Kari Lake and Mark Finchem filed a Petition for Certiorari with the U.S. Supreme Court on Thursday, appealing the dismissal of their lawsuit against Arizona officials to stop the use of electronic voting machine tabulators. The 210-page petition added new allegations stating that the defendants lied to the court and that new evidence had surfaced exposing the vulnerabilities of the machines to bad actors.
“New evidence from other litigation and public-record requests shows defendants made false statements to the district court regarding the safeguards allegedly followed to ensure the accuracy of the vote, on which the district court relied,” the petition asserted.
Their original complaint sought to stop the use of the voting machine tabulators in the 2022 election, citing the vulnerabilities. U.S. District Judge John Tuchi, who was appointed to the bench by Barack Obama, dismissed the complaint. Despite producing evidence of “actual electronic vote tampering in prior elections,” the petition asserted, Tuchi said it was too “speculative” for Article III standing. Article III standing refers to the requirements in the Constitution for bringing a lawsuit in federal court; plaintiffs must have suffered an “injury in fact” caused by the defendant, and the court must be able to provide a form of redress.
After the Maricopa County Supervisors, represented by Maricopa County Attorney Rachel Mitchell, asked for sanctions, Tuchi awarded $122,000 in sanctions against Lake’s and Finchem’s attorneys. The Ninth Circuit Court of Appeals rejected the pair’s appeal in October, stating there was no “particularized injury.”
Authored by attorneys Kurt Olsen and Lawrence Joseph, the petition addressed three questions. First, whether there was an Article III controversy. Second, whether the plaintiffs could amend their complaint to add a “recently discovered pre-litigation injury.” Third, whether their injuries “— if moot — are nonetheless capable of repetition, yet evading review.”
The new evidence consisted of discovering that Maricopa County “flagrantly violated state law for electronic voting systems,” “using altered software not certified for use in Arizona,” and “actively misrepresented and concealed those violations.” Additionally, and “[p]erhaps worse — the Dominion Voting Systems, Inc., systems used in Maricopa and almost thirty states have a built-in security breach enabling malicious actors to take control of elections, likely without detection.”
The petition asserted that the courts have issued decisions in recent years making it more difficult to bring challenges to poorly conducted elections. The Supreme Court case Lance v. Coffman, decided in 2007, stops voters from bringing “claims under the Elections and Electors Clauses.” Purcell v. Gonzalez, decided in 2006, blocks election challenges that are brought too close to an election. This has created a situation where “[c]ases are never ‘just right’ for voters or candidates to challenge the wholesale bombardment of States’ election-integrity laws or practices that decide close elections,” the petition said.
Lake and Finchem in their petition cited frustration with the case Curling v. Raffensperger, where the court “acknowledged that plaintiffs’ national security experts ‘convincingly’ showed vote manipulation with these machines was not a question of might this actually ever happen? — but when it will happen.” However, the court refused to issue an injunction stopping use of the ballot marking devices since the election was weeks away. The petition said Maricopa County is using very similar software.