1 Bryan James Blehm, Ariz. Bar No.

023891
Blehm Law PLLC
2
10869 N. Scottsdale Rd., Suite 103-256
3 Scottsdale, Arizona 85254
(602) 752-6213
4 [email protected]
5
OLSEN LAW, P.C.
6 Kurt Olsen, D.C. Bar No. 445279*
1250 Connecticut Ave., NW, Suite 700
7 Washington, DC 20036
8 (202) 408-7025
[email protected]
9 admitted pro hac vice
10 Attorneys for Contestant/Plaintiff
11
ARIZONA SUPERIOR COURT
12
MARICOPA COUNTY
13
KARI LAKE, ) No. CV2022-095403
14 )
Contestant/Plaintiff,
) PLAINTIFF KARI LAKE’S
15
v. ) NOTICE OF APPEAL
16 )
KATIE HOBBS, personally as Contestee; ) (Assigned to Hon. Peter Thompson)
17 ADRIAN FONTES in his official capacity as )
the Secretary of State; et al.,
18 )
Defendants. )
19 )
20
Plaintiff Kari Lake (“Plaintiff”) hereby provides her notice of appeal pursuant to Ariz. R.
21
Civ. App. P. 8, 9 as follows:
22
23 I. Caption of Case and Case Number
24 The special action is captioned as Kari Lake, Contestant/Plaintiff, versus Katie Hobbs,
25
personally as Contestee/Governor and in her then official capacity as Secretary of State (now
26
Adrian Fontes); Stephen Richer in his official capacity as Maricopa County Recorder; Bill Gates,
27
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 1 Clint Hickman, Jack Sellers, Thomas Galvin, and Steve Gallardo, in their official capacities as
2
members of the Maricopa County Board of Supervisors; Scott Jarrett, in his official capacity as
3
Maricopa County Director of Elections; and the Maricopa County Board of Supervisors,
4
5 Defendants.

6 The case number is No. CV2022-095403 in the Arizona Superior Court for Maricopa
7
County.
8
II. Parties Taking Appeal
9
Plaintiff Kari Lake takes this appeal.
10
11 III. Judgement or Portion of Judgment from Which the Parties are Appealing.
12 Plaintiff appeals the final judgment entered May 30, 2023 (Exhibit A), denying all
13
Plaintiff’s requested relief, and dismissing the case. Incorporated into the judgment from which
14
Plaintiff appeals also are:
15
16 (i) The Court’s Under Advisement Ruling dated May 22, 2023 (Exhibit B), denying

17 Plaintiff’s requested relief on Count III regarding Maricopa County’s alleged failure to
18
perform signature verification in accordance with the requirements of A.R.S. § 16-550(A)
19
with respect to an outcome determinative number of ballots;
20
21 (ii) The Court’s Under Advisement Ruling dated May 15, 2022 (Exhibit C), denying

22 Plaintiff’s Rule 60(b) motion for relief from judgment as to Counts II, V, and VI
23
concerning new evidence showing, inter alia, that Maricopa County knew before
24
November 8, 2022 that tabulators at nearly two thirds of Maricopa County vote centers
25
26 would reject significant numbers of ballots on Election Day due to the ballot on demand

27
-2-
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 1 (“BOD”) printers generating ballots that were misconfigured, defective, or otherwise
2
unreadable by the tabulators; and
3
(iii) All other orders and rulings in this matter.
4
5 IV. Court to Which the Party is Appealing

6 Plaintiff appeals to Division 1 of the Arizona Court of Appeals. Transfer may be sought
7 to the Arizona Supreme Court. In addition, Plaintiff may seek special action review by petition
8
to the Division 1 of the Arizona Court of Appeals or to the Arizona Supreme Court.
9
DATED this 31st day of May 2023.
10
11 /s/ Bryan James Blehm
Bryan James Blehm, Ariz. Bar No. 023891
12 Blehm Law PLLC
13 10869 N. Scottsdale Rd., Suite 103-256
Scottsdale, Arizona 85254
14 (602) 752-6213
[email protected]
15
16 OLSEN LAW, P.C.
Kurt Olsen, D.C. Bar No. 445279*
17 1250 Connecticut Ave., NW, Suite 700
18 Washington, DC 20036
(202) 408-7025
19 [email protected]
*to be admitted pro hac vice
20
21 Attorneys for Plaintiff-Contestant

22 ORIGINAL e-filed and served via electronic

means this 31st day of May 2023 upon:
23
24 Honorable Peter Thompson
Maricopa County Superior Court
25 c/o Sarah Umphress
26 [email protected]

27
-3-
28
 1
/s/ Bryan James Blehm
2
Bryan J. Blehm
3 ORIGINAL efiled and served via electronic
means this 31st day of May, 2023, upon:
4
Honorable Peter Thompson
5 Maricopa County Superior Court
c/o Sarah Umphress
6
[email protected]
7
Alexis E. Danneman
8 Austin Yost
Samantha J. Burke
9
Perkins Coie LLP
10 2901 North Central Avenue
Suite 2000
11 Phoenix, AZ 85012
12 [email protected]
[email protected]
13 [email protected]
Attorneys for Defendant Katie Hobbs
14
15 and

16 Abha Khanna*
ELIAS LAW GROUP LLP
17 1700 Seventh Avenue, Suite 2100
18 Seattle, WA 98101
[email protected]
19 Telephone: (206) 656-0177
20 and
21
22
23
24
25
26
27
-4-
28
 1 Lalitha D. Madduri*
Christina Ford*
2
Elena A. Rodriguez Armenta*
3 ELIAS LAW GROUP LLP
250 Massachusetts Ave NW, Suite 400
4 Washington, D.C. 20001
5 [email protected]
[email protected]
6 [email protected]
Attorneys for Defendant Katie Hobbs
7
8 and

9 Craig A. Morgan
SHERMAN & HOWARD, LLC
10 201 East Washington Street, Suite 800
11 Phoenix, Arizona 85004
[email protected]
12 Attorney for Defendant Secretary of State Adrian Fontes
13 and
14
Sambo Dul
15 STATES UNITED DEMOCRACY CENTER
8205 South Priest Drive, #10312
16 Tempe, Arizona 85284
17 [email protected]
Attorney for Defendant Secretary of State Adrian Fontes
18
and
19
20
21
22
23
24
25
26
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-5-
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 1 Thomas P. Liddy
Joseph La Rue
2
Joseph Branco
3 Karen Hartman-Tellez
Jack L. O’Connor
4 Sean M. Moore
5 Rosa Aguilar
Maricopa County Attorney’s Office
6 225 West Madison St.
Phoenix, AZ 85003
7
[email protected]
8 [email protected]
[email protected]
9 [email protected]
10 [email protected]
[email protected]
11 [email protected]
Attorneys for Maricopa County Defendants
12
13 and

14 Emily Craiger
The Burgess Law Group
15 3131 East Camelback Road, Suite 224
16 Phoenix, Arizona 85016
[email protected]
17 Attorneys for Maricopa County Defendants
18
19 /s/Bryan James Blehm
20 Bryan James Blehm
Counsel for Plaintiff-Contestant Kari Lake
21
22
23
24
25
26
27
-6-
28
EXHIBIT A
EXHIBIT B
 Clerk of the Superior Court
*** Filed ***
05/22/2023 6:45 PM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2022-095403 05/22/2023

CLERK OF THE COURT

HONORABLE PETER A. THOMPSON I. Ostrander
Deputy

KARI LAKE BRYAN JAMES BLEHM

v.

KATIE HOBBS, ET AL. ALEXIS E DANNEMAN

THOMAS PURCELL LIDDY

EMILY M CRAIGER
CRAIG A MORGAN
JUDGE THOMPSON

UNDER ADVISEMENT RULING

The Court has heard and considered the arguments and evidence presented at the hearing
on May 17-19, 2023, on Count III of Plaintiff Kari Lake’s Statement of Election Contest. The
Court rules as follows on this claim.

LEGAL STANDARD

Plaintiff brings a claim of misconduct under A.R.S. § 16-672(A)(1). She must prove, by
clear and convincing evidence, “misconduct on the part of election boards or any members thereof
in any of the counties of the state, or on the part of any officer making or participating in a canvass
for a state election.” Id. She must prove that this misconduct affected the result of the election.
Miller v. Picacho Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180 (1994). And she must do so
by “a competent mathematical basis . . . not simply an untethered assertion of uncertainty.” Lake
v. Hobbs, 525 P.3d 664, 668 (App. 2023).

Docket Code 926 Form V000A Page 1

 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/22/2023

As narrowed by Plaintiff at argument and in her response to the motion to dismiss, Plaintiff
brings a claim under Reyes v. Cuming, 191 Ariz. 91, 94 (App. 1997). The Court understands this
to be a purposeful concession: rather than trying to cast doubt on a specific number of ballots (a
herculean evidentiary endeavor in these circumstances), she attempts to prove that the signature
review process for Maricopa County was not conducted pursuant to A.R.S. § 16-550(A) or the
EPM. More to the point, she was obligated to prove that the process for submitting and processing
early ballots did not occur. To do so would prove misconduct pursuant to A.R.S. § 16-676(A)(1).
Whether this would require a setting aside of the election outright under A.R.S. § 16-676(B) or a
proportional reduction followed by a confirmation or setting aside under Grounds v. Lawe, 67
Ariz. 176 (1948), is unclear. In any event, crafting an appropriate remedy is unnecessary.

DISCUSSION

The evidence the Court received does not support Plaintiff’s remaining claim. First, Ms.
Onigkeit’s testimony makes abundantly clear that level one and level two signature review did
take place in some fashion. She expressed her concern that this review was done hastily and
possibly not as thoroughly as she would have liked – but it was done. Mr. Myers’s testimony
similarly revealed that he participated in both a level one review and curing process. Mr.
Valenzuela testified that four levels of signature verification took place: two levels of verification
per se and two levels of auditing. The result was the timely verification and or/curing of about 1.4
million voter signatures.

Mr. Valenzuela’s testimony, elicited by both parties, is most helpful to the Court, and the
most credible. This is not merely for reasons of honesty (the Court makes no finding of dishonesty
by any witness – and commends those signature reviewers who stepped forward to critique the
process as they understood it). While Ms. Onigkeit and Mr. Myers have ground level experience
with signature review, Mr. Valenzuela provided the Court with both a hands-on view based on the
1,600 signatures reviewed by him personally in November 2022 and a broad overview of the entire
process based upon his 33 years of experience.

As he testified, the human element of signature review consisted of 153 level one
reviewers, 43 level two reviewers, and two ongoing audits. This evidence is, in its own right, clear
indicia that the comparative process was undertaken in compliance with the statute, putting us
outside the scope of Reyes. 191 Ariz. at 92. There is clear and convincing evidence that the
elections process for the November 8, 2022, General Election did comply with A.R.S. § 16-550
and that there was no misconduct in the process to support a claim under A.R.S. § 16-672.

At trial, Plaintiff’s case attempted to overcome the barriers created by the bar to her
complaints about the process that could have been brought before trial but were not. See A.R.S. §§
16-552(D); 16-591. She conceded that she was not challenging signature matches for any
Docket Code 926 Form V000A Page 2
 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/22/2023

individual ballots by making a Reyes claim. Specifically, Plaintiff’s Response to the Motion to
Dismiss argues:

Maricopa violated A.R.S. § 16-550(A) and did not, and could not, perform
signature verification given the influx of 1.3 million ballots during the voting period
for the November 2022 General Election. The Complaint sufficiently alleges this
process was not followed by MCEC because in the 2022 election, Maricopa County
officials, instead of attempting to cure ballots, systematically pushed mismatched
ballots through for tabulation without following the required procedures.”

Plaintiff’s evidence and arguments do not clear the bar. Plaintiff’s strategy shifted shortly
thereafter to attempting to prove that time per signature verification per signature is deficient.
Plaintiff argues that 274,000 signatures (or so) were compared in less than two seconds. Plaintiff
then zeroes in on 70,000 1 – the number of ballots that she claims were given less than one second
of comparison. Plaintiff argues that this is so deficient for signature comparison that it amounts to
no process at all. 2 Accepting that argument would require the Court to re-write not only the EPM
but Arizona law to insert a minimum time for signature verification and specify the variables to be
considered in the process.

Plaintiff asks the Court to interpret the word “compare” in A.R.S. § 16-550(A) to require
the Court to engage in a substantive weighing of whether Maricopa County’s signature verification
process, as implemented, met some analytical baseline. But there are several problems with this.
First, no such baseline appears in Section 16-550. Not one second, not three seconds, and not six
seconds: no standard appears in the plain text of the statute. No reviewer is required by statute or
the EPM to spend any specific length of time on any particular signature. Second, the Court takes
seriously the directive of the Arizona Supreme Court concerning statutory interpretation: to
“effectuate the text if it is clear and unambiguous,” reading words in statutes in their context, and
giving “meaning to every provision so that none is rendered superfluous.” In re McLauchlan, 252
Ariz. 324, 325 ¶ 6 (2022) (citations omitted).

1
The Court notes that, even if the Court had a basis for disqualifying 70,000 ballots, under the
proportional reduction method prescribed by Grounds v. Lawe, given the mathematical
computation set forth in her Response to Defendants’ Motion to Dismiss, Plaintiff would not
prevail.
2
Plaintiff asserted in argument that the signature verification was the only safeguard against
fraudulent ballots being counted. The Court disagrees and takes notice of the processes employed
by Maricopa County to sanitize early voting lists, address verification, and voter name correlation
to ballot envelopes as Mr. Valenzuela testified.
Docket Code 926 Form V000A Page 3
 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/22/2023

Accordingly, the Court will not give weight to Lake’s definition of “compare” to the
exclusion of the rest of the statute, which is helpful revisiting here:

[O]n receipt of the envelope containing the early ballot and the ballot affidavit, the
county recorder . . . shall compare the signatures thereon with the signature of the
elector on the elector's registration record. If the signature is inconsistent with the
elector’s signature on the elector's registration record, the county recorder . . . shall
make reasonable efforts to contact the voter, advise the voter of the inconsistent
signature and allow the voter to correct or the county to confirm the inconsistent
signature. . . .

A.R.S. § 16-550(A). Put another way, the recorder or other official must make some
determination as to whether the signature is consistent or inconsistent with the voter’s record. The
Court finds that looking at signatures that, by and large, have consistent characteristics will require
only a cursory examination and thus take very little time. Mr. Valenzuela testified that a level one
signature reviewer need not even scroll to look at other writing exemplars (beyond the most recent
one provided) if the signatures are consistent in broad strokes.

That said, there is an even more important clause ahead:

If satisfied that the signatures correspond, the recorder or other officer in charge of
elections shall hold the envelope containing the early ballot and the completed
affidavit unopened in accordance with the rules of the secretary of state.

Id. The question after the comparison is whether the signatures are consistent to the
satisfaction of the recorder, or his designee. This, not the satisfaction of the Court, the satisfaction
of a challenger, or the satisfaction of any other reviewing authority is the determinative quality for
whether signature verification occurred. It would be a violation of the constitutional separation of
powers – see Ariz. Const. art. III – for this Court, after the recorder has made a comparison to
insert itself into the process and reweigh whether a signature is consistent or inconsistent.

Even if the Court assumes in the alternative that it must consider whether the comparison
was adequate, the Court finds that Mr. Valenzuela provided ample evidence that – objectively
speaking – a comparison between voter records and signatures was conducted in every instance
Plaintiff asked the Court to evaluate.

It bears noting that this case is based on completely different facts than in Reyes, where the
county recorder had done no signature verification whatsoever. See Reyes, 191 Ariz. at 93
(describing Yuma County Recorder’s failure as “complete non-compliance” with the statute).
Plaintiff may find fault with the process as applied to some number of ballots, but the Court finds
Docket Code 926 Form V000A Page 4
 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/22/2023

that the process of comparison did take place in compliance with the statute, defeating a Reyes
claim under misconduct.

While Plaintiff did not demonstrate any lack of compliance with statute or the EPM, she
did bring in a signature verification expert who testified what he believed to be necessary for
signature verification in his line of work. But there is no statutory or regulatory requirement that
a specific amount of time be applied to review any given signature at any level of review. Giving
all due weight to Mr. Speckin’s signature verification expertise, his analysis and preferred
methodology is not law, and a violation of law is what Plaintiff was required to demonstrate.
Further, exhibit 47, the chart created by others for Mr. Speckin, depicts his interpretation of data
derived from a public records request and was not admitted except as demonstrative to permit him
to opine generally.

Mr. Valenzuela testified that the final canvass was accurate. No clear and convincing
evidence, or even a preponderance of evidence, contradicts him.

The Court having weighed all the evidence, argument, and legal memoranda and having
assessed the credibility and demeanor of witnesses presenting testimony at trial, now enters the
following Findings of Fact and Conclusions of Law. Therefore:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

As to Count III – Signature Verification:

a. The Court DOES NOT find either clear and convincing evidence or a preponderance of
evidence of misconduct in violation of A.R.S. § 16-672(A)(1).

b. The Court DOES NOT find either clear and convincing evidence or a preponderance of
evidence that such misconduct was committed by “an officer making or participating in a
canvass” under A.R.S. § 16-672(A)(1).

c. The Court DOES NOT find either clear and convincing evidence or a preponderance of
evidence that such misconduct did in fact affect the result of the 2022 General Election by
a competent mathematical basis.

Therefore:

IT IS ORDERED: confirming the election of Katie Hobbs as Arizona Governor pursuant

to A.R.S. § 16-676(B).

Docket Code 926 Form V000A Page 5

 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/22/2023

IT IS FURTHER ORDERED: that no further matters remain pending, except for costs,
if any, sought by Defendants. In order that an expedited appeal might be taken, Defendants are
ordered to submit a proposed form of judgment with finality language pursuant to Arizona Rule
of Civil Procedure 56(c) by 5:00 p.m. Tuesday, May 23, 2023. Any objection to the proposed
form of judgment and/or statement of costs must be submitted by 5:00 p.m. Wednesday, May 24,
2023. The Court will then enter the judgment required by A.R.S. § 16-676 forthwith.

Docket Code 926 Form V000A Page 6

EXHIBIT C
 Clerk of the Superior Court
*** Filed ***
05/15/2023 7:30 PM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/15/2023

CLERK OF THE COURT

HONORABLE PETER A. THOMPSON I. Ostrander
Deputy

KARI LAKE BRYAN JAMES BLEHM

v.

KATIE HOBBS, ET AL.

CRAIG A MORGAN
THOMAS PURCELL LIDDY

JUDGE THOMPSON

UNDER ADVISEMENT RULING

The Court has considered the filings of the parties: Governor Katie Hobbs Renewed
Motion to Dismiss, the Maricopa County Defendants’ Memorandum of Law Supplementing Their
Motion to Dismiss, and Secretary of State Adrian Fontes’ Supplemental Memorandum in Support
of Motion to Dismiss, along with the associated response and replies. The Court has also
considered Plaintiff Kari Lake’s Motion for Relief from Judgment, along with the associated
responses and reply. The Court has considered the arguments of the parties at the hearing on May
12, 2023.

The Court considers each request for relief in turn.

BACKGROUND
This case was returned on remand from the Arizona Supreme Court. This Court’s dismissal
of Counts I, II, and IV – X were affirmed, and this Court’s dismissal of Count III on the ground of
laches was vacated and remanded. The mandate of the Arizona Supreme Court, as relevant here,
states:

Docket Code 926 Form V000A Page 1

 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/15/2023

It is further ordered remanding to the trial court to determine whether the claim that
Maricopa County failed to comply with A.R.S. § 16-550(A) fails to state a claim
pursuant to Ariz. R. Civ. P. 12(b)(6) for reasons other than laches, or, whether
Petitioner can prove her claim as alleged pursuant to A.R.S. § 16-672 and establish
that “votes [were] affected ‘in sufficient numbers to alter the outcome of the
election’” based on a “competent mathematical basis to conclude that the outcome
would plausibly have been different, not simply an untethered assertion of
uncertainty.

(alterations in original) (quoting Lake v. Hobbs, 525 P.3d 664, 668, ¶ 11 (App. 2023)). It is with
this mandate in mind that the Court proceeds.

I. Motions to Dismiss
This Court will grant a motion to dismiss based on a Plaintiff’s failure to state a claim upon
which relief can be granted when, as a matter of law, the Plaintiff is not “entitled to relief under
any interpretation of the facts susceptible of proof.” Coleman v. City of Mesa, 230 Ariz. 352, 356,
¶ 8 (2012). In determining whether a complaint states a claim, the Court must assume all well-
plead allegations are true and “indulge all reasonable inferences from those facts, but mere
conclusory statements are insufficient.” State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz.
127, 130, ¶ 7 (2020) (citation omitted).

A Plaintiff need only provide a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Ariz. R. Civ. P. 8. Arizona follows a notice pleading standard,
meaning that the opponent need only be given “fair notice of the nature and basis of the claim and
indicate generally the type of litigation involved.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417,
419, ¶ 6 (2008).

Defendants raise problems with Count III that broadly fall into three (loosely) defined
areas. First, Defendants challenge the form of the allegations. The Secretary raises the issue of
whether the verification of the Complaint was proper. This argument was waived by not being
raised on the initial motion to dismiss and by proceeding to trial in December. Michael Weller,
Inc. v. Aetna Cas. & Sur. Co., 126 Ariz. 323, 326 (App. 1980). After a full trial and appeals
process, Defendants cannot now raise the issue of a defective verification for the first time on
remand.

Similarly, the Governor argues that Lake fails to allege that any specific mail-in ballots
were illegally counted. This argument fails first because Arizona is a notice pleading state, as
noted above, and the Complaint generally alleges a violation of the EPM and A.R.S. § 16-550 by

Docket Code 926 Form V000A Page 2

 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/15/2023

failure to cure or reconcile signatures. In her Response to the Motion to Dismiss, Plaintiff concedes
that she is not contesting the signature verification process for specific ballots. Lake now clarifies
for the first time that, under the widest possible reading of Count III, she is contending that election
officials failed to comply with the EPM and A.R.S. § 16-550 by not performing ANY steps to
comply with level 2 or level 3 screening or notification of electors to cure ballots where level 1
screeners found signatures were inconsistent. Lake argues those ballots were counted in sufficient
numbers to affect the outcome of the election. While the wording of Count III does not state this
allegation clearly, it can be read broadly enough that Lake’s argument fits under notice pleading
requirements. The response and oral argument have further narrowed this claim sufficient for the
Defendants to be on notice as to what violation Lake is arguing.

The second area Defendants attack is the legal sufficiency of the allegations. Maricopa
County makes the compelling argument that Lake’s challenge to signatures on mail-in ballot
envelopes seeks relief beyond that which the legislature has provided. Simply put, the County
argues that because a party representative can challenge ballot signature reconciliation as it is
taking place, the legislature has provided an exclusive remedy for the challenge that Lake brings.
See A.R.S. § 16-552. It is true that where the legislature has provided for a right “and also provides
a complete and valid remedy for the right created the remedy thereby given is exclusive.” Valley
Drive-In Theatre Corp. v. Super. Ct. In and For Pima Cnty., 79 Ariz. 396, 400 (1955). The Court
agrees with the County that the legislature statutorily limited a party’s recourse for challenging
individual signatures for consistency – which would otherwise completely cripple the election
system. But this relief at the level of individual ballots does not preclude a claim that the County
Recorder failed entirely to perform ANY level 2 or level 3 signature verification on ballots where
level 1 screeners found signatures were not similar. See Reyes v. Cuming, 191 Ariz. 91 (App.
1997). This is in sharp contrast to an allegation that the Recorder or designee improperly exercised
his or her discretion within the policy.

Additionally, the Governor argues that it is now simply too late to litigate Count III because
Governor Hobbs has been in office for five months. But A.R.S. § 16-676 imposes no time limit
on when, assuming all other procedural requirements are timely met, the Court may grant relief.
Granted, the statute as written does not appear to take into consideration a fulsome appeals process
resulting in a trial on remand – but the Court must give effect to each word of the statute as written.
See McCaw v. Ariz. Snowbowl Resort, 254 Ariz. 221, 226, ¶ 16 (App. 2022). Subsection (C) states
simply that if the court determines “that a person other than the contestee has the highest number
of legal votes, the court shall declare that person elected” and further nullify the certificate of
election of the person whose office is contested. The Court sees no requirement that appeal and
remand take place within a certain time for Lake to be eligible for this relief, and cannot read such
a requirement into the statute so as to expand its provisions. City of Tempe v. Fleming, 168 Ariz.
454, 457 (App. 1991); see also Lake, 525 P.3d at 667, ¶ 5 (“We are not permitted to read into the
election contest statute what is not there.”) (quoting Grounds v. Lawe, 67 Ariz. 176, 187 (1948)).
Docket Code 926 Form V000A Page 3
 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2022-095403 05/15/2023

In this second area, Maricopa County argues that because Lake does not simultaneously
allege both misconduct and illegal vote grounds under Count III that she cannot prevail. See A.R.S.
§ 16-672(A)(1), (4). But this argument is not persuasive. If Maricopa County is right, any
challenger under Section 16-672 would be required to double-up and allege (A)(4) grounds
whenever they bring any challenge under (A)(1), (A)(3), or (A)(5) as these grounds rest on the
assumption that some number of ballots were illegally placed in or out of the correct column. The
Court reads the statute as providing five discrete reasons that a challenger may seek relief. It may
have been more prudent to allege more than one ground for each set of facts that Lake brings in
her complaint, but the Court will not dismiss the Count on the grounds that her failure to do so
leaves Defendants lacking notice as to what her claims are. Indeed, her complaint at Paragraph
151 specifically notes that “[t]o 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. This is sufficient to put Maricopa County on notice of Lake’s objections.

The third and last area focuses on the substance or completeness of the allegations. The
Secretary objects that Lake has not stated in her complaint exactly how many ballots were
improperly admitted. But Lake is not required to do so in her complaint: Arizona is a notice
pleading state, and the Court finds that while she must raise the nature of the violation of election
rules for which she seeks relief, she does not need to plead a precise number of ballots. Put another
way, Lake must prove a competent mathematical basis to win at trial, but she need not plead a
specific number of votes in her complaint under notice pleading. See Verduzco v. Amer. Valet, 240
Ariz. 221, 225, ¶ 9 (App. 2016) (“Under Arizona’s notice pleading rules, ‘it is not necessary to
allege the evidentiary details of plaintiff’s claim for relief.’”) (quoting Daniel J. McAuliffe &
Shirley J. McAuliffe, Arizona Civil Rules Handbook at 21 (2015 ed.)).

The Defendants also argue that these claims are at least in part based on reports and
allegations related to the 2020 election. This is an evidentiary argument for trial rather than a basis
to dismiss Plaintiff’s claim wholesale. Any expert opinions based on the 2020 election analysis
must be based upon adequate foundation for not only their reliability but their relevance to the
2022 election. Even where admitted at trial, such opinions would only be entitled to the weight
deemed appropriate based upon their foundation.

In her response and at oral argument, Lake conceded that she is not challenging the process
of signature review as to any specific ballot(s), whether any given signature matches a voter’s
record, or that the process was effective. She is instead alleging misconduct by the Maricopa
County Defendants through a wholesale failure at the “higher-tier signature verification process”
to reconcile non-conforming signatures, or to cure signatures pursuant to A.R.S. § 16-550. She
alleges that Maricopa County entirely failed to perform the signature matching required by statute.
As Lake put it in her response, she “brings a Reyes claim, not a McEwen claim. She challenges
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Maricopa’s failure to act, not its action on any particular ballot.” (citing McEwen v. Sainz, No. CV-
22-163 (Santa Cruz Super. Ct. Aug. 8, 2022)). Taking Lake’s concession, she has stated a claim.

As was said in this Court’s order of December 19, 2022, whether Maricopa County
complied with the EPM and statutes governing elections is a question of fact. Lake has narrowed
her claim to that complained of in Reyes, and she must demonstrate at trial pursuant to her
concessions that Maricopa County’s higher level signature reviewers conducted no signature
verification or curing and in so doing had systematically failed to materially comply with the law.
This is, of course, in addition to the requirement that she prove that this alleged complete failure
to conduct signature verification resulted in a change in the outcome of the gubernatorial election
proven by “competent mathematical basis.” All of this must be done by clear and convincing
evidence. Lake, 525 P.3d at 668, ¶ 10.

The renewed motions to dismiss as to Count III are denied.

II. Motion for Relief from Judgment

Lake moves for Rule 60 relief as to Counts II, V, and VI on grounds of newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to move for a
new trial under Rule 59(b)(1), fraud on the court, and the catch-all “any other reason justifying
relief.” Ariz. R. Civ. P. 60(b)(2), (3), (6).

To the extent that the civil rules can apply without contradiction to an election challenge,
they do apply. This includes Rule 60. The Court will not rehash arguments going back to the
motion to dismiss order. While, admittedly, the election challenge statutes do not show a great
deal of consideration for post-trial rules of civil procedure, had the legislature wanted to abrogate
or accelerate the rules for an election challenge so as to preclude Rule 60 relief they would have
done so. The Court finds the motion is timely.

However, the merits of the motion are another matter. The dismissed Count II alleged that
“[t]he [Ballot on Demand] printers involved in the tabulator problems . . . are not certified and
have vulnerabilities that render them susceptible to hacking . . . .” Lake attempts to rescue Count
II by arguing that evidence now shows that Maricopa County reinstalled software on memory cards
used in the ballot tabulators without performing logic and accuracy testing. Assuming that this
evidence could not have been discovered before trial, it goes to a completely different set of
election day processes than that alleged in Count II – suggesting that the tabulators were
maliciously configured to not read ballots is different in kind from alleging that the printers could
not write the ballots correctly. The time to amend a complaint is before the matter goes to trial,
not after. In fact, the law does not permit amendments of election contest complaints at any time
after the contest filing deadline has passed, even to conform to the evidence. See Kitt v. Holbert,

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30 Ariz. 397, 406 (1926) (holding “a statement of contest in an election contest may not be
amended, after the time prescribed by law for filing such contest has expired” to fix the failure to
allege the contestant was a proper elector).

While the difference between a tabulator-based claim and a printer-based claim may seem
like a subtle distinction, it is not. Count II was fully litigated at trial and this Court’s disposition
was affirmed by both the Court of Appeals and Arizona Supreme Court. This is not newly
discovered evidence that goes to the claim as presented to the Court in December and reviewed on
appeal, it is a wholly new claim, and therefore Count II remains unrevived.

Lake also takes issue with the testimony of Scott Jarrett, who testified that the voting center
difficulties faced on election day were minor in scope. Lake, needless to say, disagrees, and offers
additional evidence in an attempt to demonstrate fraud or misconduct. Lake took this same
position at trial and even recalled Scott Jarrett in her case in chief. But evidence that is merely
cumulative that would not have changed the result is not sufficient to revive a claim under Rule
60. Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 595, ¶ 17 (App. 2007). Nor is it
enough to disagree with a witness or find evidence contradicting a witness to prevail under Rule
60. Scienter – a knowing falsehood – is what is required to find fraud. See Est. of Page v.
Litzenburg, 177 Ariz. 84, 94 (App. 1993) (affirming Rule 60 grant on basis of “conspicuous
inference that [non-movant] engaged in knowing or deliberate misconduct”). Mere contradiction
is not enough to prevail on grounds of fraud or misrepresentation, and this is all Lake offers now.

The allegation of fraud also leaps over a substantial gap in the evidence presented. The
Court notes that counsel’s representation of what the McGregor report would show is 180 degrees
from what the report actually says. Rather than demonstrating that Mr. Jarrett lied, it actually
supports his contention that the machine error of the tabulators and ballot printers was a mechanical
failure not tied to malfeasance or even misfeasance. At trial in December 2022, Plaintiff presented
the purely technical evaluation of Clay Parikh which found the only possible cause of the
malfunctions on election day could be willful and intentional systemic manipulation to create the
errors encountered. However, those conclusions were undermined completely by the very next
witness at trial, David Betencourt. The testimony of Mr. Betencourt, who was called by Plaintiff,
was summarized previously by this Court:

“Mr. Betencourt testified that there were, in fact, multiple technical issues
experienced on election day. He testified that these were solved by means such as:
1) taking out toner and/or ink cartridges and shaking them, 2) cleaning the corona
wire, 3) letting the printers warm up, 4) cleaning the tabulators, and 5) adjusting
settings on the printer. It is of note that, apart from 5), none of these solutions
implicates the ballot in a manner suggesting intent. Mr. Betencourt testified that
each of these on-site actions were successful to varying degrees, with shaking the
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toner cartridge being the most effective. It is worth repeating that ballots that could
not be read by the tabulator immediately because of printer settings – or anything
else – could be deposited in Door 3 of the tabulator and counted later after
duplication by a bipartisan adjudication board.

Mr. Betencourt testified that, not only did he lack knowledge of any T-Tech (or
anyone else) engaging in intentional misconduct, but further testified that the T-
Techs he worked with diligently and expeditiously trouble-shot each problem as
they arose, and they did so in a frenetic Election Day environment. Plaintiff’s own
witness testified before this Court that the BOD printer failures were largely the
result of unforeseen mechanical failure.”

Interestingly, months later after extensive review, testing, and evaluation of the equipment
involved under secure conditions, the report by Former Arizona Supreme Court Chief Justice Ruth
McGregor came to the same conclusions. Plaintiff now seeks to allege fraud based upon the same
type of purely technical evaluations presented in the first trial. This is not evidence of fraud, but
additional evidence offered to support the view that error codes can prove intent and state of mind,
exclusive of all other theories. The Court is not required to accept that premise, especially on
remand after a full trial and appeal.

Ignoring Defendants’ view of the testimony and taking all inferences in favor of Plaintiff,
even if Lake may have demonstrated that Mr. Jarrett was mistaken on the first day of trial, that is
not sufficient for Rule 60 relief. Even Mr. Parikh conceded that ballots which were not read by
tabulators at the voting centers were transposed to new ballots and counted at Maricopa County’s
downtown central facility later.

Additionally, the Court notes that counsel’s representation in the Motion to the effect that
the Parikh Declaration supports a finding that 8,000 ballots “maliciously misconfigured to cause a
tabulator rejection, were not counted” is not supported by a Declaration that 8,000 ballots were
“affected” by an error. The oral arguments presented on May 12, 2023, clarified that error codes
do not correspond to votes not counted. Counsel cannot leap a gap in proof with unsupported bare
assertions.

Finally, the Court notes with respect to Lake’s request to reconsider dismissal of Counts V
and VI – pertaining to alleged equal protection and due process violations – the motion does not
grapple at all with the reason the Court dismissed those claims in its December 19, 2022, minute
entry. These counts are simply bootstrapped constitutional arguments “tak[ing] the verified
statement beyond the remedies provided by the election contest statute, which is impermissible.”
(citing Donaghey v. Att’y Gen., 120 Ariz. 93, 95 (1978)). The reply’s suggestion that the “issues”

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be revived independent of the “counts” does not remedy this issue. Reconsideration of them is not
warranted.

This is a claim which was fully litigated at trial and on appeal over seven months since the
November 8, 2022, election. The evidence presented falls far below what is needed to establish a
basis for fraud. It is important to remember that this is an election challenge and focuses on votes
affected which would change the outcome of the election. Plaintiff has not established a basis for
relitigating the previously adjudicated counts.

IT IS THEREFORE ORDERED denying Plaintiff’s Motion for Relief from Judgment.

IT IS FURTHER ORDERED reaffirming the trial dates set forth in this court’s May 8,
2023, minute entry setting the matter for trial on Count III.

IT IS FURTHER ORDERED denying the Motion to File Amicus Curae Brief submitted
by a third party and opposed by all parties to this litigation.

The Court notes the Amicus Brief is essentially a refiling of the Amicus Curae Briefs filed
at the Arizona Court of Appeal and Arizona Supreme Court. Those issues have been ruled upon
by those courts.

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