ARIZONA SUPREME COURT

KARI LAKE, ARIZONA SUPREME COURT

Plaintiff/Appellant, No. T-23-0005
v.
KATIE HOBBS, et al., Court of Appeals Division Two
Defendants/Appellees. No. 2CA-CV23-0144

KARI LAKE,
Transferred from
Petitioner, Court of Appeals Division One
v. No. 1CA-CV23-0393
THE HONORABLE PETER
THOMPSON, Judge of the SUPERIOR Maricopa County Superior Court
COURT OF THE STATE OF No. CV2022-095403
ARIZONA, in and for the County of
MARICOPA,
Respondent Judge, REPLY IN SUPPORT OF
PETITION FOR TRANSFER
KATIE HOBBS, personally as
Contestee; ADRIAN FONTES, in his
official capacity as Secretary of State; ARCAP 19(a)
STEPHEN RICHER, in his official
capacity as Maricopa County Reporter,
et al.,
Real Parties in Interest.

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) 753-6213
Email: [email protected] Email: [email protected]

Counsel for Petitioner

 TABLE OF CONTENTS

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

Argument.................................................................................................................... 1

I. Maricopa ignores Lake’s express basis for transfer. ....................................... 1

II. The defects in Maricopa’s election are material.............................................. 2

III. Maricopa failed to perform L&A testing......................................................... 3

A. Maricopa misleadingly conflates the EPM’s requirements for

Secretary of State’s L&A testing with the EPM’s requirements
for County L&A testing. ....................................................................... 3

B. Maricopa attempts to mislead the Court by arguing its testing on

October 4-10, 2022 satisfied its statutory L&A testing
requirements. ......................................................................................... 4

C. Maricopa misleadingly conflates its test on October 4-10, 2022

with the “Ballot Misread” error codes appearing during its
unannounced testing on October 14, 17-18, 2022 and Election
Day. ....................................................................................................... 5

IV. Maricopa’s remaining arguments consist of misdirection and

falsehoods. ....................................................................................................... 6

Conclusion ................................................................................................................. 7

i
 INTRODUCTION

Petitioner Kari Lake respectfully submits this reply to correct misstatements

Maricopa County made in its response to Lake’s Petition For Transfer. Maricopa

ignores or misstates the central issues in the Petition to Transfer and misleads this

Court on tangential issues and non sequiturs. At bottom, Maricopa misleadingly

cites Arizona law mandating the Secretary of State (“SoS”) to conduct L&A testing

and ignores Arizona law mandating the county to conduct its own L&A testing.

There are certificates for each. Appx:0094. The two L&A tests are different under

Arizona law. By its own implicit and affirmative admissions in its Answering Brief

and in its Response, Maricopa did not conduct statutory L&A testing on “its Election

Day [vote-center] tabulators” in accordance with A.R.S. §16-449 and the EPM.

ARGUMENT

I. MARICOPA IGNORES LAKE’S EXPRESS BASIS FOR TRANSFER.

Maricopa argues “[a]bsolutely nothing has happened since the prior denial

which would change the result of this Petition,” Maricopa Resp. 4, and claims there

is no basis for transfer. Id. at 5. In so doing, Maricopa ignores that Lake based her

petition for transfer on Maricopa’s admissions in its Answering Brief filed on

October 25, 2023.

Specifically, Maricopa implicitly or affirmatively admitted it did not conduct

its county L&A testing on its 446 vote-center tabulators on October 11, 2022 (the

only announced day for statutory L&A testing) or after it replaced the memory cards

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on its 446 vote-center tabulators, which violated A.R.S. §16-449(A) and the EPM.

See Pet. 3-7; see also A.R.S. §16-449(B) (“[e]lectronic ballot tabulating systems

shall be tested for logic and accuracy … pursuant to the [EPM]…as prescribed by

section 16-452.”).

II. THE DEFECTS IN MARICOPA’S ELECTION ARE MATERIAL.

Maricopa next argues that Lake’s arguments are not material: “this ‘new

evidence’ cannot alter the outcome of Lake’s election contest.” Maricopa Resp. 6.

Far from concerning a mere 8,000 votes,1 Lake’s new evidence of Maricopa’s

admission is material in two respects.

First, Arizona law requires that “automatic tabulating equipment and

programs [be] tested to ascertain that the equipment and programs will correctly

count the votes cast for all offices and on all measures.” A.R.S. § 16-449(A)

(emphasis added); see also Appx:0808 (EPM at 86) (L&A test “is intended to

confirm” the accuracy of the vote “in the election management system (EMS)”). The

volume of ballots counted by Maricopa’s 446 vote-center tabulators which did not

go through mandatory L&A testing—namely, the entire fleet—was a material

number of votes.

1
Lake mentioned the 8,000 fit-to-page ballots only to argue Jarrett gave false
testimony that only 1,300 fit-to-page ballots existed leaving at least 6,700 ballots not
duplicated. Pet. at 2-3 citing Appx:0086 (Parikh Decl. ¶¶ 38-39).

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 Second, Maricopa’s failure to conduct L&A testing in accordance with A.R.S.

§ 16-449 and the EPM is also a criminal violation. A.R.S. § 16-452(C). Indeed,

Maricopa falsely certified it conducted statutory L&A testing. Given the purpose of

pre-election L&A testing is to ensure “that votes are attributed to the correct

candidates and ballot measures…that each candidate and ballot measure receives

the accurate number of votes” (Appx:0808, EPM at 86), Maricopa’s failure to L&A

test all 446 vote-center tabulators used on Election Day means there is no way to

know if the November 2022 general election results are accurate, and invalidates the

election under Hunt v. Campbell, 19 Ariz. 254, 265-66 (1917). See also Miller v.

Picacho Elementary School District No. 33, 179 Ariz. 178, 180 (1994).

III. MARICOPA FAILED TO PERFORM L&A TESTING

A. Maricopa misleadingly conflates the EPM’s requirements for

Secretary of State’s L&A testing with the EPM’s requirements for
County L&A testing.

Maricopa claims that “Lake’s attorneys also falsely assert that Maricopa

County did not conduct the logic and accuracy testing required by A.R.S. § 16-449

on all of its tabulators, citing Parikh’s Declaration, which claims that no tabulator

was tested.” Maricopa Resp. 8 (emphasis in original). Maricopa then claims that

A.R.S. § 16-449 “concerns the Secretary of State’s logic and accuracy testing,

doesn’t specify that ‘all’ tabulators must be tested, and the [EPM], which has the

force of law under A.R.S. § 16-452, specifies that the Secretary’s logic and accuracy

3
testing must be conducted on ‘selected equipment,’ not all of it.” Maricopa Resp. at

8. Maricopa is misleading the Court.

First, Lake cites Maricopa’s implicit and affirmative admissions in its

Answering Brief i.e., not Parikh’s testimony as the basis for her Petition. See Pet. at

3, 6-7. Second, Maricopa omits the fact that the EPM, mandated under A.R.S. § 16-

449(B), requires pre-election county L&A testing for “all of the county’s deployed

voting equipment”—as opposed to “selected voting equipment” for the SoS’s L&A

test that Maricopa misleading cites. Appx:0814, 816-17 (EPM at 92, 94-95)

(emphasis added). “[E]ach L&A test” must be noticed and “open to observation by

representatives of the political parties, candidates, the press, and the public.”

Appx:0808, 0810 (EPM at 86, 88).

B. Maricopa attempts to mislead the Court by arguing its testing on

October 4-10, 2022 satisfied its statutory L&A testing
requirements.

Maricopa argues “Lake’s attorneys also [falsely] assert that Maricopa never

tested all of its tabulators that would be used on election day” citing Jarrett’s

testimony that “the County tested all of its tabulators on October 4 through 10,

2022.” Maricopa Resp. at 8. Maricopa’s argument is misleading for at least three

reasons.

First, Maricopa’s argument ignores that Maricopa certified it conducted L&A

testing on October 11, 2022 in accordance with “AZ statute 16-449” (which includes

4
the EPM as mandated by A.R.S. §§ 16-449(B), 16-452). See Appx:0094. By

implicitly claiming its testing on October 4-10, 2022 satisfies its legal obligations,

Maricopa unwittingly admits that its “Certificate of Accuracy” certifying that

Maricopa’s L&A testing conducted on October 11, 2022 was in accordance with

“AZ Statute 16-449” is false. See Section I, supra; Pet. at 3, 5-7.

Second, Lake did not assert that Maricopa “never tested” its tabulators. Lake

asserted Maricopa “did not conduct statutorily required L&A testing on its 446 vote-

center tabulators used on Election Day” i.e., in accordance with the specific

requirements of A.R.S. §16-449(A) “and the EPM” (mandated by A.R.S. §§16-

449(B), 16-452).

Third, Jarrett admitted that the 446 tabulators Maricopa tested on October 4-

10, 2022 did not use the same election program as on Election Day. Appx:0329

(Jarrett Decl. ¶¶ 9-10 describing “reprogramming” on October 10). For that reason

alone, “testing” on October 4-10, 2022 is meaningless and could not constitute the

statutorily mandated L&A testing.

C. Maricopa misleadingly conflates its test on October 4-10, 2022

with the “Ballot Misread” error codes appearing during its
unannounced testing on October 14, 17-18, 2022 and Election Day.

Lastly, Maricopa argues that its unannounced testing on its 446 vote-center

tabulators on October 14, 17-18, 2022—after installing reformatted memory cards

containing the revised election program—involved “test ballots [that] included

5
overvotes, blank ballots, and accessible voting ballots that ‘produce[d] the same type

of ‘Ballot Misread’ errors that also occurred on Election Day in connection with the

BOD printer issue.’” Maricopa Resp. at 7-8. Thus, Maricopa claims these errors

were part of an intentional test. Maricopa is misleading the Court.

The testing Maricopa references occurred on October 4-10, 2022. It is not the

unannounced testing Maricopa performed on October 14, 17-18, 2022 that resulted

in the same error codes that arose on Election Day. Appx:0329 (Jarrett Decl. ¶ 7).

IV. MARICOPA’S REMAINING ARGUMENTS CONSIST OF

MISDIRECTION AND FALSEHOODS.

Maricopa gratuitously cites the trial court’s statement that Lake’s conclusions

as to the McGregor Report were 180 degrees from its conclusions. Maricopa Resp.

6. Maricopa moved for sanctions on this issue, which, after reviewing Lake’s

explanations why the court’s statement was in error, the trial court denied. Compare

Lake’s response to Maricopa’s motion for sanctions (Appx:0364-8) with trial court’s

UAR denying sanctions (Appx:0020).

Maricopa also argues that the trial court’s reliance on lay witness Bettencourt

in December rebuts Lake’s expert witness Parikh. Maricopa Resp. 7. Putting aside

that Maricopa’s argument is false for a host of reasons, including that Bettencourt is

6
not an expert like Parikh2, Maricopa’s argument is irrelevant. Lake’s Petition relies

on Maricopa’s implicit and affirmative admissions in its Answering Brief.

CONCLUSION

This Court should transfer and expeditiously hear this case. In addition, given

Maricopa’s repeated and deliberate mischaracterizations of the record and Arizona

law, Lake respectfully moves that the Court sanction Maricopa and award Lake her

costs associated with this brief.

Dated: November 20, 2023 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 Petitioner

2
See Appx:0368.

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 CERTIFICATE OF COMPLIANCE

Pursuant to Arizona Rules of Civil Appellate Procedure Rule 14(a)(5), the

undersigned counsel certifies that the Reply in Support of Petition for Transfer is

double spaced and uses a proportionately spaced typeface (i.e., 14-point Times New

Roman) and contains 1,388 words according to the word-count function of Microsoft

Word.

Dated: November 20, 2023 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) 753-6213
Email: [email protected]

Counsel for Petitioner