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(Photo by John Moore/Getty Images)
Two weeks ago, Arizona Republican Kari Lake’s lawyers Alan Dershowitz, Kurt Olsen, and Andrew Parker got sanctioned for filing a garbage lawsuit challenging her loss in the gubernatorial race. It was a stinging rebuke, finding that the lawyers had violated their obligations under both Rule 11 and 28 USC § 1927.
“Plaintiffs either failed to conduct the reasonable factual and legal inquiry required under Rule 11, or they conducted such an inquiry and filed this lawsuit anyway. Either way, no reasonable attorney, ‘after conducting an objectively reasonable inquiry into the facts and law,’ would have found the complaint to be well-founded,” wrote US District Judge John J. Tuchi, ordering the lawyers to pay for opposing counsel’s time after grossly misstating both the facts and the law in their pleadings.
A normal person might take this moment to think through the life and career choices which got them to this point. But Kurt Olsen, who filed some of the craziest election law cases in the 2020 cycle, is not normal, and neither is Kari Lake. Check out this WaPo tick tock of her campaign’s implosion thanks to the candidate’s inability to appreciate that voters are so done with arguing about 2020. Yikes!
So naturally this team of weirdos filed yet another election challenge, this time in state court in Maricopa County, demanding to be crowned the winner of the November 8 election. Her reasoning appears to rest on various statistical analyses that “prove” it is impossible that voters didn’t like her enough to send her to the governor’s mansion.
For instance, she argues that an insufficient number of mail-in ballots were rejected for signature mismatch, creating an advantage for Democrat Katie Hobbs, because more Democrats voted absentee. According to an affidavit filed by a signature worker, there should have been 20-30 percent mismatch rate, not the typical 1-2 percent in every other election in the country.
Lake goes on to insist that, because a bunch of printers in Maricopa County generated ballots which weren’t dark enough to be read by on-site machines on election day, in-person voters, who tend to favor Republicans, were disadvantaged.
In point of fact, while the printer issue slowed down voting, it resulted in exactly zero people being disenfranchised — the ballots were simply transported to a central location for tabulation. Indeed, a state judge refused to extend polling hours on election day when the RNC, Lake, and Republican senate candidate Blake Masters sued, arguing that the failure of on-site tabulators somehow disenfranchised their voters.
But that isn’t stopping Lake from howling that the printer error caused mass chaos on election day. Just look at this text chain of the “roving attorneys” sent by the RNC to observe polling places on election day.
Coffee, pls!
Lake appears to be arguing that long lines to vote are evidence of election fraud, or at least impropriety, something which none of the attorneys suggested in real time. It would also run counter to the Republican position that it’s totally fair to have one ballot drop box per county, regardless of whether that county has 10,000 residents, or one million.
But the weirdest part of this very weird document is an allegation that Maricopa County election officials violated the First Amendment by briefing the DHS’s Cybersecurity and Infrastructure Security Agency on Arizona election procedures and misinformation circulating about them. The lawsuit accuses then-Secretary of State Katie Hobbs and Maricopa Recorder Stephen Richer of “striving to secretly silence facts and manipulate voters’ opinions about the election … a per se violation of the First Amendment of the U.S. Constitution and at, 1, § 6 of the Arizona Constitution.”
Just … what???
But this passage insisting that a toner problem is evidence of intentional discrimination definitely gives that First Amendment nonsense a run for the money.
Assuming arguendo that a state actor caused the tabulator problems that certain Maricopa County vote centers experienced on election day, the disproportionate burden on a class of voters—Republicans—warrants a finding of intentional discrimination and a shift of the burden of proof to defendants.
Republicans are a protected class now? Cool.
Lake demands that the court toss out all ballots deposited at a drop box, or issue “an order striking any invalid ballots or types of ballots on an absolute or prorated basis,” and either declare her the winner, or declare the election invalid and force Maricopa County to vote again. Asking a court to give a statistical haircut to the vote count is a tall order, although the request is not unprecedented. Rudy Giuliani tried to persuade a federal judge to do just that in Pennsylvania. Of course, that effort got his license to practice law suspended in both DC and New York so … YMMV.
Liz Dye lives in Baltimore where she writes about law and politics.
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