Yet another attempt from Kari Lake and Mark Finchem to revive a lawsuit that sought to ban the use of electronic ballot tabulators in Arizona’s most populous counties has been dismissed by a federal appeals court.
The U.S. Court of Appeals for the Ninth Circuit on June 20 issued a two-sentence ruling, saying without further explanation that it would not take up the case a second time.
Lake, a Republican U.S. Senate hopeful, and Finchem, a former state representative who is now running for Arizona Senate, have been shot down at every turn since they first filed the suit in April 2022.
At that time, Lake was running for Arizona governor while Finchem was a candidate for secretary of state. Both lost to Democratic candidates, and then filed lawsuits seeking to overturn the results of their races. Judges found that neither candidate could prove that there was any fraud, malfeasance or maladministration that changed the outcome and rejected their election challenges.
In the tabulator suit, Lake and Finchem alleged that the electronic ballot tabulators used to count ballots in Maricopa and Pima counties — and required to be used by Arizona law — were “hackable” and that the courts should place an injunction on their use ahead of the November 2022 election.
In August 2022, U.S. District Court Judge John Tuchi threw out the case and issued a scathing ruling. Later, he ordered the attorneys representing Lake and Finchem to pay $122,000 in sanctions because their claims amounted to mere “conjectural allegations of potential injuries.”
Tuchi also accused the attorneys of making false claims about Arizona elections. The judge put a particular focus on their claims that Arizonans use electronic devices to vote: In fact, more than 99% of voters in Arizona mark paper ballots, which are then counted by electronic tabulating machines.
In October 2023, the 9th Circuit Court of Appeals concurred with Tuchi’s decision to throw out the case, agreeing that it was “frivolous.”
“None of Plaintiffs’ allegations supported a plausible inference that their individual votes in future elections will be adversely affected by the use of electronic tabulation, particularly given the robust safeguards in Arizona law, the use of paper ballots, and the post-tabulation retention of those ballots,” the appellate court wrote.
Lake and Finchem again tried to revive their case in March when they petitioned the U.S. Supreme Court to step in and overrule the lower courts, but about a month later, the highest court in the nation declined to take up the case.
Kurt Olsen and Andrew Parker, who represented Lake and Finchem in the tabulator case both face discipline from the courts for bringing the case. Parker previously admitted in court that the Republicans had no evidence to support their claims that tabulation equipment or any voting equipment in the state had been hacked.
Tabulators in Arizona are not connected to the internet and paper ballots are used across the entire state.
Olsen, an employment attorney from Washington, D.C., faces additional discipline for lying to the Arizona Supreme Court in Lake’s 2022 election challenge case as well.
In their June 13 filing, Lake and Finchem asked the federal appeals court — for a second time — to reverse the lower court’s decision to dismiss the case.
This time, Olsen asked the appeals court to send the case back to the trial court because, he alleged, Maricopa County’s attorneys had misled the trial court, the Supreme Court and the appeals court.
He used some of the same allegations that Lake has been unsuccessfully using in her other court cases: that Maricopa County never conducted logic and accuracy tests on its electronic tabulators in 2022, and that it also used software that was not approved by the Election Assistance Commission or the secretary of state.
“Maricopa’s violations of Arizona law mean its elections have not been shown to be any more reliable than a Ouija board,” Olsen wrote.
Olsen argued that, because Maricopa County’s lawyers lied to the courts about logic and accuracy testing and certification, and the courts relied on that information for their rulings, those decisions should be struck down.
Maricopa County has vehemently denied the allegations.
“Our clients have fully complied with Arizona Law regarding the logic and accuracy testing of tabulator equipment and software and have always testified accurately about the said L & A testing and all other matters,” County Attorney Rachel Mitchell said in a statement to the Arizona Mirror.
Mitchell declined to comment on the irony of Olsen accusing the county’s attorneys of lying when he is facing discipline from the Arizona Supreme Court for lying in court filings.
When the county objected to the claims that its lawyers had lied to the courts, Olsen accused them of “willful deceit.”
In an April 10 letter to Olsen, replying to his insistence that the county’s attorneys had lied in court, Mitchell said that Lake’s “so-called experts” who had determined the county lied about logic and accuracy testing didn’t know what they were talking about.
“These claims are false,” Mitchell wrote. “Your declarants are not experts in — and do not even fully understand — election law, election administration, and election processes.”
She also pointed out that one of the experts, Ben Cotton, was involved in the Arizona Senate’s debunked partisan “audit” of the 2020 election in Maricopa County.
“For nearly four years, Maricopa County has spent countless hours and taxpayer funds to debunk your ‘experts’ and others’ false and misleading claims,” Mitchell wrote.
“What is more, judges have considered opinions offered by your ‘experts’ and found them wanting,” Mitchell said in the letter. “No judge has considered testimony offered by your ‘experts’ and found it determinative of the issue at hand, or even overly persuasive. The judges have given the various declarations and testimony of your ‘experts’ the weight they have deserved, which has not been much. After reviewing the new declarations, we found them to be substantially similar.”
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