Supreme Court Sets High Threshold For Lake’s Hail Mary While Sanctions Still Possible

kari lake

The Arizona Supreme Court has given gubernatorial candidate Kari Lake one more opportunity to convince a lower court judge that alleged mistakes made by Maricopa County during the 2022 General Election deserve a second look.

The supreme court order signed Wednesday by Chief Justice Robert Brutinel sends Lake’s election challenge back to Judge Peter Thompson of the Maricopa County Superior Court to resolve a dispute with the signature verification process followed by the Maricopa County Recorder’s Office during the election.

But at the same time, Lake’s attorneys must also prepare a filing to convince the justices why the attorneys should not be hit with sanctions for an inaccurate factual statement included in Lake’s challenge to Katie Hobbs’ win.

Brutinel’s order did not reveal the vote count of the seven justices who considered Lake’s various arguments as to why Thompson errored in not allowing her election challenge to move forward. But the chief justice made clear that six of the seven arguments were properly dismissed by Thompson in December.

Thompson’s decision was unanimously affirmed by the Arizona Court of Appeals last month.

“The Court of Appels aptly resolved these [6] issues, most of which were the subject of evidentiary proceedings in the trial court, and Petitioner [Lake’s] challenges on these grounds are insufficient to warrant the requested relief under Arizona or federal law,” Brutinel wrote.

What Thompson must now reconsider is his December 2022 decision which held that Lake could not attack Maricopa County’s process for signature verification of the voter affidavit included with early ballots. The time to have done so, Thompson had ruled, was prior to the election.

But the supreme court’s review of the case found Lake was not attacking the process Maricopa County Recorder Stephen Richer’s staff was supposed to follow. Instead, she had alleged in her challenge to Hobbs’ win that those procedures were not followed during the election.

The fact Brutinel’s order requires the Maricopa County judge to take another look at Lake’s signature verification claim is no guarantee the candidate will prevail. The order makes clear Lake’s challenge cannot survive unless she can establish the number of votes purportedly affected by any signature verification issue were “sufficient in numbers to alter the outcome of the election.”

And establishing the number of affected votes, according to Brutinel, must be based on “a competent mathematical basis…that the outcome would plausibly have been different.” The order added that Thompson must not consider any “untethered assertion of uncertainty.”

Finally, the chief justice ordered Lake’s attorneys to address a Motion for Sanctions filed by the defendants concerning a factual claim made in Lake’s petition for review filed with the Arizona Supreme Court.

The claim referred to “the undisputed fact that 35,563 unaccounted for ballots were added to the total of ballots at a third party processing facility.” But Brutinel was quick to note the official record of the case “does not reflect” such a fact.

The sanctions issue “will be considered in due course,” Brutinel noted.