ARIZONA COURT OF APPEALS

DIVISION ONE

KARI LAKE, Court of Appeals

Plaintiff/Appellant, Division One
v. No. 1 CA-CV 22-0779
KATIE HOBBS, et al., No. 1 CA-SA 22-0237
(CONSOLIDATED)
Defendants/Appellees.
Maricopa County
KARI LAKE, Superior Court
No. CV2022-095403
Petitioner,
v.
THE HONORABLE PETER
THOMPSON, Judge of the SUPERIOR
COURT OF THE STATE OF
ARIZONA, in and for the County of
MARICOPA,
Respondent Judge,
KATIE HOBBS, personally as
Contestee and in her official capacity as
Secretary of State; STEPHEN RICHER,
in his official capacity as Maricopa
County Reporter, et al.,
Real Parties in Interest.

REPLY BRIEF OF APPELLANT-PETITIONER KARI LAKE

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 Appellant-Petitioner

 TABLE OF CONTENTS

Table of Authorities .................................................................................................. ii

Introduction ................................................................................................................1
Standard of Review ....................................................................................................4
I. The trial court applied the wrong standards under §16-672................................4
A. Defendants conflate clear-and-convincing evidence with the rebuttable
presumptions supporting elections. ...............................................................5
B. The preponderance-of-evidence standard applies both to resolve the
merits and to rebut any presumptions............................................................5
C. The presumptions supporting elections do not aid Defendants.....................7
1. Presuming Defendants’ good faith and honesty is both inapposite
and rebutted. ............................................................................................8
2. Presuming that returns are prima facie correct is rebutted. ....................8
3. Applying all reasonable presumptions in the election’s favor does
not save the chaotic 2022 election...........................................................9
D. The trial court applied the wrong standard to analyze misconduct...............9
1. The trial court erred in requiring intent to alter election results. ............9
a. Under Hunt, nonquantifiable election interference does not
require fraud. ...................................................................................10
b. Misconduct can occur without intent to affect results. ...................10
2. The trial court erred in requiring that misconduct actually affected
the election results. ................................................................................11
II. Defendants’ argument that the trial court did not err on the merits with
respect to Count II lacks merit...........................................................................12
A. Contrary to Defendants’ misleading arguments, Maricopa did not
conduct mandatory L&A testing. ................................................................12
B. Defendants’ arguments as to the severity of the tabulator ballot
rejections are demonstrably false or irrelevant............................................16
C. Defendants’ arguments downplaying Jarrett’s changing testimony
regarding 19 inch misconfigured ballots injected into the election on
Election Day are sophistry...........................................................................20

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 D. Baris’ testimony is credible and demonstrates voter disenfranchisement
sufficient to void the results in Maricopa County. ......................................22
1. Baris’ statistical evidence of suppressed voter turnout in Maricopa
is based on concrete data. ......................................................................23
2. Baris’ range of possible outcomes meets Lake’s burden under
established Arizona law to show that the election outcome was
affected or rendered uncertain...............................................................25
III. Maricopa’s admission that it did not count the ballots on Election Day “due
to the large volume of early ballots” is fatal on Count IV.................................27
IV. The trial court erred by dismissing Count III on laches. ...................................31
A. Laches does not apply to Count III for the 2022 election. ..........................31
B. Count III states a claim for illegal votes and misconduct. ..........................32
V. The trial court erred in dismissing the constitutional claims.............................32
A. Counts V and VI are within the election-contest statute. ............................33
B. Count V states an equal-protection claim....................................................35
C. Count VI states a due-process claim. ..........................................................36
Conclusion ...............................................................................................................37

TABLE OF AUTHORITIES

Cases
Abbey v. Green,
28 Ariz. 53 (1925)............................................................................................7
Ariz. Bd. of Regents v. Phx. Newspapers,
167 Ariz. 254 (1991) .......................................................................................4
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252 (1977).......................................................................................36
Armstrong v. Exceptional Child Care Ctr., Inc.,
575 U.S. 320 (2015)................................................................................. 34-35
Blessing v. Freestone,
520 U.S. 329 (1997).......................................................................................35

ii
Bonas v. Town of N. Smithfield,
265 F.3d 69 (1st Cir. 2001)............................................................................36
Buzard v. Griffin,
89 Ariz. 42 (1960)............................................................................................5
Caretto v. Ariz. DOT,
192 Ariz. 297 (App. 1998)...............................................................................4
Castaneda v. Partida,
430 U.S. 482 (1977).......................................................................................36
Chalpin v. Snyder,
220 Ariz. 413 (App. 2008).....................................................................4, 9, 11
Coleman v. City of Mesa,
230 Ariz. 352 (2012) .....................................................................................36
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006).......................................................................................35
DeElena v. Southern Pacific Co.,
121 Ariz. 563 (1979) .....................................................................................11
Flores v. Tucson Gas, Elec. Light & Power Co.,
54 Ariz. 460 (1939)..........................................................................................7
Gallardo v. State,
236 Ariz. 84 (2014)............................................................................ 25-26, 35
Golonka v. GMC,
204 Ariz. 575 (App. 2003)...............................................................................7
Griffin v. Buzard,
86 Ariz. 166 (1959)..............................................................................6, 31, 34
Huggins v. Superior Court,
163 Ariz. 348 (1990) .................................................................................9, 26
Hunt v. Campbell,
19 Ariz. 254 (1917)..........................................................................6, 8, 10, 26
Jenkins v. Hale,
218 Ariz. 561 (2008) ............................................................................. 5-6, 34
King v. Cty. Bd. of Educ.,
174 Ga. 685 (1932) ........................................................................................10
Marks v. Stinson,
19 F.3d 873 (3d Cir. 1994) ............................................................................12

iii
McDowell Mountain Ranch Land Coal. v. Vizcaino,
190 Ariz. 1 (1997)............................................................................................5
Miller v. Indus. Comm’n of Ariz.,
240 Ariz. 257 (App. 2016)...............................................................................4
Miller v. Picacho Elementary Sch. Dist. No. 33,
179 Ariz. 178 (1994) ............................................................. 1, 6, 8, 10-12, 26
Moore v. Page,
148 Ariz. 151 (App. 1986)...............................................................................9
Newman v. Sun Valley Crushing Co.,
173 Ariz. 456 (App. 1992).............................................................................11
Nicaise v. Sundaram,
245 Ariz. 566 (2019) .......................................................................................6
Orca Commc’ns Unlimited, LLC v. Noder,
236 Ariz. 180 (2014) .....................................................................................34
Parker v. City of Tucson,
233 Ariz. 422 (App. 2013)...............................................................................6
Patton v. Coates,
41 Ark. 111 (1883) ........................................................................................10
Pavlik v. Chinle Unified Sch. Dist. No. 24,
195 Ariz. 148 (App. 1999)...............................................................................8
Pedersen v. Bennett,
230 Ariz. 556, 559 (2012) ...............................................................................2
R.A.V. v. St. Paul,
505 U.S. 377 (1992).......................................................................................35
Reyes v. Cuming,
191 Ariz. 91 (App. 1998)...................................................3, 8-9, 11-12, 31-32
S. Tucson v. Bd. of Supervisors,
52 Ariz. 575 (1938)........................................................................................10
Silva v. Traver,
63 Ariz. 364 (1945)..........................................................................................7
State ex rel. Bullard v. Jones,
15 Ariz. 215 (1914)........................................................................................37
State v. Lapan,
249 Ariz. 540 (App. 2020).............................................................................11

iv
Ward v. Jackson,
No. CV-20-0343-AP/EL, 2020 WL 8617817 (Ariz. Dec. 8, 2020) ..............25
Washington v. Davis,
426 U.S. 229 (1976).......................................................................................36
Statutes
U.S. CONST. amend. XIV, §1, cl. 3 .................................................................... 34-35
U.S. CONST. amend. XIV, §1, cl. 4 .................................................................... 34-35
42 U.S.C. §1983.................................................................................................33, 35
A.R.S. §16-121.01......................................................................................................5
A.R.S. §16-449.............................................................................................12, 14, 16
A.R.S. §16-449(A) ...................................................................................................12
A.R.S. §16-452(C) ...................................................................................................12
A.R.S. §16-550(A) ...................................................................................................31
A.R.S. §16-552.........................................................................................................32
A.R.S. §16-552(D) ...................................................................................................32
A.R.S. §16-591.........................................................................................................32
A.R.S. §§16-671 to 16-678 ........................................................................................6
A.R.S. §16-672(A)(1) ....................................................................................9, 16, 33
A.R.S. §16-672(A)(4) ..............................................................................................33
A.R.S. §16-1006(A)(3) ............................................................................................34
A.R.S. §16-1010.......................................................................................................11
A.R.S. §23-364(B) .....................................................................................................7
A.R.S. §25-814(C) .....................................................................................................7
Rules, Regulations and Orders
Ariz.R.Evid.R. 201.....................................................................................................2
Ariz.R.Evid.R. 301.....................................................................................................7
Election Assistance Commission, “2005 Voluntary Voting System
Guidelines,” 71 Fed. Reg. 18,824 (Apr. 12, 2006)........................................15
Ariz. Sec’y of State, 2019 Elections Procedures Manual...........12-15, 16, 27-29, 32

v
Other Authorities
Maricopa County, Notice of Solicitation, Request for Proposal for: Elections
Tabulation System, at ¶ 2.1.1 (System Support Services) (04/04/2019) ......15
Voluntary Voting System Guidelines VVSG 2.0 Voluntary Voting System
Guidelines VVSG 2.0 (2021) ........................................................................19

vi
 INTRODUCTION

This is a straightforward case. Appellees-respondents Maricopa County and

Katie Hobbs (collectively, “Defendants”) make this case seem more complicated

than it is because the central issues in this appeal cannot be credibly disputed. To

distract the Court from this fact, Defendants ignore the trial court’s holdings,

misstate the law, misstate material facts, and—unable to get their stories straight—

contradict each other.

Contrary to Defendants’ argument, the trial court wrongly required appellant-

petitioner Kari Lake (“Plaintiff”) to prove by clear and convincing evidence that

Defendants “intended to affect the result of the 2022 General Election” and

actually succeeded in that effort. Lake.Appx:691. No Arizona case law supports that

standard. Instead, binding Arizona Supreme Court case law holds otherwise—“a

showing of fraud is not a necessary condition” in an election contest. Miller v.

Picacho Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180 (1994). In their briefs,

Defendants ignore this aspect of the trial court’s holding.

With respect to Maricopa’s failure to conduct mandatory logic and accuracy

testing (“L&A testing”) on “all of the county’s deployable voting equipment” prior

to Election Day, Defendants misleadingly conflate “stress testing” with Arizona’s

statutorily mandated L&A testing. Stress testing is not found in Arizona law and

does not ensure that all ballot styles printed from all vote center ballot on demand

1
(“BOD”) printers can be scanned by all vote center tabulators. L&A does. As a

consequence of Maricopa’s violation of law, tens of thousands of misconfigured or

faulty BOD printed ballots were generated in at least 132 of Maricopa County’s 223

vote centers—causing tens of thousands of tabulator rejections and massive

disruptions on Election Day. Thousands of Republican voters were disenfranchised

by Maricopa’s failure to follow the law, thereby rendering the election’s outcome,

at least, uncertain.

Indeed, just yesterday, the Arizona Senate Committee on Elections was

presented evidence from Maricopa’s tabulator system log files showing that on

Election Day, Maricopa’s vote center tabulators rejected over 7,000 ballots every

thirty minutes beginning almost immediately after the vote centers opened at 6:00

am and continuing past 8:00 pm—totaling over 217,000 rejected ballot insertions on

a day when approximately 248,000 votes were cast. Contrary to Defendants’ claims

of “hiccups,” the tabulator ballot rejections were massive, widespread and lasted all

day. Lake requests that the Court take judicial notice of this committee meeting and

the information therein because it shows the importance of these developing issues

that relate directly to the claims in this case.1

1
See https://www.azleg.gov/videoplayer/?eventID=2023011091 at 2:00:30,
2:13:20-2:14:37 (last visited Jan. 24, 2023). Publicly available records on the
Legislature’s website are judicially noticeable. Ariz.R.Evid.R. 201; Pedersen v.
Bennett, 230 Ariz. 556, 559, ¶15 (2012).

2
 With respect to Maricopa’s violations of Arizona chain-of-custody laws,

Maricopa admits that on Election Day it did not count the ballots at MCTEC as

Arizona law mandates “due to the large volume of early ballots.” Maricopa Br. 20.

Instead, Maricopa simply unpacked the ballots and estimated their number before

sending them to Runbeck. No such exception exists in Arizona law. The unexplained

increase of over 25,000 ballots in the reported totals between November 9 and 10,

far exceeding the 17,117 margin of votes between Hobbs and Lake, is a direct

manifestation of Maricopa’s violation.

Lastly, for the claims dismissed on the pleadings, Defendants ignore the

specific allegations of those claims. For Count III (signature verification),

Defendants theorize that Lake intended to challenge signature-verification policies,

Hobbs Br. 35, but the complaint plainly alleges that Maricopa did not follow the

policies, which is actionable. Reyes v. Cuming, 191 Ariz. 91, 94 (App. 1998).

Similarly, on Counts V (equal protection) and VI (due process), Defendants fail to

acknowledge that Lake alleges both that the election chaos targeted Republicans not

only because they favor Election-Day voting but also—among the cohort of

Election-Day voters—affected Republicans to a statistically anomalous degree.

Hobbs Br. 40-43. By ignoring this targeted effect—not explainable by chance, and

Defendant’s burden to explain—Defendants offer no justification for the Court’s

sidestepping the constitutional issues as either merely cumulative or wholly outside

3
the election-contest statute.

STANDARD OF REVIEW

“Failure to respond in an answering brief to a debatable issue constitutes

confession of error.” Chalpin v. Snyder, 220 Ariz. 413, 423 n.7, ¶40 (App. 2008);

Caretto v. Ariz. DOT, 192 Ariz. 297, 303 (App. 1998). Citing Miller v. Indus.

Comm’n of Ariz., 240 Ariz. 257, 259, ¶ 9 (App. 2016), Hobbs argues that “contrary

to Lake’s suggestion, this Court must defer to the trial court’s determination of

disputed facts.” Hobbs Br. 15. That is not what Miller held:

The applicability of preclusion … is a mixed question of fact and law;

accordingly, we apply a deferential standard of review to the
determination of disputed facts supported by reasonable evidence, and
apply an independent standard of review to the ultimate determination
of whether these facts trigger preclusion.

Miller, 240 Ariz. at 259, ¶9. This Court’s Miller decision did not—and could not—

overrule the Arizona Supreme Court’s holding that the deferential “unless clearly

erroneous doctrine” “does not apply … to findings of fact that are induced by an

erroneous view of the law nor to findings that combine both fact and law when there

is an error as to law.” Opening Br. at 22 (quoting Ariz. Bd. of Regents v. Phx.

Newspapers, 167 Ariz. 254, 257 (1991)).

I. THE TRIAL COURT APPLIED THE WRONG STANDARDS UNDER

§16-672.

By requiring clear-and-convincing evidence of election officials’ intent to

affect election results, the trial court used the wrong standard for “misconduct.” At

4
a minimum, if this Court cannot reach the merits to reverse, that error requires

vacating the trial court and remanding for further review under the correct legal

standard.

A. Defendants conflate clear-and-convincing evidence with the

rebuttable presumptions supporting elections.

Hobbs argues that Lake’s proposed standard for evaluating misconduct “bears

no resemblance to the election contest standard Arizona courts use” and “runs

counter to Arizona’s longstanding presumption in favor of the validity of elections.”

Hobbs Br. 17 (emphasis in original). This argument conflates applicable evidentiary

standards and presumptions, as shown below.

B. The preponderance-of-evidence standard applies both to resolve

the merits and to rebut any presumptions.

Although Hobbs demands election decisions applying a preponderance-of-

evidence standard, id., the question is precisely the opposite: what election-contest

decisions apply the clear-and-convincing standard absent fraud or statutes expressly

adopting the clear-and-convincing standard? Three points bear emphasis:

First, election decisions apply the clear-and-convincing evidence only in

specialized circumstances (e.g., for fraud or where statutes set that standard).

Opening Br. 23-25; Hunt v. Campbell, 19 Ariz. 254, 268 (1917) (fraud); Buzard v.

Griffin, 89 Ariz. 42, 50 (1960) (same); McDowell Mountain Ranch Land Coal. v.

Vizcaino, 190 Ariz. 1, 3 (1997) (A.R.S. §16-121.01); Jenkins v. Hale, 218 Ariz. 561,

5
566 (2008) (same). Election contests do not require proof of fraud, Miller, 179 Ariz.

at 180; Griffin v. Buzard, 86 Ariz. 166, 169-70 (1959) (“election contest is not a

criminal action … and the high degree of proof required to convict is not essential”),

so the first set of decisions is inapposite to non-fraud claims. The election-contest

statute is silent on evidentiary standards, see A.R.S. §§16-671 to 16-678, so the

second set of decisions is inapposite to the election-contest statute.

Second, Division Two of this Court recently reserved the question of which

evidentiary standard applies to election cases, absent statutes setting a standard.

Parker v. City of Tucson, 233 Ariz. 422, 436 n.14 (App. 2013). Contrary to Hobbs’

claims, the issue is not settled.

Third, the standard rule in civil cases—made clear by statutes occasionally

adopting clear-and-convincing standards for discrete election-law issues—is that a

preponderance-of-evidence standard applies unless otherwise stated. See Opening

Br. 23. Hobbs’ clear-and-convincing exceptions prove the preponderance-of-

evidence rule. If a clear-and-convincing standard applied to all election contexts, the

Legislature would not have expressly enacted that standard for some election

contexts:

A cardinal principle of statutory interpretation is to give meaning, if

possible, to every word and provision so that no word or provision is
rendered superfluous.

Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶11 (2019). Defendants’ view of the law

6
would render the occasional targeted provisions wholly superfluous.

The same evidentiary principles apply to presumptions. When the Legislature

wants to adopt clear-and-convincing thresholds for its presumptions, it does so:

“Any presumption under this section shall be rebutted by clear and convincing

evidence.” A.R.S. §§25-814(C), 23-364(B). Absent a statute or rule, default

principles apply to presumptions. Ariz.R.Evid.R. 301. In Arizona, nonstatutory

presumptions are not themselves evidence. Flores v. Tucson Gas, Elec. Light &

Power Co., 54 Ariz. 460, 463-66 (1939). “Whenever evidence contradicting a legal

presumption is introduced the presumption vanishes.” Silva v. Traver, 63 Ariz. 364,

368 (1945); Golonka v. GMC, 204 Ariz. 575, 589-90, ¶48 (App. 2003) (discussing

Arizona’s “bursting bubble” treatment of presumptions).

Finally, the preponderance-of-evidence test applies to quo warranto actions

to remove officeholders. Abbey v. Green, 28 Ariz. 53, 60 (1925). It would be strange

to apply less-strict review to removing officers than to installing them. In short,

default preponderance-of-evidence standards apply to election contests absent fraud

or statutes that expressly adopt different standards.

C. The presumptions supporting elections do not aid Defendants.

Hobbs invokes the presumptions favoring elections. Those presumptions do

not support Defendants here.

7
 1. Presuming Defendants’ good faith and honesty is both
inapposite and rebutted.

Because misconduct does not require fraud, Miller, 179 Ariz. at 180,

Defendants’ honesty is irrelevant, but Lake has shown the sort of bias and dishonesty

that rebuts this presumption. Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz.

148, 154, ¶24 (App. 1999) (presumption of decisionmaker’s “honesty and integrity”

rebutted by actual bias). First, the trial revealed that Maricopa knew about defects in

its equipment over three election cycles, Lake.Appx:618 (Tr. 217:06-13), and neither

fixed nor reported the issue. See also Lake.Appx:54-55 (¶124 & n.22) (Maricopa

withheld election evidence from a Senate subpoena); Appx:152-53 (Maricopa

dissembling about stress testing versus L&A testing). These pieces of evidence rebut

the presumption of Defendants’ honesty and good faith, to the extent that the

presumption is relevant.

2. Presuming that returns are prima facie correct is rebutted.

Although courts presume election returns are prima facie correct, Hunt, 19

Ariz. at 268, that presumption derives from the good-faith-and-honesty presumption.

Id. The presumption is rebutted here by the rebuttal of that prior presumption. Garcia

v. Sedillo, 70 Ariz. 192, 200 (1950) (no presumption of prima facie correctness with

presumption of good faith and honesty); cf. Reyes, 191 Ariz. at 94 (“finding that

there was no evidence that any ballots were cast by persons other than registered

voters is irrelevant”).

8
 3. Applying all reasonable presumptions in the election’s favor
does not save the chaotic 2022 election.

Although courts must entertain “all reasonable presumptions” on an election’s

validity, Moore v. Page, 148 Ariz. 151, 159 (App. 1986), overruled in part on other

grounds, Huggins v. Superior Court, 163 Ariz. 348, 350 n.1 (1990), they need not—

indeed, cannot—entertain unreasonable presumptions. Finding substantial

compliance in the face of large-scale noncompliance with election laws such as those

at issue here per se abuses discretion. Reyes, 191 Ariz. at 94 (“conclusion not

supported by the facts is considered an abuse of discretion”) (interior quotations

omitted). As with the second presumption, moreover, Lake’s rebuttal of the good-

faith presumption voids this catch-all presumption.

D. The trial court applied the wrong standard to analyze misconduct.

The trial court improperly defined “misconduct” under §16-672(A)(1) by

requiring not only that covered election officials intended to affect the election

results but also that their actions actually affected the election results.

Lake.Appx:684.

1. The trial court erred in requiring intent to alter election

results.

Other than equating Plaintiff’s claims with fraud, Hobbs Br. 18, Defendants

confess the trial court’s error by failing to defend its equation of misconduct with

intending to affect election results. Chalpin, 220 Ariz. at 423 n.7, ¶40.

9
 a. Under Hunt, nonquantifiable election interference
does not require fraud.

Under Hunt—and decisions based on the same authority—election

interference “where it is found impossible to compute the wrong” requires striking

the flawed results. Hunt, 19 Ariz. at 266; King v. Cty. Bd. of Educ., 174 Ga. 685, 689

(1932) (“‘when the proceedings are so tarnished by fraudulent, negligent, or

improper conduct on the part of the officer that the result of the election is rendered

unreliable, the entire returns will be rejected’”) (quoting Paine on Elections, 500,

§596). Maricopa’s chaotic 2022 election fits that bill.

Implicitly invoking the “series-qualifier canon,” Hobbs claims “fraudulent

combinations, coercion, and intimidation” necessarily means “fraud.” Hobbs Br. 18.

But that canon must give way to common sense, S. Tucson v. Bd. of Supervisors, 52

Ariz. 575, 584 (1938) (“clear intent … takes precedence as a canon of construction

of all grammatical rules”), so the adjective “fraudulent” modifies only the noun

“combinations.”

No decision limits election interference—such as coercion and intimidation—

to fraudulent election interference. See, e.g., Patton v. Coates, 41 Ark. 111, 124-26

(1883) (interpreting phrase to include fraud and actual violence). Hobbs is simply

wrong that nonquantifiable election interference requires fraud.

b. Misconduct can occur without intent to affect results.

Actionable misconduct does not require fraud. Miller, 179 Ariz. at 180. It is

10
enough “that an express non-technical statute was violated, and ballots cast in

violation of the statute affected the election.” Id. Defendants confess error by not

defending the trial court’s setting felonious misconduct, A.R.S. §16-1010, as the

minimum bar. Chalpin, 220 Ariz. at 423 n.7, ¶40. Instead, disregarding election laws

can per se constitute misconduct. Reyes, 191 Ariz. at 94.

Indeed, misconduct’s dictionary definition includes forms of negligence.

Opening Br. 26. While Hobbs correctly notes that mere mistakes are not misconduct,

see Hobbs Br. 20 & n.6 (citing State v. Lapan, 249 Ariz. 540, 549, ¶25 (App. 2020)),

Lapan does not—and cannot—overrule the Arizona Supreme Court’s finding that

aggravated negligence constitutes misconduct. See Newman v. Sun Valley Crushing

Co., 173 Ariz. 456, 460-61 (App. 1992). Under Arizona law, “reckless” or “wanton”

misconduct (i.e., “aggravated negligence”) means “simple negligence” coupled with

“wantonness” (i.e., “a high degree of probability that substantial harm will result”).

DeElena v. Southern Pacific Co., 121 Ariz. 563, 566 (1979). Given the admittedly

recurring nature of Maricopa’s election issues, a court should find wantonness.

2. The trial court erred in requiring that misconduct actually

affected the election results.

Where—as here—the contestant’s claims involve enough votes to affect the

election, courts abuse their discretion by upholding elections: “To rule otherwise

would ‘affect the result or at least render it uncertain’” under Miller. Reyes, 191 Ariz.

at 94. While Hobbs quibbles that the affected votes are not “massive” here, citing

11
Marks v. Stinson, 19 F.3d 873, 888 (3d Cir. 1994), Hobbs Br. 43, Marks involved

“approximately 1,000 absentee ballots.” Marks, 19 F.3d at 877. The misconduct here

affected enough votes to render the outcome uncertain under Miller and Reyes.

II. DEFENDANTS’ ARGUMENT THAT THE TRIAL COURT DID NOT

ERR ON THE MERITS WITH RESPECT TO COUNT II LACKS
MERIT.

Counts II (Illegal BOD Printer/Tabulator Configurations) is governed by

A.R.S. §16-449 (Required test of equipment and programs; notice; procedures

manual). The EPM implementing this statute has the force of law. A.R.S. §16-

452(C). Defendants’ arguments that Maricopa complied with this statute and the

EPM are false.

A. Contrary to Defendants’ misleading arguments, Maricopa did not

conduct mandatory L&A testing.

As Plaintiff stated in her opening brief, Maricopa did not perform L&A testing

in accordance with the EPM’s express requirement that “all of the county’s

deployable voting equipment” be tested. Pl. Br. 29-30. As a consequence, Election

Day chaos ensued, disenfranchising thousands of predominantly Republican voters.

Hobbs and Maricopa both argue falsely that the record shows Maricopa performed

L&A testing in accordance with A.R.S. §16-449(A) and the L&A testing procedures

set forth in the EPM.

L&A testing is test expressly identified in A.R.S. §16-449(A) with the

purpose being “to ascertain that the equipment and programs will correctly count the

12
votes cast for all offices and on all measures” prior to each election, which includes

scanning all ballot styles. The EPM sets forth detailed instructions for conducting

L&A testing. Supp.Appx:18-24 (EPM Sections D-F). The EPM distinguishes L&A

test procedures for the Secretary of State versus for Arizona counties. The Secretary

of State is responsible only for L&A testing “selected voting equipment…[from] 10-

20 precincts for a large county” such as Maricopa.2 In addition, “[i]f a county will

use preprinted ballots and ballots through a ballot-on-demand printer, the officer in

charge of elections must provide ballots generated though both printing methods.”

Appx:701.

In contrast, counties, including Maricopa, “must substantially follow the L&A

testing procedures applicable to the Secretary of State, except that all of the county’s

deployable voting equipment must be tested.”3 In other words, all BOD printers and

all tabulators used at each of Maricopa’s 223 vote centers using BOD printed ballots

were required to be L&A tested—and to pass L&A testing—before the election.

Hobbs nonsensically argues “all of Maricopa’s voting equipment was lawfully

tested and certified years ago.” Hobbs Br. 23. Hobbs’ argument is irrelevant. The

2
Appx:701 (EPM, section D.2, “Selection of Precincts and Test Ballots”);
Supp.Appx:18 (EPM at 86).
3
Appx:702-03 (EPM, section F, “County L&A Testing”) (emphasis added);
Plaintiff’s Opening Brief at 29-30. See also Supp.Appx:23-24 (EPM Section F).

13
fact that voting equipment was “tested and certified years ago” is meaningless with

respect to L&A testing performed before each election. Hobbs also argues that that

“Director Jarrett also confirmed that the printers and tabulators used at voting centers

were successfully tested in the weeks leading up to election day” citing Jarrett’s

testimony at Lake.Appx:149-50 (Tr: 52:17-53:04). Id. Significantly, Hobbs does not

use the phrase “L&A testing,” just the vague word “tested.”

Maricopa quotes the same portion of Jarrett’s testimony in its answering brief,

but goes further and expressly states “Maricopa County performed logic and

accuracy testing exactly as the Elections Procedures Manual requires.” Maricopa Br.

5. Defendants are misleading the Court by conflating “logic and accuracy testing”—

required by A.R.S. §16-449 and the EPM—with Jarrett’s carefully parsed testimony

about “stress testing”—which appears nowhere in the EPM The two tests are

completely different, and Defendants know they are different.

Specifically, Defendants rely on the following testimony by Jarrett:

Q: Prior to performing logic and accuracy testing prior to the 2022

General Election, did you perform, or did your office perform logic and
accuracy testing with test ballots from ballot on-demand printers in the
precinct-based tabulators?

A: We printed ballots from our ballot on-demand printers, and those

were included in the tests that the Secretary of State did. We also
performed stress testing before the logic and accuracy tests with
ballots printed from our ballot on-demand printers that went through
both central count tabulation equipment as well as our precinct-based
tabulators for the voting locations.

14
Lake.Appx:149-50 (Tr: 52:17-53:04) (emphasis added).

As the italicized and bolded text in the quote above shows, Hobbs and

Maricopa conflate Jarrett’s testimony about the “stress tests” performed by Maricopa

with the Secretary of State’s “logic and accuracy tests”—which are performed only

on a small sample of voting equipment. Jarret was also asked during that

examination:

Q: “What evidence exists that shows the results of the logic and
accuracy testing that you say was performed in connection with the
2022 General Election?”

A: “So the stress testing, we have a report that summarizes that stress
testing that we performed of -- so I'm aware of that. That would be
documentation.”

Appx:152-53 (id. 55:21-56:1) (emphasis added).

Jarrett again expressly avoids using the phrase “logic and accuracy test.”

Instead, he again responded with the phrase “stress testing.” However, “stress

testing” has a specific meaning: “to ensure that all components [of the voting system]

will properly process the volume of materials and data similar to volumes the County

expects during an election” as Maricopa knows.4 It has nothing to with L&A testing

4
Excerpt of Maricopa County, Notice of Solicitation, Request for Proposal for:
Elections Tabulation System, at ¶ 2.1.1 (System Support Services) (04/04/2019)
(available at https://www.maricopa.gov/DocumentCenter/View/64680/190265-
Solicitation-Addendum-2-04-09-19); See also Election Assistance Commission,
“2005 Voluntary Voting System Guidelines,” 71 Fed. Reg. 18,824 (Apr. 12, 2006)
(“Stress tests: These tests investigate the system’s response to transient overload
conditions.”).

15
which A.R.S. §16-449 states is to ensure that all voting “equipment and programs

will correctly count the votes cast for all offices and on all measures.”

Maricopa also states in its written response to the Arizona AG’s inquiry into

the Election Day debacle that Maricopa performed only “stress testing”—not L&A

testing—on the BOD printers. Appx:708, (stating “Despite stress testing the printers

before Election Day….”). Maricopa’s failure to perform L&A testing is a per se

violation of A.R.S. §16-449 and the EPM, constitutes misconduct under A.R.S. §16-

672(A)(1), and was a direct cause of the massive disruptions on Election Day.

B. Defendants’ arguments as to the severity of the tabulator ballot

rejections are demonstrably false or irrelevant.

Defendants downplay the severity of the widespread debacle on Election Day

as a “hiccup.” Lake.Appx.618 (Tr. 217:14-19). However, the only evidence

Defendants cite is only their self-serving testimony and descriptions of wait time

data which Defendants did not introduce into evidence.

Maricopa and Hobbs do not dispute the sworn testimony of over 200 election

workers, election observers, and voters, admitted into evidence by the trial court,

describing the debacle on Election Day. Lake.Appx:410-11 (Tr. 9:25-10:08,

admitting Exs. 53-54, 76). Those sworn declarations identify 132 of Maricopa’s 223

vote centers—nearly two-thirds of Maricopa’s vote centers—as experiencing

widespread BOD printer and tabulator failures causing chaos, hours long lines, and

voters giving up and not voting. Lake.Appx:79-84. Supp.Appx:43-44 (chart showing

16
massive lines and hours long wait times at least 32 of the vote centers based on those

declarations).

Hobbs falsely maintains that “Lake’s witnesses could not identify a single

voter who was unable to vote because of tabulator issues.” Hobbs Br. at 4. The

following is sampling of just a few of over 200 unrebutted sworn declarations:

x A-189 (Steven Steele) (“approximately 170 to 175 people simply gave

up after standing in line for many hours”). Supp.Appx:41-42.

x A-11 (Kathryn Baillie) ¶ 20 (“while the printers were down, there were
long lines and ‘some people just left’”). Supp.Appx:27-32.

x A-182 (Erin Smith) at Page 4 (“I also saw several voters leave the lines
and cite work or other reasons why they could not wait 2-3 hours it
seemed it would take”). Supp.Appx:34-40.

x A-95 (James Knox) ¶5 (“Throughout the day, I witnessed lots of people

leave due to the length of the lines. I would estimate at a minimum of
300 people. All were disgusted.”). Supp.Appx:33.

x A-1 (Jamie Alford) ¶ 15 (“I estimate that 10-20% of voters left without
voting.”). Supp.Appx:25-26.

Contemporaneous text messages from a group chat of fifteen “T-Techs ” hired

by Maricopa for the 2022 general election to assist with vote center problems also

tell the true story of Election Day. Lake.Appx:345-46 (Tr.: 248:06 – 249:09). These

T-Techs covered a “bare minimum” of 20 to 30 vote centers on Election Day.

Lake.Appx:346-47 (id. 249:07 – 250:17). Those texts were admitted into evidence

and examples describe the chaos that day:

x “im having a 911…tabulators aren’t…reading.” Lake.Appx:715.

17
 x “Is anyone else’s tabulators not working whatsoever?”
Lake.Appx:720.

x “Yeah, tabulators are kicking out approximately 80% (according to poll

workers manning tabulators) So we have people milling around on their
3rd and 4th ballot. Cleaning printers continually-yes, we are cleaning
Corona wire.” Lake.Appx:717

x “Cleaned wires and checked toner at deer valley. Ballots look good
tabulators running 60%ish acceptance.” Lake.Appx:717

x “Northern. Tabulators misreading at high rate still. Cleaned and

replaced carts. Ballots look good coming out. Inspector said he cleaned
tabulators earlier. Variety of pens but plenty of time to dry. Inspector
hasn’t gotten much response from hotline.” Lake.Appx:718

x “Cave Creek tabulators are once again rejecting ballots that look
absolutely pristine to me…we are running about 50% acceptance.”
Lake.Appx:716.

x “What is the current record for T Tech mileage on election day because
I’m at 166.” Lake.Appx:722.

x “Worship and word church still has at least 50. They had line around
building all day. I’ll help break equipment down when they close unless
told otherwise….Heh. I was wrong. 50 inside and about 100 outside
still waiting. Coffee pls” Lake.Appx:723.

x “Just found out that there were continued misreadings throughout the
day, more than I thought, I just wasn’t told about them until just now. I
though the problem was fixed in the morning.” Lake.Appx:724.

Notably, contrary to Defendants’ arguments, the T-Techs’ comments show that

tabulator rejections continued despite their varied attempts to fix the printers (e.g.,

cleaning them, shaking the toner). Hobbs Br. 24.

Mark Sonnenklar, a Republican attorney observer, testified that he was part

of a group of Republican attorneys covering 115 of 223 vote centers on Election

18
Day. Lake.Appx:362-63 (Tr. 265:02-266:25). He personally visited 10 vote centers

and described Election Day as “pandemonium out there everywhere” with “lines out

the door, which did not -- you did not see during the Primary…. [and] angry and

frustrated voters.” Id. Sonnenklar testified that “most of the [other] roving attorneys

[covering the other 105 vote centers] had a similar experience” to him.

Lake.Appx:365 (id. 268:01-10).

Unable to rebut this damning evidence describing what really happened on

Election Day, Hobbs argues that “[a]s one elections expert testified, tabulator issues

are among the most common unforeseen equipment malfunctions in elections.”

Hobbs 6. This so-called expert is a political science professor. He is not an expert on

voting equipment, was not in Arizona on Election Day, simply relied on the

County’s data and did nothing to verify the accuracy of the data he received from

Maricopa. Lake.Appx:513, (Tr. 112:14-17) (Mayer), Appx:543-44 (id. 142:04-

143:06). Moreover, “tabulator issues” are not routine. Election Assistance

Guidelines establish that “[t]he voting system misfeed rate must not exceed 0.002

(1/500).” Voluntary Voting System Guidelines VVSG 2.0 Voluntary Voting System

Guidelines VVSG 2.0, at 59 (2021);5 see note 1, supra. (judicial notice).

https://www.eac.gov/sites/default/files/TestingCertification/Voluntary_Voting_
System_Guidelines_Version_2_0.pdf (last visited Jan. 24, 2023).

19
 Lastly, as described in the Introduction, the evidence and testimony at the

January 23, 2023 at the Arizona Senate Committee on Elections meeting shows more

than 7,000 ballots being rejected by vote center tabulators every 30 minutes from

7:00am to 8:00pm—totaling over 217,000 rejected ballot insertions on a day when

approximately 248,000 votes were cast. Defendants’ attempt to downplay the chaos

on Election Day is disingenuous at best.

C. Defendants’ arguments downplaying Jarrett’s changing testimony

regarding 19 inch misconfigured ballots injected into the election
on Election Day are sophistry.

To deflect from Jarrett’s changing and conflicting testimony, Maricopa argues

that Lake’s questions of Jarrett were limited to the 12,000 programmed “ballot

definition” settings that Maricopa claims did not relate to the so-called “fit-to-paper”

excuse Maricopa concocted after Lake’s cyber expert revealed his explosive findings

the day before. Maricopa concludes their three page filibuster arguing:

At no time on the first day of the trial did any attorney ask Jarrett about
the fit-to-paper problem. He was never asked whether the printers at
three of the vote centers had their settings changed to fit-to-paper, nor
was he ever asked whether some ballots at those three vote centers had
shrunken, 20-inch ballot images printed. Accordingly, there was no
reason for Jarrett to discuss the fit-to-paper problem.

Id. at 13.

Maricopa misstates the record. Lake’s counsel asked, and Jarrett

acknowledged the question which asked if he “had any idea how [a 19 inch ballot

image projected on 20 inch paper] could occur” separate and apart from “ballot

20
definitions.” Lake.Appx:174 (Tr. 77:14-24) (Jarrett). Maricopa’s argument is

meritless.

Second, Defendants argue that if the issue arose from the ballot definition,

“every ballot” would have printed out as a 19 inch image. Maricopa Br. 11-12,

Hobbs 24 (also citing trial court’s order). Not so. As Defendants themselves

recognize, Maricopa used 12,000 different ballot styles, any number of which could

be programmed with a different image size.

Third, Defendants argue all votes were supposedly counted. Maricopa 13-14,

Hobbs 25. Defendants ignore the fact that Parikh testified that Jarrett admitted to

him during his inspection that Maricopa did not maintain the duplicate ballots

together with the originals he inspected as is required by law. There is no way to tell

if these ballots were counted. Opening Br. 12.

Lastly, Defendants have no excuse for Jarrett’s admission that Maricopa

supposedly knew about the “fit-to-paper” issue shortly after the November election,

that it had occurred in three prior elections, and that Maricopa was still performing

a “root cause analysis”—but never disclosed this issue to the public or in Maricopa’s

November 26, 2022 written response to the Arizona Attorney General’s inquiry into

the Election-Day chaos. Opening Br. 14. Notably, Hobbs’ argument that Parikh did

not find misconfigured 19-inch ballots images printed on 20 inch paper is wrong.

Hobbs Br. 24 n.9. Parikh answered that his findings applied to all six vote centers

21
that he inspected. Lake.Appx:203-04,207 (Tr. 106:24-107:03, 110:07-24). Parikh’s

findings further rebut Defendants’ new fit-to-paper excuse, which Maricopa claims

occurred only at three vote centers. Lake.App.610 (Tr. 209:07-10).

D. Baris’ testimony is credible and demonstrates voter

disenfranchisement sufficient to void the results in Maricopa
County.

Defendants: (1) attack Baris’ qualifications as an expert, (2) insist that,

because Baris does not give a specific number of disenfranchised voters, his

testimony must be discounted; and (3) dispute Baris’ range of possible outcomes as

“speculative.” Maricopa Br. 7-9; Hobbs Br. 7, 26-9. All three arguments fail.

Hobbs criticizes Baris’ background noting that he has not studied polling in

an academic context or published his results in an academic journal. Hobbs Br. 26-

25. However, Hobbs does not explain why academic contexts should have greater

weight than professional contexts and concedes that Baris has worked as a respected

professional pollster for many years.

The sole criticism of Baris’ professional work is the fact that he is not listed

among the pollsters ranked by an online blog, FiveThirtyEight. Hobbs Br. 27. Hobbs

does not explain why FiveThirtyEight is more credible than Baris, and, indeed, a

brief inquiry reveals a similar absence of academic experience and publishing from

22
that outlet.6 Baris is ranked by RealClearPolitics and Election Recon, the latter

ranking his organization, Big Data Poll, number 2 in the nation out of over 200 other

polling organizations based on accuracy and lack of bias. Lake.Appx:507 (Tr. 106:2-

24 (Baris)).

1. Baris’ statistical evidence of suppressed voter turnout in

Maricopa is based on concrete data.

Hobbs and Maricopa argue that Baris’ calculation of the number of voters in

Maricopa who would have voted for Lake but for the Election-Day chaos is based

on “absurd speculation…rather than evidence” or “plucked…out of thin air.”

Maricopa Br. 6, Hobbs Br. 28. Hobbs and Maricopa both ignore the detailed

methodology underpinning Baris’ analysis of, and personal interaction with,

approximately 1,300 Arizona high propensity voters participating in the November

2022 general election, including 813 voters from Maricopa. Lake.Appx:428 (Tr.

27:12-15), Lake.Appx:429-30 (id. 28:21-29:06). Baris’ exit poll had a statistical

confidence level of accuracy of 3.5%. Lake.Appx:490 (id. 89:19-21). Baris’ findings

here are based on sound exit poll methodology, which is more reliable than the

simple turnout modeling, such as that relied on by Maricopa to prepare for its

6
FiveThirtyEight is run by Nate Silver, whose sole academic background consists
of a bachelor’s degree in economics, whose professional background is in baseball
statistics, and whose sole work in election polling consists of a self-published
internet blog the main purpose appears to be publishing baseball statistics.

23
elections. Lake.Appx:424-25 (id 23:15-25:5).

An exit poll is a detailed analysis of voter preference in elections. Baris selects

voters from a randomly generated pool, screened through their voter histories to

establish a high propensity to vote, and who agree to fill out detailed pre-election

questionnaires in advance of the election, and to participate in the exit poll after

voting. Lake.Appx:426-32 (id 25:07-32:57). In Baris’ experience the drop-off rate

of these exit poll voters who do not fill out the post-vote questionnaire is between 5

and 8 percent. Lake.Appx:511 (id. 110:2-3).

During Election Day, Baris heard from an unusually large number of the exit

poll voters—who were only from Maricopa—whose “main concern....[was] [l]ong

wait times and ballots not reading properly” including some of whom said they

“couldn’t wait [in] line.” Lake.Appx:432-33 (id 31:12-32:15), 458 (id. 57:6-24), 510

(id. 109:04-08). These unusual issues caused Baris to add an additional polling

question about whether the exit poll participants were having problems casting their

vote. Id.

After the November 2022 election, Baris compared the number of Arizona

participants who had agreed to take the poll but did not do so and noticed a never

before seen disparity between those Maricopa exit poll voters who had cast a vote-

by-mail ballot and those who had tried to vote in person on Election Day, with a

response rate about 20 percent lower for the Election Day voters. App.:434-35 (id

24
33:04-34:18). This disparity vastly exceeded the disparity in hundreds of past

elections for which he had done exit polling. Id.; Lake.Appx:511 (id. 110:01-23).

These facts, considered in conjunction with the Arizona exit poll’s

methodology, led Baris to conclude in his expert opinion, that the 20-point disparity

in responses was primarily attributable to people who had planned to vote on

Election Day but did not do so as a result of the problems at Maricopa vote centers.

Lake.Appx:434-35 (id. 33:04-34:18) . Indeed, even if only half of that disparity were

attributable to election-day problems, the result would be 25,000 disenfranchised

voters, still far higher than the 17,117-vote margin between Lake and

Hobbs.Appx:435-36 (id. 34:19-35:07). It hardly requires expert opinion to show that

people do not like waiting in line, or that long lines discourage voters from even

coming out to vote.

2. Baris’ range of possible outcomes meets Lake’s burden

under established Arizona law to show that the election
outcome was affected or rendered uncertain.

Contrary to Defendants’ arguments, courts have never required a specific

number of disenfranchised voters to void elections. Maricopa Br. 7; Hobbs Br. 7.

Rather, courts consistently accept—even prefer—statistical evidence of

disenfranchisement. See Ward v. Jackson, No. CV-20-0343-AP/EL, 2020 WL

8617817, at *2 (Ariz. Dec. 8, 2020) (relying on the statistical rate of error for its

finding); Gallardo v. State, 236 Ariz. 84, 89 (2014) (finding against

25
underrepresentation of certain districts based on statistical evidence).

The fact that Baris’ “estimates resulted in many scenarios where Governor

Hobbs still would have won,” Hobbs Br. 28-9, is irrelevant. Because Lake’s burden

is to show that the outcome was at least rendered uncertain, Lake need only provide

evidence that a sufficient number of voters were disenfranchised to change the

election’s outcome, not that a sufficient number of those voters would have voted

for a particular candidate. See Miller, 179 Ariz. at 180 (stating “‘affect the result, or

at least render it uncertain,’… at means ballots procured in violation of a non-

technical statute in sufficient numbers to alter the election’s outcome.) (citation

omitted, emphasis added). In other words, an election is uncertain when the number

of voters disenfranchised exceeds the margin of victory (here, a number greater than

17,117). See Huggins, 163 Ariz. at 350 (“it hardly seems fair that as the amount of

illegal voting escalates, the likelihood of redressing the wrong diminishes”); Hunt,

19 Ariz. at 265-66 (rejecting a need for any “arithmetically computed” vote figure

in a case dealing with voter intimidation).

Baris’ range of possible outcomes absent voter disenfranchisement (from a

2,000-vote margin for Hobbs to a 4,000 vote margin for Lake) demonstrates that

Lake would more likely would have won, given that the higher end of the range far

exceeds the low end. The trial court’s holding that Baris’ findings do not “approach

the degree of precision that would provide clear and convincing evidence that the

26
result did change as a result of BOD printer failures” is clear error. Lake.Appx:688-

89.

III. MARICOPA’S ADMISSION THAT IT DID NOT COUNT THE

BALLOTS ON ELECTION DAY “DUE TO THE LARGE VOLUME
OF EARLY BALLOTS” IS FATAL ON COUNT IV.

Maricopa spends twelve pages in its brief obfuscating straightforward chain-

of-custody requirements set forth in the EPM. Maricopa 15-27. Arizona laws

concerning drop-box ballots are clear and unambiguous. Ballots must be counted

when they are removed from a secure container and the number retrieved from the

specific drop-box location must recorded on the chain-of-custody form. Opening Br.

15-16 (citing EPM Chapter 2: Early Voting, Section I(I)(7) governing “Ballot Drop-

Off Locations and Drop-Boxes” Section I(I)(7) and EPM Chapter 9: Conduct of

Elections/Election Day Operations, Section VIII(B)(2)(g), Lake.Appx:699, 705).

Thus, the counting of Election Day drop-box (“EDDB”) ballots can be deferred only

until containers arrive at the central counting place, MCTEC. No exceptions. This

simple chain of custody step helps prevent the fraudulent insertion, removal, or

substitution of ballots.

However, in its answering brief, Maricopa admits that “[a]fter the close of

polls on election day, due to the large volume of early ballot packets dropped at

polling places that day”, it deviated from the EPM. Maricopa Br. 20. Instead of

“counting” the ballots at MCTEC as required by the EPM, Maricopa admits that the

27
EDDB ballots are “sorted and placed in mail trays” and sent to third party vendor

Runbeck to be counted. Id. Maricopa’s admission is a fatal deviation from a non-

technical statute. The evidence and Maricopa’s admission prove Maricopa failed to

follow mandatory chain-of-custody procedures on Election Day with respect to

nearly 300,000 drop box ballots delivered to MCTEC on Election Day. Notably,

Hobbs apparently recognizes this requirements and contradicts Maricopa arguing

falsely that EDDB “ballots were counted upon arrival at MCTEC and Runbeck.”

Hobbs Br. 31 (emphasis added).

Maricopa misleadingly attempts to inject ambiguity in the EPM’s strict

requirements arguing that the EPM “further provides” for “processing” drop-box

ballots “in the same manner” as ballots received via the U.S. Postal Service.

Maricopa Br. 18, citing “p. 62” of the EPM. Maricopa then spends the next three

pages trying to convince the Court that counting EDDB ballots at third-party

Runbeck is the same as counting the ballots at MCTEC. Maricopa Br. 19-21.

Maricopa is again misleading the Court.

First, “counted” “[w]hen the secure ballot container is opened” means just

that—not “processing.” “In the absence of a statutory definition, a dictionary may

be consulted to determine the ordinary meaning of words used in a statute.” Fogliano

v. Brain, 229 Ariz. 12, 19 (App. 2011). There is no need for a dictionary here.

Second, Maricopa cites the EPM, at 62, as support for its “processing” argument but

28
misleadingly leaves off the citation in the EPM at the end of passage it quotes, “see

Chapter 2, Section VI.” Supp.Appx:4. Section VI refers to “processing” functions

such as “signature verification” and how to handle rejected and incorrect ballots.

Supp.Appx:10-14. That section in no way moots the EPM’s requirement to count

the ballots when the secured ballot containers are opened at MCTEC which occurs

well before “processing” the ballots.

Hobbs’ also misleadingly argues that the “‘delivery receipt’ forms for the

‘nearly 300,000’ election day early ballots….are part of the record before this Court”

is false. Hobbs. Br. 29. First, the “delivery receipt” form Hobbs refers to are forms

created by Runbeck (Lake.Appx.602 (Tr. 201:20-22))—these forms are not the

“Maricopa County Delivery Receipt” created by Maricopa “that has on it the precise

count of the ballots that they are then loading on a truck and transferring to

Runbeck.” Appx.276-77 (Tr. 179:01-180:10), Supp.Appx:45-48 (comparison of

chain-of-custody forms). The Maricopa County Delivery Receipt forms have not

been produced and are not part of the record as Hobbs argues at page 10 of her brief.

Id.

Second, Hobbs’ reliance on two Runbeck created forms, “MC Inbound—

Receipt of Delivery” (Hobbs.Appx:89-131) and “MC Incoming Scan Receipt”

(Hobbs.Appx:132-61) proves the impact of Maricopa’s chain-of-custody violations.

Hobbs. Br. 29. Counting the number of ballots recorded on the Runbeck created

29
“MC Inbound—Receipt of Delivery” forms for early ballots delivered to Runbeck

on and after Election Day documents only 263,379 early ballots received by

Runbeck. Hobbs.Appx:123-131. In comparison, the “MC Incoming Scan Receipts”

Hobbs (Hobbs.App:132-61) cites in her brief, documents the total number of early

ballots scanned for signature verification at Runbeck as 298,942, the same figure

reported by the Runbeck whistleblower noted in Lake’s opening brief at 18.7 In other

words, the very “MC Inbound Receipt of Delivery” forms that Hobbs points to as

chain of custody, fail to document any record of delivery or receipt of the other

35,563 ballots scanned at Runbeck , an inexplicable discrepancy that far exceeds the

margin between Hobbs and Lake.

In sum, the unexplained increase of over 25,000 ballots in the total reported

to the Secretary of State between November 9 and 10, far exceeding the 17,117

margin of votes between Hobbs and Lake, is a direct manifestation of Maricopa’s

violating the EPM’s chain-of-custody requirements. Maricopa and Hobbs still have

no explanation for this discrepancy, a discrepancy that would not exist had Maricopa

followed mandated chain-of-custody procedures.

7
Hobbs’ argument that Lake’s claim is barred by laches is without merit. Hobbs
Br. 32, n.13. Maricopa did not adhere to their plan, or Arizona law, and Plaintiff
could not have known that Maricopa would break the law prior to Election Day when
the violations occurred.

30
IV. THE TRIAL COURT ERRED BY DISMISSING COUNT III ON
LACHES.

The trial court dismissed Count III (signature verification) on the pleadings

based on laches. Lake.Appx:91-92. Because laches do not apply, and Count III states

a claim, this Court should reverse the dismissal of Count III “unless the relief sought

could not be sustained under any possible theory.” Griffin v. Buzard, 86 Ariz. at 169-

70.

A. Laches does not apply to Count III for the 2022 election.

Hobbs’ laches argument theorizes that Lake really intended to challenge

Maricopa’s signature-verification policies and that Lake’s tier-one whistleblowers

do not establish Maricopa’s higher-tier reviewers failed to follow signature-

verification procedures. Hobbs Br. 35. Not so.

Count III alleges in pertinent part that “a material number of early ballots …

were transmitted in envelopes containing an affidavit signature that the Maricopa

County Recorder or his designee determined did not match the signature in the

putative voter’s ‘registration record,’” but that Maricopa “nevertheless accepted a

material number of these early ballots for processing and tabulation” in violation of

A.R.S. §16-550(A). Lake.Appx:60-61 (¶¶150-151); Opening Br. 36. Such violations

are actionable: “Without the proper signature of a registered voter on the outside, an

absentee ballot is void and may not be counted.” Reyes, 191 Ariz. at 94. Dismissing

Count III on laches was error because Maricopa’s failure to follow verification

31
procedures did not occur until after the election.

B. Count III states a claim for illegal votes and misconduct.

In the alternative, Hobbs argues three merits bases for dismissing Count III,

Hobbs Br. 37-38, none of which warrant dismissal.

First, Hobbs cites Lake.Appx:14-21 for not alleging failure to comply with

the signature matching statute or the relevant provision of the EPM. Hobbs Br. 37.

Lake makes that allegation at Lake.Appx:60-61 (¶¶150-151).

Second, Hobbs argues that A.R.S. §16-552 requires making signature-

verification challenges before opening the ballot envelope. Hobbs Br. 38. That

statute provides for challenging early ballots only for “grounds set forth in section

16-591,” A.R.S. §16-552(D), which in turn applies only to unqualified voters and

those voting multiple times. See A.R.S. §16-591. Failure to comply with signature-

verification is actionable, Reyes, 191 Ariz. at 94, so Hobbs’ second argument is

inapposite here.

Third, Hobbs argues that whistleblowers’ speculation does not allege actual

misconduct. Hobbs Br. 38 (citing Lake.Appx:19-20). As indicated, Lake alleges the

misconduct at Lake.Appx:60-61 (¶¶150-151).

V. THE TRIAL COURT ERRED IN DISMISSING THE

CONSTITUTIONAL CLAIMS.

Lake alleged that Maricopa’s chaotic election violated both equal protection

(Count V) and due process (Count VI) as misconduct and illegal votes under §16-

32
672(A)(1), (A)(4), and also asserted them under 42 U.S.C. §1983 (Count X), through

joinder principles. Lake.Appx:63-65. The trial court dismissed Counts V and VI on

the pleadings as either “merely cumulative” and thus “unnecessary” if within the

election-contest statute or, alternatively, outside that statute. Lake.Appx:93. Those

are the only constitutional counts that Lake appeals, Opening Br. 40-45, and their

dismissal was error.

Significantly, Lake’s equal-protection claim has two reinforcing components.

The BOD errors caused havoc on Election Day, which is disproportionately favored

by Republicans, and—even among the Republican-heavy cohort of Election-Day

voters—the havoc targeted Republican voters. See Lake.Appx:39-40 (¶89)

(Republican-versus-Democrat disparity of 58.6% to 15.5%); (Lake.Appx:63) (¶165)

(BOD printer problem burdened Republican Election-Day voters more than 15

standard deviations more than it burdened non-Republican Election-Day voters).

Lake argued these issues under the election-contest statute in opposing dismissal,

Hobbs.Appx:210-12, and in her opening brief (at 40-45). Before accusing Lake of

“smuggling” claims on appeal, Hobbs Br. 40, Hobbs needed to check the manifest.

A. Counts V and VI are within the election-contest statute.

The parties agree that the election-contest statute represents the Legislature’s

decision on allowable misconduct and illegal-vote claims, but dispute the bounds of

those terms. Significantly, the authority Hobbs cites for courts’ not rewriting

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statutory terms also acknowledges “reasonable doubt about the legislature's intent.”

Orca Commc’ns Unlimited, LLC v. Noder, 236 Ariz. 180, 182, ¶ 11 (2014). On this

question, courts’ “primary task … is to discern the legislature's intent,” even in

election disputes. Jenkins, 218 Ariz. at 562-63.

Although Hobbs deems it “operating in the realm of imagination,” Hobbs Br.

40, Lake doubts the Legislature intended parallel federal challenges, armed with this

Court’s holding that Arizona’s election-contest statute is inadequate to protect

federal rights. Violating a law can, by itself, constitute misconduct. For example, in

Griffin v. Buzard, 86 Ariz. at 168, the court found running a candidate with a similar

name to result in illegal votes, based on violating the predecessor to A.R.S. §16-

1006(A)(3). Similarly here, courts should look to the Equal Protection and Due

Process Clauses to find misconduct or illegal votes. Levels of scrutiny aside,

targeting voters based on race—or on left-handedness—clearly is actionable.

Targeting Republicans is no different.

Quoting Armstrong v. Exceptional Child Care Ctr., Inc., 575 U.S. 320, 327

(2015), Hobbs argues that “suits alleging unconstitutional action are regularly

‘subject to express and implied statutory limitations.’” Hobbs Br. 40. But Armstrong

concerned the availability of a private cause of action under Medicaid. That line of

decisions asks whether violations of federal law also violate the plaintiff’s federal

rights sufficiently to imply a private right of action, absent a statutory cause of

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action. Armstrong, 575 U.S. at 324-25; Blessing v. Freestone, 520 U.S. 329, 340

(1997) (“plaintiff must assert the violation of a federal right, not merely a violation

of federal law”) (emphasis in original). Hobbs cannot seriously question whether the

Equal Protection and Due Process Clauses create private rights.

Because the election-contest statute provides a private cause of action,

Armstrong would be inapposite, even if it applied to constitutional issues.

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 & n.5 (2006) (“once a litigant

has standing to request invalidation of a particular [government] action, [she] may

do so by identifying all grounds on which the agency may have failed to comply

with its statutory mandate”). Constitutional claims are not merely “cumulative” to

election contests because constitutional claims nullify presumptions. R.A.V. v. St.

Paul, 505 U.S. 377, 384 n.4 (1992) (constitutional violation renders a “government

interest … not a ‘legitimate’ one”); Gallardo, 236 Ariz. at 87-88, ¶9 (when

government action burdens fundamental rights, “any presumption in its favor falls

away”). The ultimate question is whether the Legislature intended to allow

constitutional violations to constitute “misconduct” or “illegal votes” in expedited

review under §16-672 or, instead, preferred to have constitutional claims brought

outside election contests under 42 U.S.C. §1983.

B. Count V states an equal-protection claim.

By focusing only on the Election-Day component of the equal-protection

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claim and dismissing it as a mere disparate-impact claim, Hobbs simply misses that

Republicans were wildly and disproportionately targeted even among Election-Day

voters. Lake.Appx:63 (¶165) (citing Castaneda v. Partida, 430 U.S. 482, 496 n.17

(1977)); Opening Br. 41-43 & n.6; Hobbs.Appx:210-12. As Lake explains, such

wide disparities constitute evidence of disparate treatment and, in any event, shift

the burden to Defendants to explain the statistical anomaly. Opening Br. 41-43.

Indeed, the Castaneda decision on which Lake relies expressly distinguishes the

decisions on which Hobbs relies. Castaneda, 430 U.S. at 493-95 (citing Washington

v. Davis, 426 U.S. 229, 239 (1976) and Arlington Heights v. Metropolitan Housing

Dev. Corp., 429 U.S. 252, 264-65 (1977)). Hobbs offers nothing to rebut that

quantum of anomalous statistical evidence supporting equal-protection violations.

C. Count VI states a due-process claim.

As with Lake’s equal-protection claim, Defendants’ dispute with her due-

process claim fails to address the targeted nature of the 2022 election attack.

Compare Hobbs Br. 42-43 with Section V.B, supra. Defendants’ waiver dooms their

attempt to distinguish Coleman v. City of Mesa, 230 Ariz. 352 (2012), based on

intentional targeting. Hobbs Br. 43-44. The parties agree that due-process claims

require “patent and fundamental unfairness,” but dispute its presence in Maricopa.

“[P]atent and fundamental unfairness” “lies in the eye of the beholder.” Bonas v.

Town of N. Smithfield, 265 F.3d 69, 75 (1st Cir. 2001). Erroneously finding these

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counts either unnecessarily cumulative or impermissible, the trial court never

“beheld” the issue. Lake respectfully submits that this Court should reverse the

dismissal and remand for the trial court to consider the issue in the first instance.

State ex rel. Bullard v. Jones, 15 Ariz. 215, 221 (1914) (appellate courts are “court[s]

of last resort and not of first resort”).

CONCLUSION

WHEREFORE, this Court should REVERSE the trial court’s judgment and

that grant Plaintiff the injunctive relief of vacatur of the election certification and a

new election, as requested in her Verified Complaint. Appx:68. Alternatively, if the

Court reverses dismissal without reaching the merits, this Court should remand to

the trial court for further proceedings consistent with the Court’s decision.

Dated: January 24, 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) 753-6213
Email: [email protected] Email: [email protected]

Counsel for Plaintiff-Petitioner

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