Kari Lake and Mark Finchem are not going to get a do-over of their losing claim that machines used in some Arizona counties to tally ballots are so inherently unreliable that they violate their constitutional rights.
In a brief order Monday, the U.S. Supreme Court refused to consider the petition they filed to review the decisions of both a trial court judge and the 9th Circuit Court of Appeals that they should be allowed a new trial to present evidence they did not have before. The justices provided no reason for their decision.
The action came even though none of the entities that the pair had sued, such as the Secretary of State's Office and Maricopa and Pima counties, had chosen to file a response to their petition to tell the court why they should send the pair packing. At the same time, several supporters of the petition, including the Maricopa County Republican Committee had urged the justices to hear the arguments.
The decision also came even though the pair said this isn't just about the 2022 election. They had filed the complaint about the voting machines ahead of that race when Lake was a candidate for governor and Finchem was running for secretary of state.
What made the issue still relevant and ripe for Supreme Court review, argued attorney Lawrence Joseph, is both are candidates this year: Lake for U.S. Senate and Finchem, having moved from Oro Valley, now hoping to represent the Prescott area in the state Senate.
In filing the original lawsuit, the pair alleged that the machines are unreliable because they are subject to hacking. And they said the use of components in computers from other countries makes them vulnerable.
They sought to have the 2022 election conducted with paper ballots which would be counted by hand, calling it "the most effective and presently the only secure election method.'' But Arizonans already vote on paper ballots; it is only the total that is tabulated by machines.
U.S. District Court Judge John Tuchi, who rejected their claims before the 2022 vote, did a deep dive into their allegations. And what they amounted to, Tuchi said was a "long chain of hypothetical contingencies'' ones that have never occurred in Arizona that would have to take place for any harm to occur.
That includes:
- specific voting equipment used in Arizona must have security flaws that allow malicious actors to manipulate vote totals;
- such a person must actually manipulate an election;
- the state's procedural safeguard must fail to detect the manipulation; and
- that manipulation must change the outcome of the election.
Lake and Finchem had no better luck with the 9th Circuit Court of Appeals which concluded last year that the pair never presented any evidence that the machines used in Arizona to count ballots had ever been hacked. In fact, the judges noted, the attorney for the failed Republican hopefuls "conceded that their arguments were limited to potential future hacking, and not based on any past harm.''
Kurt Olsen, the other attorney for the pair, acknowledged Monday that the high court agrees to review fewer than 1% of the requests it gets. But he said this case was ``unusual'' enough for the justices to consider.
That is based on claims that it was not until after the federal appeals court affirmed Tuchi's decision that Lake and Finchem learned the defendants ``falsely represented'' that they had not complied with state election law. That includes claims that Maricopa County did not use properly certified software and did not conduct required ``logic and accuracy'' testing on tabulators in all of its more than 400 vote centers.
The county has repeatedly denied the allegations.
Lake and Finchem also said they discovered that Dominion Voting Systems left the codes for the machines in unprotected database and in plain text in its systems used in at least five states, including Arizona.
The justices, however, were not interested in hearing any of that. That leaves Tuchi's original decision that the pair, without any actual hard evidence that election returns were altered -- or even that they could be -- simply lacked legal standing to challenge the procedures.
But Olsen said Monday that while this case is over, this isn't the end of the matter.
He said none of the courts have ever actually ruled on the central question of whether machine counting is reliable, having tossed the case based on that lack of standing. And Olsen said that leaves the door open for future litigation.
In its ruling last year, the appellate judges cited that ``long chain of hypothetical contingencies'' that trial judge Tuchi said would have to occur for the harms claimed by Lake and Finchem to have occurred.
"This is the kind of speculation that stretches the concept of imminence beyond its purpose,'' the appellate judges said.
They also cited safeguards in the system.
For example, after each election, party representatives select a sample of ballots for a hand recount under the oversight of each county's elections department, the appellate judges noted. And they said the state's Elections Procedures Manual requires the hardware from tabulators to be stored in secure locations and sealed with tamper-resistant seals.
Those regulations also say tabulators cannot be connected to the internet or any external networks and may not contain remote access software or any capability to remotely access the system.
The judges also noted that Lake and Finchem, in their complaint about how machine counting is flawed, cited the hand count of ballots in Maricopa County by Cyber Ninjas ordered by Senate President Karen Fann after the 2020 election when Joe Biden outpolled Donald Trump.
The court pointed out that, however, even that report found "no substantial differences'' between its hand count and the official totals. In fact, it actually showed that Biden won by a wider result over Trump than the reported tally.
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