The state’s high court has given Kari Lake one last chance to prove that the results of the 2022 gubernatorial election should be overturned.
In an order late Wednesday, the justices tossed out virtually all the claims by the failed Republican candidate that there was misconduct in how the election was conducted. That includes her contentions that tabulators were purposely set to not read ballots cast at vote centers, that Maricopa County failed to maintain proper chain of custody on the ballots, and that her constitutional rights were violated.
The justices also said that Lake’s claim that there were 35,563 ballots added to the total count, something she raised for the first time in her appeal to the Supreme Court, is not supported by the record.
But Chief Justice Robert Brutinel said Lake should have had a chance to argue to the trial court that Maricopa County used improper procedures to verify the signatures on early ballots. That, Lake argued, allowed votes to be counted even though the signatures did not actually match the voter’s registration record as she contends.
Maricopa County Superior Court Judge Peter Thompson had dismissed that claim out of hand.
He said Lake was on notice for months before the election the procedures that the county was using. That including matching signatures on envelopes not only with voter registration records but also with other documents the county had on file, such as deeds and other documents.
More to the point, Thompson said she chose not to challenge it before the election. And that, the judge said, barred her claim as coming too late.
Brutinel said that decision was incorrect.
He said Lake, in filing suit, was challenging not the signature-verification policies themselves – something she had known about – but “the application of the policies” by the county. And Brutinel said there was no way Lake could have challenged them before the election.
But even if Lake can prove that the county was not applying the processes properly, that still doesn’t mean the Supreme Court will entertain her claim that either she should be declared the victor over Democrat Katie Hobbs or, at the very least, that the election should be rerun.
Brutinel said Lake first needs to prove that “votes were affected in sufficient numbers to alter the election.”
Even then, the chief justice said Lake can’t simply assert what he called “an untethered assertion of uncertainty” about the results. Instead, Brutinel said, she needs to show by a “competent mathematical basis” that the outcome of the race which showed Lake lost by 17,117 votes “would plausibly have been different.”
And there’s something else.
Brutinel said Thompson is free to again throw out Lake’s claim about the signature verification process if there is some legal reason – other than that she waited too long.
A separate lawsuit was filed earlier this month challenging the process used by all Arizona counties to verify signatures on early ballot envelopes. But that claim, unlike the one filed by Lake, is prospective only, seeking not to affect the 2022 race but future elections.
Lake, in a prepared statement, said she believes Wednesday’s ruling will give her a chance to prove that county officials violated procedures that “allowed for tens of thousands of illegal ballots to be approved and counted.”
“When we verify these allegations, there will be no doubt that this election was compromised and that its results fail to meet the standard of certainty as outlined in Arizona law,” she said.
There was no immediate response, either from attorneys for Hobbs or from those representing Maricopa County which also was a defendant in the lawsuit.