Friday, March 15, 2024

BREAKING UPDATE: UPDATE: Lake/Finchem Mis-Accuse All Opposing Attorneys Of Ethical Breaches and/or Admissions; Supreme Court to Discuss Case In 2 Weeks (NEWS ANALYSIS)

UPDATE, 4/4: The Supreme Court has refused to accept the so-called Supplemental Brief filed by the Lake/Finchem team. (See, below)


UPDATE, 4/3, 3pm: "UPDATE: Lake/Finchem Mis-accuse All Opposing Attorneys Of Ethical Breaches and/or Admissions; Supreme Court to Discuss Case In 2 Weeks (NEWS ANALYSIS)"

In a stunning misreading of court rules, Kari Lake's (and Mark Finchem's) attorneys last night asked the U.S. Supreme Court to find that Arizona's (and several county's) attorneys all committed ethical breaches and/or admissions by not (yet) answering their recent appeal.

The Lake/Finchem/Mike Lindell team have claimed to file new evidence supporting their right to continue fighting to ban electronic voting machines in Arizona's upcoming elections. Attorneys from the Arizona Attorney General's Office, Maricopa County and Pima County all told SCOTUS ("Supreme Court of the United States") that they would stand by and not file a Response unless the Justices felt it necessary. This was on a Supreme Court official form and is a standard practice set out in the court's policies. The Supreme Court only accepts approximately 1-2% of the petitions filed.

Attorneys Kurt Olsen, Larry Joseph and Patrick McSweeney (all from the DC area) filed their 39-page "Supplemental Brief" yesterday, claiming victory. They rely on a triple bank shot:
1. The opposing attorneys had an ethical responsibility to oppose the appeal if there was a misstatement of law or fact in the Petition. 
2. Therefore, by filing the waiver form they admitted everything Lake's team said was perfect, and
3. the Justices should therefore rule in our favor without going through any formal briefing or argument.

The problem is (2). The court's Waiver form should be titled "Conditional Waiver", because the attorneys were actually telling the court that "I do not intend to file a response to the petition for writ of certiorari UNLESS ONE IS REQUESTED BY THE COURT." (I re-emphasized for clarity; the form emphasizes the first part of the sentence.) 

This conditional language is also supported by a January 2023 Memorandum from the Court. In it, they set out "The Court will sometimes schedule a case for conference, but then request a response from the respondent(s) before the petition is actually considered at conference.  Such a request will be noted on the docket, and will generally give the respondent 30 days to submit the response."

Based on the Lake team's uneven record of following the Supreme Court's rules, Arizona's Law believes that the misreading of the waiver is intentional. They were able to follow the rules iu requesting multiple extensions of their deadline to file the Petition (appeal) and they followed the rules to submit yesterday's Supplemental. On the other hand - as detailed below - they obliterated the rules by filing a bogus Motion to Expedite. This accusation appears more designed to make their supporters think they are winning than convincing the Supreme Court to take some radical action.

It is unclear whether Arizona and county attorneys will also decide not to respond to this latest tactic. None of the attorneys reached wanted to go on the record with Arizona's Law.

We should expect the Justices' reaction to this on either April 22 or 29. Today, the Court indicated that the Justices would - privately - conference about this (and other) cases on April 19. The Court's calendar shows four days of oral arguments the following week (including Trump v U.S. on Thursday), with Orders being released each Monday.


BREAKING UPDATE, 3/21: The Real Reason *WHY* Kari Lake Late-Filed Request To Expedite SCOTUS Appeal To Ban Arizona Vote-Counting Machines (NEWS ANALYSIS)

In a move that can best be described as "rich", Kari Lake and Mark Finchem today asked SCOTUS to expedite her appeal Petition. And, the real reason is not that they are (suddenly) more worried about vote-counting machines being used in November - which is what they claim.

The Motion to Expedite comes more than five months after the 9th Circuit issued its Opinion on Oct 16, (as published here, below, in the original article). 

Lake had 90 days to appeal. She asked for not one, but TWO, month-long extensions, citing other professional obligations. (Justice Kagan granted them.)

We did not previously publish the extension requests. However, they now are much more relevant. Here they are, below.

Lake's attorneys - Kurt Olsen and Larry Joseph - filed the Petition for Writ of Certiorari (asking the Justices to accept the discretionary appeal) just under the extended deadline last Thursday. The Clerk set April 17 as the government's deadline to respond. 

If they had filed the Motion to Expedite with the Petition, the Court could have decided when to set the response deadline.

However, the real reason for filing the expediting request today was not in the (too-long) 23-page Motion. Rather, it is found in the 176-page Appendix filed separately.

There, we see three new affidavits from key election fraud advocates Clay Parikh, Ben Cotton and Walter Daugherity. These are dated March 18, 19 and 16, respectively.

In other words, even with the five months and two extensions, Lake's/Finchem's/Lindell's team could not finish putting together their Petition. This Motion to Expedite was simply an improper effort to get a de facto third extension to cover up their most recent (work management) failure. (Remember, this case was dismissed, sanctioned, and affirmed on appeal.)


 UPDATE, 3/14/24: "BREAKING: Kari Lake Goes To the (U.S.) Supreme Court, Brings New/Not New Allegations To Outlaw Voting Machines (READ Petition)"

Kari Lake and Mark Finchem told the U.S. Supreme Court today that they have uncovered new evidence of unlawful conduct in past Maricopa County elections, and that the Justices should therefore find that they had standing to file their 2022 suit to ban electronic voting machines.

While not repeating the claims they made in the lower courts that Arizona does not use paper ballots, Lake/Finchem attorneys Kurt Olsen and Larry Joseph do claim to have recently discovered that Maricopa County gave Dominion employees control over the election systems and committed other violations in 2020. Their argument is that the lower courts would not have dismissed the case (and assessed $122,000 in sanctions) but for these discoveries.

Their summary of what they want the Supreme Court to now consider also includes allegations that Maricopa County did not do required logic and accuracy tests, that passwords were not tightly controlled, and software was altered. The full list is found on pp. 17-18 of the Petition, below. However, they are theories that have long been thrown around - maybe even in this case. 

Asked about today's laundry list, Maricopa County Recorder Stephen Richer told Arizona's Law "And, they're not even new."

After considering responses, the Supreme Court will conference and decide whether or not to accept review of the case.

Olsen, Alan Dershowitz and Lake's other attorneys have separately appealed the sanctions to the Ninth Circuit, with oral arguments expected to be in July.

(Previous article:

"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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