Kari Lake & Mark Finchem appeal their tabulator case to U.S. Supreme Court

Kari Lake has finally made good on her promise to appeal an election case to the U.S. Supreme Court. 

The Republican candidate for U.S. Senate, who still hasn’t acknowledged her loss
to Democrat Katie Hobbs in the 2022 race for Arizona governor, has
petitioned the nation’s top court to take up a case aimed at banning the
use of machines to count ballots in two Arizona counties and forcing a
hand count. 

Lake, along with then-candidate for
Arizona Secretary of State Mark Finchem filed the suit in April 2022,
alleging that the electronic ballot tabulators used in Maricopa and Pima
counties were “hackable” and that the courts should place an injunction
on their use ahead of the November 2022 election. 

Finchem, who also lost his election
in 2022, and Lake each filed lawsuits after that election seeking to
overturn the results. In both cases judges found that neither candidate could prove that there was any fraud, malfeasance or maladministration that changed the outcome.

Attorneys for both Lake and Finchem have been sanctioned for making claims unsupported by facts or evidence.

In August 2022, U.S. District Court Judge John Tuchi threw out
the tabulator case and issued a scathing ruling. He later ordered
$122,000 in sanctions against the attorneys in the case, saying that
Lake and Finchem’s claims amounted to mere “conjectural allegations of
potential injuries.”

In October 2023, the 9th Circuit Court of Appeals concurred with Tuchi’s decision to throw out the case, agreeing that it was “frivolous.”  

“None of Plaintiffs’ allegations
supported a plausible inference that their individual votes in future
elections will be adversely affected by the use of electronic
tabulation, particularly given the robust safeguards in Arizona law, the
use of paper ballots, and the post-tabulation retention of those
ballots,” the appellate court wrote. 

An attorney representing Lake and Finchem previously admitted in court
that the Republicans had no evidence to support their claims that
tabulation equipment or any voting equipment in the state had been
hacked. Tabulators in Arizona are not connected to the internet and
paper ballots are used across the entire state.

On Thursday, Lake and Finchem asked the U.S. Supreme Court to overturn the lower court’s decision.  

During a livestream Friday morning on
the social media site X, formerly Twitter, avid Trump supporter and
election conspiracy promoter Mike Lindell claimed that there was
“explosive” and “shocking” new evidence in the case that wasn’t
previously available. Lindell also claimed that his Lindell Defense Fund
paid for the original suit. 

“New evidence from other litigation
and public-record requests shows defendants made false statements to the
district court regarding the safeguards allegedly followed to ensure
the accuracy of the vote, on which the district court relied,” the
attorneys for Lake and Finchem, Kurt Olsen and Lawrence Joseph, wrote in
the petition to the Supreme Court. “That enables petitioners to seek to
amend their allegations on standing…to show a non-speculative
likelihood that the same harms will recur in future elections, which
harms did indeed occur in the 2022 election.”

Even with their claims of new
evidence, Derek Muller, a professor of law at Notre Dame Law School,
told the Arizona Mirror that he believes the case is “a longshot.” 

“I think the 9th Circuit opinion is
pretty much right, given how the Supreme Court has interpreted standing
doctrine,” Muller wrote in an email. “Their injury is a ‘generalized
grievance,’ which means it’s something that the public shares. They have
not suffered any concrete or particularized harm. For that reason, I
think the Supreme Court will probably refuse to hear the case and offer
no comment on its refusal.”

In their appeal to the high court,
Lake and Finchem harken back to the hanging chad debacle in the
presidential race in Florida in 2000, but do so in a way that
incorrectly implies Arizonans don’t use paper ballots. The overwhelming
majority of voters in the state use paper ballots that are tabulated by
an optical scanner. 

“At least there, humans could see and
touch ballots and punch cards,” the attorneys wrote, referring to
Florida in 2000. “By turning elections over to black boxes running
software outside the public domain, we surrendered the ability to
meaningfully verify the election process.”

In the petition, Lake and Finchem go
as far as to accuse Arizona election officials of illegally altering the
tabulator software — a crime under Arizona law — and concealing those
alterations from the court when the case was originally filed. 

They also claim that Dominion Voting
Systems equipment used in Maricopa County, and in many other counties
across the country, “have a built-in security breach enabling malicious
actors to take control of elections, likely without detection.”

Dominion and its software have been
the target of right-wing election conspiracy theories for years now, and
last spring Fox News agreed to pay Dominion $787 million over false claims it made about the company’s voting equipment. 

Lake and Finchem also pointed out
that some of the components in the Dominion machines come from countries
like China, “that are known adversaries that routinely use components,
such as motherboards and microchips, to surreptitiously access computer
systems.”

They also indicated that, because
“most voters and election workers” don’t understand how the tabulators
work, that they can’t be trusted. 

“The question is not how many times
inaccurate results were discovered, but rather how many times have they
not,” Olsen and Joseph wrote in the petition, seemingly highlighting a
lack of evidence of Lake and Finchem’s claims. 

Finchem and Lake also continue to
repeat the same allegations that tabulators and their software in
Maricopa County were not properly certified, or put through mandated
pre- and post-election logic and accuracy testing, making them “easily
vulnerable to manipulation” that they’ve been making for more than a
year now. 

They claim to have recently obtained
system log files from the 2020 Maricopa County election that show that,
instead of using certified software, “Maricopa’s election software has
been surreptitiously altered with respect to components controlling how
ballots are read and tabulated.”

Lake and Finchem continue in their appeal to rely on inaccurate or unreliable sources and information to form their case. 

In the petition, they cited the
debunked partisan “audit” of Maricopa County’s 2020 election, saying
there was a 11,592-ballot discrepancy between the official results and
“final voted files” totalled. 

Cyber Ninjas, the firm that completed the audit on behalf of Senate Republicans and was run by a pro-Trump conspiracy theorist who was deeply tied to the Trump campaign’s effort to gin up evidence that voter fraud had led to Trump’s loss, had no experience in election audits, and was never able to fully make sense of its own counts,
let alone confirm the accuracy of the official results. The company
spent two months in the summer of 2021 hand-counting more than two
million ballots and then another four months to determine who won, but
never produced an accurate final number. 

“Looks like basically our numbers are screwy,” Cyber Ninjas CEO Doug Logan said in a text message sent during the “audit” that was later uncovered by the Arizona Republic. 

Lake and Finchem also point to
tabulator problems on Election Day 2022, which they called a “massive
disruption,” to show that their original claims about the tabulators
“weren’t speculative.” 

While the tabulators at around 70 of Maricopa County’s 226 voting centers did have trouble scanning ballots on Nov. 8, 2022, an independent investigation found
the cause was paper that was too thick and ballots that were too long
for the printers to handle. The result was about 17,000 ballots that
couldn’t be read by the tabulators at polling sites.

The issue did cause long lines and
voter frustration, but even though thousands of ballots were rejected by
tabulators that day, all legal votes were later counted and Lake’s
claims that the tabulators were manipulated for the purposes of fraud
were dismissed by the courts. 

She also failed to prove in court that any person was denied their right to cast a ballot that day.