Arizona election trial rests

The trial of the Arizona election contest (Lake v. Hobbs, Richter, et al.) concluded with another full day of testimony. Now the judge has the case, and its outcome will depend entirely on his imagination. Specifically, can this judge imagine the kind of deliberate malfeasance by election officials, with a view to skewing the outcome? Judge Peter Thompson asked Governor candidate Kari Lake to prove precisely that. He probably never imagined that she would be able to prove it. But prove it she did, and no reasonable observer can assess this trial in any other way.

The Arizona trial: the preconditions

The trial began two days ago, on two out of ten counts Kari Lake raised in her complaint. Judge Thompson limited her to two issues – on whether or not:

1. Scanning and tabulation of ballots failed in about 60 percent of precincts, almost all Republican precincts, and
2. Election officers broke (or never established) the chain of custody of ballots from the precincts to central counting facilities.

Furthermore, she would have to establish that these failures not only could have but in fact did skew the outcome. Judge Thompson could have had only one motive to set those conditions – which the law of Arizona does not require. And that is the Kari Lake prayed that the Court award her the election outright, as first prize. Extraordinary prayers, like extraordinary truth claims, require extraordinary evidence.

Perhaps Lake wanted to pray for the highest possible remedy the court could grant. Or perhaps she realized that redoing the election would see Katie Hobbs become Governor anyway. Arizona does not elect a Lieutenant Governor – and in case of the removal of the Governor from office, or of his death, resignation, or non-existence, the Secretary of State becomes Governor. In any case, Kari Lake asked that the Court:

1. Declare her the winner outright, or failing that:
2. Hold another election, with a special master to run it, and in any case:
3. Disallow any defendant whom she named in her complaint from any role in that second election.

Arizona Trial Day One summary

After a hearing on a motion-to-dismiss, and the inspection by Lake’s expert of three fifty-ballot random samples, the trial began. Wednesday’s session revealed two key facts:

Ballots at 132 precincts (or “voting centers”) were actually 19-inch ballot images printed on 20-inch long ballot stock. This happened at the precinct – because in Arizona, a precinct has not only scanner-tabulators but also Ballot On Demand printers. Someone, having security access, deliberately programmed those printers to print 19-inch ballot images. This although those same printers had 20-inch ballot stock loaded into them.

Again, your editor is an experienced Officer of Election. Never has your editor ever “worked” an election in which printers print ballots on demand. Rather, the precinct chief picks up pre-wrapped reams of pre-printed ballots for voters to mark. The chief and his officers must count all ballots issued, scanned, and “spoiled.” After polls close, the chief must ensure that:

1. Ballots issued plus ballots unused equal ballots supplied, and that:
2. Ballots scanned plus ballots spoiled equal ballots issued.

Then the chief must return unused ballots – counted – to Unit Election Headquarters.

Printing ballots on demand invites fraud, because the precinct chief must, at best, rely on the printer to count and report ballots printed. CNAV recalls no testimony on whether precinct chiefs count unused ballot stock. Which brings up the second revelation: Maricopa County had no chain of custody at all for ballots. They did not even count ballots at the precincts before shipping them back to Headquarters!

Trial Day Two

The Phoenix affiliate of Fox Broadcasting covered the trial again – for a total of seven hours.

Testimony focused mainly on the debacle for voters on Election Day. One expert testified that long lines began to develop, stretching for 150 voters – because the scanner-tabulators weren’t working. But in fact they did work as designed – in rejecting 20-inch ballots printed with 19-inch images. The alignment marks (those rectangles that, if you ever took a standardized test on an answer sheet, came with the instruction to make no marks or smudges near them) didn’t align. Result: rejection. Frustrated – or lackadaisical – Officers of Election were telling voters to slip their ballots into slots that did not go through the scanner. Voters were reluctant to do this, and expressed fear that officials would not bother to count their ballots.

Maricopa County officials simply could not explain these failures. Worst of all, one official had to admit that they have known about the printers being able to print a ballot image on the wrong stock in three prior elections. He said his colleagues were performing “root cause analysis” on the problem. And they never told voters ahead of time.

Director Scott Jarrett tried to say that voters had other options. But Lake’s lawyers wanted to know whether he would say that the printer and scanner issues disrupted the election. He refused to say.

Jarrett also had to admit that the printer’s programming was in error:

Other experts

Lake’s lawyers brought in an expert in polling, who has seen many elections. He gave his opinion that the failures on Election Day were “systemic,” not random.

Not only that, he said the disruptions were so severe that they likely did change the outcome.

Which was exactly what the judge tasked Lake to prove. To show this, Baris pointed out that voters who agreed to take part in his exit poll, had a far lower response rate if they tried to vote in Election Day. They did not take part because they tried to vote, and could not.

Baris further testified that wait time estimates by Maricopa County and the Arizona Secretary of State were vastly understated.

Which in turn complicated the Lake campaign’s efforts to tell voters where to go to find the shortest lines.

Defense experts made light of the long lines and monumental inconvenience.

But that expert wasn’t even on the scene. So how could he know?

That “expert” eventually proved to be no expert at all, but an opinionated out-of-State college professor with no background on the subject at hand.

Nor did Lake’s attorneys neglect the chain-of-custody fiasco. Watch them humiliate Reynaldo Valenzuela, Director of Elections for Mail-in Voting. He tried to pretend that a chain of custody existed, but could not.

Closing arguments

Attorney Kurt Olson, speaking for Kari Lake, summed up succinctly: what happened in Maricopa County was wrong.

Maricopa County Attorney Tom Liddy then said something incredible. “Political malpractice!” he thundered, referring to the Lake campaign urging voters to turn out on Election Day. In other words, yes, they fouled up, but if voters had voted early, they wouldn’t have this problem.

But the last time CNAV checked, elections have always been about Election Day, not Election Week or Month or Quarter. The United States Postal Service tells people to “mail early in the day.” (And use ZIP Code.) County election directors have no business telling voters that. Worse, he blamed Republicans for telling voters for months to turn out on Election Day. But if officials knew this was happening, why didn’t they prepare?

Liddy then said worse: he called on the judge to stop people from contesting every election.

“We believe in choosing our own rulers!” he said. He also decried the filing of election contests as “sour grapes.”

In rebuttal, Kurt Olson returned to the issues at trial. He also highlighted (“lowlighted?”) Scott Jarrett reversing himself from one day to the next. Best of all, Olson cited a Wisconsin Supreme Court opinion – in a case involving drop boxes, a favorite “option” Maricopa County offered – that elections conducted in a manner contrary to law, are inherently untrustworthy.

Analysis

Your editor is not a lawyer – though he is an Officer of Election with six years’ experience in various jurisdictions. The chief flaw is in the process. Ballot on Demand printing at the precinct was and is a setup for fraud. Even if one grants the premise of electronic scanner-tabulators, one cannot grant the premise of on-site printing. We have seen where that can lead: deliberate reprogramming to print a ballot image on wrong-sized stock. Even without that, we’ve heard no testimony that anyone:

• “Ran the tape” on those printers to determine how many ballots they printed, or
• Counted the ballot stock upon loading and unloading.

But the wrong-sized stock and the “shrink to fit issue” (which is what witnesses called it) are devastating. This election has a margin of victory of 17,177 votes. The wrong-stock issue alone could easily account for that margin. Add 300,000 ballots with no chain of custody and you have, at minimum, an election you cannot call. But since the wrong-stock failures happened nearly always in Republican precincts, now you can call it for the Republican.

County Attorney Liddy’s argument seems to be:

You lost, fools! And if you had voted early, you would have avoided this problem! That’s what drop boxes are for!

Oh, what a great idea. Submit your ballots in a manner in which you cannot know that officials will count them. And as the videos show, you saw scanned and unscanned ballots co-mingled. Exactly what those voters feared.

Will Arizona ever have an honest election?

That last question is for Judge Peter Thompson to answer. What will he do, when the time comes to render a verdict? Did he know what he was asking, when he asked Kari Lake’s legal team to prove actual fraud? Did he imagine that she would be able to prove it, ad to make such a devastating and unmistakable showing? For that matter, could Judge Thompson or anyone else imagine that the defendants would be so stupid and obvious? It was as if they were never even going to hide what they did. Stop Kari Lake at all costs, and hope the judge dismisses the case – that’s what officials must have calculated. And to add insult to injury (which has a special meaning in law), a government attorney speaks of the ability to choose rulers.

Now the judge has to decide a case he never imagined. He has left few clues to how he will rule. True, he told Katie Hobbs’ attorney to “stop advocating” at the first scheduling session. But he also set Kari Lake a burden of proof that was not only beyond the law but one that he must have thought Lake could never carry. In CNAV’s humble and admittedly layman’s opinion, she did carry it. But Tom Liddy, at closing, clearly asked the judge to nullify Lake’s case. “Stop these endless election contests!” he said in effect. Like John Roberts telling his colleagues not to take up Texas v. Pennsylvania. Time alone will tell what happens.