Arizona Court of Appeals, Division One, affirms ruling confirming Hobbs's election as governor, holding that clear and convincing evidence is the burden of proof in an election contest, that proof that alleged official misconduct actually affected the results is required, and that misconduct need not be intentional to support an election contest.

After Katie Hobbs won Arizona’s 2022 gubernatorial election, Kari Lake filed an election contest seeking a declaration that Lake won or, alternatively, an order invalidating the results. The superior court ruled against Lake and confirmed Hobbs as governor. On appeal, Lake contended that the superior court (1) applied the wrong legal standards and definitions in assessing her claims; (2) made erroneous factual findings in its bench-trial ruling on her printer/tabulator and chain-of-custody claims; (3) and erred in summarily dismissing her signature-verification claim and Equal Protection and Due Process claims.

Lake argued that the superior court applied the wrong legal standards by requiring that she prove her claims by clear and convincing evidence instead of by a preponderance of the evidence, prove that the official misconduct she alleged actually affected the results and did not merely render them uncertain, and prove that the alleged official misconduct was intentional. The court held that clear and convincing evidence was the appropriate burden of proof in an election contest, reasoning that the standard was consistent with cases holding that only clear and conclusive evidence can overturn an election and with the strong public policy favoring stability and finality of election outcomes. It further held that the superior court was right to require proof that the alleged official misconduct actually affected the results. Arizona law requires a challenger in an election contest to show that, absent the invalid ballots, the outcome would have been different. Uncertainty is not enough. Lastly, the court agreed that alleged official misconduct less than intentional can be enough to support an election contest. However, Lake was not entitled to relief because her claims failed under any standard.

Lake next asserted that the superior court made a number of erroneous factual findings in ruling against her on her two claims of official misconduct that proceeded to bench-trial. Lake claimed that election officials failed to adequately test ballot-on-demand printers or somehow injected misconfigured ballots that could not be read by on-site tabulators. The court rejected these claims, finding that there was ample evidence to support the superior court’s conclusion that the printer/tabulator issues were simply mechanical malfunctions that were fixed, and that voters whose ballots were unreadable by on-site tabulators were still given the opportunity to vote by other means. Claims that election-day-issues resulted in long lines that disenfranchised voters were speculative. Lake also charged that election officials failed to maintain proper chain-of-custody documentation or follow chain-of-custody procedures for early ballot packets submitted in drop boxes on election day, resulting in the possibility that invalid ballots might have been inserted. After hearing evidence and witness testimony, the superior court rejected the various allegations, and the court of appeals deferred to its credibility determinations. As to her argument that officials violated the Election Procedures Manual by failing to count ballots immediately after the secure containers were opened, Lake cited no authority imposing an express time limit and offered no evidence that it would have affected the results.

Lake further argued that the superior court erred when it summarily dismissed her signature-verification claim as an untimely challenge to existing election procedures and her Equal Protection and Due Process claims as duplicative of her printer/tabulator-official misconduct claim. Arizona employs a multi-level review to ensure that ballot signatures match the signature on a voter’s registration form. Lake asserted that election officials accepted a material number of ballots with mismatched signatures. The superior court dismissed the claim as untimely because challenges to existing elections procedures must be brought before an election. On appeal, Lake argued that her complaint did not challenge the elections procedures’ validity, but rather alleged that those procedures were violated. The court disagreed. Lake’s allegations that a material number of mismatched ballots were accepted was based on rejections by first-level reviewers, not the ultimate determination based on multi-level review. Therefore, the challenge was to the signature-verification procedure itself. As to Lake’s Equal Protection and Due Process claims, because they were based on the same alleged interference with on-site tabulators as the printer/tabulator claims, the court agreed that they were duplicative.  

Judge Cattani delivered the opinion of the Court, in which Judges Cruz and Swann joined.

Posted by: Michael Price