Yesterday the Arizona Supreme Court issued an Order remanding a portion of Kari Lake’s election contest back to the Maricopa County Superior Court for further review. That claim, as pled in the original complaint, alleged:

“a material number of early ballots cast in the November 8, 2022 general election were transmitted in envelopes containing an affidavit signature that . . . did not match the signature in the putative voter’s ‘registration record.’ The Maricopa County Recorder nevertheless accepted a material number of these early ballots for processing and tabulation.”

The Supreme Court held that the trial court precipitously dismissed this signature verification claim on the basis of laches.[1] The Court therefore remanded the claim back to the trial court “to determine whether the claim that Maricopa County failed to comply with A.R.S. § 16-550(A) fails to state a claim . . . for reasons other than laches, or, whether Petitioner can prove her claim as alleged[.]” In other words, assuming there are no additional reasons to dismiss this claim, Lake will have an opportunity to argue that Maricopa County tabulated too many early ballots in the 2022 General Election because the signatures on those early ballot affidavits did not sufficiently match the voters’ registration records.

There is little reason for plaintiff optimism from this ruling, however. Consider:

  • As a function of institutional deference, Superior Court judges are very unlikely to disagree with the County Recorder’s signature match determinations.
  • The Supreme Court upheld the Court of Appeals’ ruling that election contests are governed by a clear & convincing evidentiary standard, not a preponderance standard. Accordingly, Lake will need to convince the trial court under this heightened evidentiary standard that each challenged early ballot affidavit bears a non-matching signature. It is unlikely that any handwriting expert could ever pull off that feat.
  • The early ballots in question have already been tabulated and cannot somehow be clawed back. Thus, even if Lake can convince the trial court that X number of early ballots were improperly verified, the trial court must use the rule of “proportional deduction” to adjust the election results. For example, consider this hypothetical:
    • Lake proves there were 10 improperly verified early ballots in a particular precinct.
    • The canvass demonstrates Lake won that precinct by 20 points, 60% to 40%.
    • The trial court must deduct a proportional amount from each candidate based on her canvassed vote totals. That means 6 votes for Lake must be deducted and 4 votes for Hobbs must be deducted. Lake therefore loses a net 2 votes under this scenario.
    • This mathematical reality means that Lake needs to find mismatched early ballot signatures in precincts where Hobbs dominated that precinct. Every unlawful early ballot found in a red precinct, however, will work against the Lake campaign.
  • The Supreme Court reinforced the well-understood notion that an election contest must present a viable mathematical path to overturning the election results.  Are there enough “unlawful” early ballots from the election – taking into account the clear & convincing evidentiary standard and the proportional deduction rule – to flip a +17,000 vote margin?

Expect the defendants to argue this math equation is impossible for Lake. Specifically, expect the defendants to argue that Lake must demonstrate a plausible mathematical path to victory as a prerequisite to even scheduling an evidentiary hearing on the merits.

In short, it is difficult to see how this Supreme Court Order breathes any life into this case. The “printer malfunction” claim was dismissed. The “chain of custody” claim was dismissed. The due process claims were dismissed. Yes, the signature validation claim remains alive. But that type of claim is very labor intensive and expensive to litigate, coupled with little prospect of ever finding enough votes to overturn an election.

[1] The trial court incorrectly concluded that Lake was challenging the procedure by which Maricopa County verifies early ballot signatures. Accordingly, the trial court determined that a procedural claim of that nature should have been filed prior to the election and therefore was dismissible under the doctrine of laches. The Supreme Court’s finding that Lake, instead, had challenged the County’s compliance with its verification procedures meant that claim could not be dismissed as untimely.

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