The court battle challenging the validity of the certified outcome of Arizona’s 2022 gubernatorial election entered its second day Thursday under Maricopa County Superior Court Judge Peter Thompson, with attorneys for Republican Kari Lake, Democrat Katie Hobbs, and Maricopa County presenting their final arguments in the trial.
Lake seeks to either be declared the winner by the court in the gubernatorial race, in which she currently trails by roughly 17,000 votes, or require a new election. To do this, Lake’s team has to clear the high burden of demonstrating that intentional wrongdoing changed election outcomes.
On the final day of the trial, Lake’s team brought in one witness, while the defendants presented four.
Richard Baris
The plaintiff’s first and final witness called to the stand was Richard Baris, director of Big Data Poll. He stated that Lake did not hire him before the election.
“In over six years since we began releasing public polling on a steady basis in 2016, we have not inaccurately predicted the winner, outside of a sampling error, in a single poll. Not one,” said Baris.
He conducted an exit poll in the Arizona 2022 General Election. Yet, on the morning of November 8th, he received word from someone who had committed to completing the survey, saying he would be trying to vote after work because issues at the voting center he went to caused a long line. Baris added an additional question to his poll, asking if people who voted on election day experienced an issue while voting. He said this was to determine where the problems were happening in Maricopa County.
After taking the results of his exit poll, Baris found that only 72 percent of election day voters filled out the poll, nearly 20 percent less than those who voted early or dropped off a ballot.
“I can tell you that has never happened to me before,” Baris said regarding the disparity.
Moreover, Baris said he believes people did not respond because they did not vote. He says that between 25,000 and 40,000 voters could have been disenfranchised because of election day chaos. He further stated that republicans were disproportionately affected by the issues because they had a larger turnout on the day. He stated his belief that the number of people who did not vote on election day because of the issues changed the outcome.
“Are you saying that Plaintiff Kari Lake would have won this race but for the Election Day chaos,” asked Kurt Olsen, one of Lake’s attorneys.
“I have no doubt,” Baris responded.
Then came the cross-examinations, starting with Lalitha Madduri for Governor-elect Katie Hobbs. Through questioning, Baris acknowledged that the poll does not specify what issue the voter faced, just that there was an issue. Therefore, there is no way to tell if the issue was long lines, tabulators, or something completely unrelated. However, Baris insisted that the number of responses about an issue point to something systemic.
When looking at the geographical evidence of where the issues were reported, Baris revealed that five of the eight congressional districts in Maricopa County experienced issues, with the remaining three having an insignificant number of responses. Additionally, Baris was asked if he had any knowledge of intentional misconduct leading to the problems on election day, to which he responded no.
Once Baris was dismissed, the plaintiffs rested their case. The ball then fell into the defendant’s court.
Dr. Kenneth Mayer
The first witness brought to the stand by the defendants was Dr. Kenneth Mayer, a professor of political science at the University of Wisconsin-Madison. He appeared via video call and claimed to have worked on behalf of both political parties in the past.
Mayer spoke on previous testimonies and said he believed that Maricopa County’s wait time numbers were accurate. Republican National Committee (RNC) Roving attorney Mark Sonnenklar testified Wednesday, saying he believed Maricopa County had underplayed how long wait times got on election day to minimize the problems. Mayer said that self-reports for long lines are likely less accurate than the calculations done by the county. Additionally, he spoke on Baris’s testimony and that his claims based on the exit poll were inferences and not actual evidence of intentional wrongdoing.
When cross-examined by Olsen, Mayer said that he had not examined any ballots from the Arizona election, was not in Maricopa County on election day, and witnessed none of the events that unfolded. It was also revealed that Mayer did not do anything to verify the county’s data personally.
“So, you did nothing to verify the accuracy of that data, correct,” asked Olsen.
“That’s correct,” Mayer responded.
Reynaldo Valenzuela
Next came Maricopa County co-Elections Director Reynaldo Valenzuela, who oversees early voting. He explained how early ballots were picked up and transported between the United States Postal Service (USPS) and Runbeck, a third-party company Maricopa County worked with to authenticate ballots in the election. USPS was not allowed to deliver the ballots directly to the county, so certified county employees were tasked with picking up cages of early votes from the mail center. The ballots were weighed to give an estimate of the total being delivered to Runbeck. That estimation was used for the delivery receipts.
Once at Runbeck, its employees would take pictures of the envelopes for signature verification, get an actual count of the ballots delivered, and make sure all the envelopes were legitimate. Valenzuela stated that Runbeck did not have permission to let its employees return their early ballots while at work and had no knowledge of that happening. One of the plaintiff’s witnesses testified Wednesday that this was something that had happened.
Lake’s other attorney, Bryan Blehm, pounced on the ballot estimation going to Runbeck. After confirming that no county employees operate Runbeck equipment in the early voting period, Valenzuela also admitted that when USPS ballots are going to Runbeck, the county only has an estimate of how many are being delivered, not an exact number. Yet, he did share that this is not the same for early ballots coming from drop boxes, as those are counted before going to Runbeck.
Robert Scott Jarrett
Returning to the stand after Wednesday’s trial, co-Elections Director for Maricopa County Robert Scott Jarrett. During the previous trial, one thing that came up was the issue of a 19-inch ballot being printed onto a 20-inch paper, which would cause a tabulation error. While speaking on election day printer issues, Jarrett revealed that on-site T-techs adjusted printer settings to “fit to paper” when troubleshooting at three locations on election day. Jarrett said this was not on any officials’ orders, but the setting change resulted in ballots printing slightly smaller than they should have. He later stated that just under 1,300 ballots were affected in this way.
Additionally, he spoke on the chain of custody with Runbeck on election day. He said Runbeck was performing ballot counts on election day, but this time under the direct watch of Maricopa County employees, so he claims ballots never left Maricopa County custody. He said Runbeck’s high-speed scanners were needed to process the high number of drop-offs on election day.
In the cross-examination, led by Olsen, he questioned why Jarrett did not bring up the “fit to paper” issue during testimony yesterday. Jarrett said he was never asked about that specifically and only gave his opinions on a 19-inch ballot definition.
Ryan Macias
The final witness for the defendants was Ryan Macias, a subject matter expert consultant in election technology who provides election equipment to government entities. He appeared on video and seemed to be glancing down while speaking. Blehm objected twice, calling Macias out for appearing to be reading while speaking, but he denied it both times.
Macias described ballot styles and the technology behind them. He explained that ballots are created in Election Event Designer (EED), an application within the Election Management System (EMS). Each ballot style is created to have the necessary candidates for every city and is rendered into a ballot definition file, where a PDF of the ballot can be created and printed. This was all to address the 19-inch issue. He said if the ballots were altered in the EMS, then every single one would have printed wrong. Other possibilities he gave for how it occurred were changes in the settings for the ballot on-demand application or the operating system the application was running on. He also acknowledged that the “fit to paper” setting could shrink the ballot, but not necessarily to 19 inches.
Moreover, Macias spoke briefly on the chain of custody and said that it would actually be disenfranchisement to discount a box full of ballots because of an administrative error.
Blehm stepped in for the cross-examination and pulled up a PowerPoint created by Macias, which speaks on the chain of custody in elections.
“The integrity of the system and its data will be deemed untrustworthy,” read one line about when the chain is broken.
Macias later clarified that his PowerPoint was not specific to ballots but came from a general document on critical infrastructure systems.
Blehm also questioned if Macias was hired by Secretary of State Katie Hobbs (D) to oversee the 2022 election logic and accuracy test, but he said he worked pro bono as a “retained expert observer.”
Closing Arguments
Abha Khanna, representing Governor-Elect Hobbs, spoke and claimed the court gave Lake a chance to prove herself, but she did not. She reminded the court that Lake needed to prove the election day issues were intentional and done to change the election results but argued the testimonies presented “loose threads” that had not done so.
Tom Liddy with Maricopa County gave a brief closing argument and did say the county would be seeking sanctions. He blamed Lake’s loss on “political malpractice” and stated her team did not meet the burden of proof.
Olsen spoke for Lake’s team, calling Jarrett’s “shrink to fit” explanation for the 19-inch ballots an excuse that he should have stated Wednesday. He also accused the county of downplaying the chaos of election day, which he called “troubling.”
Olsen also made his final comments on the lack of chain of custody for the 298,000 Election Day drop-off ballots. On Wednesday, testimony shared that ballots were meant to be counted at the Maricopa County Tabulations and Elections Center (MCTEC) on election night before being sent to Runbeck. In Thursday’s trial, Jarrett shared that counting happened at Runbeck.
“That makes no sense. They [ballot couriers] have taken those ballots out of the [drop-off] bins and delivered them to MCTEC on election night,” Olsen said. “They [MCTEC] take them [ballot bins] out when the trucks get up to the ramp. They take them out of the bins. They break the seals. They’re supposed to count them. If you don’t have a count from MCTEC when those ballots are being transported to Runbeck, how do you know whether that count is secure? They didn’t follow the law.”
Olsen also brought up the discrepancy that occurred between December 9th and 10th, when the count of drop-off ballots was around 275,000 but then jumped to over 290,000. The defendants explained this as a premature estimation.
He ultimately said that there are issues in this election that cannot be allowed to slide.
“I want to thank your honor for giving us the opportunity to present this case. For the opportunity for people to see the evidence for themselves and judge,” concluded Olsen.
Thompson thanked everyone for their professional participation and said he would take the case under advisement to make a final ruling.
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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Kari Lake” by Gage Skidmore. CC BY-SA 2.0.
