THE LATEST On the Kari Lake Election Contest Appeal

UPDATE, 1/18, 9:30am: Kari Lake's appeal "mischaracterizes...misrepresents and misconstrues". That is the opening theme in the Answering Briefs filed last night by Maricopa County and now-Governor Katie Hobbs. 

The two briefs - totalling 70+ pages, not including a couple of hundred pages of attachments - take different approaches in responding to Lake's appeal. Hobbs' attorneys set forth what they see as the relevant law to convince the three Court of Appeals judges to affirm Judge Peter Thompson's denial of the Election Contest to declare Kari Lake the winner of November's gubernatorial election. Maricopa County "focuses on setting the record straight and defending the County’s lawful practices concerning ballot-on-demand printing and chain of custody."

Because Lake is appealing both the dismissal of several counts before trial and the denial of relief after trial, Hobbs' Brief goes count by count in defending Thompson's decisions.

The trial court did not err in finding that Lake’s contest fails at every level. First, the trial court applied the correct legal standard, requiring Lake to show by clear and convincing evidence that absent intentional misconduct by Maricopa election officials, Lake would have won. Second, Lake failed to show—by any legal standard—that Maricopa election officials committed any misconduct related to tabulators (Count II) or chain of custody (Count IV) or that any alleged misconduct would have altered the outcome of the election. Third, the trial court did not abuse its discretion in finding that laches bars Lake’s signature matching claim (Count III), which otherwise fails as a matter of law. Fourth, the trial court did not err in dismissing claims brought outside Arizona’s election contest statute (Counts V and VI), which also fail as a matter of law.

Maricopa County says Lake's arguments about in-person election day voting are based on "blatant falsehoods." "It (the judges) should also rest assured that these ballots were ultimately counted because Arizona’s elections administration—like that of jurisdictions around the country—contains numerous redundancies to ensure that lawfully cast votes are counted.

The Answering Briefs, and Lake's Opening Brief, are below. (Scroll down for the Opening, which is titlted "Petition for Special Action".) Lake has until next Tuesday to file a Reply. Then, the panel of judges (Cruz, Swann, Cattani) will hold a closed door conference on the appeal on February 1.

UPDATE, 1/10, 8am: The Arizona Court of Appeals has folded Lake's "Special Action" into her earlier appeal, and has pushed back its internal conference on the case by one week, to February 1. The Court did NOT schedule oral argument, although they still have that option.

Defendants have until Jan. 17 to file their Answering Brief, with a Reply due the following week. The Court also substituted one of the three judge panel, inserting Chief Judge Kent Cattani for Judge Angela Paton.

UPDATE, 1/4, 4:50pm: The Arizona Supreme Court today REFUSED to grab Kari Lake's Election Contest appeals from the intermediate level Court of Appeal. The Order is signed by Duty Justice John R. Lopez IV, but he specifically notes that the entire Court considered the matter. 

"The Court notes that the Court of Appeals has entered a scheduling order directing respondents in the special action proceeding to file a response and has indicated that the matter will be conferenced, with possible oral argument, on January 24, 2023. No good cause appears to transfer the matter to this Court."

ANALYSIS: This seems to be an indication that the AZ Supreme Court does not see Lake's appeals as being very well-taken. If they were inclined to agree, they would have wanted to grab it and issue an opinion. (--PW)

TO CLARIFY: this does NOT mean the AZ Supreme Ct ruled on the MERITS of Lake's appeals. Only that they did not see it as important enough for them to take the case away from the Ct of Appeals (and take it for themselves). It is STILL in the Court of Appeals, semi-fast-tracked.

UPDATE, 1/4, 8am: The Court of Appeals is giving new Governor Katie Hobbs - and, the other defendants - until next Wednesday to respond to one of Kari Lake's two appeals. A conference - and, possibly oral argument - is set for January 24. The Special Action Petition was filed over the holiday weekend. (The Opening Brief in the other is not due until Feb. 28, as Lake's attorneys did not ask to expedite it.)

Meanwhile, the Arizona Supreme Court has not yet decided on whether to grab that Special Action and the earlier appeal. It was docketed yesterday as the 10th - and, final - such transfer petition of 2022. (The previous one - contesting the voter-passed "Predatory Debt Collection Protection" initiative - was DENIED.)

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UPDATE, 1/3, 9:30am: Now that the courts are open for the new year, we have CONFIRMATION that @KariLake's attorneys have TWO separate appeals of last week's Election Contest loss.

The Court informs us that the panel assigned to review Special Actions "has been notified". We also expect action on Lake's effort to leapfrog both cases directly to the Supreme Court.

12pm: And, here is the Petition to Transfer BOTH appeals to the Arizona Supreme Court.

There is a reported Kari Lake appeal Petition circulating on the internet on this New Year's Eve. This appears to be filing a Special Action Petition filed with the Court of Appeals, challenging the dismissal of three of the ten Counts in her Election Contest action and the denial of the two Counts which were the subject of the two-day Evidentiary Hearing.

Because her Notice of Appeal had been filed on Wednesday and indicated that she would (1) challenge all 10 Counts and (2) be presented to the Arizona Supreme Court, and because we cannot confirm whether this Petition has actually been filed, we are not yet publishing it.

We have reached out to Lake's attorneys for more information. The public docket for the Court of Appeals is only updated once a day after the close of business, and does not show the filing. We have learned that Lake's attorneys did email an unconformed copy of the Petition to Defendants' attorneys on Friday night and claimed that it had been filed. No case number was provided. 

We have previously discussed the expedited nature of elections-related appeals, and in the case of Election Contests, it is up to the appealing party's attorneys to ask that it be expedited. We have also discussed that Arizona has a 1917 precedent of the appeal proceeding past the inauguration date - a successful Contest removed Campbell after several months in the Governor's Office.

Once we have ascertained the status of Lake's case, we will update this page and publish the filings.

In the meantime, have a very Happy New Year's weekend!

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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