By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Kari Lake and Mark Finchem are not going to get a do-over of their losing claim that machines used in some Arizona counties to tally ballots are so inherently unreliable that they violate their constitutional rights.

In a brief order Monday, the U.S. Supreme Court refused to consider the petition they filed to review the decisions of both a trial court judge and the 9th Circuit Court of Appeals that they should be allowed a new trial to present evidence they did not have before. The justices provided no reason for their decision.

The action came despite the fact that none of the entities the pair had sued had chosen to file a response to their petition to tell the court why they should send the pair packing. At the same time, several petition supporters, including the Maricopa County Republican Committee, had urged the justices to hear the arguments.

The decision also came despite the fact the pair said this isn’t just about the 2022 election. They had filed the complaint about  voting machines ahead of that race, when Lake was a candidate for governor and Finchem was running for secretary of state.

What made the issue still relevant and ripe for Supreme Court review, argued attorney Lawrence Joseph, is both are candidates this year: Lake for U.S. Senate and Finchem, having moved from Oro Valley, now hoping to represent the Prescott area in the state Senate.

In filing the original lawsuit, the pair alleged the machines are unreliable because they are subject to hacking. And they said the use of components in computers from other countries makes them vulnerable.

They sought to have the 2022 election conducted with paper ballots, which would be counted by hand, calling it “the most effective and presently the only secure election method.” But Arizonans already vote on paper ballots; it is only the totals that are tabulated by machines.

U.S. District Court Judge John Tuchi, who rejected their claims before the 2022 vote, did a deep dive into their allegations. And what they amounted to, Tuchi said, was a “long chain of hypothetical contingencies” — ones that have never occurred in Arizona — that would have to take place for any harm to occur.

That includes:

• Specific voting equipment used in Arizona must have security flaws that allow malicious actors to manipulate vote totals;

• Such a person must actually manipulate an election;

• The state’s procedural safeguard must fail to detect the manipulation; and

• That manipulation must change the outcome of the election.

Lake and Finchem had no better luck with the 9th Circuit Court of Appeals, which concluded last year the pair never presented any evidence the machines used in Arizona to count ballots had actually ever been hacked. In fact, the judges noted, the attorney for the failed Republican hopefuls “conceded that their arguments were limited to potential future hacking, and not based on any past harm.”

Joseph told the Supreme Court that’s no longer the case.

“Newly discovered evidence ... shows Arizona’s Maricopa County flagrantly violated state law for electronic voting systems — including using altered software not certified for use in Arizona — and actively misrepresented and concealed those violations,” he told the justices.

“Potentially worse — although potentially unknown to Maricopa — the Dominion Voting Systems Inc. systems used in Maricopa and almost 30 states have a built-in security breach enabling malicious actors to take control of elections, likely without detection,” Joseph said.