Kari Lake's Election Challenge Loss Is A Loss For ALL Elections.
Kari Lake didn't lose her Election challenge, America did.
Kari Lake’s recent loss in her Election challenge to Katie Hobbs’ 17,117 vote “win” in the Arizona Governor race fell short. On December 24, 2022, following a two (2) day trial, Judge Peter A. Thompson rule that Lake had failed to prove that Maricopa County officials acted “intentionally” to disenfranchise voters and did so in sufficient magnitude “to affect the outcome of the election.” While many cheered the Judge’s decision to permit two (2) of her ten (10) claims to proceed to trial, such happiness was short sighted in light of what transpired.
By permitting two (2) claims to go forward towards what plainly ended up being nothing more than a show trial, the Judge further undermined our “elections” and the Rule of Law. He did so in many respects. Initially, and, most importantly, the Judge held candidate Lake to an impossibly incorrect standard—that she prove intentional misconduct. That this is the incorrect standard will be crystal clear shortly; at this juncture, let us focus first on prior rulings. Prior rulings of the Arizona Supreme Court, which had been consistent with prior rulings of every other State or court that had considered election challenges, did not require proof of intentional misconduct by poll workers or officials. Rather, those courts required proof of “irregularities” sufficient to “affect the result” or to “at least render it uncertain.” For example, in Findley v. Sorenson, 35 Ariz. 265 (1929), the Arizona Supreme Court stated plainly that:
“Honest mistakes or mere omissions on the part of election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain.”
While Judge Thompson cited to Findley in his original order permitting the trial, he misinterpreted the decision essentially to require proof of fraud, or intentional misconduct by election officials designed to rig the election against Lake. Anyone that reads the court’s quote above, which Judge Thompson cited, can learn that this is not what was required. By requiring Lake to meet an impossibly high standard, the court doomed her challenge before it ever started.
Before turning to the brief trial, a review of the Findley Court’s standard is enlightening. Again, the court stated:
“Honest mistakes or mere omissions on the part of election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain.”
To being with, the court explained that “honest mistakes or mere omissions . . . if not fraudulent, will not void an election, unless they affect the result or at least render it uncertain.” Thus, according to the plain language, Lake should have been afforded two (2) paths, not one (1). First, she should have been permitted to prove that the “honest mistakes or mere omissions” were fraudulent. As the quote states, that “voids the election.” However, Lake was not seeking to void the entire election, she was seeking to challenge the election’s ballots (or lack thereof as the case may be). Thus, a second route is open that does not require fraud. With the second route, she should have been permitted the more lenient standard of demonstrating that such “honest mistakes or mere omissions . . . “affect[ed] the result, or at least render[ed] it uncertain.” Judge Thompson ignored the second, more lenient route. Anyone watching the brief trial saw sufficient evidence that the irregularities on Election Day in Arizona “affected the result” and “rendered it uncertain.” However, even those predisposed to favor Lake’s claims had to admit that proof of actual fraud by an identified worker was lacking. This is no fault of Lake—fraud is almost always impossible to prove. Had she been permitted the second route as Arizona law requires, we would be looking at a second election and one where no Election Day “irregularities” would be permitted.
Setting aside the impossible standard, Judge Thompson further doomed Lake’s challenge by refusing her discovery and by providing her only two (2) days to make her claims, and to be prepared to make them within days. Without discovery, that is, the ability to compel production of documents, the interview potential witnesses under oath, etc., Lake had almost no chance to prove fraud by an election worker. Essentially, absent someone confessing or a whistleblower stepping forward, every legal observer knew how the trial would end upon reading the order permitting it because the Judge had set an impossible standard and an almost equally impossible ability to prove the standard.
Which brings us back to why America and the Rule of Law lost, not just Lake. We now have one more case that will be cited by those in the future to claim that those that challenge election irregularities are “election deniers” or “trying to overturn an election.” This makes it nearly impossible to root out election malfeasance—if it cannot be challenged and it benefits one side, we are sure to see more of it.
Among the other problems with this charade of an “election challenge” is that Judge Thompson, in his initial ruling permitting the “trial” and in his subsequent ruling claiming that Lake failed to meet her impossible burden, set forth the nonsensical notion that courts “must apply ‘all reasonable presumptions’ in ‘favor [of] the validity of an election.’” Other than some courts just stating it unilaterally, no reason is given for why “elections” should be presumed to be valid or “election officials” be assumed to be above reproach. In fact, the most rational rule should be the opposite—that if questions about the result exist, the burden should be on the election officials to prove that they did not impact the result. Indeed, until the era of Trump, that was the standard (see above).
We shall see where this road leads us, but evidence from the prior few years is that it is taking us away from American principles and the Rule of Law. In fact, we may not have long to wait to see where Judge Thompson takes us considering he required a brief on Hobbs’ team’s claim for sanctions to be filed yesterday, and it was. If Lake is sanctioned on top of her claims of election improprieties be given little chance, we are further down the path of no return than we might have realized. We shall know soon.
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