Kari Lake scored a significant legal victory on Monday when Maricopa County Superior Court Judge Peter Thompson ruled that two counts of her election contest against Secretary of State Katie Hobbs and Maricopa County Board of Supervisors will go to trial this week. The two day trial is expected to begin on Wednesday, and the judge’s ruling is expected by January 2, 2023, one day before the scheduled January 3 inauguration of Governor-elect Hobbs.
But the standard required to secure the legal remedy she seeks in her lawsuit – either a declaration that she, and not Democrat nominee Katie Hobbs, is the victor in the November 2022 Arizona gubernatorial election or an order that Maricopa County must redo the gubernatorial election – remains high.
Marc Elias, the Democrat attorney representing Katie Hobbs in the lawsuit, threw down the legal gauntlet on Twitter after the judge’s ruling was released late Monday.
For Lake to prevail she must show (1)"printer malfunctions were intentional, and directed to affect the results of the election, and that such actions did actually affect the outcome; (2)lack of chain of custody was "both intentional and did in fact result in a changed outcome." https://t.co/Xdm30OOWNI
— Marc E. Elias (@marceelias) December 20, 2022
Democratic attorney Marc Elias, whose legal team is representing Hobbs, framed the court decision as a victory, pointing out that most of the claims were dismissed and that a higher hurdle lies ahead in the trial. “Proving intentional wrongdoing and that it affected the outcome of the election will be impossible for Lake,” Elias tweeted.
Even if the court rules that defendants Hobbs and the Maricopa County Board of Supervisors engaged in wrongdoing on the two counts of the election contest that will be adjudicated in the trial – alteration of tabulation counts and ballot chain of custody – Lake’s attorneys will have to persuade the court that the wrongdoing altered the outcome of the election, other legal experts told The Arizona Sun Times.
They disagreed, however with the assertion by Elias that it will be “impossible for Lake” to prove “intentional wrongdoing.”
Demonstrating that the alleged wrongdoing affected the outcome of the election is the proper burden in “an election contest” but it is the wrong burden for determining whether an election was conducted properly, sources told The Sun Times.
In that instance, the burden should be on the election officials to explain their conduct and response to questions regarding their performance. Those election officials who work with private interests to run our elections have repeatedly demonstrated they are unwilling to answer reasonable questions posed by the public and even legislators.
“Kari Lake’s suit should give reason for all interested in transparent and inclusive elections to demand answers from Maricopa County election officials and also change state law. Maricopa county outsourced to private vendors core government functions such as curing ballots and managing ballot change of custody. As a result, Arizonans were kicked out of the counting room, and those with a special relationship to candidates and election officials were the only ones allowed in,” former Kansas Attorney General Phill Kline told The Sun Times.
“The left has been working to privatize election management for years and where they have succeeded those election offices operate in a partisan and often illegal manner. US elections today, are amongst the least transparent in the world due to the power wielded and money and ‘expertise’ provided by private interests,” Kline noted.
“The eventual court decision in Kari Lake’s lawsuit, even if in favor of Lake, will not fix this problem. It takes the legislature doing their job to fix this problem. Unfortunately, legislatures around the nation, thus far, have refused to do their job and fix these problems,” Kline concluded.
Earlier this month Hobbs, currently the Arizona Secretory of State, certified her own election as governor in the November 2022 election by a margin of 17,000 votes over GOP gubernatorial nominee Lake, despite calls from two former Arizona secretaries of state to recuse herself from the certification process.
On Tuesday, both parties in the lawsuit inspected random ballots under court approval. In addition, some Arizona activists warned that attorneys representing Hobbs might plan an emergency appeal of Judge Thompson’s ruling prior to Wednesday’s scheduled start date for the trial.
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Michael Patrick Leahy is the Editor-in-Chief of The Arizona Sun Times and The Star News Network.
Photo “Marc Elias” by Elias Law Group, “Katie Hobbs” is by Katie Hobbs, and “Kari Lake” is by Kari Lake.