Jack Clifford: Lake v. Hobbs, day 2

Attorney John A. “Jack” Clifford is of counsel with Merchant & Gould. P.C. He has lived, worked, and voted in Maricopa County, Arizona since 2014. He sends us this report on the Lake v. Hobbs trial that concluded yesterday. The AP’s story on the second day of trial is here. Jack’s day 1 report is here. This is Jack’s day 2 report:

As before my comments are my own personal observations and are not made on behalf of any client or my law firm.

• The rubber met the road Thursday in the Kari Lake v. Katie Hobbs trial. Richard D. Baris (i.e., Rich Baris, a/k/a “The People’s Pundit”) conducts polling for Big Data Poll. He conducted exit polling by contacting likely voters and having them agree to report to him how they voted. Voters would report at the time they completed their ballot if they voted by mail or after they voted if they voted in person.

• He located, screened and agreed with registered voters who said they were going to vote in advance of election day. He testified that 93 percent of those who agreed to participate completed his poll if they voted with an early ballot, but only 72 percent of those who agreed to participate in his poll did so if they planned to vote in person on election day.

• He characterized the difference in participation between the groups as vastly more than he saw in other such polls.

• Based on that “participation drop” of 21 percent, where a typical difference between early voters and day of voting respondents would be only 5 percent or so, he concluded that many in-person voting participants simply did not vote as planned on election day.

• He opined that they did not vote because of the problems at the polls. Based on this he concluded that 32.7 percent of the in-person voters in Maricopa County experienced an issue on election day at the polls that kept them from voting.

• He calculated the number of such “disenfranchised voters” and the way he anticipated those voters would vote. He put the number of such voters in the range of 15,000 to 29,000 likely Republican votes lost.

• He opined that the issues on election day “definitely impacted the outcome [of the election] and [were] substantial enough to change the leader board and the outcome.” He also said “the amount of the impact [of the problems] would have changed the outcome and the overall winner. I have no doubt.”

• Baris dressed like a mortician, in a black suit with a deep maroon tie. He spoke without his report before him and recalled numerous facts and statistics about his work from memory. Some of his answers were complicated and he had a habit of answering before the question from counsel was finished. That annoyed the judge and the court reporter. He used lots of survey and consumer research jargon.

• Based on my years of experience doing numerous consumer surveys for use in trademark litigation, I believe I understood what Baris was saying and how he did his work. I also know that two survey experts can evaluate the same question and come to opposite results. It seemed that none of the lawyers in the room were greatly familiar with the survey process or the jargon used. That made his testimony somewhat difficult to follow.

• He testified that because he took a “hands on” approach with those who participated in his research, he had a good idea what they were thinking and that outside factors like press coverage of candidates were baked into his results. He testified that some participants told him they did not vote in person as planned because of “the problems.”

• Cross examination of Baris consisted of establishing that his company was not well regarded by others in his industry, that polling aggregator FiveThirtyEight graded Big Data Poll with an F, and that the firm was not a member of any trade associations in the industry.

• Baris responded that it was more important to be right than popular and that he did not see the value in paying dues to an organization or joining a clique in the industry.

• Counsel attempted to mount a series of nitpicking attacks on Baris’s data and his conclusions. Arguing with an expert about his work is difficult because the lawyer is on the expert’s turf and he is usually able to explain and justify why he did what they did. I thought Baris held up well, even though he is clearly was not an establishment pollster. Of course, so many establishment pollsters have been so wrong it was clear to all that change in the polling industry is overdue. Plaintiff rested her case after this witness.

• The defense called Kenneth Mayer, Ph.D., from the University of Wisconsin-Madison Department of Political Science. He testified by video and looked professional in a suit, white shirt and red tie with a wall of books behind him on a shelf. He had testified in several other cases, for both plaintiffs and defendants, and on behalf of Republicans and Democrats. He spoke clearly and came off as authoritative and confident.

• His testimony amounted to a broadside on the work and testimony of Baris.

• Mayer, who once asked that he be addressed as “Dr. Mayer, please,” did not perform any original research for his testimony. He simply looked at and accepted data provided by Maricopa County about the election, looked at the original complaint filed in the case and the affidavits attached to it, and looked at Baris’s report. He also watched the trial testimony.

• He said he was an expert on wait times during elections. He concluded “there was no evidence that a large number of voters were unable to vote [in person on election day] because of issues with tabulators” and that “disenfranchisement of a substantial number of voters did not happen.” He accepted the wait times reported by Maricopa County and did nothing to verify them. He shrugged them off as normal wait times.

• Mayer’s criticism of Baris’s report and conclusions was absolute. Several of his answers seemed to me to show that he did not actually understand what Baris did, or what is essentially standard procedure in conducting polling research. Mayer did not say he was an expert on exit polling. His forte was wait times. For me, that undercut his testimony significantly.

• Mayer does not conduct polling himself but feels confident criticizing others who do. He said that, based on the F rating given by FiveThirtyEight to Big Data Poll, the reputation of Big Data Poll was unfavorable. This came off as a smear based on someone else’s opinion rather than a valid criticism of Baris’s work during this election.

• Mayer assumed that because a voter is registered as a Republican or a Democrat means the voter will vote that way this time. The issue is how the voter would vote on this election day, not the voter’s affiliation. Baris understood that distinction and it seemed to me that Mayer did not. Barris tried to track that and Mayer did not.

• Mayer criticized Baris for making predictions about nonvoters (such as those who were disenfranchised) based on how actual voters voted. He said that should not be done. Baris actually explained that he didn’t do that.

• Cross examination of Mayer consisted of showing that his report was prefaced with a generalized criticism of Donald Trump and the claims Trump made about the 2020 election. He used words like “baseless” for Trump’s allegations about 2020 in an attempt to tar Lake’s allegations in 2022 with the same brush. For me this did a good job of showing Dr. Mayer’s bias for the court to consider.

• Mayer admitted that the votes cast in person on election day broke in favor of Lake at about 70 percent or more.

• Overall, I score this battle of the experts as slightly in favor of Baris. I appreciate those who do original voter research to those who sit back and criticize the work of others. That is my bias.

• Defendants then called Rey Valenzuela, the Maricopa County Director of Election Services and Early voting. He seemed to be in charge of the early voting process. He made a good impression and was calm and confident.

• He talked about “ballot packets” that consist of a marked ballot inside a green envelope that contains a unique ID number and a signature of the voter on a sworn affidavit printed on the envelop. All of that is the early voting ballot packet.

• He testified things went well in this election for his part of the process. Little of what he spoke about seemed to dispute Plaintiff’s case.

• He proved in spades that what should be a simple process of gathering ballot packets and creating a chain of custody for early voters was, in fact, complicated and convoluted. He said that small batches of ballot packets placed in drop boxes were counted by the county and chain of custody documents completed by the county before those packets were given to Runbeck. Bigger batches were handled differently, but why and how was not explained.

• Apparently early ballots returned by mail go through another process in which trays full of them are weighed so postage can be charged and then given to Runbeck without being counted by the county first. Defendants’ counsel seemed to have some difficulty having him explain all the steps. They were so complex that several times the witness had to stop, step back, and explain the process more slowly. Inadvertently, this testimony was slightly helpful to Ms. Lake. We have a process here for conducting our elections, but in my opinion it could only have been designed by a large committee of politicians.

• Next, Mr. Jarrett was recalled after testifying on day 1. Jarrett was in charge of same day voting and is a Co-Director of Election Services for the County. He seemed to come back to attack Mr. Parihk’s testimony about the 19-inch ballot printed on 20-inch paper. He also talked about the chain of custody for what turned out to be about 294,000 early ballots dropped off in drop boxes or at the polls on election day. These were all considered early votes and processing them took several days.

• He testified that these ballots (more correctly ballot packets) are not counted to see how many there are until after they are given to Runbeck, the county’s contractor. Runbeck first scans the green packet envelopes to create pdf images of the signatures on the outside, then weighs them and counts the number of the packets.

• Nobody at the county counts these envelopes until after they are given to Runback. All the county does at this stage is watch Runbeck operate its machinery. He said that was the process. He said chapter 9 of the County’s election manual did not require that the county count the packets or complete chain of custody documentation for them before giving them to Runbeck.

• He admitted on day 2 that the County knew of three locations where printer settings were changed on election day to the “shrink to fit” setting. He never mentioned that yesterday.

• He testified that printer heat settings were also changed in the field in an attempt to fix the errors that were reported. The problem was that registration marks on the ballots were faint or speckled so the ballots would not scan at the polling place. He gave a long list of excuses for all the problems seen on election day.

• He seemed a bit defensive and, although he admitted to many problems on election day, he seemed to shrug them all off since most of the problems were eventually fixed and most of the ballots were eventually counted, even if duplicating the ballots was required first.

• He gave a long explanation concerning how many polling places were operating on election day. Those locations with wait times of up to 90 or 120 minutes were likely within two miles of another location that might have wait times of only a few minutes.

• He explained that his team had educated voters to use the county web site to find voting locations and view wait times at each of them when deciding where to cast their vote. He seemed to be blaming voters who walked off the voting line because it was taking too long. Such voters should have used the county web site to find a shorter line somewhere else.

• Ryan Macias was then called. His appearance reminded me of Robert Downey Jr. as Tony Stark, with the same facial hair and hair gel. He is experienced as a consultant and government employee in something that sounded like “election security, voting system testing and certification, administrative technology and security procedures.” He is sort of an omnibus expert.

• He had been asked by defendant Hobbs to be an unpaid election observer for the Arizona 2022 primary election in August. He disputed Mr. Parihk’s testimony and said he saw no errors sufficient to cause a different election outcome.

• He also testified he saw nothing to indicate intentional interference with the election. He seemed to guess that there were many possible reasons for the 19-inch ballot on 20-inch paper issue.

• He also opined that the chain of custody procedures used for early ballots were suitable, and that disqualifying a large number of such ballots because of an “administrative issue with chain of custody documentation” would disenfranchise a large number of voters. He was against that.

• On cross examination, a PowerPoint deck from Macias’s own website was shown to him. His own work discussed the serious risks and harms to elections from a broken chain of custody. To me, this brief cross examination was textbook and blew a serious hole in the smooth sailing boat that was his direct examination.

• Overall, I did not see Macias as helpful to defendants mostly because he was so completely impeached with his own words on cross. The defendants’ attempt to rehabilitate him with questions on redirect was weak.

• The court then moved on to closing statements.

• At the outset plaintiff’s counsel made a strong point — Ms. Lake needed only a few more than 17,000 more votes to win and that was only .06% of the vote total. Mr. Baris showed that between 15,000 and 29,000 likely Republican votes were impacted by the problems at the polls.

• Counsel quoted the Wisconsin Supreme Court decision in Teigan v. Wisconsin Elections Commission. I thought that was fairly effective.

• The plaintiff’s closing theme asserted that the defendants’ excuses did not make sense while the plaintiff’s case does. For example, plaintiff’s expert found 19-inch ballots on 20-inch paper at all six voting locations he inspected with the limited ballot review. The county had only admitted to three locations where the “shrink-to-fit” setting was used.

• Defense counsel argued in closing that “the Plaintiff’s case was hearsay” and that the voters have spoken in favor of Ms. Hobbs. Counsel said that Mr. Baris plucked numbers from thin air and there was no basis to conclude what non-voters would do based on what actual voters had done.

• He argued that Baris’s commonsense approach lacked any merit and that he engaged in sleight of hand with his math.

• Mr. Parihk was attacked as associated with the Stop the Steal effort.

• One of defendants’ lawyers seemed to lose control over his emotions during his brief closing. It seemed like a rant about the ethics of plaintiff’s lawyers for bringing the case in the first instance rather than a summation of the evidence and testimony presented over the last two days. I thought that hit a low note for them.

• An allegation was made that all the problems with the process and the “mishaps by machine” were caused by Lake’s supporters being told to wait until election day to vote. This was a theme of the defense — that the problems were not the fault of the election officials, but rather were the fault of Republican voters themselves.

• Referring to Lake’s campaign, counsel argued “the plaintiff’s case was not evidence of a botched election, it was evidence of a botched campaign.”

• He concluded with a challenge to the judge to stop election disputes here and now by denying plaintiff’s claim amounting to nothing nothing more than sour grapes and conspiracy theories.

• Here is a portion of attorney Thomas P. Liddy’s closing suggesting how he felt about having to defend the election process in Maricopa County, where he serves as Civil Division Chief in the Office of the Maricopa County Attorney.

Unbelievable. The amount of contempt this Hobbs attorney has for Voters is almost as gross as the contempt she has for them. WATCH ⤵️

pic.twitter.com/ymt9vaRTcv

— Kari Lake (@KariLake) December 22, 2022

• Scott adds this editorial note: “Conspiracy theory” seems to be the aspersion of the day. Let it be noted for students of ancient history that Liddy is the son of Watergate figure G. Gordon Liddy.

• In his brief rebuttal plaintiff’s counsel argued that defendants’ blaming the problems on Republicans deciding to vote on election day was “atrocious.”

• He added that Mr. Baris can be believed since he actually spoke to voters and was not hired merely to look at the election by plaintiff after the fact.

• The court took the matter under advisement. Judge Thompson said he would issue a ruling forthwith, but needed to go over everything carefully so the parties should not expect a decision that day. He looked to me a bit like Atlas with the weight of the world on his shoulders as he stood up to leave the courtroom.