Findley, 35 Ariz. at 269. Indeed,
26
Contrary to Findley, election statutes are mandatory, not
“advisory,” or else they would not be law at all. If a statute
expressly provides that non-compliance invalidates the
vote, then the vote is invalid. If the statute does not have
such a provision, non-compliance may or may not
invalidate the vote depending on its effect. In the context
of this case, affect the result, or at least render it uncertain
means ballots procured in violation of a non-technical
statute in sufficient numbers to alter the outcome of the
election.
Miller, 179 Ariz. at 180 (interior quotation marks and citations omitted, emphasis
added). Although the statute in question here does not expressly state that non-
compliance would invalidate the votes, Plaintiff showed that the number of non-
compliant ballots (whether resulting from the chain of custody violations or the
signature verification violations) vastly surpasses the 17,177 votes that separates
Plaintiff from Katie Hobbs. Under its own precedent in Miller, this Court should
tampering, and voter intimidation.” Id. As in Miller, Maricopa violated the types of
election laws intended “to secure the purity of elections and guard against abuses of
the elective franchise.” Ariz. Const. art. VII, §12. The violations are therefore
material in context: “we will not set aside an election unless the effect of the
noncompliance altered the outcome or clouded the reliability of the results.” Wenc
v. Dist. No. 68, 210 Ariz. 183, 186 (App. 2005); Miller, 179 Ariz. at 180 (considering
27
violations in context). By requiring felonious conduct instead of mere outcome-
altering or outcome-clouding impacts, the trial court applied the wrong standard of
review.
Plaintiff does not allege “mere technical violations.” She alleges “substantive
irregularities” and systematic violations of procedural safeguards for fair and legal
elections where the “tactics … turned the election around.” Miller, 179 Ariz. at 180.
The trial court also required that “the misconduct did, in fact, change the result
of that election,” Appx:684, which is simply wrong. This Court has long reasoned
that unquantifiable electoral manipulations are not immune from review, merely
Hunt v. Campbell, 19 Ariz. 254, 265-66 (1917) (interior quotation marks omitted,
emphasis added); cf. Huggins, 163 Ariz. at 350 (“it hardly seems fair that as the
28
“affect the result, or at least render it uncertain,” Findley, 35 Ariz. at 269, that
“Plaintiff’s expert on this point admitted that the voters who suffered from tabulator
rejections would nevertheless have their votes counted, [and thus] [t]he BOD printer
failures did not actually affect the results of the election.” Appx:687. The trial court
also dismissed the widespread BOD printer and tabulator failures as merely
“unforeseen mechanical failures.” December 24, 2022 Ruling at 6-7. Both findings
caused by the printer/tabulator failures was real and widespread. Had proper logic
and accuracy testing been performed on vote center BOD printed ballots and
not have occurred. These failures were not a few one off machine failures. These
failures occurred on Election Day at nearly two thirds of Maricopa’s 223 vote
centers.
Prior to the 2022 general election, Jarrett as the officer in charge of elections,
was required to test “all of the county’s deployable voting equipment.” See Ex. 60,
29
EPM at p. 94-95 (“The officer in charge of elections must substantially follow the
L&A testing procedures applicable to the Secretary of State, except that all of the
permitted misconfigured ballots to be injected into the 2022 general election even
though these ballots were not subject to logic & accuracy testing as required by the
Election Procedure Manual. Appx:701 (“If a county will use preprinted ballots and
Whether the BOD printed ballots failed because of issues with the printer or
the misconfigured 19 inch ballot image, the fact is Maricopa officials were charged
under the law to ensure this equipment and the BOD printed ballots properly
functioned in tabulators in the 2022 general election. Had such logic and accuracy
testing been done such widespread failures could not have occurred. See also
Appx:__-__ (Tr., 101:07-103:06). The testimony of Sonnenklar, the more than 200
sworn declarations of voters and poll workers, and text messages by the T-Techs
discussed in Statement of Facts, Section B, show that BOD printed ballots and
tabulator rejections of those ballots were the sole cause of the chaos on Election
Day. And, that chaos thereby disenfranchised Election-Day voters who would have
30
Second, the trial court ignored Jarrett’s conflicting testimony on the subject
of 19 inch ballot images being projected onto 20 inch paper. The evidence of
Maricopa’s cover up of their failures is evidence of a guilty state of mind. See, e.g.,
Henry v. Mayer, 6 Ariz. 103, 116 (1898). Plaintiff proved that illegally configured
19 inch ballot images printed by BOD printers on 20 inch paper were injected into
the election on Election Day—an issue that Jarrett, under oath, denied occurred—
not once, but four times before Plaintiff’s cyber expert, Clay Parikh, testified about
Election Procedure Manual and thereby also constitute misconduct A.R.S. §16-
672(A)(1).
The fact that Jarrett changed his testimony after Parikh revealed his explosive
findings and trotted out a new contradictory “shrink-to-fit” excuse, does not mean
misconduct has not been shown in accordance with A.R.S. §16-672(A)(1). Jarrett
and Maricopa admitted knowing about the shrink-to-fit issue occurring in three prior
elections. That admission shows that they were on notice of this issue before the
2022 general election. Defendants cannot dispute that the violations of the EPM
described above are now knowing violations because Maricopa officials and Jarrett
clearly did not take adequate steps to prevent the so-called shrink-to-fit issue from
happening in the 2022 general election. It also bears noting that the Parikh
discovered the misconfigured ballots in all six vote centers he inspected—not the
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three vote centers Jarrett now claims were discovered by the County through a
Nor does the trial court’s reliance on the assumption that misconfigured
rejected ballots were purportedly later counted render Maricopa’s violations moot.
First, later counting does not change the fact that this issue contributed to the
Republican voters who voted on Election Day. Second, Parikh testified that
Maricopa did not keep duplicate ballot combined with the original ballot. Thus, there
Plaintiff’s expert, Rich Baris, testified that Kari Lake would conservatively
have gained votes providing a range of a 2,000-vote margin for Hobbs and a 4,000-
vote margin for Lake in Maricopa’s final election canvass but for the Election Day
chaos. In an election where the difference between the two candidates is 17,177
votes, this is more than enough votes to render the outcome of the 2022 general
The trial court held that Plaintiff’s witness, Heather Honey, who testified for
Plaintiff regarding Maricopa’s ballot CoC failures, “admit[ted] that Defendants did
in fact generate the documents they were required to, and otherwise affirms the
County’s compliance with election processes.” December 24, 2022 Ruling at 5-6.
32
Honey did no such thing. Further, the trial court ignored the admissions by Maricopa
Arizona CoC laws set forth the EPM and A.R.S. §16-621(E).
documents for EDDB ballots delivered on Election Day. In fact, she testified
Maricopa did not produce these forms (“Delivery Receipts”) for the nearly 300,000
testifying that “no paperwork accompanied the ballots from the MCTEC on Election
¶¶12-21) (EDDB ballots were delivered to MCTEC, were separated from the bins,
ballots lack proper CoC documentation. Had Maricopa followed Arizona’s CoC
rules, they would have had an exact count of EDDB ballots delivered to MCTEC on
Election Day before they were unpacked MCTEC and later transported to Runbeck,
a third party vendor. Maricopa officials did not ascertain the exact count of EDDB
between the officially reported figures on November 9 and the reported figures on
33
November 10.
672(a)(1). Further, these violations also render at least 25,000 votes illegal under
A.R.S. §16-672 (a)(4)—which the trial court did not address—and which render the
outcome of the 2022 general election “at least uncertain.” Findley, 35 Ariz. at 269.
The trial court erred in dismissing Counts III (signature verification) based on
laches. First, striking unlawful ballots would not disenfranchise voters under
Plaintiff’s request for a new election. Compl. at 61 (¶g) (Appx:68). Second, the
public interest and Arizona would not be harmed by holding a lawful election
because the incumbent would remain in office. Ariz. Const. art. XXII, §13. Third,
and in any event, Plaintiff timely asserted Counts III, so the equitable doctrine of
ballot can be counted: “In all elections held by the people in this state, the person, or
persons, receiving the highest number of legal votes shall be declared elected.” Ariz.
Const. art. VII, §7 (emphasis added). Plaintiff plead for “striking any invalid ballots
which would have provided a material change in the vote totals for Plaintiff to win
the election. Id. ¶¶178-179 (Appx:65-66). When properly taken as true, Griffin 86
34
Ariz. at 169-70, Count III states a claim for relief.
bringing suit prejudices other parties. Sotomayor v. Burns, 199 Ariz. 81, 82-83
(2000). A court considering a laches defense must (1) ”examine the justification for
delay, including the extent of plaintiff’s advance knowledge of the basis for
challenge”; (2) analyze “whether [the] delay … was unreasonable”; and (3) consider
whether “the delay resulted in actual prejudice to the adverse parties.” Harris v.
Purcell, 193 Ariz. 409, 412 (1998). In the election context, Arizona courts consider
fairness to litigants, election officials, the voters, and the Court. See id.; Sotomayor,
because “[a] showing of prejudice is also required.” Sotomayor, 199 Ariz. at 83, ¶8.
Generally, “[w]hat is a reasonable time [to take action] is a question of fact for the
trier of fact unless the facts are such that only one inference could be derived
therefrom in which case it would become a question of law.” Jones v. CPR Div.,
Upjohn Co., 120 Ariz. 147, 151 (App. 1978); cf. Walk v. Ring, 202 Ariz. 310, 321,
¶43 (2002) (summary judgment inappropriate where question of fact existed about
whether plaintiff knew or should have known of facts to put her on notice to
investigate whether her injury was wrongfully inflicted); Havasupai Tribe v. Ariz.
Bd. of Regents, 220 Ariz. 214, 230, ¶¶61-63 (App. 2008) (same).
35
A. The trial court erred by dismissing signature-verification (Count
III) on laches
accompanying an early ballot must match the signature featured on the elector’s
confronted with signature mismatches, the cure process requires contacting the voter
¶150 (Appx:60-61). The trial court acknowledged that Plaintiff challenges “the
process used to cure ballots that, at first glance, did not match the signature on file
for that voter,” but analyzes only the issue of laches. Appx:91-92.
delegated to it. Associated Dairy Prods. Co. v. Page, 68 Ariz. 393, 395 (1949).
Courts may enjoin the exercise of power beyond that delegation. Berry v. Foster,
180 Ariz. 233, 235-36 (App. 1994). Once adopted, the 2019 EPM had the same force
of law as statute. Ariz. Pub. Integrity All. v. Fontes, 250 Ariz. 58, 63 (2020). In sum,
Arizona law sets a mandatory process for curing signature mismatches. A.R.S. §16-
550(A); EPM, at 68. Maricopa’s use of its alternate, non-complying process to evade
36
1. The signature-verification count (Count III) is based on
whistleblowers’ testimony regarding 2022 general election
misconduct.
ballots where the signatures did not match in 2020. Compl. ¶¶ 51-54, 59, 151
Before Plaintiff—who was not a candidate in 2020—could sue, she first had
to incur a ripe injury. Mills v. Ariz. Bd. of Tech. Registration, 514 P.3d 915, 923
(Ariz. 2022). Laches is “precisely the opposite argument” from ripeness. Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 915 n.16 (1990) (Blackmun, J., dissenting).
Before the election, Plaintiff had no ripe claim against Defendants’ failure to verify
What-A-Burger of Va., Inc. v. Whataburger, Inc., 357 F.3d 441, 449-50 (4th Cir.
2004) (internal quotation marks omitted); Profitness Physical Therapy Ctr. v. Pro-
Fit Orthopedic & Sports Physical Therapy P.C., 314 F.3d 62, 70 (2d Cir. 2002)
(same). The suggestion that Count III is barred by laches as to improperly accepted
ballots is unsustainable.
37
2. Neither defendants nor voters suffer cognizable prejudice
from the rejection of ballots with invalid signatures.
the 2020 election simply as corroboration for the outcome-altering illegal votes in
the 2022 election cannot make a laches defense viable for the 2022 election.
McComb v. Superior Court, 189 Ariz. 518, 525 (App. 1997) (discussing
laches defense requires “clear and convincing proof” that Plaintiff “deliberate[ly]
bypass[ed] … a pre-election judicial remedy.” Id. Given that her claim did not exist
for 2022 until after the election, Defendants cannot make that showing.
signature-verification claims for the 2022 election. That history does not
simultaneously absolve Maricopa from complying with the law. Simply put,
Maricopa does not have a vested right to count illegal votes: “No vested right to
18 Cal. 2d 341, 346 (1941); cf. Rivera v. City of Phx., 186 Ariz. 600, 602 (App.
1996) (improperly issued building permit does not establish a vested right to build
in violation of ordinance).
The remedy for illegal absentee ballots is either to set aside the election under
38
Miller, 179 Ariz. at 180, or proportionately to reduce each candidate’s share of mail-
in ballots under Grounds, 67 Ariz. at 183-85. Plaintiff requests a new election, but
Plaintiff would prevail under Count III under pro rata reduction. Count III alleges
that 15-40 percent of 1.3 million mail-in ballots should have failed signature
verification, but for Maricopa’s failure to follow the EPM. At the low end of
would prevail.
in early voting, Lake gains approximately 105 net votes from a 1,000-vote reduction.
Applying the 15% error rate (195,000 votes) gains Lake approximately 20,548 net
votes. Plaintiff credibly alleged “a material number of early ballots cast in the
affidavit signature that the Maricopa Recorder or his designee determined did not
match the signature in the putative voter's ‘registration record.’” Compl. ¶151
If a court granted Plaintiff her requested relief of a new and fair election, the
striking of the election chaos to date would not disenfranchise any voter. Moreover,
under the Arizona Constitution, the incumbent Governor’s term would continue until
39
his successor was duly elected. Ariz. Const. art. XXII, §13; Ariz. Const. art. XXII,
§13. Because this continues the incumbent’s existing term, it does not violate
constitutional term limits. Jennings v. Woods, 194 Ariz. 314, 331 (1999). As such,
The trial court dismissed Counts V (equal protection) and VI (due process) on
the alternate grounds that either those constitutional claims were merely cumulative
this Court should reverse the dismissal of Counts V and VI because “the Equal
Protection and Due Process Clauses protect against government action that is
purpose.” Coleman v. City of Mesa, 230 Ariz. 352, 362 (2012). Maricopa’s chaotic
40
2022 general election deviated from required procedures and plans in so many ways
that clearly fail that test. See, e.g., Service v. Dulles, 354 U.S. 363, 372 (1957)
(government must follow its own rules). That—by itself—warrants reversal of the
dismissal.
Maricopa’s 2022 general election was worse than mere chaos because the
failings were not only intentional but also targeted. Maricopa weakened ballot-
integrity measures for mail-in votes, which benefits Democrats, and created a
In trial court, Maricopa cited Personnel Adm'r of Mass. v. Feeney, 442 U.S.
256, 279 (1979), and Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265 (1977), to evade responsibility for the impact on Republicans. Neither
41
discrimination. Although women then represented less than two percent of veterans,
Feeney, 442 U.S. at 270 n.21, Massachusetts did not discriminate because of sex
when it acted because of another, permissible criterion (veteran status). Id. at 272.
Republican Election-Day voters were more than burdened than Democrat Election-
Day voters by more than 15 standard deviations beyond what a random distribution
would expect. Complaint, ¶165.6 At that wide level of disparity, this Court must
reject the claims of non-targeted randomness and shift the burden to explain the
disparity to Defendants. See Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977).
explains the wide disparity here, Defendants have the burden of explaining it.
Arlington Heights makes this clear. While holding there that “official action
impact,” Arlington Heights, 429 U.S. at 264-65, the Court explained that that basic
6
The standard deviation for a binomial distribution is the square root of the
multiple of the expected probability and one minus the expected probability divided
by the sample size (i.e., the square root of (p)(1-p)/n). See Johnson, 186 Ariz. at 334
n.55. For example, with a coin toss, both (p) and (1-p) are both 50% for a fair coin.
The odds of getting 60% heads vary with the sample size. Six heads in 10 tosses is
unsurprising because the standard deviation is 0.158 or 15.8%, so the difference
between the expected 50% and experienced 60% is within one standard deviation.
As n get larger, a 60% result gets less likely (e.g., 600 heads out of 1,000 tosses has
a standard deviation of 0.016 or 1.6%, putting the experienced 60% 6.32 standard
deviations from the expected 50%).
42
holding does not apply when the results are wildly out of proportion, as they are
here:
Id. at 266 (footnotes and citations omitted). By deviating 15-plus standard deviations
election falls into the “rare” set of instances where the impact alone is evidence.
Courts “are not required to exhibit a naiveté from which ordinary citizens are
free.” Dep’t of Commerce v. New York, 139 S.Ct. 2551, 2575 (2019) (internal
quotation marks omitted). Especially at the motion-to-dismiss stage, this Court must
An election violates due process when “the election process itself reaches the
point of patent and fundamental unfairness.” Griffin v. Burns, 570 F.2d 1065, 1077
(1st Cir. 1978). Indeed, “there is precedent for federal relief where broad-gauged
Id.; accord Marks v. Stinson, 19 F.3d 873, 888 (3d Cir. 1994). “Like beauty,
fundamental fairness frequently lies in the eye of the beholder,” and “the
43
Constitution does not ensure a bright-line rule for every situation.” Bonas v. Town
of N. Smithfield, 265 F.3d 69, 75 (1st Cir. 2001). As such, “each case must be
evaluated on its own facts” Id. Given the sufficiently alleged and extensive nature
of Maricopa’s deviations from Arizona law, the trial court erred in dismissing Count
In Griffin, the U.S. Court of Appeals for First Circuit required a new election
where state election officials “changed the rules at the end of the game” with the
(citing Griffin, 570 F.2d at 1080). More recently, in Marks, the U.S. Court of Appeals
1,000 ballots and decertified the election, with a new election unless the challenger
could show that he would have won, but for the fraudulent ballots. Marks, 19 F.3d
at 888-89. The tens of thousands of illegal votes here far exceeds the mere 1,000
votes that Marks found “massive.” Counting illegal votes violates due process:
Reynolds v. Sims, 377 U.S. 533, 555 (1964); cf. Ariz. Const. art. VII, §7 (“the person
… receiving the highest number of legal votes shall be declared elected”). Moreover,
44
infringed: “all qualified voters have a constitutionally protected right to vote.”
Reynolds, 377 U.S. at 554. Indeed, even among that cohort, the Election-Day chaos
that the impact itself qualifies as evidence of misconduct. Arlington Heights, 429
This Court should reject the trial court’s suggestion that violations of the
parsing that statute, the Court applies traditional tools of determining legislative
intent. Jenkins, 218 Ariz. at 562-63 (“primary task in answering these questions is
to discern the legislature's intent”). It beggars the imagination that the Legislature
separate lawsuits under 42 U.S.C. §1983. Given the “short time period” for such
meaningful time and in a meaningful manner.” McClung, 225 Ariz. at 156. The trial
court’s suggestion otherwise would throw Arizona into even more chaos.
CONCLUSION
WHEREFORE, Plaintiff prays that the trial court be REVERSED and that
Plaintiff be granted the injunctive relief of vacatur of the election certification and a
45
new election, as requested in her Verified Complaint. Appx:68.
46
CERTIFICATE OF COMPLIANCE
undersigned counsel certifies that the Petition for Special Action is double spaced
and uses a proportionately spaced typeface (i.e., 14-point Times New Roman) and
1
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
that the foregoing Petition for Special Action was e-filed via AZTURBO COURT
E-FILED: AZTurboCourt:
Clerk of the Court
COURT OF APPEALS
1501 W. Washington Street, Room 203
Phoenix, Arizona 85007-3329
Daniel C. Barr
Alexis E. Danneman
Austin Yost
Samantha J. Burke
Perkins Coie LLP
2901 North Central Avenue
Suite 2000
Phoenix, AZ 85012
[email protected]
[email protected]
[email protected]
[email protected]
Attorneys for Defendant Katie Hobbs
and
1
Abha Khanna*
ELIAS LAW GROUP LLP
1700 Seventh Avenue, Suite 2100
Seattle, WA 98101
[email protected]
Telephone: (206) 656-0177
and
Lalitha D. Madduri*
Christina Ford*
Elena A. Rodriguez Armenta*
ELIAS LAW GROUP LLP
250 Massachusetts Ave NW, Suite 400
Washington, D.C. 20001
[email protected]
[email protected]
[email protected]
Attorneys for Defendant Katie Hobbs
and
D. Andrew Gaona
COPPERSMITH BROCKELMAN PLC
2800 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
[email protected]
Attorney for Defendant Secretary of State Katie Hobbs
and
Sambo Dul
STATES UNITED DEMOCRACY CENTER
8205 South Priest Drive, #10312
Tempe, Arizona 85284
[email protected]
Attorney for Defendant Secretary of State Katie Hobbs
and
2
Thomas P. Liddy
Joseph La Rue
Joseph Branco
Karen Hartman-Tellez
Jack L. O’Connor
Sean M. Moore
Rosa Aguilar
Maricopa County Attorney’s Office
225 West Madison St.
Phoenix, AZ 85003
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Attorneys for Maricopa County Defendants
and
Emily Craiger
The Burgess Law Group
3131 East Camelback Road, Suite 224
Phoenix, Arizona 85016
[email protected]
Attorneys for Maricopa County Defendants
James E. Barton II
BARTON MENDEZ SOTO PLLC
401 West Baseline Road Suite 205
Tempe, Arizona 85283
[email protected]
and
3
E. Danya Perry (pro hac vice forthcoming)
Rachel Fleder (pro hac vice forthcoming)
Joshua Stanton (pro hac vice forthcoming)
Lilian Timmermann (pro hac vice forthcoming)
PERRY GUHA LLP
1740 Broadway, 15th Floor
New York, NY 10019
[email protected]
Attorneys for Amici Curiae
Helen Purcell and Tammy Patrick