By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The attorney for Kari Lake and Mark Finchem admitted Tuesday his clients have no actual evidence that votes have been improperly counted because the state tabulates ballots electronically.

In fact, Andrew Parker conceded, they aren’t even alleging that the counting equipment has been hacked.

But he told a three-judge panel of the 9th Circuit Court of Appeals that doesn’t matter. He said just the mere possibility that vote tallies can be altered is sufficient for the case to be sent back to a trial judge and given the opportunity to seek a ruling outlawing the use of the devices.

“It should alarm you to the point where it is a real threat, it is a credible threat,” Parker said.

The appellate judges, however, appeared unpersuaded they should allow Lake and Finchem to pursue their case based on what is simply a list of the things that could go wrong versus any actual proof. And Judge Andrew Hurwitz said Parker isn’t even contending that machines inherently mis-tabulate votes.

“In other words, if they’re perfectly observed and perfectly protected, there’s no allegation that they mis-count votes,” Hurwitz said. “They’re a much more reliable way of counting votes than counting by hand.”

What Parker’s claim comes down to, the judge said, is that some “outside actor could get into the system” and somehow manipulate the results rather than any evidence that has happened in Arizona.

Parker did not disagree. But he said that doesn’t end the threat to elections.

“Many of these machines are made overseas by foreign enemies of ours,” Parker said. “What if that manufacturer puts into the system an undetected device that is filled with malware?”

That argument did not impress Hurwitz, calling it a bunch of “what ifs.”

“It may be that Kim Il Jong is manufacturing these machines,” Hurwitz said, referring actually to Kim Jong Un who is the current leader of North Korea. In fact, the judge said, anyone making such allegations of manufacturers tampering with elections is likely to get sued as happened when Dominion Voting Systems got $787 million out of Fox for claims that the company was involved in voter fraud in the 2020 election and flipped millions of votes from Donald Trump to Joe Biden.

“But that’s speculation,” Hurwitz said, and not actual proof.

They had sought an order ahead of the 2022 election — when Lake was running for governor and Finchem was a candidate for secretary of state — to require ballots to be counted by hand.

The case didn’t get that far when U.S. District Court Judge Tuchi ruled that their claims that machine counting can product inaccurate results are little more than speculation on their part, backed only by “vague” allegations about electronic voting systems generally. And the judge said they produced no evidence that a full hand count would be more accurate — even assuming that was possible given the number of ballots cast.

Parker said, though, that if the appeals court sends the case back to Tuchi, he would be able to present evidence about why machines should be outlawed and show that they are less trustworthy than hand counts. And, if nothing else, he said, the danger from machine hacking is greater than cheating by hand.

“Exponentially, people can get into the system through a number of different manipulations through a number of different manipulations and vulnerabilities,” he said. And Parker said there are “serious experts” who have made those same points.

“And it’s being ignored by the courts,” he said.

“And the courts are shutting down review,” Parker continued. “Why?”

That, however, still leaves the fact that everything Lake and Finchem have alleged to this point in their case to Tuchi has been about what these “serious experts” have said about other computers and other machines, with no hard evidence about the tabulators used in Arizona being compromised.

Parker, however, brushed those questions aside, citing the claims of those “experts” about how machine can be hacked and that security safeguards can be overridden. And while he does not have proof that is occurring in Arizona, he said all that, taken together, is enough to get Lake and Finchem their day in court.

“Each of those results in an overall view that this isn’t speculative at all,” he said.

Hurwitz said there’s one big problem with the ban on electronic vote tabulation that Lake and Finchem are seeking, even if they could show the machines are unreliable or subject to hacking: Is hand counting the alternative?

“We all know that hand voting can be manipulated,” he said.

“Votes have been thrown in the basket and people have ignored them,” Hurwitz continued. “We know presidents of the United States have been elected because ballots have been thrown out and not counted correctly, or corrupt county recorders have provided incorrect counts.”

And the judge said if just the possibility of manipulation is enough to declare a method of counting ballots to be unconstitutional, as Parker is alleging, that also would allow someone to seek a court order banning hand counts.

Parker did not dispute that. But the difference, he argued, is it is the breadth of the potential harm that makes machine counts illegal.

In essence, he contends, the amount of harm that could be caused by manipulation of a hand count is far less than what is possible through machines that could have been deliberately reprogrammed or hacked.

Hurwitz wasn’t the only one questioning Parker about his request to allow Lake and Finchem to present their arguments based simply on things that could go wrong.

Judge Andrew Gould said more is needed. He asked whether Parker had any actual evidence that hand counting is more accurate than machine count.

Parker acknowledged the only thing he has is an allegation to that effect. But he said that, at this stage of the case, that should be sufficient to give Lake and Fontes their day in court.

Hurwitz said there’s another flaw in Parker’s claim that just the mere allegations of what could go wrong give Lake and Finchem the legal right to contest the use of voting machines as unreliable.

He noted that both have filed challenges to the 2022 election results in state courts. More to the point, Hurwitz said that every legal challenge they made to overturn the results has been dismissed.

“The state courts have found the vote was accurately counted,” Hurwitz said, meaning no evidence anyone had been harmed or anyone’s constitutional rights have been violated. And Kara Karlson, an assistant attorney general, told the appellate judges there are safeguards built in, like “logic and accuracy” tests of machines both before and after the election.

Parker dismissed the lack of proof of actual manipulation with, “Well, it could have been.”

Hurwitz also said there may be another, more technical, problem with the lawsuit.

He said the lawsuit seeks to ban the use of voting machines only in Maricopa and Pima counties.

“So, in the rest of the state, you think electronic tabulation works fine?” Hurwitz asked. He said if Lake and Finchem believe the use of the machines is a constitutional violation they should be seeking to prohibit it statewide, something they are not requesting.

Even if the appellate judges agree to send the case back to Tuchi — and even if he were to eventually conclude that the use of electronic tabulation is illegal — none of that would help either candidate even though they had originally sought to ban the use of the equipment in the 2022 race. Parker acknowledged that the only relief sought would be prospective only, with no demand to re-run the 2022 election that Lake and Fontes lost using only hand counts.

That, however, raises a parallel question.

In filing suit ahead of the 2022 election, Lake and Finchem said that part of the reason they had standing to challenge the use of the machines was their status as candidates. Hurwitz pointed out, though, both lost their races and are not candidates for any upcoming election.

The judges gave no indication when they will rule.