Failed gubernatorial candidate Kari Lake and secretary of state candidate Mark Finchem want a Ninth Circuit Court of Appeals panel to reconsider the dismissal of their lawsuit seeking to ban electronic voting systems.
In oral arguments today, Andrew Parker, attorney for Finchem and Lake, continued to claim the possibility of “malevolent actors” hacking into electronic voting systems poses real, and justiciable, harm to Arizona voters.
But attorneys for Secretary of State Adrian Fontes and for Maricopa and Pima Counties point out Lake and Finchem have yet to cite any evidence of hacked tabulation machines in Arizona.
Lake and Finchem filed the suit in April 2022 to block the use of electronic voting machines in the 2022 election and beyond “unless and until the electronic voting system is made open to the public and subjected to scientific analysis by objective experts to determine whether it is secure from manipulation or intrusion.”
The duo claimed electronic voting systems were susceptible to hacking and fraud. They sought an order declaring electronic voting systems unconstitutional and blocking their use by elections officials in the state.
In August, District Judge John Tuchi dismissed the case as he found Lake and Finchem lacked standing. He concluded Lake and Finchem alleged no true injury and points out, “a long chain of hypothetical contingencies must take place for any harm to occur.”
Tuchi found even if Lake and Finchem had standing, they “do not plausibly allege a violation of federal law.” And he concluded the suit was untimely given the upcoming 2022 midterm.
“While the Court agrees with Plaintiffs that the right to vote is precious, and should be protected, Plaintiffs lack standing because they have articulated only conjectural allegations of potential injuries,” Tuchi wrote.
Tuchi later sanctioned Lake and Finchem’s attorneys for claiming Arizona did not use paper ballots in their request for relief. The duo was hit with more than $122,000 in attorney’s fees.
Lake and Finchem appealed the dismissal to the Ninth Circuit Court of Appeals.
In oral arguments, Ninth Circuit Judge Andrew Hurwitz asked whether hand counting would be more reliable than tabulation machines, given instances of fraud in both systems.
And if the potential for fraud was enough to render a system unconstitutional, Hurwitz asked, “Is there any system under your view of the law that would be constitutional?”
Parker said “no” and clarified that a system could not only be vulnerable to fraud but also cause harm in terms of voter disenfranchisement or dilution.
But Hurwitz pointed out that “the state courts have found that the count was accurate.”
Parker said the “question is not whether there was hacking in 2020 or 2022 election,” but rather the potential of hacking.
Kara Karlson, assistant attorney general and attorney for Fontes, said, “the issue with this case is that it is all speculation.” She noted Lake and Finchem could only be successful in establishing standing with “actual evidence. Not evidence of a potential.”
Emily Craiger, attorney for Maricopa and Pima counties, again reiterated Lake’s and Finchem’s claims are “purely speculative,” and “they have not alleged any type of harm or that there’s even the possibility that a ballot isn’t going to be counted correctly.”
“Simply saying … Maricopa County uses machines. There was an incident with those machines. Therefore, there must be an incident with Maricopa County’s machines is not a reasonable inference to me,” Craiger said.
She continued, “Their allegation is akin to saying that the Maricopa County Tabulation and Election Center is a building that’s built out of concrete and steel, and there are criminals in the world. And there are criminals that break into buildings. Therefore, Maricopa County can’t use buildings in its election process.”
The appellate panel took today’s arguments under review.