Lake v. Hobbs: Lake Reply To Fontes/Hobbs

ARIZONA SUPREME COURT
KARI LAKE, Court of Appeals

Plaintiff/Appellant, Division One
v. No. 1 CA-CV 22-0779
KATIE HOBBS, et al., No. 1 CA-SA 22-0237
(CONSOLIDATED)
Defendants/Appellees.
KARI LAKE, Maricopa County

Petitioner, Superior Court
No. CV2022-095403
v.
THE HONORABLE PETER
REPLY IN SUPPORT OF
THOMPSON, Judge of the SUPERIOR
PETITION FOR REVIEW OF A
COURT OF THE STATE OF
SPECIAL ACTION DECISION OF
ARIZONA, in and for the County of
THE COURT OF APPEALS
MARICOPA,
Respondent Judge,
ARCAP 23(a), ARPSA 8(b)
KATIE HOBBS, personally as
Contestee; ADRIAN FONTES, in his
official capacity as Secretary of State;
STEPHEN RICHER, in his official
capacity as Maricopa County Reporter,
et al.,
Real Parties in Interest.
Kurt B. Olsen (admitted pro hac vice) 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: 602-753-6213
Email: [email protected] Email: [email protected]
Counsel for Petitioner

INTRODUCTION
Petitioner Kari Lake respectfully submits this reply solely to correct
misstatements of the record made by Contestee/Governor Katie Hobbs, Secretary of
State Adrian Fontes, and Maricopa County (collectively “Respondents”) in their
respective Responses to Lake’s Petition for Review. In an effort to distract the Court
from the core issues, all three Responses attempt to miscast the Petition as primarily
raising new and contradictory disputes of fact concerning Maricopa’s violation of
Arizona chain-of-custody laws. It does not.
Specifically, each Respondent spends several pages trying to drag the Court
down a rabbit hole. Respondents accuse Lake of raising a new argument regarding
certain chain-of-custody forms and the 35,563 unaccounted for ballots injected into
the election at Runbeck. Disparaging Lake’s claim as not only “new” but also
“fantastical” and a “fabrication”, Respondents disingenuously argue that Lake cites
chain-of-custody forms in her Petition that she alleged in the trial court did not even
exist. Fontes further suggests the Court sanction Lake and her counsel. Respondents
are wrong. This issue is not new, was properly raised below, and is properly before
this Court.
ARGUMENT
Without identifying which specific chain-of-custody forms Lake previously
asserted did “not exist”, all Respondents misleadingly argue at length that Lake’s
1
Petition now “recasts her allegation and asserts that those non-existent records show
that over 30 thousand ballots were somehow wrongfully inserted into the results.”
Fontes Br. at 8 (citing App. 62, Compl. ¶ 112(a) (emphasis in Fontes Brief); accord
Hobbs Br. at 8; Maricopa at 6. Such assertions are categorically false.
First, the issue of ballots being injected at Runbeck has been an issue since
the inception of this case. A Runbeck whistleblower testified to that fact, and the
complaint alleged “[t]here is no way to know whether 50 ballots or 50,000 ballots
were unlawfully added into the election” at Runbeck. The insertion of ballots at
Runbeck is only made possible due to Maricopa’s failure to follow chain-of-custody
laws which require a precise count of drop box ballots at each stage they are handled.
Appx:064 (Compl. ¶114), Appx:350, 356 (Honey Tr. 193:08-14, 199:02-15). Proper
chain of custody would allow Maricopa to detect even one inserted ballot.
Second, to mislead this Court, Respondents conflate different chain-of-
custody forms, just as they did at the court of appeals. Contrary to Respondents’
arguments, Lake has always maintained that the Maricopa County Delivery Receipt
forms with “the precise count of the [drop box] ballots” leaving MCTEC to be
delivered to Runbeck do not exist for drop box ballots retrieved on Election Day
(“EDDB ballots”). Appx.336-37, 339-40 (Tr. 179:01-180:16, 182:20-183:16).
Indeed, Lake expressly argued below that the trial court erred when it incorrectly
found that Lake’s chain-of-custody witness testified the Maricopa County Delivery
2
Receipt forms exist when in fact the witness testified these forms did not exist for
EDDB ballots. Supp.Appx:9-11 (Excerpt of Lake Special Action Appeal). As Lake
also noted in her Petition, these Maricopa County Delivery Receipt forms cannot
exist because Maricopa admitted in its answering brief below that on Election Day
Maricopa did not count EDDB ballots delivered to MCTEC, in violation of Arizona
law, before transferring them to Runbeck. Appx:112, 124-25 (EPM, Ch. 2, §I.7.h.1,
Ch. 9, §VIII(B)(2)(g)). Instead, Maricopa simply opened the secure containers,
sorted the EDDB ballots, placed them in metal trays, and then transported them to
Runbeck to be counted there. Appx:150.
Third, Lake addressed the specific issue of the 35,563 unaccounted for ballots
injected at Runbeck on appeal. Just as Respondents do here, Hobbs attempted to
mislead the court of appeals in her answering brief below by conflating two distinct
sets of forms: (a) a defense trial exhibit, MC Inbound—Receipt of Delivery forms
which were filled out at Runbeck and documented the delivery of EDDB ballots
from MCTEC on Election Day, and (b) the Maricopa County Delivery Receipt forms
which, as discussed above, on Election Day, should have been (but were not)
completed at MCTEC with the precise number of EDDB ballots sent to Runbeck.
Supp.Appx:13-14 (Excerpt of Lake Reply).
In her reply brief below, Lake showed that the number ballots Runbeck
received on Election Day and recorded on the MC Inbound—Receipt of Delivery
3
forms cited by Hobbs, including all EDDB ballots received from MCTEC, totaled
263,379 ballots. Id. In her answering brief below, Hobbs also included a defense trial
exhibit, MC Incoming Scan Receipt forms, which showed that Runbeck scanned a
total of 298,942 ballots on Election Day—an unaccounted for discrepancy of 35,563
ballots. Id. (addressing Hobbs’ answering brief).
In her reply brief below, as in her Petition to this Court, Lake cited the same
excerpt of that trial exhibit of MC Inbound—Receipt of Delivery forms showing
how Runbeck received 35,563 fewer ballots on Election Day than it scanned and
sent back to MCTEC. Id. Notably, none of the Respondents disputed this issue below
by either requesting oral argument after Lake filed her reply, as was their right under
ARCAP 18(a), or by seeking leave to file a sur-reply.1
Fourth, contrary to Respondents’ claims, the deferential “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
1
Regardless of the proceedings below, and contrary to Respondents’ arguments,
because Lake unarguably raised not only the chain-of-custody issue, but also the
unlawful injection of ballots at Runbeck, she can raise related arguments in support
of the chain-of-custody issue on appeal. Yee v. City of Escondido, 503 U.S. 519, 534-
35 (1992) (distinguishing issues from arguments in support of issues); accord
Patterson v. Patterson, 2011 UT 68, ¶¶ 12-21, 266 P.3d 828, 831-34 (Sup.Ct.),
abrogated in part on other grounds, D.B. v. State, 2012 UT 65, ¶ 17 n.2, 289 P.3d
459, 464 (Sup.Ct.). Appellate courts have discretion to decide “what questions may
be taken up and resolved for the first time on appeal.” Singleton v. Wulff, 428 U.S.
106, 120-21 (1976); cf. Ariz. R. Evid. 201(d); Fed. R. Evid. 201(d).
4
is an error as to law”—as here where the trial court and court of appeals applied the
wrong standard of review. Ariz. Bd. of Regents v. Phx. Newspapers, 167 Ariz. 254,
257 (1991). Even the court of appeals acknowledged the wrong standard was applied
by the trial court with respect to whether “intentional misconduct” was required to
establish a claim under A.R.S. §16-672(a)(1). Appx:9 (Opinion ¶12); cf. Pet. at 8-12
(discussing trial court’s erroneous standards). In short, the chain-of-custody issue
regarding the 35,563 unaccounted for ballots injected into the election at Runbeck is
properly before the Court.
CONCLUSION
Respondents’ disingenuous arguments and tired calls for sanctions while
blatantly misstating the record illustrate the apparent arrogance of election officials
who, without restraint, unapologetically ignore clear and unambiguous statutory
requirements and evidence precisely why this Court should accept the Petition.
Dated: March 16, 2023 Respectfully submitted,
/s/ Bryan James Blehm

Kurt B. Olsen (admitted pro hac vice) 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: 602-753-6213
Email: [email protected] Email: [email protected]
Counsel for Petitioner

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ARIZONA SUPREME COURT

KARI LAKE, Court of Appeals

KARI LAKE, Maricopa County

Counsel for Petitioner

Petitioner Kari Lake respectfully submits this reply solely to correct

misstatements of the record made by Contestee/Governor Katie Hobbs, Secretary of

State Adrian Fontes, and Maricopa County (collectively “Respondents”) in their

raising new and contradictory disputes of fact concerning Maricopa’s violation of

Arizona chain-of-custody laws. It does not.

“fantastical” and a “fabrication”, Respondents disingenuously argue that Lake cites

Without identifying which specific chain-of-custody forms Lake previously

Hobbs Br. at 8; Maricopa at 6. Such assertions are categorically false.

complaint alleged “[t]here is no way to know whether 50 ballots or 50,000 ballots

Runbeck is only made possible due to Maricopa’s failure to follow chain-of-custody

Second, to mislead this Court, Respondents conflate different chain-of-

(“EDDB ballots”). Appx.336-37, 339-40 (Tr. 179:01-180:16, 182:20-183:16).

EDDB ballots. Supp.Appx:9-11 (Excerpt of Lake Special Action Appeal). As Lake

Ch. 9, §VIII(B)(2)(g)). Instead, Maricopa simply opened the secure containers,

Runbeck to be counted there. Appx:150.

injected at Runbeck on appeal. Just as Respondents do here, Hobbs attempted to

sets of forms: (a) a defense trial exhibit, MC Inbound—Receipt of Delivery forms

Supp.Appx:13-14 (Excerpt of Lake Reply).

received on Election Day and recorded on the MC Inbound—Receipt of Delivery

total of 298,942 ballots on Election Day—an unaccounted for discrepancy of 35,563

ballots. Id. (addressing Hobbs’ answering brief).

excerpt of that trial exhibit of MC Inbound—Receipt of Delivery forms showing

ARCAP 18(a), or by seeking leave to file a sur-reply.1

Fourth, contrary to Respondents’ claims, the deferential “unless clearly

(discussing trial court’s erroneous standards). In short, the chain-of-custody issue

properly before the Court.

Respondents’ disingenuous arguments and tired calls for sanctions while

who, without restraint, unapologetically ignore clear and unambiguous statutory

Dated: March 16, 2023 Respectfully submitted,

/s/ Bryan James Blehm

Counsel for Petitioner

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