Kari Lake's Reply in Support of Petition To Transfer
Kari Lake's Reply in Support of Petition To Transfer
KARI LAKE,
Transferred from
Petitioner, Court of Appeals Division One
v. No. 1CA-CV23-0393
THE HONORABLE PETER
THOMPSON, Judge of the SUPERIOR Maricopa County Superior Court
COURT OF THE STATE OF No. CV2022-095403
ARIZONA, in and for the County of
MARICOPA,
Respondent Judge, REPLY IN SUPPORT OF
PETITION FOR TRANSFER
KATIE HOBBS, personally as
Contestee; ADRIAN FONTES, in his
official capacity as Secretary of State; ARCAP 19(a)
STEPHEN RICHER, in his official
capacity as Maricopa County Reporter,
et al.,
Real Parties in Interest.
Introduction ................................................................................................................ 1
Argument.................................................................................................................... 1
Conclusion ................................................................................................................. 7
i
INTRODUCTION
Maricopa County made in its response to Lake’s Petition For Transfer. Maricopa
ignores or misstates the central issues in the Petition to Transfer and misleads this
cites Arizona law mandating the Secretary of State (“SoS”) to conduct L&A testing
and ignores Arizona law mandating the county to conduct its own L&A testing.
There are certificates for each. Appx:0094. The two L&A tests are different under
Arizona law. By its own implicit and affirmative admissions in its Answering Brief
and in its Response, Maricopa did not conduct statutory L&A testing on “its Election
Day [vote-center] tabulators” in accordance with A.R.S. §16-449 and the EPM.
ARGUMENT
Maricopa argues “[a]bsolutely nothing has happened since the prior denial
which would change the result of this Petition,” Maricopa Resp. 4, and claims there
is no basis for transfer. Id. at 5. In so doing, Maricopa ignores that Lake based her
its county L&A testing on its 446 vote-center tabulators on October 11, 2022 (the
only announced day for statutory L&A testing) or after it replaced the memory cards
1
on its 446 vote-center tabulators, which violated A.R.S. §16-449(A) and the EPM.
See Pet. 3-7; see also A.R.S. §16-449(B) (“[e]lectronic ballot tabulating systems
shall be tested for logic and accuracy … pursuant to the [EPM]…as prescribed by
section 16-452.”).
Maricopa next argues that Lake’s arguments are not material: “this ‘new
evidence’ cannot alter the outcome of Lake’s election contest.” Maricopa Resp. 6.
Far from concerning a mere 8,000 votes,1 Lake’s new evidence of Maricopa’s
programs [be] tested to ascertain that the equipment and programs will correctly
count the votes cast for all offices and on all measures.” A.R.S. § 16-449(A)
(emphasis added); see also Appx:0808 (EPM at 86) (L&A test “is intended to
confirm” the accuracy of the vote “in the election management system (EMS)”). The
volume of ballots counted by Maricopa’s 446 vote-center tabulators which did not
number of votes.
1
Lake mentioned the 8,000 fit-to-page ballots only to argue Jarrett gave false
testimony that only 1,300 fit-to-page ballots existed leaving at least 6,700 ballots not
duplicated. Pet. at 2-3 citing Appx:0086 (Parikh Decl. ¶¶ 38-39).
2
Second, Maricopa’s failure to conduct L&A testing in accordance with A.R.S.
§ 16-449 and the EPM is also a criminal violation. A.R.S. § 16-452(C). Indeed,
Maricopa falsely certified it conducted statutory L&A testing. Given the purpose of
pre-election L&A testing is to ensure “that votes are attributed to the correct
candidates and ballot measures…that each candidate and ballot measure receives
the accurate number of votes” (Appx:0808, EPM at 86), Maricopa’s failure to L&A
test all 446 vote-center tabulators used on Election Day means there is no way to
know if the November 2022 general election results are accurate, and invalidates the
election under Hunt v. Campbell, 19 Ariz. 254, 265-66 (1917). See also Miller v.
Picacho Elementary School District No. 33, 179 Ariz. 178, 180 (1994).
Maricopa claims that “Lake’s attorneys also falsely assert that Maricopa
County did not conduct the logic and accuracy testing required by A.R.S. § 16-449
on all of its tabulators, citing Parikh’s Declaration, which claims that no tabulator
was tested.” Maricopa Resp. 8 (emphasis in original). Maricopa then claims that
A.R.S. § 16-449 “concerns the Secretary of State’s logic and accuracy testing,
doesn’t specify that ‘all’ tabulators must be tested, and the [EPM], which has the
force of law under A.R.S. § 16-452, specifies that the Secretary’s logic and accuracy
3
testing must be conducted on ‘selected equipment,’ not all of it.” Maricopa Resp. at
Answering Brief i.e., not Parikh’s testimony as the basis for her Petition. See Pet. at
3, 6-7. Second, Maricopa omits the fact that the EPM, mandated under A.R.S. § 16-
449(B), requires pre-election county L&A testing for “all of the county’s deployed
voting equipment”—as opposed to “selected voting equipment” for the SoS’s L&A
test that Maricopa misleading cites. Appx:0814, 816-17 (EPM at 92, 94-95)
(emphasis added). “[E]ach L&A test” must be noticed and “open to observation by
representatives of the political parties, candidates, the press, and the public.”
Maricopa argues “Lake’s attorneys also [falsely] assert that Maricopa never
tested all of its tabulators that would be used on election day” citing Jarrett’s
testimony that “the County tested all of its tabulators on October 4 through 10,
reasons.
testing on October 11, 2022 in accordance with “AZ statute 16-449” (which includes
4
the EPM as mandated by A.R.S. §§ 16-449(B), 16-452). See Appx:0094. By
implicitly claiming its testing on October 4-10, 2022 satisfies its legal obligations,
Maricopa’s L&A testing conducted on October 11, 2022 was in accordance with
Second, Lake did not assert that Maricopa “never tested” its tabulators. Lake
asserted Maricopa “did not conduct statutorily required L&A testing on its 446 vote-
center tabulators used on Election Day” i.e., in accordance with the specific
449(B), 16-452).
Third, Jarrett admitted that the 446 tabulators Maricopa tested on October 4-
10, 2022 did not use the same election program as on Election Day. Appx:0329
(Jarrett Decl. ¶¶ 9-10 describing “reprogramming” on October 10). For that reason
alone, “testing” on October 4-10, 2022 is meaningless and could not constitute the
Lastly, Maricopa argues that its unannounced testing on its 446 vote-center
5
overvotes, blank ballots, and accessible voting ballots that ‘produce[d] the same type
of ‘Ballot Misread’ errors that also occurred on Election Day in connection with the
BOD printer issue.’” Maricopa Resp. at 7-8. Thus, Maricopa claims these errors
The testing Maricopa references occurred on October 4-10, 2022. It is not the
unannounced testing Maricopa performed on October 14, 17-18, 2022 that resulted
in the same error codes that arose on Election Day. Appx:0329 (Jarrett Decl. ¶ 7).
Maricopa gratuitously cites the trial court’s statement that Lake’s conclusions
as to the McGregor Report were 180 degrees from its conclusions. Maricopa Resp.
6. Maricopa moved for sanctions on this issue, which, after reviewing Lake’s
explanations why the court’s statement was in error, the trial court denied. Compare
Lake’s response to Maricopa’s motion for sanctions (Appx:0364-8) with trial court’s
Maricopa also argues that the trial court’s reliance on lay witness Bettencourt
in December rebuts Lake’s expert witness Parikh. Maricopa Resp. 7. Putting aside
that Maricopa’s argument is false for a host of reasons, including that Bettencourt is
6
not an expert like Parikh2, Maricopa’s argument is irrelevant. Lake’s Petition relies
CONCLUSION
This Court should transfer and expeditiously hear this case. In addition, given
law, Lake respectfully moves that the Court sanction Maricopa and award Lake her
2
See Appx:0368.
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CERTIFICATE OF COMPLIANCE
undersigned counsel certifies that the Reply in Support of Petition for Transfer is
double spaced and uses a proportionately spaced typeface (i.e., 14-point Times New
Roman) and contains 1,388 words according to the word-count function of Microsoft
Word.