By Caitlin Sievers, Arizona Mirror
Republican U.S. Senate hopeful Kari Lake has lost yet another appeal in her effort to overturn the 2022 election for Arizona governor.
Lake lost that election to Democratic Gov. Katie Hobbs by more than 17,000 votes, but never conceded, claiming that malfeasance, incompetence or fraud on the part of Maricopa County led to her loss.
She’s been unsuccessfully fighting the loss in court ever since, but has lost at every turn, in the trial and appeals courts, as well as in front of the Arizona Supreme Court.
A three-judge panel for Arizona’s Division Two Court of Appeals affirmed the lower court’s rulings on June 11, in an opinion authored by presiding Judge Sean Brearcliffe.
In a hearing before the appeals court panel on May 2, Lake attorney Kurt Olsen focused on what he called “newly discovered evidence” that he claimed showed that Maricopa County didn’t conduct required logic and accuracy testing for its ballot tabulators and ballot-on-demand printers ahead of the 2022 election, leading to issues with those tabulators reading ballots on Election Day.
Maricopa County has repeatedly denied Lake’s allegations that it failed to perform logic and accuracy tests required by law.
The appeals court panel ruled that Lake’s evidence was not, in fact, discovered recently, making it impermissible. Instead, what happened is that the expert Lake hired to analyze the evidence didn’t have time to do so before the trial in May 2023.
The appellate court also agreed with trial court Judge Peter Thompson that Lake did not prove that any misconduct on the part of Maricopa County election officials or workers led to printer and tabulator problems on Election Day in 2022.
Brearcliffe wrote that the appeals court concurred with Thompson that Lake’s “allegation(s) of fraud leap[ed] over a substantial gap in the evidence presented.”
“We noted that Lake had ‘presented no evidence that voters whose ballots were unreadable by on-site tabulators were not able to vote,’ and only ‘sheer speculation’ that issues on election day discouraged ‘a substantial number of predominantly Lake voters’ from voting,” Brearcliffe wrote.
The appeals court also agreed with Thompson that Lake’s expert witness who testified that “‘a population equaling approximately 16% of the total election-day turnout across Maricopa County had been deprived of their right to vote, and that the deprivation derived from printer/tabulator issues’—had no reasonable basis for his claims of disenfranchisement.”
The purported expert based his claims on exit polling following the election, not on any concrete evidence.
Additionally, Brearcliffe concluded that Lake failed to prove allegations that Maricopa County Elections Director Scott Jarrett lied on the witness stand at trial. She and her attorneys claimed that Jarrett misled the court about a problem with ballot-on-demand printers, but Brearcliffe chalked that up to a misunderstanding between Jarrett and Lake’s lawyers.
The appeals court also agreed with Thompson in dismissing Lake’s assertion that 8,000 ballots cast on Election Day that were rejected by tabulators at polling sites were never counted, saying she had tried to “leap a gap in proof with unsupported bare assertions.”
Those ballots were not counted at the polling location, but were instead sent to the county’s elections headquarters, where they were tallied. Brearcliffe also pointed out that, even if Lake were correct that 8,000 ballots went uncounted, and all of them were cast for Lake, it wouldn’t change the outcome of the election in her favor.
“Here, in regards to Lake’s new evidence and what she purports it shows, the court found its impact lacking,” Brearcliffe wrote. “For example, the court concluded Lake’s characterization of the Maricopa BOD (ballot on demand printer) Report’s contents was inconsistent with what the report actually said.”
The report showed that all of the ballots rejected by tabulators were later counted.
“What Lake needed to do at trial was provide competent evidence that the ballots did not match the canvass in numbers that could have resulted in her election day victory,” Brearcliffe wrote. “She failed to do so.”
Again, the appeals court agreed with the trial court that Lake failed to prove her claims that Maricopa County did not perform voter signature verification on early ballots in 2022.
While Olsen argued that Thompson “ignored the testimony” of her expert witness and others regarding signature verification, the appeals court didn’t see it that way.
“Lake’s expert’s methodology was contradicted at trial by election officials put forward by Hobbs,” Brearcliffe wrote. “In the court’s ruling, it specifically weighed Lake’s evidence against testimony offered by election officials, and found that the election officials’ testimony―that meaningful verification had occurred―was more credible.”
Lake still has the option to appeal this case to the Arizona Supreme Court.
During the May 2 hearing before the appeals court, the judges had to repeatedly remind Olsen, a Washington, D.C., employment attorney, that the function of the appeals court is to determine if the trial judge made mistakes in interpreting and applying the law, not to decide the facts of the case.
In all of the previous proceedings in this case, dating back to December 2022, Lake was represented by both Olsen and Scottsdale divorce lawyer Bryan Blehm. However, Blehm is not listed on the opinion after a disciplinary panel on June 7 suspended his law license for 60 days for lying in filings to the Arizona Supreme Court in this case.
Olsen also faces discipline for making the same false statements, but because he is licensed to practice law in Maryland and not Arizona, the panel does not have the power to suspend his license.
The Arizona Supreme Court imposed $2,000 in sanctions on the lawyers last year for claiming that it was “an undisputed fact” that 35,000 fraudulent ballots were mixed in with legal ones on election night 2022 in Maricopa County.
This is not the only legal case in which Lake is mired. She has already legally admitted fault in a defamation suit brought last year by Maricopa County Recorder Stephen Richer, for repeatedly falsely accusing him of perpetrating election fraud in Maricopa County’s 2022 election.
A trial date to determine what damages Richer is owed has not been set, but a pre-trial conference is scheduled for Sept. 10.
Lake also recently attempted to revive another 2022 suit in which she and then-candidate for Secretary of State Mark Finchem tried to convince a court to ban Arizona’s most populous counties from using electronic ballot tabulators, claiming they were susceptible to hacking.
After the U.S. Supreme Court declined to take up the case in April, Lake and Finchem filed a motion on June 5 asking the United States Court of Appeals for the Ninth Circuit to reverse the trial court’s 2022 decision to dismiss the case. The court had not ruled on the motion as of June 12.
