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Kari Lake’s high burden of proof is her own doing


Kari Lake’s high burden of proof is her own doing

May 22, 2023 | 7:06 pm ET
By Caitlin Sievers
Kari Lake’s high burden of proof is her own doing
Kari Lake at a July 18, 2022, candidate forum in Peoria. Photo by Gage Skidmore (modified) | Flickr/CC BY-SA 2.0

To win her latest challenge to her 2022 election loss, Kari Lake had what many said was an insurmountable burden: She had to prove that Maricopa County did absolutely no verification of early ballot affidavit signatures. 

And while some of Lake’s supporters are already blaming the judge in the case for setting such a high bar for victory, the reality is that this is exactly the case that her attorneys sought to make when they argued that the second trial was needed. 

“The reason they had to prove it was because they alleged it,” Jim Barton, Arizona election lawyer and partner at Barton Mendez Soto, told the Arizona Mirror. 

Lake, a Republican who lost the race for Arizona governor to Democrat Katie Hobbs more than six months ago, has since then challenged the results of the 2022 general election all the way up to the Arizona Supreme Court. Her second trial in the courtroom of Maricopa County Superior Court Judge Peter Thompson concluded Friday, and his decision in the case could come at any time. 

Ahead of the three-day trial, Thompson issued a ruling that said to overturn the results of the election, Lake’s lawyers must prove that Maricopa County conducted no higher level signature verification for ballots cast in the 2022 general election last November  — and that the number of illegal ballots cast because of that changed the results of the election. 

Lower level, or level one, signature verifiers compare the signatures on early ballot envelopes with those on file for the voter and, if they are consistent, send the ballot for tabulation. Inconsistent signatures are sent to higher level review, or level two, by a more experienced worker. Envelopes with no signature or one that higher level reviewers determine doesn’t match are sent to be cured, which involves contacting the voter to confirm their identity and the validity of their ballot. 

Lake’s lawyers took issue with the judge’s ruling regarding their burden of proof and made a late night filing, asking for leeway to attempt to prove not just that no higher level signature verification took place, but also that no lower level verification occurred. The judge granted their request. 

They did the same thing that they’ve been doing, which is make allegations and then, when you get to the hearing, they come up with new theories.

– Jim Barton

But two of Lake’s own witnesses, who worked in level one signature verification themselves, immediately disproved Lake’s argument that no level one review took place. 

“I was very focused on verifying signatures and ensuring they matched,” Lake witness Jacqueline Onigkeit testified during the first day of the trial. 

Even so, some Lake supporters believe that the judge intentionally set a hurdle too high for Lake to overcome. 

Republican Rep. Justin Heap, a Mesa attorney, tweeted Friday that he believes the case will be dismissed. 

“This is not because the evidence is insufficient or her legal team is incapable,” Heap wrote in the tweet. “It is because the Court has intentionally set the bar SO HIGH that it would be impossible for anyone to prevail… As a trial attorney this appears, in my opinion, to be Court-imposed elevated standards of proof intended to guarantee dismissal, while preserving the appearance of impartiality.” 

But two lawyers who spoke to the Arizona Mirror argue that it was Lake’s own team that painted themselves into a corner with the case law they cited in their filings leading up to the trial. 

In filings ahead of the trial, Lake lawyers Bryan Blehm and Kurt Olsen cited the case Reyes v. Cuming, and Thompson based Lake’s burden of proof on that argument.

“Lake has narrowed her claim to that complained of in Reyes, and she must demonstrate at trial…that Maricopa County’s higher level signature reviewers conducted no signature verification or curing and in so doing had systematically failed to materially comply with the law,” Thompson wrote. 

In Reyes, which occurred in Yuma County in 1997, the Arizona Court of Appeals found that the County Recorder conducted zero signature verification efforts in a 1996 Board of Supervisors election. 

In arguing for the second trial, Lake’s attorneys said they had evidence that the situation in Maricopa County was like “Reyes on steroids.”

But when the trial began, Blehm and Olsen seemingly abandoned any effort to prove that no verification was performed, instead attempting to prove that signature verification workers didn’t spend enough time reviewing each signature for verification to actually have taken place. 

The strategy didn’t impress Barton, who primarily represents labor unions and liberal interests.

“I don’t think they put any evidence on to show that no review happened,” he said. “Instead, they did the same thing that they’ve been doing, which is make allegations and then, when you get to the hearing, they come up with new theories.” 

Lake’s expert witness testified, based on data from the county, that workers verified 274,000 ballots in three seconds or fewer and 70,000 in 2 seconds or fewer. Olsen claimed during closing arguments that election workers’ quick click-throughs of signature images did not equal true signature verification. 

“You don’t just get to go back and say, ‘Well, we think that it should have been this way or it should have been that way,’” Barton said. 

They’re winging it. This is a classic case of the blind leading the blind. It is embarrassing to watch.

– Tom Ryan

Barton explained that their argument doesn’t work, precisely because they based their claim on the Reyes case. 

“If they can show that the process was not used, as opposed to not being used well, that’s where the Reyes case law comes in,” he said. 

Regardless of whether Lake believes the county’s signature verification efforts were sufficient, during the trial, her lawyers showed video of verification taking place. And her witnesses who worked verifying signatures testified that signatures verification did take place, and that they diligently performed their jobs. 

Lake’s team has shifted its legal theories throughout the last six months that her case and its appeals worked their way through the courts, Phoenix personal injury lawyer and frequent Lake critic Tom Ryan told the Mirror, adding that it seems like her lawyers are throwing legal theories against a wall to see what sticks. 

He added that just because a judge makes a ruling that a party in a case believes is unfair, that doesn’t mean the judge is biased. 

“He’s bending over backwards to give Lake’s legal team every opportunity to prove their case,” Ryan said, referencing Thompson’s wide latitude to Lake’s lawyers, given their failure during the trial to follow or understand basic court rules. 

Ryan said he believes this is at least partially because Lake’s attorneys are not election law experts, even though election law has stringent rules and timelines and varies significantly from other areas of the law. Olsen is an employment attorney from Washington, D.C., and Blehm is Scottsdale divorce lawyer. 

“They’re winging it,” Ryan said. “This is a classic case of the blind leading the blind. It is embarrassing to watch.”