Appeals court hears Kari Lake election case, has to remind her lawyer how appeals work

Appellate judges listening to arguments Thursday in Kari Lake’s challenge to her 2022 election loss had to keep reminding her lawyer how appeals courts work.

“I’m sure you’re aware we’re not a fact finding court — we’re a court that decides questions of law, primarily,” Judge Peter Eckerstrom told Kurt Olsen, Lake’s attorney, shortly after he began his arguments.

Lake, a Republican who is now running for a U.S. Senate seat, filed her initial election challenge in December 2022 after she lost the governor’s race to Democrat Katie Hobbs by more than 17,000 votes.

An ally of fellow election denier Donald Trump, Lake never conceded to Hobbs and has continually claimed the election was stolen, despite her claims failing to convince judges in December 2022 and May 2023 trials, as well as multiple appeals in between the two.

Olsen on Thursday focused on claims that Maricopa County didn’t conduct required logic and accuracy testing for its tabulators and ballot-on-demand printers ahead of the 2022 election, leading to issues with those tabulators reading ballots on Election Day. Maricopa County has continually denied Lake’s allegations that it failed to perform logic and accuracy tests required by law.

More than once during the proceedings, which lasted less than a hour, the judges had to remind Olsen, a Washington, D.C., employment attorney, that the function of the appeals court is to determine if the trial judge made mistakes in interpreting and applying the law, not in determining the facts of the case.

Olsen argued that he and Lake’s other attorney in the case, Scottsdale divorce lawyer Bryan Blehm, did not have access to tabulator records in time to properly analyze them before the trial. He also claimed that Maricopa County Elections Director Scott Jarrett had lied on the stand during the December trial about logic and accuracy testing and the reason tabulators at some polling locations kept rejecting ballots on Nov. 8, 2022.

He also accused trial court Judge Peter Thompson of disregarding the testimony of Lake’s cybersecurity expert, Clay Parikh, about the tabulators and printers.

But when one of the judges asked Olsen how he knew that Judge Thompson had disregarded the evidence, Olsen didn’t have an answer.

He also continued to claim that “tens of thousands” of voters either got out of line or never went to the polls on Election Day 2022 because of the tabulator problems.

Tom Liddy, an attorney for Maricopa County, described that allegation as “hogwash,” an assessment seemingly in line with the trial judge’s take.

During the trial, Thompson dismissed Richard Baris, a Lake witness called to back up the claim. Baris made those claims based not on direct evidence, but on a poll that he had conducted.

“No election in Arizona has ever been set aside, no result modified, because of a statistical estimate,” Thompson wrote about Baris’ testimony in his Dec. 24, 2022. “Election contests are decided by votes, not by polling responses, and the Court has found no authority suggesting that exit polling ought to be used in this manner.”

Additionally, Olsen claimed on Thursday that at least 6,700 ballots were not counted on Election Day 2022, something that the county denies and has never been proven. But Judge Sean Brearcliffe pointed out that, even if it were true, it wouldn’t have made a difference in the governor’s race.

“Let me make one thing absolutely clear to every single person in the state of Arizona,” Liddy told the court. “Not a single ballot was rejected. Every single lawful ballot cast was tabulated.”

But Olsen argued that the results of Lake’s trials should be set aside based on new evidence that wasn’t available during the trials, including the tabulator logs. However, he admitted that he had access to those before the May trial but didn’t have time to analyze them.

When Judge Karl Eppich asked Olsen what remedy he was looking for, Olsen answered, “The remedy is to set aside the election.”

In summing up his argument, Olsen alleged that two-thirds of Maricopa County’s voting centers “completely failed” on Election Day 2022. Around 70% of vote centers experienced issues with their tabulators that day, but Lake never claimed that all of those centers shut down or that they didn’t accept any ballots.

“If you don’t follow the law, people will not trust elections,” Olsen told the court. “That’s where it’s coming to in this country.”

At the end of the hearing, Eckerstrom attempted one final time to push Olsen to make arguments that are appropriate for an appeals court.

“We are a court of law and we don’t decide facts in the first instance, and the thrust of what you’ve been arguing in your summation is facts and fact findings,” Eckerstrom told Olsen. “Could you identify what the trial court did wrong, as a matter of law? What’s your primary argument that the trial court did as a matter of law?”

Olsen answered that the trial court judge improperly set the bar too high in requiring that Lake prove election fraud, instead of a lower bar of unintentional error or suspicion that the results couldn’t be trusted. He added that the purportedly new evidence regarding the tabulators showed that county officials tried to downplay ballot printer and tabulator issues on Election Day.

Brearcliffe told the court that the judges would rule on the appeal in “due course” but did not provide any further clarification of when that might be.