PHOENIX — A lawyer for the state’s largest county is telling a federal judge that a lawsuit by two Republican candidates seeking to require a hand count of the 2022 election is both legally and factually flawed.
In a 21-page filing, Emily Craiger said claims by Kari Lake and Mark Finchem that counting machines are unreliable because they subject to fraud and hacking are based on allegations about elections from states like Georgia, Wisconsin and Colorado “but not Arizona or Maricopa County.”
And she told Judge John Tuchi that allegations that machines are vulnerable because of “foreign manufacturing of components by hostile nations” are so generic so as to not even merit his consideration.
Craiger also pointed out that Arizona law requires various checks of counting equipment both before and after each election. And there”s even a random hand count of selected races at at least 2% of the precincts to compare the tally made by volunteers from both major parties with what the machine recorded.
She also told Tuchi a hand count of all ballots — nearly 2.1 million in Maricopa County alone — would be impossible, pointing out that it took the firm hired by the Senate to audit the 2020 election more than three months. And that count was only of the presidential and U.S. senate races.
“But ballots in Maricopa County seldom have fewer than 10 races in a primary,” Craiger said. “A general election, which includes judicial retention races, can have 60 to 70 races to count.”
And there”s something else.
Craiger pointed out that Lake, a contender for governor, and Finchem, currently a state representative campaigning for secretary of state, are contending there are harms from machine counting of ballots dating back to 2002. And they acknowledged in their complaint they were aware that Secretary of State Katie Hobbs in 2019 certified the specific Dominion Voting System used in Maricopa County that they now contend is unreliable.
“Yet plaintiffs waited until April 22, 2022 — when both were running for statewide office — to file suit,” Craiger told the judge, beyond the two-year statute of limitations. “Apparently, raising these concerns was not politically expedient during the limitations period.”
In a separate filing, an attorney for Secretary of State Katie Hobbs, added her own reasons to why Tuchi should toss the complaint by the two would-be state officials.
“They allege no facts sufficient to give rise to an inference that their right to vote has been or will be violated,” wrote Roopali Desai. She told the judge the complaint “contains only sheer conjecture about possible hacking of electronic voting equipment and irrelevant allegations about other jurisdictions.”
The filings come as Lake and Finchem on Wednesday renewed their request for a preliminary injunction prohibiting the use of any electronic voting systems to count ballots in any future Arizona election.
“Computerized equipment is vulnerable to manipulation by unauthorized persons, meaning the true results of an election that relies upon computerized equipment can never be known,” wrote Andrew Parker, their attorney.
He dismissed the idea that results of such counting equipment, which he refers to as “the black box voting system,” can ever be counted on as accurate, saying that even audits won”t find machines that have been compromised.
“A malicious program can be written to delete traces that it ever ran, including deleting itself,” he told the judge, relying on and quoting from an affidavit by Doug Logan. He is the owner of Cyber Ninjas, the firm hired by Senate President Karen Fann to audit the 2020 election.
And he came up with a report citing what he said were flaws, vulnerabilities and even missing files.
But Craiger said much of what was in the Cyber Ninjas report on which Lake and Finchem are relying was debunked when the county, in cooperation with the Senate, had a “special master” examine the equipment and found it was not — and could not be — connected to the internet.
“The special master”s report discredits all of the Cyber Ninjas” speculative findings — relied on by the complaint — concerning alleged authorized access, malware present or internet access to these systems that basic cyber security best practices and guidelines were not followed,” she said.
Craiger, in the new legal filings, also told Tuchi there is no basis for the claim that the use of vote tabulation equipment is unconstitutional.
She pointed out the U.S. Constitution leaves the question of how to administer elections to each state. The only time that is overruled, Craiger said, is if Congress passes a law about races where federal candidates on the ballot, something it has not done.
“So Arizona”s legislature is authorized to make that policy decision,” she said. And that, said Craiger, means lawmakers are free to require, as they have, that ballots here are counted by electronic tabulation machines followed by that 2% hand audit count.
In his own new legal filings Wednesday, Parker, in hopes of getting the judge to declare machine counting illegal, cited a statement issued earlier this month by the federal Cybersecurity and Infrastructure Security Agency which said there are “vulnerabilities” in certain Dominion voting systems.
That report does say these vulnerabilities that should be mitigated as soon as possible. But what it also says is that “CISA has no evidence that these vulnerabilities have been exploited in any elections.”
Tuchi has not set a date to hear arguments.
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