MC Response To Petition To Transfer FINAL

SUPREME COURT OF ARIZONA
KARI LAKE, ARIZONA SUPREME COURT

NO. T-23-0005
Plaintiff/Appellant,
COURT OF APPEALS, DIVISION TWO
v. NO. 2CA-SA 2023-0144
KATIE HOBBS, et al.,
MARICOPA COUNTY SUPERIOR
Defendants/Appellees. COURT
No. CV2022-095403
MARICOPA COUNTY
DEFENDANTS-APPELLEES’
RESPONSE TO PLAINTIFF-
APPELLANT’S PETITION FOR
TRANSFER
RACHEL H. MITCHELL CIVIL SERVICES DIVISION

MARICOPA COUNTY ATTORNEY 225 West Madison Street
Thomas P. Liddy (Bar No. 019384) Phoenix, Arizona 85003
Joseph J. Branco (Bar No. 031474) Telephone: (602) 506-3411
Joseph E. La Rue (Bar No. 031348) MCAO Firm No. 00032000
Jack. L. O’Connor (Bar No. 030660)
Sean M. Moore (Bar No. 031621) Emily Craiger (Bar No. 021728)
Rosa Aguilar (Bar No. 037774) [email protected]
Deputy County Attorneys THE BURGESS LAW GROUP
[email protected] 3131 East Camelback Road, Suite 224
[email protected] Phoenix, Arizona 85016
[email protected] Telephone: (602) 806-2100
[email protected]
[email protected]
[email protected] Attorneys for Maricopa County
[email protected] Defendants-Appellees
Table of Contents
Table of Contents .......................................................................................................2

Table of Authorities ...................................................................................................3
Introduction ................................................................................................................4
Argument....................................................................................................................5
I. There is no ARCAP 19 Basis for Transfer............................................5
II. The “New Evidence” Cannot Alter the Outcome Below. .....................5
III. The Petition Misstates the Record and the Law. ...................................6
Conclusion .................................................................................................................9
2
Table of Authorities
Cases
Lake v. Hobbs, 254 Ariz. 570 (App. 2023) ................................................................4
Statutes
A.R.S. § 16-449..........................................................................................................8
A.R.S. § 16-452..........................................................................................................8
Rules
ARCAP 19(a) .........................................................................................................5, 9
3
Introduction
Kari Lake (“Lake”) lost the 2022 Arizona gubernatorial election. She also
lost a two-day trial on her election contest, [Under Advisement Ruling, Dec. 24,
2022], her appeal, Lake v. Hobbs, 254 Ariz. 570 (App. 2023), and a three-day trial
concerning a single issue that this Court remanded for consideration. [Under
Advisement Ruling, May 22, 2023.]
Following that loss, Lake appealed again on May 31, 2023. In July, Lake filed
a Petition to transfer her appeal to this Court, which denied that Petition. The Court
explained that a briefing schedule had been set by the Court of Appeals, Lake’s
opening brief was due to be filed in September, and “no good cause appears to
transfer the matter to this Court.” [No. T-23-0004-CV, Order (July 26, 2023).]
Now, after Lake’s appeal is fully briefed, Lake has again filed a Petition to
Transfer (the “Petition”). This Court denied Lake’s prior petition a few months ago
and the only development since then is the completion of briefing before Division
Two. Absolutely nothing has happened since the prior denial which would change
the result of this Petition. Although the Maricopa County Defendants-Appellees
have complete confidence in both this Court and the Court of Appeals to consider
Lake’s appeal, this Court should deny the Petition.
4
Argument
I. There is no ARCAP 19 Basis for Transfer.
Pursuant to ARCAP 19(a), this Court has discretion to transfer an appeal if
(1) the appeal requests that a Supreme Court decision be qualified or overruled, (2)
the appeal raises an issue about which there are conflicting appellate decisions, or
(3) “[o]ther extraordinary circumstances justify transfer.” None of these conditions
are present here. Lake does not assert that this appeal fits with either of the first two
conditions for transfer. And Lake’s only claimed “extraordinary circumstance[]” is
the flimsy contention that the trial court got the facts wrong. No “extraordinary
circumstance” justifies transfer where, as here, the matter is fully briefed before
Division Two.1 Because no basis to transfer exists, this Court should deny the
Petition.
II. The “New Evidence” Cannot Alter the Outcome Below.
The purported “new evidence” about ballot-on-demand (“BOD”) printer and
tabulator problems cannot change the result of Lake’s election contest. The Petition
alleges that “new evidence” establishes that BOD printer problems “could only
result from malware or remote access[,]” vote center tabulators “logged over 7,000
1
Lake’s Petition asserts transfer is warranted “based on the extraordinary new
evidence,” “Maricopa’s admissions in its answering brief filed in Division Two,”
and “this case’s statewide importance, and the urgency of remedying election
maladministration affecting the 2022 election and the upcoming 2024 election.”
[Pet. at 1.] None of those bases qualify an appeal for transfer.
5
rejections every 30 minutes” because of those problems, and 260 tabulators rejected
ballots during pre-election testing because of the BOD printer problems. [Pet. at 2-
4.] Even if the Petition’s spurious allegations were accurate—and, they are not—
the alleged BOD printer and tabulator problems did not affect the outcome of the
2022 election. At the first trial in December 2022, Lake’s witness, Parikh, testified
that all ballots unable to be read at vote centers could be “could be deposited by a
voter, duplicated by a bipartisan board onto a readable ballot, and – in the final
analysis – counted.” [Under Advisement Ruling, Dec. 24, 2022, at 6.] Parikh’s
testimony established that the Election Day issues “did not actually affect the results
of the election.” [Id.] Accordingly, this “new evidence” cannot alter the outcome
of Lake’s election contest.
III. The Petition Misstates the Record and the Law.
The Petition relies on demonstrably false factual allegations and
misrepresentations of the record. This is a recurring problem that this Court already
sanctioned, [Order, Dated May 4, 2023, Case No. CV-23-0046-PR, at 5], and the
trial court noted, [Under Advisement Ruling, May 15, 2023, at 6 (“The Court notes
that counsel’s representation of what the McGregor report would show is 180
degrees from what the report actually says”).]
For example, Lake’s attorneys allege that “at least 8,000 misconfigured ‘fit-
to-page’ ballots occurred at 127 vote centers on Election Day, the vast majority of
6
which were not duplicated[,]” citing Parikh’s Declaration,2 ¶¶ 44–49. [Pet. at 2–3.]
But those paragraphs do not say that the affected ballots were not duplicated, [Lake-
APPX 0089–0092], and Parikh’s testimony at trial was that they were duplicated and
counted, [Under Advisement Ruling, Dec. 24, 2022, at 6.]
Similarly, the Petition states that Parikh testified that problems experienced
by some BOD printers “could only result from malware or remote access.” [Pet. at
2.] Lake made this same argument to the trial court. [Rule 60 Motion at 15–16.]
Both times, Lake’s attorneys failed to inform the Court of countervailing testimony
provided by Lake’s other witness, Betencourt, that “the BOD printer failures were
largely the result of unforeseen mechanical failure.” [Under Advisement Ruling,
May 15, 2023, at 7.]
Lake’s attorneys assert that Maricopa County did not dispute that 260 vote
center tabulators “rejected ballots with ‘the same type of ‘Ballot Misread’ errors that
also occurred on Election Day’ ” during pre-election testing, citing the County’s
Answering Brief, page 40, as if this were some revelation. [Pet. at 4 (citing Lake-
APPX 0769).] Actually, on the very page Lake cited, the Answering Brief explained
that the test ballots included overvotes, blank ballots, and accessible voting ballots
that “produce the same type of ‘Ballot Misread’ errors that also occurred on Election
Day in connection with the BOD printer issue.” This test therefore did not
2
The Declaration begins on page 26 of the PDF.
7
demonstrate any issues with the tabulators, but instead shows that the tabulators were
correctly reading these ballots as errors.
Lake’s attorneys also falsely assert that Maricopa County did not conduct the
logic and accuracy testing required by A.R.S. § 16-449 on all of its tabulators, citing
Parikh’s Declaration, which claims that no tabulator was tested. [Pet. at 1, 5; see
Lake’s Appx 0071, ¶ 8(a).] First, that statute, which concerns the Secretary of
State’s logic and accuracy testing, doesn’t specify that “all” tabulators must be
tested, and the 2019 Elections Procedures Manual, which has the force of law under
A.R.S. § 16-452, specifies that the Secretary’s logic and accuracy testing must be
conducted on “selected equipment,” not all of it. 2019 EPM at 87. Second, the
record reveals that the Secretary’s logic and accuracy testing of Maricopa County’s
tabulators occurred on October 11, 2022, as required. [Ex. 1 to Parikh’s Decl.,
Secretary of State’s Logic & Accuracy Equipment Certificate (Lake-APPX 0094).]
Lake’s attorneys also assert that Maricopa County never tested all of its
tabulators that would be used on election day. [Pet. at 7.] But that is false. Lake’s
Appendix contains Scott Jarrett’s Declaration, in which he testified that the County
tested all of its tabulators on October 4 through 10, 2022, and installed the final
Election Program, which successfully passed the Secretary’s logic and accuracy
testing, on October 14 through 18. [Lake-APPX 0328–0332, ¶¶ 4–17.]
Additionally, Lake’s attorneys continue to cast aspersions at Scott Jarrett,
8
claiming that he “testified falsely.” [Pet. at 2, 6.] The record, however, demonstrates
the opposite. [See, e.g., Under Advisement Ruling, Dec. 24, 2022, at 5 (finding
Jarrett’s testimony credible); Under Advisement Ruling, May 15, 2023, at 6 (“Rather
than demonstrating that Mr. Jarrett lied, [Lake’s new evidence] actually supports his
contention that the machine error of the tabulators and ballot printers was a
mechanical failure”).]
Conclusion
The Petition is based on misrepresentations of the factual record and lacks any
basis whatsoever in ARCAP 19(a). This Court has already denied this request, and
absolutely nothing has materially changed since that denial. The Petition is
frivolous. This Court should deny the Petition.
RESPECTFULLY SUBMITTED this 17th day of November, 2023.
RACHEL H. MITCHELL
MARICOPA COUNTY ATTORNEY
By: /s/Thomas P. Liddy

Thomas P. Liddy
Joseph J. Branco
Joseph E. La Rue
Jack. L. O’Connor
Sean M. Moore
Rosa Aguilar
Deputy County Attorneys
THE BURGESS LAW GROUP
By: /s/Emily Craiger (with permission)
Attorneys for Maricopa County Defendants-Appellees

MC Response To Petition To Transfer FINAL

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SUPREME COURT OF ARIZONA

KARI LAKE, ARIZONA SUPREME COURT

RACHEL H. MITCHELL CIVIL SERVICES DIVISION

Table of Contents .......................................................................................................2

Advisement Ruling, May 22, 2023.]

the result of this Petition. Although the Maricopa County Defendants-Appellees

Lake’s appeal, this Court should deny the Petition.

I. There is no ARCAP 19 Basis for Transfer.

Pursuant to ARCAP 19(a), this Court has discretion to transfer an appeal if

(3) “[o]ther extraordinary circumstances justify transfer.” None of these conditions

conditions for transfer. And Lake’s only claimed “extraordinary circumstance[]” is

II. The “New Evidence” Cannot Alter the Outcome Below.

The purported “new evidence” about ballot-on-demand (“BOD”) printer and

of Lake’s election contest.

III. The Petition Misstates the Record and the Law.

The Petition relies on demonstrably false factual allegations and

degrees from what the report actually says”).]

counted, [Under Advisement Ruling, Dec. 24, 2022, at 6.]

largely the result of unforeseen mechanical failure.” [Under Advisement Ruling,

May 15, 2023, at 7.]

correctly reading these ballots as errors.

tabulators occurred on October 11, 2022, as required. [Ex. 1 to Parikh’s Decl.,

Secretary of State’s Logic & Accuracy Equipment Certificate (Lake-APPX 0094).]

testing, on October 14 through 18. [Lake-APPX 0328–0332, ¶¶ 4–17.]

Additionally, Lake’s attorneys continue to cast aspersions at Scott Jarrett,

frivolous. This Court should deny the Petition.

RESPECTFULLY SUBMITTED this 17th day of November, 2023.

By: /s/Thomas P. Liddy

THE BURGESS LAW GROUP

By: /s/Emily Craiger (with permission)

Attorneys for Maricopa County Defendants-Appellees

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