Kari Lake's almost-forgotten Election Contest appeal is - as simple minds would put it - alive and kickin'. More than four months ago (Nov. 14, 2023), briefing was completed. Neither side requested oral argument, and the appeal was deemed "submitted" (for decision) on November 27.
This past week, Division 2 of the Court of Appeals - the Tucson-based division that Lake fought a transfer to - decided to ask the attorneys to come in for short oral arguments on May 2. They did not present counsel with any issues that they would like to see addressed.
Lake appealed the judgment against her on four of the six counts, back in May 2023. The issues raised included not only Maricopa County's 2022 printer problems, but "new evidence" about their certifications of tabulators and their signature comparison process.
What does this sudden request for oral argument mean? A couple of possibilities come quickly to mind:
1. The three-judge panel is deadlocked on one or more issues and/or the result, and thinks that oral argument could help sort that out. I would suggest that that is less likely, given that they (a) do not need to be unanimous although they would like to be, and (b) that they did not provide any guidance to attorneys on specific questions.
2. This sequence tracks closely with that taken by the trial judge in Abe Hamadeh's Election Contest (which was just conferenced last week and is currently under advisement in Division 1 of the Court of Appeals, by the way). When that Mohave County Superior Court judge sua sponte (on his own) set oral argument, it was widely seen as a way to hide a procrastination problem. It is worth noting that this case was transferred from Division 1 to Division 2 as part of a program to equalize caseloads for the appellate judges.
Arizona's Law has privately produced a Petition to change the rules for future Election Contest appeals. There are rules to make sure that the cases are heard by trial judges expeditiously, and there are rules for expedited appeals in some elections cases. The new Petition seeks to amend these rules to prevent these types of delays in the 2024 (and future) election cycles, in order to improve the administration of justice in these high profile cases.
If you are an Arizona attorney interested in this petition, please contact me at Paul . Weich . AZlaw @ gmail.com (no spaces)
By the way, Lake has THREE active cases which have all been in the news this past week. Here is "where are they now" and how to tell them apart.
1. The Election Contest (2022) that is the subject of this article. (see above)
2. Stephen Richer's Defamation Case. (It is in the news this week because Lake defaulted in Superior Court following unsuccessful appeals, and she is now asking Judge Jay Adleman to hold a damages (against her) hearing. Richer is asking for discovery to prove the damages. An April 24 status conference is now on the books.
3. The ban Electronic Voting Machines Case, filed by Lake and Mark Finchem before the 2022 election. That case was dismissed by the federal judge and affirmed by the 9th Circuit. Lake/Finchem this month asked the U.S. Supreme Court to reinstate the case, claiming new evidence. They later filed a faux Motion to Expedite to introduce that new evidence. The Supreme Court does not have to accept their appeal. (Their appeals of $122,000 in sanctions are pending in the 9th Circuit.)
"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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