Kari Lake wants an appellate court to consider new evidence, something they don’t do
Trial courts consider evidence, while appeals courts examine whether trials were fair & rulings were correct
While most of the world has moved past last year’s general election, with the state legislature and Gov. Katie Hobbs already working on bills and budgets, failed gubernatorial candidate Kari Lake is still stuck in November 2022.
The Arizona Supreme Court on Wednesday struck down Lake’s second request for the high court to take up her election appeal currently being heard by the Arizona Court of Appeals Division I. Lake is asking the courts to overturn the results of the 2022 election and to require a revote — but only for her race, and just in Maricopa County.
In the original election contest suit, in the appeal and via social media, Lake has continually claimed that fraud, ineptitude and misconduct from Maricopa County workers and officials lost her the election.
Lake, a Trump-endorsed 2020 election-denier who lost the governor’s seat by more than 17,000 votes, is hosting a “Save Arizona” rally to “unite for election integrity” in Scottsdale on Sunday. She’s already raised at least $2.5 million in donations since Election Day.
In Lake’s latest legal filing, in response to earlier filings by the defendants in the case, including Hobbs and various Maricopa County election officials, her attorneys argued that the judge in the initial election contest trial in December set too high a bar for Lake to overcome. Maricopa County Superior Court Judge Peter Thompson said that Lake had to prove that Maricopa County Election officials intentionally and successfully changed the outcome of the election to prevail.
Lake’s lawyers, Scottsdale divorce attorney Bryan Blehm and D.C. corporate employment lawyer Kurt Olsen, argued that the proper standard per Arizona law was that “when the (election) 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.”
Blehm also claimed that Thompson should have considered issues that he instead threw out, like problems with the county’s signature verification process and claims that problems with tabulators specifically targeted Republicans, since they were more likely to vote in-person on Election Day.
Appeals are typically centered on arguments over relevant laws and the lower court judge’s interpretations or rulings on those laws. While Lake’s appeal includes lengthy criticisms of Thompson’s rulings and interpretations, her filing also includes new evidence that her attorneys urged the appeals court to consider — something that isn’t allowed in an appeal.
“It’s never appropriate to bring in new evidence to a Court of Appeals,” lawyer and Lake critic Tom Ryan told the Arizona Mirror. “It’s not their job to review evidence. They review the findings of the trial court and its compliance with Arizona law.”
He added that any seasoned lawyer should know this.
“This is such legal malpractice as to be shocking,” Ryan said.
In filings this week to both the Court of Appeals and the Supreme Court, Blehm wrote that both should take information presented this week to the Arizona Senate Elections Committee into consideration when making their decisions on the Lake appeal.
Blehm was referring to a Jan. 23 presentation by Shelby Busch, on behalf of the far right group We the People Arizona Alliance, which has pushed spurious election conspiracies, including that early ballot drop boxes are regularly used for fraud.
During her presentation, Busch told the Senate committee that ballot tabulators in Maricopa County vote centers rejected ballots at a rate of more than 7,000 every 30 minutes on Election Day, based on information she received from Maricopa County, for a total of what she said were 217,000 rejected ballot insertions that day.
“Contrary to Maricopa’s claims, its own files show that the tabulator ballot rejections were massive, widespread, and unresolved all day,” Blehm wrote in the filing.
There were widespread issues in Maricopa County on Election Day, when some tabulators couldn’t read some ballots, which contributed to long lines and delays at voting centers. But Lake never offered any proof during the December trial that anyone was denied the right to vote or that any ballots went uncounted.
“Monday’s presentation to the Arizona Senate is textbook disinformation, taking a common situation that occurs at a voting location and twisting it to cast doubt on the integrity of our elections,” Megan Gilbertson, communications director for the Maricopa County Elections Department, said in a statement to the Mirror.
Gilbertson added that the logs showing how many times a ballot was rejected do not show how many times an individual ballot was rejected. Many of the 16,700 ballots that couldn’t be read by the polling site tabulators on Election Day were run through the machines several times, and each of those rejections would be listed on the log.
“Poll workers reported that some voters chose to feed their ballot into the tabulator more than a dozen times before placing the ballot into a secure ballot box on site,” Gilbertson said. “Each of these attempts would have been reflected as a unique action in the log.”
If each of those more than 16,000 were fed into a tabulator 13 times, that would account for the 217,000 rejections. But Gilbertson added that it’s not unusual for a ballot to be rejected on the first try and then later accepted if, for instance, it was initially inserted at an angle.
If Lake’s lawyers had really found new evidence, which Ryan argued that the Senate presentation was not, they should have asked for a stay in the appeal and petitioned to present the new evidence to the trial court.
“I strongly suspect the whole purpose and timing of the Senate hearing was to create this evidence to add to the appellate case, as if it would make a difference,” Ryan said.
He believes that there is “no chance” that the appellate court will consider the presentation when making its decision.
The next court date in the Lake appeal is set for Feb. 1.
This report was first published by the Arizona Mirror.