Friday, May 5, 2023

BREAKING: Kari Lake's Attorney Files New Lawsuit To Get Video From Runbeck (READ Complaint)

UPDATE, 5/23, 7:40PM:

UPDATE, 5/16, 8pm: 

Judge DOES ALLOW @KariLake to present evidence showing Maricopa "failed to conduct any level 1 signature verification".

He's also not impressed with ever-changing theories: "also recognizes the contradiction between this new theory & the other allegations in Count 3". Contradiction, per Judge: "her own affiants declare that they conducted signature review at level 1."

"The Court will give such affidavits and the evidence presented at Trial the weight that each is due. Plaintiff is further bound by her concession that she “brings a Reyes claim, not a McEwen claim. She challenges Maricopa’s failure to act, not its action on any particular ballot.”

Chandler attorney Tom Ryan and I will be providing live coverage of the trial, starting tomorrow morning at 9am, on Twitter. (twitter.com/ArizonasLaw)


UPDATE, 5/16, 10:30am: BREAKING: DON'T FENCE ME IN; Kari Lake Attorneys Tell Judge He Got It Wrong By Boxing Them In Pre-Trial

Judge Peter Thompson granted Kari Lake a trial on her signature verification count last night, but set forth the constraints that he says they are attempting to prove in order to prevail. By 2am, Lake's attorneys had filed a Motion to reconsider and arguing why the judge got it wrong.

"The Court held that Plaintiff alleged only that Maricopa failed to perform “ANY steps to comply with level 2 or level 3 screening or notification of electors to cure ballots where level 1 screeners found signatures were inconsistent.” Order at 3. However, the Complaint pleads violations at all levels of signature verification i.e., level 1 as well as levels 2 and 3. In addition, the Complaint pleads a consistent factual bases for this Court to find that Maricopa’s misconduct in the 2022 general election with respect to levels 1, 2, and 3, and that 130,520 ballots would fail as egregious mismatches and another 167,176 2022 ballots would fail Maricopa’s signature-verification process."

The oral arguments last Friday were the specific opportunity for Lake to explain to the judge what they were alleging and why the Count should go to trial tomorrow. The judge took a significant amount of time and effort reading and listening to their somewhat shape-shifting arguments, and determined what he would consider from their witnesses. 

This new Motion appears to be an effort to extricate themselves from a difficult box that they placed themselves in.

***

UPDATE, 5/15, 8:30pm:

The long-awaited decision from Judge Thompson. There will be a trial on Count 3 (sig verification) on Wednesday. The Lake effort to revive Count 2 (tabulators) is DENIED. (Ryan Heath's amicus brief is REJECTED.)

UPDATE, 5/12 1pm: "BREAKING: Kari Lake's Attorney Files New Lawsuit To Get Video From Runbeck"

In a further expansion of Kari Lake's efforts to overturn last November's gubernatorial election, one of her attorneys filed a NEW public records lawsuit this week, seeking to obtain post-election video from Maricopa County contractor Runbeck Election Services.

The new case has been assigned to Superior Court Judge Joseph Mikitish, and there are no dates set yet.

Maricopa County has utilized Phoenix-based and nationally-used Runbeck for a number of elections-related tasks, and that has become an issue in Lake's ongoing Election Contest lawsuit. We the People Arizona is represented by Bryan Blehm, and the Complaint cites the decisions in the public records lawsuits filed against the State Senate and Cyber Ninjas as support. The Court of Appeals determined that Arizona's public records laws did apply to Cyber Ninjas.

Arizona's Law contacted Maricopa County officials, and they reiterated their previous answer to Blehm, that the County does not have the video to reply to public records request. Runbeck's attorneys had also declined to turn over the video, stating there is "no legal obligation to do so."

Blehm has several other public records request lawsuits filed against both Maricopa County and the Arizona Secretary of State's Office. He had indicated to the judge in the Election Contest case that he might seek to fold the suit about the ballot envelopes into the Election Contest, but he did not.

Because the Election Contest statutes do not allow for discovery (other than inspection of ballots), these PRR suits are a sort of a parallel track. However, none of them are being expedited by either the plaintiff or the Court.




***

UPDATE, 5/12, 12:45pm:

We can now post the Replies filed yesterday. We are still looking for the *Responses*.

Here they are, and here is our (then-)live coverage of this morning's oral arguments. (Thank you to the great folks at the Superior Court Clerk's office and several attorneys for providing the filings.)

 

***

UPDATE, 5/10, 7am:

Yesterday (at 11:59pm) was the deadline for parties to file any Motions they felt were justified in the wake of the Supreme Court sending the case back to determine Count 3 (signature verification). We received and posted the Secretary of State's supplement to their previous Motion to Dismiss below. Here are the rest of the filings:

  • 1) Kari Lake's Motion for Relief on Count 2 (logic and accuracy)
  • 2) Maricopa County's supplemental memo to dismiss Count 3
  • 3) Katie Hobbs' (as Contestee) supplemental memo to dismiss Count 3
  • 4) Ryan Heath's Motion and Amicus Brief on behalf of independent voter David Mast

At first blush, the big surprise is that Lake did NOT attempt to fold in the separate public records request lawsuit related to early voting ballot envelopes. (That case was reassigned yesterday to Judge Melissa Iyer Julian.) Lake had indicated to the Court (see below) that consolidation would be presented. (Probably a good non-move by Lake's counsel.)

The Motion to throw out the December dismissal of Count 2 alleges that there was newly-discovered evidence and/or fraud/misrepresentations that warrants a new look at the allegations. In the 16-page Motion (with nearly 250 pages of exhibits (below), they flesh out their claims that Maricopa County "secretly tested" all of its tabulators after it had "falsely certified" them (and before Election Day). Lake is alleging that:

"...not only did Maricopa officials knowingly violate the law mandating L&A testing, but that they knew about and planned the Election Day debacle. Further, Jarrett’s demonstrably false and conflicting testimony shows that Maricopa officials are attempting to cover up their misconduct."

Although it was indicated that whistleblowers' testimony would be significant, the motion relies upon analysis by Clay Parikh. 

Maricopa County's supplement does a very good job of explaining the signature verification laws and processes, noting that Arizona law requires them to determine whether the signature on the ballot envelope is "consistent" or "inconsistent" with those in the voter's records. It is not a more extensive analysis that would be involved in a verfication, and is one of several fraud prevention measures set forth by law.

Responses are due before midnight tonight, Replies tomorrow, and there will be oral argument on Friday. 

Heath, the attorney who has offered his thoughts and insights on this case to several of the judges/justices previously (and attaches them to this brief), makes his arguments as to why the judge should proceed on Count 3 - and that he has already seen enough evidence to set aside the November 2022 election results.

 

***

UPDATE, 5/9, 3pm, "NEW: "It is time for finality"; Secretary of State Asks Court To Dismiss Last Count Standing In Kari Lake Election Contest (READ Motion)":

Saying "it is time for finality", Arizona Secretary of State Adrian Fontes today urged the judge to -again - dismiss the last count standing in Kari Lake's Election Contest lawsuit.

Fontes's attorneys filed the "Supplemental Memorandum" today, and the other parties to the case are also expected to file motions (or, supplements) by midnight tonight. This first one is published below.

The memorandum notes that Judge Peter Thompson must go back in time to when only the Election Contest Complaint had been filed, and determine whether those allegations state a provable claim to overturn November's election results. They do not, the memo states.

It goes on to argue that the Arizona Supreme Court's reversal and remand of the dismissal of Count 3 specifically did not order a trial on the signature verification count "seven months after the election". Further, the Complaint's allegations were too hazy and conclusory to survive the motion to dismiss and comparing the ballot envelopes to multiple signatures in the voter's record is appropriate as a matter of law.

Lake is expected to file motions to consolidate the case with a separate lawsuit to obtain the ballot envelopes, and a motion to reconsider the dismissal of Count 4 (dealing with logic and accuracy testing). The Supreme Court affirmed the dismissal of that count.

***

UPDATE, 5/9, 12:30pm, "NEW UNCERTAINTY: Judge Recuses Himself In Ballot Envelopes Lawsuit Tied To Kari Lake Election Contest (READ Minute Entry)": Kari Lake's attorneys are expected to file a motion today to combine her Election Contest with a public records lawsuit to obtain ballot envelopes. The judge in the latter case is now recusing himself, adding some (temporary) uncertainty into the proceedings.

Judge Michael Gordon was assigned to the We the People public records suit on April 28. The Minute Entry recusing himself - without a stated reason - was filed this morning. Civil Presiding Judge Danielle Viola will assign a new judge to the case. 

An interesting outcome could be that she taps Judge Peter Thompson to handle the related matter, as consolidation of the two very statutorily-driven cases seems unlikely. (Thompson has been handling the Election Contest.) He would then be better able to manage the interplay between them.

***

UPDATE #2, 5/8: Superior Court Judge Peter Thompson set a tight timeline for the parties this afternoon, and will hear oral arguments on whether he should hold a trial on Kari Lake's signature verification Count 3 next week.

Saying the statutes give him "little wiggle room", Thompson asked for Motions to be filed tomorrow, Responses on Wednesday, and Replies the following day.

We expect three separate Motions tomorrow:

1) Defendants to re-package/re-file Motions to Dismiss Count 3 (sig verification)

2) Lake to Move for Reconsideration of the dismissal of Count 4 (logic and accuracy)

3) Lake to Move to Consolidate this case with their public records lawsuit re: ballot envelopes

After hearing oral arguments Friday morning, Judge Thompson said he "will do my best" to rule later that day. That is important because his rulings will determine whether or not there will be a full-blown, 3-day trial starting next Wednesday. ("I can't give you a blood oath promise, but I know time is short." He noted several times that he is a one-person crew when it comes to deciding and writing up his rulings.)

Kari Lake remotely joined the hybrid status conference shortly after it began, and the judge noted her appearance at the end of the conference. 

***

UPDATE, 5/8: We will be providing live coverage of this status conference at 2pm, here on Twitter:

*** 

Original article, 5/5: "UPDATE: Kari Lake Tells Judge She May File New Lawsuits To Overturn Election; Status Conference Set For Monday (READ filing, Order)"

Within hours of being sanctioned by the Arizona Supreme Court for repeatedly making "unequivocally false" statements to the Justices, Kari Lake's attorneys informed Superior Court Judge Peter Thompson that they are "contemplating" a new lawsuit to allege her constitutional rights have been violated, and that they may re-challenge Maricopa County's logic and accuracy testing.

Judge Thompson has set aside 30 minutes for a status conference this coming Monday afternoon (2pm).

Lake's attorneys also indicated that they will try to consolidate the long-running Election Contest case with a recently-filed public records lawsuit to get the early-voting ballot envelopes from the County.

These three possible actions to extend Lake's legal battle to claim victory in last November's gubernatorial election were set forth in the Motion for a Status Conference.

"Plaintiff-Contestant Lake is also contemplating a motion to reconsider the dismissal of Count IV (logic-and-accuracy testing) under ARCP 60(b)(3) within the same likely time frame as the proceedings remand. Indeed, she may also bring a new and separate action under 42 U.S.C. § 1983 and state law to press her federal and Arizona constitutional claims." (The U.S. Code section cited deals with claims that constitutional rights have been violated.)

The public records request lawsuit was filed on April 25 and has been assigned to Judge Michael Gordon. No effort to expedite that case has been made, and an effort to consolidate a case contending that Maricopa County must turn over voters' signatures and envelopes with an Election Contest would be unusual. Even though the cases are related by subject, the Election Contest statutes are very limiting in what may occur.

Yesterday, the Arizona Supreme Court sanctioned Lake's attorneys for their repeated false statements to the state's highest court that it was an "undisputed fact" that more than 35,000 ballots had been injected into Maricopa County's election tallies. 

While noting that Lake's alleged support for the ballot injection claim are two exhibits - "one exhibit that included an estimate... and a different exhibit showing a precise count" - Chief Justice Robert Brutinel focused on the attorneys' statements that the injenction was undisputed. "More to the point here, this was certainly disputed by the Respondents. The representation that this was an "undisputed fact" is therefore unequivocally false." (He then footnoted part of the ethics rules stating "the lawyer must not mislead the tribunal by false statements of law or fact or evidence that the lawyer knows to be false.")

The Supreme Court thus decided not to sanction Lake's attorneys by forcing them to repay the defendants' legal fees, but by the "extraordinary remedy" of paying a fine of $2,000 to the Court. There was no dissent.

"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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5 comments:

  1. Judge Viola doesn't personally assign the public records case to new judge. It goes back into the rotation for random reassignment, although that could result it the public records case landing with Judge Thompson by coincidence.

    ReplyDelete
  2. I assumed Lake was trying to consolidate CV2023-051480 Lake v Richer, not the We The People suit referenced here. Am I incorrect?

    ReplyDelete
  3. I thought that the whole issue of registration form v records is barred by laches. As I read what the AZSC said, Lake has to prove that the county failed to follow their pre-established policies AFTER election day. (Ie, Nov. 9 2022 forward.)

    ReplyDelete
  4. Did Lake file anything resembling a memorandum of law in regards to the remanded signature validation issue?

    Want that what she was supposed to do?

    ReplyDelete
  5. We need an update, please.

    ReplyDelete

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