Kari Lake and Mark Finchem filed a Petition for Certiorari with the U.S. Supreme Court on Thursday, appealing the dismissal of their lawsuit against Arizona officials to stop the use of electronic voting machine tabulators. The 210-page petition added new allegations stating that the defendants lied to the court and that new evidence had surfaced exposing the vulnerabilities of the machines to bad actors.
“New evidence from other litigation and public-record requests shows defendants made false statements to the district court regarding the safeguards allegedly followed to ensure the accuracy of the vote, on which the district court relied,” the petition asserted.
Their original complaint sought to stop the use of the voting machine tabulators in the 2022 election, citing the vulnerabilities. U.S. District Judge John Tuchi, who was appointed to the bench by Barack Obama, dismissed the complaint. Despite producing evidence of “actual electronic vote tampering in prior elections,” the petition asserted, Tuchi said it was too “speculative” for Article III standing. Article III standing refers to the requirements in the Constitution for bringing a lawsuit in federal court; plaintiffs must have suffered an “injury in fact” caused by the defendant, and the court must be able to provide a form of redress.
After the Maricopa County Supervisors, represented by Maricopa County Attorney Rachel Mitchell, asked for sanctions, Tuchi awarded $122,000 in sanctions against Lake’s and Finchem’s attorneys. The Ninth Circuit Court of Appeals rejected the pair’s appeal in October, stating there was no “particularized injury.”
Authored by attorneys Kurt Olsen and Lawrence Joseph, the petition addressed three questions. First, whether there was an Article III controversy. Second, whether the plaintiffs could amend their complaint to add a “recently discovered pre-litigation injury.” Third, whether their injuries “— if moot — are nonetheless capable of repetition, yet evading review.”
The new evidence consisted of discovering that Maricopa County “flagrantly violated state law for electronic voting systems,” “using altered software not certified for use in Arizona,” and “actively misrepresented and concealed those violations.” Additionally, and “[p]erhaps worse — the Dominion Voting Systems, Inc., systems used in Maricopa and almost thirty states have a built-in security breach enabling malicious actors to take control of elections, likely without detection.”
The petition asserted that the courts have issued decisions in recent years making it more difficult to bring challenges to poorly conducted elections. The Supreme Court case Lance v. Coffman, decided in 2007, stops voters from bringing “claims under the Elections and Electors Clauses.” Purcell v. Gonzalez, decided in 2006, blocks election challenges that are brought too close to an election. This has created a situation where “[c]ases are never ‘just right’ for voters or candidates to challenge the wholesale bombardment of States’ election-integrity laws or practices that decide close elections,” the petition said.
Lake and Finchem in their petition cited frustration with the case Curling v. Raffensperger, where the court “acknowledged that plaintiffs’ national security experts ‘convincingly’ showed vote manipulation with these machines was not a question of might this actually ever happen? — but when it will happen.” However, the court refused to issue an injunction stopping use of the ballot marking devices since the election was weeks away. The petition said Maricopa County is using very similar software.
The petition asked the court to limit Lance instead of taking an expanded interpretation of it like the lower courts did. “Lance has wrongly come to stand for the proposition that voters cannot enforce the Elections and Electors Clauses,” the petition said.
The petition said that the prohibition on suing states, known as “sovereign immunity,” doesn’t apply since there is an exception where the state is violating federal law.
Lake and Finchem went over the vulnerabilities of the machines, noting that “the accuracy of elections results depends on blindly trusting private companies who sell and service these machines, while refusing to make their software available to neutral expert evaluation.” They warned that the machines “contain critical parts made in countries like China that are known adversaries that routinely use components, such as motherboards and microchips, to surreptitiously access computer systems.”
The pair said the machines in Arizona were not properly certified in compliance with state law, “making these systems easily vulnerable to manipulation.” An independent audit of the 2020 election found an 11,592-ballot discrepancy between “the official result totals and the equivalent Final Voted File’s totals, demonstrating an inability to reconcile votes.” Congressional officials and other officials found that Arizona’s voting system was hacked in 2016. Additionally, the pair said that experts have shown that the safety measures to prevent the hacking can be foiled.
Next, the petition went over how “six cyber or national-security experts testified on the voting machines’ unsuitability to provide a secure and accurate vote,” including in Arizona or on machines similar to the ones in Arizona. Their testimony was “unrefuted by respondents and ignored by the Ninth Circuit,” the petitioners said.
Lake and Finchem listed some of the election irregularities that occurred in the 2022 election. “[O]n Election Day, Maricopa’s vote center tabulators rejected over 7,000 ballots every thirty minutes beginning almost immediately after the vote centers opened at 6:00 am and continuing past 8:00 pm — totaling over 217,000 rejected ballot insertions on a day when approximately 248,000 votes were cast.”
Recently obtained evidence, the system log files (SLOG) from the county’s 2020 election, revealed that the software used was not properly certified, the petition said. Additionally, the county failed to conduct logic and accuracy testing on the machines prior to both the 2020 and 2022 elections as required by law. Instead, they only conducted the testing on five backup machines that weren’t used. The petition said the trial court relied on those “false representations” from the county about the testing when it chose to dismiss the complaint.
