PHOENIX — The top two Republicans who lost their races for state office last month are making a new legal bid in their separate effort to outlaw the use of machines to tabulate votes in Arizona.
In a 67-page filing with the 9th Circuit Court of Appeals, Kari Lake and Mark Finchem reiterate the claims they made before a trial judge “that electronic voting systems are subject to intrusion and manipulation and cannot be relied upon to secure, correct vote tallies in public elections.’’ Their attorneys cite various reports that others have shown the machines can be hacked and totals altered.
But the essence of their plea to the appellate panel is that U.S. District Court Judge John Tuchi never gave them a chance to make their case. He dismissed their claims, saying they were little more than speculation, backed not by evidence of actual problems in Arizona but instead “vague’’ allegations about electronic voting systems generally.
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Tuchi also said neither Lake, who ran for governor, nor Finchem, who lost for secretary of state, proved they are being harmed by the system, something the judge said is necessary to bring suit in federal court.
And in a subsequent ruling, the judge ordered lawyers for the pair to pay Maricopa County’s legal fees. Tuchi said Lake, Finchem and their attorneys filed a “frivolous’’ action against the county. They “baselessly kicked up a cloud of dust’’ and ignored procedures the state has put in place to ensure elections are secure and reliable, the judge said.
“It is to make clear that the court will not condone litigants ... furthering false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process,’’ Tuchi wrote. He said the sanctions “send a message to those who might file similarly baseless suits in the future.’’
In the new filing, the lead attorney for Lake and Finchem, Andrew Parker, told the appellate court that Tuchi himself violated rules governing how lawsuits must be handled.
Parker said courts cannot simply dismiss cases if the parties filing suit have alleged facts that, if found to be true, would prove their arguments. Instead, he said, that requires a trial where the plaintiffs get to present their evidence, the defendants present theirs, and the decision is made by the “finder in fact.’’
In this case, Lake and Finchem wanted that to be a jury. Parker said Tuchi used erroneous rulings to deny them that right.
For example, the judge said a case can go to trial only if a complaint alleges “actual or imminent’’ harm. It can’t be speculative or hypothetical.
Parker said the lawsuit does meet that standard because it “alleges certain harm’’ because the use of electronic voting machines “results in inherently uncertain vote tallies that infringe upon the candidates’ constitutional right to a reliable vote tally.’’ He said the lawsuit alleges a “substantial risk’’ of harm by claiming facts that show “the opportunity, means, motive, and actors all exists to cause manipulation of votes on Arizona’s electronic voting machines.’’
Trial judges must assume allegations are true and cannot simply dismiss them, Parker said.
“If the facts alleged in the amended complaint are true, vote tallies provided by electronic voting machines cannot be relied upon as accurate, meaning Arizona’s method of administering elections appoints ‘winners’ without regard to whether those persons received the most votes,’’ Parker told the appellate judges.
Tuchi had ruled there is no imminent harm from continued use of tabulation equipment, citing what he said are independent audits for each election.
Those start with “logic and accuracy’’ tests before the election, he said. Thousands of pre-marked ballots are run through the equipment, comparing the predetermined batch with what the machines report as the count.
Tuchi said those tests are “blind’’ to the county and observed by representatives of political parties who sign off on the results. And the ones performed by Maricopa County ahead of the 2020 general election showed 100% accuracy, he said.
Then, after the election, there is a hand count in which representatives of political parties randomly select two polling locations and 5,000 early ballots. Tuchi said the one conducted in Maricopa County after the election found no disparities.
Finally, he said, there is a post election logic and accuracy test. Here, too, Tuchi said, it “showed that the tabulators counted the votes with 100% accuracy.’’
Parker, in his new filing, dismissed those conclusions.
“The amended complaint contains detailed allegations that existing procedures and certifications can be defeated, and that manipulation of votes can be performed without leaving a record of the changes,’’ he wrote. Parker said there also are allegations that certification and logic and accuracy testing “is entirely ineffective and reliance on it is meaningless.’’
The appeal also contends Tuchi was wrong in saying there’s no federal case here because there’s no violation alleged of any federal law. Lake and Finchem are demanding only to require ballots be counted by hand, the judge said.
“There is no constitutional right to any particular method of registering and counting votes,’’ Tuchi said.
Parker did not disagree. But he said constitutional principles require states and counties to use methods of vote counting that produce “a reliable tally reasonably immune from manipulation.’’ Based on the evidence he would present, he said, allowing the use of machines to count votes would be no more legal than if counties permitted unsupervised lone volunteers to transport ballots from polling sites to a central counting center.
Parker said the appellate judges should send the case back to Tuchi with directions to let Lake and Finchem have their day in court and bring in all their witnesses.
This isn’t the only active case for the pair. Each is appealing separate rulings by state judges rejecting the challenges to their losing campaigns.