The New Neo

[NOTE: I said that Part II would be about efforts in Arizona to make elections more secure even before the 2022 election. But I find I have a few more things to say first, and I’m saying them here in Part II. So the Arizona efforts are planned for Part III.]

In the first post in this series I said that election fraud is only redressed in very minor cases. The same is true for the correction of election irregularities. This sort of thing is the only scale on which new elections will sometimes be ordered:

On November 18, 2022, Screven County [Georgia] Commissioners Allison Willis and Mike Dixon, candidate for county commissioner in District 1 Tyler Thompson, Vicki T. Reddick, and Michael Lloyd Waters, filed a lawsuit against Elections Superintendent Debbie Brown, Elections Supervisor Hannah Derriso, and Commissioner Edwin Lovett. The five contended that the wrong ballots had been issued to at least two dozen voters in District 1, and that the incorrect ballots may have had an impact on the county commission race in that district that had a margin of just seven votes.

Note the differences between this case and Lake’s: in Georgia the stakes were low, in that the election was for county commissioner rather than governor of a state. The margin of victory was tiny (even the total number of ordinary ballots was tiny, around 700) and therefore it wasn’t too difficult to prove that the errors could have made a difference. But the basic error was a similar one: incorrect ballots. In the county commissioner race, however, the candidates weren’t even on some of the ballots (for around two dozen voters) because of a confusion about where the county lines were. There was no contention that this was done intentionally and apparently the court saw no need for proving intent. The plaintiffs were able to put a number of people on the stand who didn’t get the right ballot.

This is from the defense during the trial:

“Not voting in this election is not an illegal vote,” Rountree told the court. “What we have here is over 700 people who voted correctly. And those 700 people deserve to have their votes counted and if this election is deemed to be a ‘do over,’ all those people have to go do it again. When the people complaining had the chance to do it right the first time…they had lots of chances to get it right, they still got it wrong. Not intentionally, but they did.”

Karpf asked Rountree if it was his position that the burden is on the individual voter, not the registrar or the election officials, to make sure the ballots are correct and the information in the system is correct. Rountree replied ‘yes.

So the argument was that a do-over would somehow disenfranchise those who had originally voted, and that it is incumbent on the voter to know what should be on his or her ballot and complain if it’s lacking something. That’s an absurd argument and the court apparently rejected it, because a new election was ordered. But with such a small election, that was relatively easy to do. The judge used the following standard:

–If the number of illegal votes exceeds the margin of the election results, that is sufficient grounds to set aside the election; and
–If there are systemic irregularities in the elections process that are ‘sufficiently egregious’ to cast doubt on the result.

The definition of “illegal votes” was at issue, but the judge decided these were “illegal” enough to qualify. That second standard – systemic irregularities in the elections process sufficiently egregious to cast doubt on the result – would have been useful in the Kari Lake case. But these are two different states, and it most definitely was not used in the Arizona case.

Back to Arizona and Lake’s case, here are some quotes from Judge Thompson:

The burden of proof in an election contest is on the challenger…

As for the actions of elections officials themselves, this Court must presume the good faith of their official conduct as a matter of law…

Plaintiff has no free-standing right to challenge election results based upon what Plaintiff believes – rightly or wrongly – went awry on Election Day. She must, as a matter of law, prove a ground that the legislature has provided as a basis for challenging an election. See Henderson v. Carter, 34 Ariz. 528, 534-35 (1928) (“[O]ne who would contest an election assumes the burden of showing that his case falls within the terms of the statute providing for election contests. The remedy may not be extended to include cases not within the language or intent of the legislative act.”)

So if fraudsters are creative enough and go outside the bases for challenge established by the statute, it appears that no lawsuit could succeed. And election officials are presumed as a matter of law to be fair, which seems to me to be a case of “the law is an ass” if it presumes that.

Later on in his opinion, Judge Thompson mentions that any ballot misprinting problems had to be proven to be (a) intentional (b) committed by an “officer making or participating in a canvass” (c) intended to change the outcome of the election, and (d) that such problems actually changed that outcome. Note once again the difference between this standard and the one in the Georgia case. That’s how very high the bar was raised for Lake – to the stratosphere. As I wrote in part I, fulfilling these requirements would require the equivalent of a recording of the plotting or a confession from the perpetrators. Nothing short of that would do, despite the fact that there were indeed “systemic irregularities in the elections process sufficiently egregious to cast doubt on the result.”

Judge Thompson also stated that:

A court setting such a margin [17,000 votes] aside, as far as the Court is able to determine, has never been done in the history of the United States.

Probably true, since although a redo of an election has been ordered by courts at times, such as in the Georgia case, it has not been done in a statewide contest of such magnitude with a margin of that type. That has nothing to do with the merits of the case, of course, and seems to reward fraud that is more egregious rather than less. If you can commit a big enough fraud, the court will not redress it – or if you commit a big enough act of negligence (which is the kindest interpretation of what happened in Maricopa County) the court will not redress it.

So I’m not going to do a close review of the evidence presented in court, because whatever it was it was not going to be able to meet the requirements unless it was a confession or a record of the plotting itself. But just to take one example, from Judge Thompson on Maricopa County’s chain of custody issues:

In his closing, counsel for Plaintiff argues that it “does not make sense” that Maricopa County did not know how many ballots Maricopa County had received on election night. But, at Trial, it was not Maricopa County’s burden to establish that its process or procedure was reasonable, or that it had an accurate unofficial count on Election Night. Even if the County did bear that burden, failing to carry it would not be enough to set aside election returns.

So what then do the chain of custody rules, established to assure the security of the ballots and to prevent fraud, mean? If election officials fail to follow them even though they are required to do so, and there is no penalty and no remedy, that offers a great deal of motivation to disregard such rules. The requirements have no teeth if the rules can be flouted. The officials, who are presumed by the court to be fair, can do whatever they want short of simply refusing to count votes or throwing the ballots into the river and watching them carried away by the current.

Maybe they can even do that as long as there’s no proof of their intent.

[NOTE: Please also read this. An excerpt:

The standard [in the Lake case] should have been whether voters were disenfranchised, not all the additional hoops Thompson added. If inner city blacks had been disenfranchised, Thompson would not have added all those extra requirements, he would have made the law fit. Robert Gouveia, a rare attorney who isn’t afraid to speak up and who describes himself as watching prosecutors, judges and politicians, said the standard should have been whether there was voter suppression.

Instead, Thompson said Lake had to show an extremely vague, high bar in order to prevail…

The article is well worth reading, but this part particularly interested me because I had not previously realized it:

Compounding the problem, hardly any attorneys dare speak up about this, since they risk being targeted and disbarred. So they’re not writing about it or going on talk shows, and the best of the bunch have already been targeted so they’ve either already been disbarred or have to lie low. Nor are they taking on representation, leaving candidates like Lake to rely upon non-election attorneys. When the Cochise County Supervisors gutsily called for a hand count, they could find no attorney who dared represent them.

That makes sense. We already know that in many law schools, law professors and other lawyers are targeted for destruction if they defend the “wrong” people – in other words, if they stick up for people on the right. Because bar associations generally have become highly leftist as well, the risk is there. It is extremely sobering.

The same author wrote this:

The problem is no attorneys or judges licensed by state bars dare to get involved since they’re likely to get disbarred; the left has so much control over state bars. One of the only election attorneys in Arizona who has the guts to get involved in these issues has been under investigation by the state bar for almost two years. The Arizona State Bar is one of the most vicious bars in the country targeting conservative attorneys. This is why the left repeatedly claims there has been no “evidence” of voter fraud in court cases.

I also suggest reading this piece by the same author, describing how attorneys who take election fraud cases are targeted. This is very important stuff, and I think many people on the right are unaware of it and certainly unaware of its scope.]