Kari Lake failed to meet a standard that is impossible to meet

Kari Lake has just lost her trial to overturn the election in Arizona.  She presented uncontroverted testimony that the dimensions of the ballot on Election Day were changed from the dimensions that were tested before the election.  This caused the ballot readers great difficulty, since they are programmed to look for marks in specific locations, and the size change moved those marks.  This then led to great confusion, delays, and departure of voters who could not continue to wait their turn.  Those non-voting voters were mostly in dark red areas, so the "errors" disenfranchised Republicans.

Lake presented uncontroverted testimony that the printers were reset to print on the different-sized paper, showing that election officials knew that there was a problem.  She presented even more uncontroverted testimony that election officials did not tally the total number of ballots before transmitting them to the central office, contrary to bright-letter regulations and law.  And finally, she presented uncontroverted testimony that over a quarter-million ballots were counted but had no chain of custody, again contrary to law.  That "oversight" could allow many thousands of ballots — not votes — to be snuck in to be counted.

Image: Kari Lake.  YouTube screen grab.

As Kari Lake noted, the election was run "outside the law."  Yet Maricopa County judge Peter Thompson ruled that Lake didn't meet her burden of proof.  He relied on case law that says:

  • Lake had to prove that the outcome was affected by the irregular conduct of the election.
  • Lake had to prove her case by clear and convincing evidence of misconduct by election officials "intended to affect the result of the 2022 General Election."
  • The Court must assume that election officials acted in good faith as a matter of law.
  • All reasonable presumptions must favor the validity of an election.

That's a pretty tall mountain to climb.  Believing that the Democrats cheated is not enough.  And the judge basically ruled that Lake didn't prove malevolent intent.

Put bluntly, there's no way that Lake would be able to do that because she would have to go through the discovery process, get emails and documents, and take depositions to develop proof of intent.  In short, the time between the election and the trial was too short to meet the standard of proof.  We saw this before in Donald Trump's election lawsuits.  There was more than adequate reason to believe that the election was stolen, but not enough time to develop the case.

Uncontroverted testimony ought to be enough to verify the truth of a proposition.  In this case, we have both ballot printer and ballot custody issues of sufficient magnitude to cast a significant pall over the election.  Many voters signed in but didn't vote due to those delays.  Sloppy custody was either by a deliberate action to allow in extra ballots, or by negligence in instruction and supervision.  In either case, it was misconduct by election officials.  But it doesn't prove intent, the impossible standard in a compressed schedule.

At this point, Kari Lake must get an appellate court to revisit those precedents.  Put bluntly, they allow the parties in power to get away with literally anything.  There just isn't enough time to build a case for intent.  So officials can claim they "made a mistake," and no investigation will get far enough to prove their fraud before they assume office.  This "Catch-22" is contrary to the basic premise of equality before the law.

Lake can also claim that the judge erred in his "clear and convincing" finding because that is a subjective standard.  The U.S. Supreme Court in Colorado v. New Mexico, 467 U.S. 310 (1984) ruled that it means "the evidence is highly and substantially more likely to be true than untrue.  In other words, the fact-finder must be convinced that the contention is highly probable."

As I noted earlier, the evidence is uncontroverted, meaning it isn't "likely" to be true.  It's actually true.  This leaves a radical presumption of good faith to overcome, and whether the appellate court sees that as appropriate, given the magnitude of the malfeasance, is the big question.  The appellate court ought to realize that errors involving fully ten percent of the entire voting electorate are larger than those assumed by the earlier courts, rendering their precedents inapplicable.

Will they?  If I were a betting man, I'd bet against it.  Judicial inertia is large.  But true justice requires that the court order the election to be thrown out as utterly unreliable.  Given the facts on the ground, no presumption of election regularity can logically be maintained.  But granting Lake a victory at this point is a bridge too far.

Ted Noel, M.D. is a retired anesthesiologist/intensivist who podcasts and posts on social media as DoctorTed and @vidzette.  His DoctorTed podcasts are available on many podcast channels.

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