Jack Clifford: Lake v. Hobbs, day 1

Attorney John A. “Jack” Clifford is of counsel with Merchant & Gould. P.C. I developed a healthy respect for Jack many years ago when we represented adverse parties in an intellectual property dispute. He sends us this report on the Lake v. Hobbs et al. trial that opened yesterday. The AP’s story on the first day of trial is here. Jack reports that this is what he learned watching day one of the trial:

I write as an individual and not on behalf of any client or my employer. What follows are my personal observations of the witnesses and the overall situation in bullet point format:

• Ms. Lake lost the November 2022 general election for Arizona governor to our sitting Secretary of State, Katie Hobbs, by about 17,000 votes. There is litigation in the Superior Court in Maricopa County contesting the outcome on a number of grounds, two of which were granted a two-day mini-trial before Judge Peter A. Thompson, sitting in Mesa, Arizona. The first day of testimony took place yesterday, December 21.

• Ms. Lake has a problem known to lawyers as needing to prove a case within a case. In addition to showing that serious problems occurred, she must also show that a different outcome would have resulted but for the problems. It is a heavy burden, as any malpractice attorney will tell you.

• There was significant motion practice before this mini-trial. The docket for the case is here at Civil Court Case Information – Case History (maricopa.gov).

• Early witnesses yesterday were Maricopa county employees Stephen Richer from the Maricopa County Recorder’s Office and Robert Jarrett the Maricopa County Director of Elections. Both, as expected, testified that everything was carefully and professionally run during the 2022 general election. Richer wore a T-shirt and testified from Panama City, Florida (the country, not the city) via video. He was on vacation there. Jarrett appeared in person and wore a suit.

• Jarrett testified that because of the large number of local elections for school boards and other local decisions on the card last month, there were 12,000 different “ballot styles” in use in Maricopa County last month. I found that number of variations unbelievable and just asking for problems flowing from the complexity.

• Because registered voters can vote anywhere in the county, same day voting generally requires ballots be printed “on demand” for voters after they identify themselves at the polling place. Registration marks on each printed ballot allow the scanner to know which style of ballot is being scanned and tabulate the votes accordingly.

• Jarrett testified that although the ballots were printed on 20-inch paper, and only a 20-inch ballot format was permitted by the software used this time, some prior elections used a 19-inch ballot format. He added that 70 different voting centers (out of 223) required that computer technicians be sent to the polling place on election day to change settings on either the computers that spooled the print jobs, or the printers, or something else on the on-demand printing system.

• Surprisingly, Jarrett did not mention printer toner problems. He denied that wait times were longer than seen in other elections, or that the Republican party asking its base to vote in person on election day caused a spike in the number of voters the same day voting system could not handle. I did not think the testimony of these two witnesses was all that helpful to Ms. Lake.

• Clay Parikh was called as an expert on cyber security and to say what he saw while inspecting the limited number of paper ballots the judge allowed to be examined. He has years of experience on ballot security issues. He works now at Northrup-Grumman. He looked the part and dropped lots of jargon during his testimony, like “standard logic and accuracy testing,” “ghost printing” and the like. He was the subject of a motion filed by the defendants to exclude him and that motion was denied.

• He claimed 20 years of experience that seemed to me to make him highly qualified. He seemed to be the ultimate computer geek. His intensity level was about an 8.5 on a scale of 1 to 10.

• He was allowed to inspect a small number of ballots on December 20. He testified that of 113 specific ballots he examined, 19 of them had a 19-inch ballot image printed on 20-inch paper. He also said that he examined 15 original ballots that had been “duplicated” and that 14 of those were 19-inch images on 20-inch paper.

• He testified that the Dominion ballot scanners used here will reject a ballot with a 19-inch image printed on 20-inch paper when fed into a scanner by the voter. He also said that a ballot with a 19-inch image printed on 20-inch paper will not scan at the central scanning location either.

• You will recall that voters were allowed to place their unscannable ballots into “drawer 3” to be scanned later “downtown.” Apparently, those “19-inch image on 20-inch paper” ballots were sent to be “duplicated” in the proper format through a process of copying the marks from the original ballot onto another ballot in the right format so it might be scanned and counted. Such duplication is the process for any ballot that is torn, has coffee stains on it, or for some other reason can’t or won’t scan.

• Thousands of ballots (one report last month put the number at well over 15,000) were placed into drawer 3 and many of those needed to be duplicated. That explains part of why it takes so long to decide elections in Arizona. I take it the process for duplication is done by hand with a Republican and a Democrat doing the transfer of marks from the original to the duplicate ballots.

• Parikh said both the original and the duplicate were to have serial numbers affixed to them so they could be later cross checked if needed. He said that the county said it could take up to a week to find the matching duplicates of the small number of original ballots he examined.

• On cross-examination, Parikh seemed unwilling to admit that once duplicated in the proper 20-inch image on 20-inch paper format the voter’s decisions were scanned and apparently counted. That seemed unnecessarily argumentative to me, but then again proving a series of errors that did not materially change the outcome of the election fails the case within a case standard.

• It also came out that Parikh was being paid and his travel expenses covered by a group associated with the “My Pillow Guy,” Mike Lindell.

• Overall, I felt he did a good job explaining what seemed innexplainable, namely why so many ballots could not be scanned at the polling place. He did not talk about toner issues or ballots that had registration marks printed in such a way that they could not be read by the scanners. He talked about the way the system was set up to require that only the 20-inch format could be printed, and he suggested that somebody somehow overrode those systems to print a ballot in the wrong format. He said doing so would not be a mistake.

• He left me with the feeling that he had a great deal more to say but was constrained by the limited scope of the questioning. He did not say what I was thinking — that somehow the settings were never changed from the last time the system was used to run an election where the 19-inch format was used. I am not a technical computer guy.

• After lunch almost 30 minutes of trial time was lost to confusion about who to call as the next witness, whether that person was on the witness list, and the like. Plaintiff actually called two witnesses, neither of whom made it to the witness box. I was embarrassed for the lawyers involved in that fiasco. In a jury case that would have been a low point, for sure. The judge seemed more than patient with the delay.

• Heather Honey, a consultant and trainer on open-source investigations and a person who has experience on chain of custody issues testified about several things. She looked at the documents relating to how many ballots were removed from ballot drop boxes each day. She examined the rather detailed documents establishing a chain of custody for such ballots up until the day before the election.

• She testified those prior to election day drop box chain of custody documents were suitable, were completed correctly and were “fine.” She said that although the drop boxes were operational on election day, the county had so far been unable to produce any documents relating to how many ballots were removed from any of the drop boxes on election day.

• I understood her to say that a large number of ballots were placed into drop boxes on election day, and those had no chain of custody documentation the county had been able to find so far. Such documents are required by the county’s election procedures. Arizona law allows ballots to be dropped into a drop box on election day. She said that without a suitable chain of custody for every ballot, it was impossible to determine if any ballots were added to, or removed from, the ballot stream. She asked what was the point of having a chain of custody required for only some, but not all of the ballots.

• She also talked about employees of a contractor named Runbeck Election Services being allowed to drop their own ballots and those of family members into the ballot stream, without any chain of custody at all for those ballots. She testified that she relied on the personal observation of another witness that observed at least 50 ballots from Runbeck staff placed into the ballot stream as a perk of working there.

• She testified that Arizona law requires all ballots to enter the stream in only one of a number of specified ways and Runbeck employees inserting their own ballots, or those of family members, was not one of them. She said such ballots would be “invalid” under the law, but there was no way of determining which ballots those were or how many total ballots came in through that loophole.

• Her testimony boiled down to the proposition that the county did a poor job of maintaining a suitable chain of custody for all the ballots even though doing so was required by Arizona law. This means some unknown number of counted ballots inserted by Runbeck staff were invalid.

• In a cringeworthy moment she said the county did a much better job on chain of custody in 2022 than they had done in the 2020 presidential election. Boy, things must have been really bad then.

• She also pointed out that the county had farmed out to Runbeck much of the work other places do on their own, thus complicating the chain of custody. I thought she was composed and held up well to cross examination. The thrust of the cross examination was to point out she had no evidence that any of the misdeeds were done with malice or bad intention, or were sufficient by themselves in size to change the outcome of the election.

• Robert Betancourt, 34, a temporary tech support employee hired to work a month before and during the election testified about the technical issues he observed with printers and the fixes he and others on his team used to address them. He wore an ill-fitting suit and a shirt and tie. The fact he wore the knot on his tie about three inches below his unbuttoned collar rubbed me wrong, but hey, he was tech guy, not a lawyer.

• He introduced into evidence a long group of text message generated by his team attesting to the problems they saw in the field on election day and the fixes they came up with for them on the fly. He spoke about shaking toner cartridges in printers and cleaning connection wires to improve the quality of the on-demand printed ballots. He said those fixes cured many but not all of the printing problems.

• He did not talk about registration marks too faint to be scanned or say anything about 19-inch formats on a 20-inch ballot. He said he had no knowledge that any of the problems were intentionally caused or had by themselves changed the outcome of the election. He was puzzled by that question as he said he was merely a part-time employee. I took that to mean he was not a big picture guy. He did say many voting places he visited that day had long lines and that he worked until about 10:00 PM that day.

• Attorney Mark Sonnenklar has 26 years of law practice and was a roving attorney on election day. He was part of the Republican Election Integrity Project. He visited 10 voting locations and supervised a team of 10 others who collectively visited 115 of the 223 voting locations.

• He testified: “It was pandemonium out there.”

• How that proved that Kari Lake would have won if there were no problems was not clear to me.

• He said six of the ten voting locations he visited that day had tabulation problems, which I took to mean completed ballots would not scan. He was unable to say exactly why that was the case. He said that those on the team he supervised saw voters leave the line to get in without voting as wait times exceeded 80 minutes to get checked in.

• For reasons I could not fathom, defense counsel cross examined him about ballot harvesting and that seemed to open the door to plaintiff asking about it although it had not previously come up. In fact, much of his cross examination seemed to be asking a lawyer argumentative questions and them objecting when the witness gives an argumentative answer. The hour was drawing late, and nobody seemed amused by that.

Today the defense has its turn at the plate.