Kari Lake’s election fight

Kari Lake’s election fight

Will our judicial system rise to the occasion?

by Joe Fried, CPA

I was recently a guest on a radio show, and one of the first questions put to me was this: Why has there been so little success in litigating election cases? Why did Trump lose most of his cases, and why is Kari Lake struggling with her litigation related to the Arizona gubernatorial race?

I bumbled around a little and started with this statistic: Nearly 70 percent of Trump’s cases were lost on process rulings rather than merit. Process would include lack of standing, laches (untimely filing), jurisdiction, and mootness. Many of those cases lost on the basis of process were huge. For example, in a highly questionable and consequential ruling, the Supreme Court of Wisconsin ruled against Trump (4 to 3) on the basis of “laches.”

The answer I gave was accurate but incomplete. There is a more fundamental reason that election cases are difficult to win, so after the radio show’s commercial break, I elaborated. “The problem,” I said, “is a judicial system that is not equipped to deal with the recent wholesale disintegration of American election standards.”

To understand the disintegration I referred to, consider how things were in the past. Most people voted in person and in a local precinct. There was even a good chance that a voter would be recognized by the people manning the voting machines. In some cases, the voter had to show ID, and in other cases identification was not required. Nevertheless, you had to sign the poll book directly in front of someone who probably had access to a comparison signature.

Was cheating possible? Sure, but it was much harder and likely to be on a smaller scale. Maybe someone would vote in one precinct and then in a couple of other precincts later in the day. Or, perhaps someone would try to impersonate another voter. Cheating could also be accomplished by smuggling ballots into the election center with the help of a colluding worker.

Today, we have mass-mailing of ballots and ballot applications, and in most of the swing states, these can be returned without ID. Signatures are required, but the matching of signatures to registration records is a hilarious joke (more on this later). Today, cheating comes in jumbo sizes and finding a handful of bad ballots or bad signatures here and there will not reverse a potentially phony election. The utilization of new methods is crucial. Here are some changes we need to make.

1. Use statistical inference (Drawing conclusions about a population from a random sample)

Many judges don’t appreciate or even understand statistics. Clearly, this is the case with Kari Lake’s trial judge, Hon. Peter A. Thompson.

On pages 7 and 8 of his 12/24/22 Advisement Ruling, Judge Thompson evaluated the testimony of one of Lake’s data analysts, Richard Baris. Between November 1, and November 8, 2022, Baris conducted a voting exit poll in Maricopa County and in Arizona writ large. When he asked about problems encountered on Election Day, he received responses that varied greatly, depending on political identification (Complaint, pg. 39):

“Did you have any issues or complications when trying to vote in person, such as tabulators ejecting the ballot or voting locations running out of ballots?”

These were the responses:

Based on these results, Baris concluded that Kari Lake could have gained between 15,603 and 29,257 votes had there not been machine breakdowns in Maricopa County voting machines or had the breakdowns been more evenly distributed.

Was Judge Thompson impressed with the estimates of Richard Baris? Not a bit. In his 12/24/22 “Advisement Ruling,” the judge stated that Baris did not give a “specific number” of voters who were “…put off from voting on Election Day,” and his work lacked “precision.” The judge added that “[n]o election in Arizona has ever been set aside, no result modified, because of a statistical estimate” [emphasis as written]. Well, Judge Thompson, it is time for the legal system in Arizona to pull itself into the 21^st century.

I could appreciate a judge finding fault with a particular expert. For example, Baris may not have the credentials he claims. (I have no reason to believe this.) And perhaps another statistician would have a very different estimate. But the judge found fault with statistics itself. That is sheer ignorance.

2. Legislate more time between elections and certification.

The Kari Lake legal team had very little time to put together a case, and even less time to investigate some very troubling issues. Shortly after the adverse trial court ruling, but before the appeal to the higher court, important information was obtained via a Freedom of Information (FOIA) request. This information strongly supports Kari Lake’s case but will probably be disregarded by the Appeals Court, which normally will not consider evidence that was not presented to the lower court.

Figure 1: Ballot failures every 30 minutes throughout Election Day

As shown at Kari Lake’s “Save Arizona Rally” on 1/29/23:

The chart shown in Figure 1 shows the quantity of rejected ballots, according to computer log files, for every 30 minutes from 7 AM to 8 PM on Election Day— in other words, for the entire day. In each 30-minute interval, there were at least 7,000 ballot rejections, for a total of  217,000 rejections. This is a particularly important finding because it calls into question the veracity of Maricopa County election officials, who described the problems as a glitch or hiccup that was fixed by midday.

A more measured response was given later by a Maricopa County Elections Department spokeswoman. In a statement to the AZMirror, Megan Gilbertson noted that many ballots “were run through the machines several times, and each of those rejections would be listed on the log.”That is true, no doubt. However, let’s say that each voter stood by the machine and tried to feed it the same ballot five times. That would mean that ballots from only 43,400 different voters were rejected (217,000 divided by 5 equals 43,400.) However, the 43,400 result is still 2.5 times the winning margin in the election. Thus, this is critical evidence but will probably never be considered. Again, the problem is a lack of time. Do we want quick elections or accurate elections?

3. Stop hiding behind process arguments.

Finally, let’s return to the issue with which we started— process rulings. Anyone who has had much experience with our legal system knows that some judges use process arguments to avoid making difficult and/or controversial decisions. This is especially the case with elected judges, and most of our swing state judges (including state supreme court judges) are elected.

In Kari Lake’s complaint, powerful evidence related to signatures was ignored on the basis of a phony “laches” ruling. Here is the background:

Arizona law (A.R.S. § 16-550) prescribes a two-step process for validating early ballots:

1. The Recorder or the Recorder’s designee must “compare the signatures thereon with the signature of the elector on the elector’s registration record.” If there is a match the ballot is accepted.
2. “If the signature is inconsistent with the elector’s signature on the elector’s registration record, the county recorder or other officer in charge of elections shall make reasonable efforts to contact the voter, advise the voter of the inconsistent signature and allow the voter to correct…” 

Based on the sworn statements of three whistleblowers, the two-step procedure prescribed by law was not followed in Arizona’s largest county, Maricopa. Instead of attempting to contact the voters to have them “cure” their signatures, County managers simply reversed the signature rejections of reviewers or made them re-process the signatures until a different result was obtained.

 Statements by each of the three whistleblowers were damning. Here is what Yvonne Nystrom said in her affidavit. She stated that signatures were being re-processed even though they had already been reviewed and rejected multiple times (complaint pg. 18):

“These 5,000 to 7,000 ballots had already been through the full level 1, 2, and 3 processes and [had] been rejected. Therefore, I do not know why [we were] going through them again, and that is why it seemed that Celia wanted them approved.”

The procedure described by Nystrom is clearly contrary to the dictates of Arizona law and the Election Procedures Manual. Those ballots should have been rejected unless the voters (the alleged voters) were contacted and they produced evidence establishing that the signatures were valid.

Incredibly, the judge issued a “laches” ruling. According to Judge Thompson, this particular complaint should have been filed months earlier. Why? I doubt the judge can answer that question, but it certainly made it easier for him to write his ruling.

Summary

In our new world of mailed ballots, without ID requirements and with signature standards that are subjective at best, we need our judiciary to step up its game. The use of process rulings should not be abusive. Statistical inferences, when produced competently, should be considered as evidence. And more time should be allowed between the election and the certification so that meaningful investigations can be held.

I have read Kari Lake’s complaints and appeals, and they are powerful. Nevertheless, the rules (and misuse of the rules) give her a very steep hill to climb.

~~~

Joe Fried is an Ohio-based CPA who has performed and reviewed hundreds of certified financial audits. He is the author of the new book, Debunked? An auditor reviews the 2020 election— and the lessons learned (Republic Book Publishers, 2022). It provides a comprehensive overview of fraud and irregularities that affected the 2020 election.

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