No.

_____________

In the Arizona Court of Appeals

Division One

KARI LAKE,
Plaintiff-Contestant/Appellant,

v.

KATIE HOBBS, PERSONALLY AS CONTESTEE AND IN HER

OFFICIAL CAPACITY AS THE SECRETARY OF STATE,
Defendant-Contestee /Appellee,

and

STEPHEN RICHER IN HIS OFFICIAL CAPACITY

AS MARICOPA COUNTY RECORDER, ET AL.,
Defendants/Appellees.

ON APPEAL FROM ARIZONA SUPERIOR COURT,

MARICOPA COUNTY, ACTION NO. CV2022-095403,
HON. HON. PETER THOMPSON

PETITION FOR SPECIAL ACTION

Kurt B. Olsen (admitted pro hac vice) Bryan James Blehm

Olsen Law PC Ariz. Bar #023891
D.C. Bar No. 445279 Blehm Law PLLC
1250 Connecticut Ave. NW, Ste. 700 10869 N. Scottsdale Rd., Suite 103-256
Washington, DC 20036 Scottsdale, Arizona 85254
Tel: 202-408-7025 Tel: (602) 752-6213
Email: [email protected] Email: [email protected]

Counsel for Plaintiff-Petitioner

 TABLE OF CONTENTS

Introduction ................................................................................................................ 1

Statement of Jurisdiction............................................................................................ 3

Statement of the Case ................................................................................................. 5

Statement of Facts ...................................................................................................... 6

A. Voting in Maricopa ...............................................................................6

B. Election Day Chaos Caused by Tabulators at Nearly Two Thirds

of Maricopa’s Vote Centers Rejecting Ballots From BOD Printers .....6

1. Maricopa Co-Director of Elections’ Conflicting Testimony

Regarding Deliberately Misconfigured BOD Ballots
Injected Into The Election on Election Day................................9

2. Plaintiff’s Survey Expert Concluded Voter Turnout Was

Materially Suppressed By The Election Day Chaos
Changing the Outcome of the Election In Hobbs’ Favor .........14

C. Maricopa Violated Chain of Custody .................................................15

D. Maricopa Violated Signature-Verification Requirements and

Accepted Illegal Ballots with Signature Mismatches .........................19

Statement of Issues................................................................................................... 21

Standard of Review .................................................................................................. 21

Argument.................................................................................................................. 22

I. The trial court erred on the merits with respect to tabulator

configurations (Count II) and the chain of custody (Count IV). ................... 22

A. The trial court applied an incorrect standard of review. .....................22

1. The trial court’s “clear and convincing” standard does not

apply to all election-contest issues............................................23

2. The trial court applied an incorrect definition of

“misconduct” under §16-672(A)(1). .........................................26

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 3. The trial court’s required showing of an outcome-changing
impact misstates Arizona law. ..................................................28

B. The widespread BOD printer and tabulator failures on Election

Day resulted from Maricopa election officials’ misconduct. ..............29

C. The chain of custody constituted misconduct and the counting of

illegal votes..........................................................................................32

II. The trial court erred by dismissing Count III on laches. ............................... 34

A. The trial court erred by dismissing signature-verification (Count

III) on laches ........................................................................................36

1. The signature-verification count (Count III) is based on

whistleblowers’ testimony regarding 2022 general election
misconduct. ...............................................................................37

2. Neither defendants nor voters suffer cognizable prejudice

from the rejection of ballots with invalid signatures. ...............38

B. The trial court’s errors on laches affected an outcome-

determinative number of votes. ...........................................................38

C. Vacating the certification of the 2022 general election and holding

a new election would neither disenfranchise Arizonans nor deny
Arizona a functioning government. .....................................................39

III. The trial court erred in dismissing the constitutional claims. ....................... 40

A. The constitutional counts are sustainable against arbitrary

government action. ..............................................................................40

B. The trial court erred by dismissing equal protection (Count V) as

outside the election-contest statute......................................................41

C. The trial court erred by dismissing due process (Count VI) outside
the election-contest statute. .................................................................43

D. Holding unconstitutional elections qualifies as misconduct. ..............45

Conclusion ............................................................................................................... 45

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 INTRODUCTION

The margin between Kari Lake and Secretary of State Katie Hobbs in the

Arizona gubernatorial race is approximately 0.67% (17,117 votes out of about

2,559,485 votes cast). The number of votes affected by the clear and massive

violations of law and maladministration by Maricopa County officials described

below, at a minimum, render the outcome of the Arizona gubernatorial contest

uncertain. The election in Maricopa County must be set aside. A.R.S. §16-676(B).

The 2022 general election in Maricopa County (“Maricopa”) was a debacle.

But the evidence shows something far worse: The chaos on November 8, 2022

(“Election Day”), a day when Republican turnout was widely predicted to be

historic, was no accident. On Election Day, thousands of Republican voters were

disenfranchised as a result of Maricopa election officials’ misconduct in connection

with the widespread tabulator rejections of defective ballots printed by ballot on

demand (“BOD”) printers. These failures occurred at 132 of the 223 vote centers in

Maricopa—over 59 percent of all vote centers in the County.

The sheer breadth of these failures, which Maricopa officials continue to

downplay as routine “hiccups”, is as astounding as it is improbable. These

widespread failures were not unforeseen mechanical failures—the printer and

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

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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

officials or disenfranchised of their right to vote as a direct consequence of the chaos

that day.

The evidence put forward in this case, including the changing and conflicting

testimony of Maricopa officials, and sworn testimony by whistleblowers employed

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;

(2) violated A.R.S. §16-621(E)’s chain-of-custody (“CoC”) requirements with

respect nearly 300,000 Election Day drop box (“EDDB”) ballots, including the

inexplicable injection of over 25,000 ballots between November 9 and November

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

election in violation of A.R.S. §16-550.

Notwithstanding the damning evidence presented by Plaintiff, the trial court

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,

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Findley v. Sorenson, 35 Ariz. 265 (1929), and its progeny require election

challengers to show by a preponderance of the evidence that misconduct or illegal

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

vacatur of the election certification and order a new election, as requested in

Plaintiff’s Verified Complaint. Appx:68.

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

Action Review. The rival candidates—and all Arizonans—deserve election finality

as quickly as possible. This matter is ill-suited to a regular appeal.

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-

676(A)-(B). For some election challenges, accelerated statutory appellate timelines

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

constitutional provisions on voting. See, e.g., Nordstrom v. Cruikshank, 213 Ariz.

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

appropriate to address constitutional interpretation); Arizonans for Second Chances,

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

involves a state statutory scheme, it is a matter of statewide—not merely local—

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

Plaintiff filed a timely Complaint in Special Action and Verified Statement of

Election Contest Pursuant to A.R.S. §16-672 (the “Complaint”) on December 9,

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.

Defendants filed motions to dismiss, and the court issued an Under

Advisement Ruling on December 19, 2022, granting Defendants’ motions to dismiss

all but Counts II (Illegal Tabulator Configuration) and IV (Invalid Chain of

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’

“intentional misconduct” by “clear and convincing evidence.” Appx:684-90.

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.

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 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

reviews factual determinations based on the trial-court record.

A. Voting in Maricopa

Maricopa is the fourth largest county in the United States. Approximately

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

box or U.S. Mail. ¶36

According to Maricopa’s published figures, Lake received 752,714 votes in

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.

B. Election Day Chaos Caused by Tabulators at Nearly Two Thirds

of Maricopa’s Vote Centers Rejecting Ballots From BOD Printers

Mark Sonnenklar and Bradley Bettencourt testified at trial regarding their

observations of the Election Day chaos caused by malfunctioning BOD printers

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

at 6:20 am. Appx:585 (Day 2 Tr: 184:09-25) (Jarrett).

Mark Sonnenklar was a roving attorney in the Republican National

Committee’s Election Integrity Program for the 2022 Primary and the General

Election in Maricopa. Appx:359-60 (Day 1 Tr. 262:24-263:01) (Sonnenklar). The

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

election law. Appx:360-61 (id., 263:02-264:19).

Sonnenklar personally visited ten vote centers on Election Day. He testified

about his observations on Election Day as follows:

Q. And what was your experience what you personally

saw at those ten vote centers?

A. Well, it was really pandemonium out there everywhere.

… I started out in Fountain Hills and immediately, I mean,
there was a line-- there was a line of 150 people at
Fountain Hills. The tabulators were not working, and that
was what I saw at, you know, I saw the same thing
happening at six of my ten vote centers. There were
different things happening at some of the other ones too,
but six of them in particular were really bad.

Appx:362-63 (id., 265:13-266:04).

Sonnenklar also testified that what he observed “was a completely different

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

Maricopa vote centers on Election Day. Appx:361-64 (id., 264:20-267:25). These

roving attorneys had similar observations of chaos on Election Day as he did.

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

that?” Sonnenklar replied:

I would say that’s nonsense. When you have 132 -- we’ve

been able to document that there were at least 132 vote
centers with tabulator problems out of 227, which comes
out to about 59 percent. I don’t see how that could be
characterized as a small matter.

Appx:365 (id., 268:11-18).

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

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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

Maricopa employee, who covered a “bare minimum” of 20 to 30 vote centers on

Election Day. Appx:346-47 (id., 249:07-250:17). Bettencourt’s contemporaneous

group text chats also T-Techs describing tabulator rejections of ballots as causing

massive lines and chaos on Election Day. Appx:715-24.

In contrast to the Election Day chaos described above, Maricopa officials

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

“disruption.” Jarrett’s testimony cannot be reconciled with of the testimony of over

200 witnesses with first-hand knowledge directly to the contrary. Appx:161 (Day 1

Tr., 64:12-21) (Jarrett).

1. Maricopa Co-Director of Elections’ Conflicting Testimony

Regarding Deliberately Misconfigured BOD Ballots
Injected Into The Election on Election Day

In the 2022 general election, illegally misconfigured 19 inch ballot images

were printed on 20 inch ballot paper by ballot on demand printers installed at

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

direct cause the Election Day chaos described above.

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

election. Jarrett testified as follows:

Q. Sir, I want to go back to the earlier question about the

19-inch ballot image being placed on a 20-inch paper. Did
you hear of any reports of that occurring in the 2022
General Election?

A. I did not.

Q. Okay. If that occurred, would that be a failure of

Maricopa County’s election process?

A. I’m not aware of it occurring, and I’d be surprised if

there was a ballot on a printer that had a 19-inch ballot
on it.

***

Q. And so I'll go back to my question again. If a 19-inch

ballot image was put on a 20-inch paper in the 2022
General Election, would that be a failure of your election
process?

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 A. It would -- if something like that happened, which I
don't know how it would, yes, it would have been a
mistake.

Q. Could that have also been a deliberate act?

A. Again, you're asking me to speculate about things that

I have no knowledge of occurring, so I don't know if it
could have been a deliberate act or not. I don't believe
that that occurred.

Appx:165-67 (Day 1 Tr., 68:24-69:09, 70:02-13) (emphasis added).2 Jarrett also

admitted that extensive logic and accuracy testing is performed to ensure the

tabulators can properly read all ballots, including BOD printed ballots, on Election

Day. Appx:152 (id., 50:22-53:10).

Immediately following Jarrett’s testimony above, Plaintiff’s cyber expert,

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

matters. Appx:178-86 (Tr. 81:19-89:10).

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

and duplicated original ballots), and 14 of 15 of the duplicated original ballots he

inspected (93% of duplicated original ballots). Appx:188-95 (Tr., 91:08-98:06)

(Parikh). According to Maricopa, nearly 17,000 ballots were rejected by tabulators

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

rejected by any tabulator. Appx:199-200 (Tr., 102:11-103:20) (Parikh). Parikh also

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

technicians” had caused this issue. Appx:579-82 (Day 2 Tr., 178:23-181:17).

On cross-examination, Plaintiff’s counsel asked Jarrett was asked why he had

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

“smaller” than 20 inches. Appx:607-10 (id., 206:20-207:25, 208:08-209:07).

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.

2. Plaintiff’s Survey Expert Concluded Voter Turnout Was

Materially Suppressed By The Election Day Chaos
Changing the Outcome of the Election In Hobbs’ Favor

Richard D. Baris is an expert in conducting, analyzing, and interpreting

surveys and polls for political campaigns, election officials, and news organizations.

Appx:422-24, 487, 511 (Tr., 21:21-22:02; 22:19-25; 23:3-12; 86:20-22; 110:12-16)

(Baris). The bipartisan Election Recon evaluated his work number two out of more

14
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

rate. Appx:431 (id., 30:19-20).

Baris performed an exit poll in Arizona on Election Day using a statistically

significant sample of likely voters, which he adjusted on Election Day to reflect the

chaos. Appx:432-33 (id., 31:12-32:19; 57:18-24). Based on his analysis, Baris

testified that—but for the chaos—sufficient numbers of additional voters would have

voted—disproportionately supporting Lake over Hobbs—such that the election’s

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

margin for Lake. Appx:688; Appx:440-43, 481-8 2 (id., 39:12-24, 40:20-42:07,

80:2-10, 81:21-82:13).

C. Maricopa Violated Chain of Custody

Arizona law requires the County Recorder to implement secure drop box

ballot-retrieval and CoC procedures. Arizona’s Election Procedures Manual

(“EPM”) requires that when a ballot-transport container is opened, the “number of

ballots inside the container shall be counted and noted on the retrieval form.”

Appx:699 (subsection I.7.h). This is a requirement for all retrievals including

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

to be counted there.” Appx:704 (subsection B.2.g). Thus, the counting of EDDB

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

insertion, removal, or substitution of ballots. Appx:272 (Tr., 175:7-14) (Honey).

Unrebutted evidence showed that Runbeck allowed employees to insert ballots into

the system. Appx:296 (Tr., 199:9-13) (Honey); Appx:75-78 (Marie Declaration).

Richer’s failure to maintain CoC makes it impossible to know how many ballots

were injected into the system. Appx:331-32 (id., 234:22-235:1).

Specifically, all ballots must be received by 7:00PM on Election Day. A.R.S.

§16-547. According to CoC requirements, Maricopa should have an exact count of

ballots immediately afterwards before transferring ballots to Runbeck. However,

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.

Appx:116 (Tr., 19:14-21) (Richer); Appx:569 (Tr., 168:2-11) (Valenzuela)

(testifying EDDB ballots are counted at Runbeck, not MCTEC). Richer’s testimony

is also consistent with the observations of a Republican observer at MCTEC who

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).

However, Runbeck, an external vendor, is not central counting, a designation

reserved for MCTEC where central tabulation occurs. Co-Director of Elections

Valenzuela also testified that no County employees operate Runbeck’s equipment.

Appx:563-64 (Tr., 162:25-163:02). The moment uncounted ballots were transferred

from Maricopa to Runbeck, the ballots leave Maricopa’s possession, breaking CoC

in violation of A.R.S. §16-621(E).

Richer also contradicted his prior testimony above to state that EDDB ballots

were counted at MCTEC prior to transferring them to Runbeck. Appx:118 (Day 1,

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

Requests. Appx:125 (Day 1, Tr. 28:7-24). Richer’s statement was false. No

documents for EDDB ballot retrieval counts exist. Appx:138 (Tr., 41:06-10)

(Richer).

In fact, Richer had to estimate the count of EDDB ballots on November 9,

which he estimated to be 270,000. Appx:126 (Tr., 29: 6-16). If counts of EDDB

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

had been transferred to Runbeck by 5AM on November 9 but during an afternoon

17
press conference on November 9, Richer reported 275,000 EDDB ballots were

received. Appx:138-39 (Tr., 41:12-42:21).

County officials did not count EDDB ballots and did not create any documents

to record the number of ballots transferred to Runbeck. Appx:75-78 (Marie

Declaration) (testifying that no CoC forms were received from MCTEC for EDDB

ballots). On November 9, at 5:30PM, Maricopa officials called to ask for a count of

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

increased from 1,544,513 to 1,569,603, an increase of 25,090 ballots. Compl. ¶119

(Appx:51).

In addition, Richer stated in an email to the County Board of Supervisors on

November 10, 2022, at 2:13p.m. that he is “unable to currently reconcile SOS listing

with our estimates from yesterday…. So there’s a 15,000 difference somewhere.”

Appx:306-07 (Tr., 209:19-210:05) (Honey). Additional evidence demonstrating that

Maricopa failed to maintain CoC is the fact Maricopa has not been able to produce

Delivery Receipts documenting the transfer of EDDB ballots to Runbeck on Election

Day. Appx:276-77, 280 (Tr., 179:01-180:16, 183:1-5) (Honey).

18
 D. Maricopa Violated Signature-Verification Requirements and
Accepted Illegal Ballots with Signature Mismatches

Absentee ballots are “the largest source of potential voter fraud.” BUILDING

CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL

ELECTION REFORM, at 46 (Sept. 2005). Compl. ¶12 (Appx:5). In a report dated April

6, 2022, on “election failures and potential misconduct that occurred in 2020,”

Arizona’s Attorney General Brnovich found that “the early ballot affidavit signature

verification system in Arizona, and particularly when applied to Maricopa, may be

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.

¶46 (Appx:15). Indeed, “Maricopa County’s elections suffered from outcome-

determinative number of illegal votes from mail-in ballots in 2020 and 2022.” Id.

¶152 (citing Busch and Parikh declarations) (Appx:61).

In a 2022 signature review of absentee ballots from the 2020 general election

in conjunction with the Arizona Senate’s review, approximately 16.3% of absentee

ballots had disqualifying signature mismatches, with 7.82% (18,022/230,339)

“egregious mismatches” and another 8.52% (19,631/230,339) likely mismatches. Id.

¶51 (Appx:16). The complaint included an exhibit of a sampling of over 5000

egregious mismatches such as the example below:

19
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

2020. Id. ¶52 (citing Attorney General’s report) (Appx:16).

In the 2022 general election, over 1.3 million ballots were cast through the

mail-in vote or placed in drop boxes in Maricopa. Plaintiff submitted sworn

declarations of three signature verification workers employed in Maricopa’s

signature verification and signature curing process during the 2022 general election.

Those three whistleblowers testified that 15-40 percent of the 2022 ballots had

disqualifying signature mismatches. Id. ¶54 (Appx:17-18). Further, “Maricopa

County Recorder … accepted a material number” of “early ballots for processing

and tabulation” notwithstanding that the “affidavit signature … did not match the

signature in the putative voter's ‘registration record.’” Id. ¶151 (Appx:61).

Specifically, Maricopa pushed through ballots previously rejected for signature

mismatches (e.g., by cycling the same ballots back through the signature-verification

20
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

convincing evidence that defendants intended their conduct to alter the

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

number of voters disenfranchised by the chaos on Election Day had to show

Plaintiff would have won the election but for the misconduct as opposed the

outcome of the election being “uncertain” in accordance with Findley v.

Sorenson, 35 Ariz. 265 (1929).

3. Whether the trial court erred in failing to consider claims of “illegal votes”

under A.R.S. §16-672(A)(4) pled in the Complaint at Counts II and IV.

4. Whether the trial court erred in dismissing Count III—which challenged

conduct on Election Day and beyond—on laches.

5. Whether the trial court erred in finding Counts V and VI either merely

cumulative or, alternatively, outside the election-contest statute.

STANDARD OF REVIEW

“Dismissal of a complaint under Rule 12(b)(6) is reviewed de novo,” Coleman

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

possible theory.” Id.

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.”

Id. (internal quotation marks omitted).

ARGUMENT

I. THE TRIAL COURT ERRED ON THE MERITS WITH RESPECT

TO TABULATOR CONFIGURATIONS (COUNT II) AND THE
CHAIN OF CUSTODY (COUNT IV).

The trial court found Counts II and IV to state a claim, Appx:96, but withheld

relief on the merits. Appx:695.

A. The trial court applied an incorrect standard of review.

As discussed in the following three sections, the trial court’s standard of

review erred in three respects requiring: clear-and-convincing evidence; defendants’

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

17,117-vote Hobbs victory to somewhere between a 2,000-vote Hobbs victory and

a 4,000-vote Lake victory as not clearly and convincingly showing an outcome-

changing effect. Appx:688-89.

Plaintiff showed by a preponderance of the evidence that the misconduct

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)

(discussing registration estimates based on census data and population projections).

1. The trial court’s “clear and convincing” standard does not

apply to all election-contest issues.

Although “the usual rule [is] that a plaintiff must establish each element of a

civil action by a preponderance of the evidence,” Aileen H. Char Life Interest v.

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

the proposition that the clear-and-convincing standard applies to all aspects of an

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)

(“Fraud must be established by clear and convincing evidence.”); Jenkins v. Hale,

218 Ariz. 561, 563 (2008) (requiring clear and convincing evidence to strike

signatures from nomination petitions as not being qualified electors), this Court has

never held that the clear-and-convincing standard applies to all election-contest

issues.

At the outset, having that standard automatically apply to all election-contest

issues would undermine the holdings that the standard applies in specific contexts.

Certainly, Oakes cannot control because that common-law decision from Arizona’s

territorial days is simply inapposite: “[E]lection contests are purely statutory,

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

a “clear and convincing” standard when specifically required by statute. Compare

McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 3 (1997) (“voter’s

registration is presumed to be proper, but the presumption may be rebutted by clear

and convincing evidence”) (citing A.R.S. §16-121.01) with A.R.S. §16-121.01

24
(presumption “may be rebutted only by clear and convincing evidence”). No statute

or decision of this Court5 imposes the clear-and-convincing standard here.

The trial court’s clear-and-convincing standard for election fraud under

Buzard v. Griffin is simply not the test for misconduct under the election-contest

statute: “a showing of fraud is not a necessary condition to invalidate absentee

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

to elevated standards of review. See id. (resolving questions of misconduct’s impact

on election in context of absentee voting).

To be sure, “the burden of proof is on contestant to show illegality,” Garcia

v. Sedillo, 70 Ariz. 192, 198 (1950), but a contestant’s showing of illegality can shift

the burden to Defendants:

[N]oncompliance does not necessarily make the ballots

inadmissible in evidence, but the burden of proof in such
case is cast upon the party offering to introduce them in
evidence to show that the ballots offered are the identical
ballots cast at the election, and that there is no reasonable

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”).

25
 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

requires for misconduct.

2. The trial court applied an incorrect definition of

“misconduct” under §16-672(A)(1).

The trial court also erred by conflating mere “misconduct” by an election

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.

Absent legislative intent for a “special or technical meaning,” the dictionary

definition applies. State ex rel. Frohmiller v. Hendrix, 59 Ariz. 184, 189 (1942).

“Misconduct” includes negligent maladministration as well as intentional acts. See,

e.g., In re Alexander, 232 Ariz. 1, 13-14 (2013) (distinguishing “intentional or

knowing misconduct [from] negligent misconduct”). In the election context, statuary

requirements are not merely advisory if the violation of a statutory protection

“affect[s] the result, or at least render it uncertain.” Findley, 35 Ariz. at 269. Indeed,

this Court subsequently narrowed Findley:

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

invalidate those illegal votes.

The question is whether the provisions advance constitutional goals “by

setting forth procedural safeguards to prevent undue influence, fraud, ballot

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.

3. The trial court’s required showing of an outcome-changing

impact misstates Arizona law.

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

because their impact cannot be quantified:

Their effect cannot be arithmetically computed. It would

be to encourage such things as part of the ordinary
machinery of political contests to hold that they shall avoid
only to the extent that their influence may be computed.
So wherever such practices or influences are shown to
have prevailed, not slightly and in individual cases, but
generally, so as to render the result uncertain, the entire
vote so affected must be rejected.

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

amount of illegal voting escalates, the likelihood of redressing the wrong

diminishes”) (interior quotation marks omitted). If these nonquantifiable impacts

28
“affect the result, or at least render it uncertain,” Findley, 35 Ariz. at 269, that

suffices to overturn the election.

B. The widespread BOD printer and tabulator failures on Election

Day resulted from Maricopa election officials’ misconduct.

The trial court dismissed Plaintiff’s cyber expert’s explosive findings

regarding misconfigured 19 inch ballot images printed on 20 inch paper stating:

“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

are clear error.

First, as discussed in Statement of Facts, Section B, the Election Day chaos

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

tabulators, as required by the EPM, these widespread printer/tabulator failures could

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

county’s deployable voting equipment must be tested”). In addition, Jarrett

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

ballots through a ballot-on-demand printer, the officer in charge of elections must

provide ballots generated though both printing methods”).

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

overwhelmingly voted for Plaintiff. Appx:440-43, 481-82 (Tr., 39:12-24, 40:20-

42:07, 81:21-82:13) (Baris).

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

his explosive findings. At a minimum, these misconfigured ballots violate the

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

31
three vote centers Jarrett now claims were discovered by the County through a

purported root cause analysis.

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

Election Day chaos and disenfranchisement of thousands of predominately

Republican voters who voted on Election Day. Second, Parikh testified that

Maricopa did not keep duplicate ballot combined with the original ballot. Thus, there

was no way to tell how the duplicate ballot was voted.

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

election “at least uncertain.” Findley, 35 Ariz. at 269.

C. The chain of custody constituted misconduct and the counting of

illegal votes.

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

officials discussed in Statement of Facts, Section C, showing they clearly violated

Arizona CoC laws set forth the EPM and A.R.S. §16-621(E).

Honey never admitted that Maricopa officials generated required CoC

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

EDDB ballots. Appx:276-77, 280 (Tr., 179:01-180:16, 183:1-5) (Honey). Second,

the Runbeck whistleblower corroborated Honey’s testimony in a sworn declaration

testifying that “no paperwork accompanied the ballots from the MCTEC on Election

Night.” Appx:75-78 (Marie Declaration); see also Appx:72-73 (White Declaration,

¶¶12-21) (EDDB ballots were delivered to MCTEC, were separated from the bins,

and were not counted).

As discussed in Statement of Facts, Section C, Maricopa violated clear CoC

rules by not counting EDDB ballots. As a consequence, nearly 300,000 EDDB

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

ballots as required. Now, there is a minimum 25,000 unexplained discrepancy

between the officially reported figures on November 9 and the reported figures on

33
November 10.

Maricopa’s violation of law constitutes misconduct under A.R.S. §16-

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.

II. THE TRIAL COURT ERRED BY DISMISSING COUNT III ON

LACHES.

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

laches does not bar Count III.

Plaintiff’s claim goes to the legality of the vote and—thus—to whether a

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

or types of ballots on an absolute or prorated basis,” Compl. at 61 (¶e) (Appx:67),

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.

Laches prevents a lawsuit from proceeding when unreasonable delay in

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,

199 Ariz. at 83.

“A laches defense, however, cannot stand on unreasonable conduct alone”

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

To be lawful and eligible for tabulation, the signature on the affidavit

accompanying an early ballot must match the signature featured on the elector’s

“registration record.” A.R.S. §16-550(A); Compl. ¶150 (Appx:60-61). When

confronted with signature mismatches, the cure process requires contacting the voter

to confirm the signature. EPM, at 68 (emphasis in original) (Appx:700); Compl.

¶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.

Maricopa’s authority is limited to those powers expressly or impliedly

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

the ballot-curing process constitutes misconduct, so that ballots without matching or

cured signatures are illegal votes. See A.R.S. §16-672(A)(1), (A)(4).

36
 1. The signature-verification count (Count III) is based on
whistleblowers’ testimony regarding 2022 general election
misconduct.

Plaintiff’s signature-verification claim is not based on whether Maricopa

evaded required ballot-curing procedures to accept a material number of unlawful

ballots where the signatures did not match in 2020. Compl. ¶¶ 51-54, 59, 151

(Appx:16-19, 61.). Plaintiff’s claim is with respect to Maricopa’s conduct in the

2022 general election.

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

or cure signatures in the 2022 general election:

One cannot be guilty of laches until his right ripens into

one entitled to protection. For only then can his torpor be
deemed inexcusable.

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 fact that Plaintiff introduced evidence of outcome-altering illegal votes in

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

reasonableness of delay under RESTATEMENT (SECOND) OF TORTS). Defendants’

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.

Maricopa’s egregious pandemic election in 2020 bolsters Plaintiff’s

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

violate an ordinance may be acquired by continued violations.” Acker v. Baldwin,

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).

B. The trial court’s errors on laches affected an outcome-

determinative number of votes.

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

invalidating 195,000 mail-in ballots—i.e., 15% of 1.3 million ballots—Plaintiff

would prevail.

Specifically, with Hobbs leading Lake 715,492 (55.10%) to 578,653 (44.56%)

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

November 8, 2022 general election were transmitted in envelopes containing an

affidavit signature that the Maricopa Recorder or his designee determined did not

match the signature in the putative voter's ‘registration record.’” Compl. ¶151

(Appx:61). As such, Count III states a claim for relief.

C. Vacating the certification of the 2022 general election and holding

a new election would neither disenfranchise Arizonans nor deny
Arizona a functioning government.

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,

Arizona would not suffer from uncertainty in government affairs.

III. THE TRIAL COURT ERRED IN DISMISSING THE

CONSTITUTIONAL CLAIMS.

The trial court dismissed Counts V (equal protection) and VI (due process) on

the alternate grounds that either those constitutional claims were merely cumulative

of the other election-contest counts or, alternatively, do not qualify as misconduct

prohibited by §16-672(A)(1). Appx:93-94. The trial court also questioned whether

Plaintiff adequately pleaded discrimination by governmental actors or an outcome-

altering impact of any such governmental action. Appx:93. Because Plaintiff

adequately pleaded her constitutional claims and unconstitutional acts qualify as

misconduct, the trial court erred in dismissing Counts V and VI.

A. The constitutional counts are sustainable against arbitrary

government action.

Before wading into statistics about Election-Day’s impact on Republicans,

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

arbitrary, irrational, or not reasonably related to furthering a legitimate state

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.

B. The trial court erred by dismissing equal protection (Count V) as

outside the election-contest statute.

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

chaotic Election-Day scenario by administering a chaos on Election Day, which

harms Republicans. See Compl. ¶89 (Republican-versus-Democrat disparity of

58.6% to 15.5%) (Appx:39-40); id. ¶165 (BOD printer problem burdened

Republican Election-Day voters more than 15 standard deviations more than it

burdened non-Republican Election-Day voters) (Appx:63). As Plaintiff’s “heat

map” (Appx:79) shows, the impact of Election-Day chaos targeted Republicans.

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

decision aids the County.

In Feeney, the passed-over female civil servant alleged that Massachusetts’

veteran-preference law for civil-service promotions and hiring constituted gender

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.

Here, however, even among the Republican-heavy cohort of Election-Day voters,

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).

If a non-discriminatory factor—such as a lawful preference for veterans in Feeney—

explains the wide disparity here, Defendants have the burden of explaining it.

Arlington Heights makes this clear. While holding there that “official action

will not be held unconstitutional solely because it results in a … disproportionate

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:

Sometimes a clear pattern, unexplainable on grounds other

than race, emerges from the effect of the state action even
when the governing legislation appears neutral on its face.
The evidentiary inquiry is then relatively easy.

Id. at 266 (footnotes and citations omitted). By deviating 15-plus standard deviations

from a random or nonpartisan distribution of Election-Day chaos, Maricopa’s

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

reject Defendants’ “stuff happens” defense if the “stuff” happened to Republicans at

starkly disproportionate rates.

C. The trial court erred by dismissing due process (Count VI)

outside the election-contest statute.

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

unfairness permeates an election, even if derived from apparently neutral action.”

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

VI on the pleadings. Moreover, reinstating any of Plaintiff’s other counts also

requires reinstating Count VI.

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

result of an “outcome-determinative” change in the results. Bonas, 265 F.3d at 74

(citing Griffin, 570 F.2d at 1080). More recently, in Marks, the U.S. Court of Appeals

for Third Circuit confronted the “massive” absentee-ballot fraud of approximately

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:

[T]he right of suffrage can be denied by a debasement or

dilution of the weight of a citizen's vote just as effectively
as by wholly prohibiting the free exercise of the franchise.

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,

the voting rights of the disproportionately Republican Election-Day cohort were

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

disproportionately impacted Republicans so egregiously, Compl. ¶165 (Appx:63),

that the impact itself qualifies as evidence of misconduct. Arlington Heights, 429

U.S. at 264-65 (quoted supra).

D. Holding unconstitutional elections qualifies as misconduct.

This Court should reject the trial court’s suggestion that violations of the

Fourteenth Amendment may not qualify as “misconduct” under §16-672(A)(1). In

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

would exempt unconstitutional elections from review under the election-contest

statute, leaving it to contestants to challenge the constitutionality of elections in

separate lawsuits under 42 U.S.C. §1983. Given the “short time period” for such

challenges, “[d]ue process requires that a party have an opportunity to be heard at a

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.

Dated: December 30, 2022 Respectfully submitted,

/s/ Bryan James Blehm

Kurt B. Olsen Bryan James Blehm, Ariz. Bar #023891
Olsen Law PC Blehm Law PLLC
1250 Connecticut Ave. NW, Ste. 700 10869 N. Scottsdale Rd., Suite 103-256
Washington, DC 20036 Scottsdale, Arizona 85254
Tel: 202-408-7025 Tel: (602) 752-6213
Email: [email protected] Email: [email protected]

Counsel for Plaintiff-Petitioner

46
 CERTIFICATE OF COMPLIANCE

Pursuant to Arizona Rules of Civil Appellate Procedure Rule 4, the

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

contains 10,434 words according to the word-count function of Microsoft Word.

Dated: December 30, 2022 Respectfully submitted,

/s/ Bryan James Blehm

Bryan James Blehm, Ariz. Bar #023891
Blehm Law PLLC
10869 N. Scottsdale Rd., Suite 103-256
Scottsdale, Arizona 85254
Tel: (602) 752-6213
Email: [email protected]

Counsel for Plaintiff-Petitioner

1
 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

Pursuant to Rule 4, Rules of Civil Appellate Practice, the undersigned certifies

that the foregoing Petition for Special Action was e-filed via AZTURBO COURT

on this 30th day of December, 2022 and served as follows:

E-FILED: AZTurboCourt:
Clerk of the Court
COURT OF APPEALS
1501 W. Washington Street, Room 203
Phoenix, Arizona 85007-3329

SERVED: Copies emailed to:

Honorable Peter Thompson

Maricopa County Superior Court
c/o Sarah Umphress
[email protected]

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

/s/ Bryan James Blehm