By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Kari Lake can’t escape having to convince a jury she didn’t defame Maricopa County Recorder Stephen Richer.

In a brief order Wednesday, the state Court of Appeals refused to hear arguments by the failed gubernatorial hopeful that anything she said about Richer and his role in the conduct of the 2022 election she lost to Katie Hobbs by more than 17,000 votes is protected by free speech provisions of the Arizona and federal constitutions. Lake said that should short-circuit the defamation lawsuit the recorder filed against her.

The appellate judges were no more convinced by her arguments that Richer’s bid to stop her from repeating the statements shows that he brought the lawsuit to silence her.

That, her attorneys argued, entitles Lake to the protections of a special Arizona law that requires judges to immediately throw out such lawsuits if they are brought by a public official for the purpose of denying someone his or her constitutional rights.

Unless Lake can get the Supreme Court to intercede, that clears the way for Richer to present his evidence — but not soon.

Maricopa County Superior Court Judge Jay Adleman has scheduled a pretrial conference for Aug. 21, with no date yet set for trial. And that would put the entire issue on display as Lake makes a bid for U.S. Senate, assuming she becomes the Republican nominee in the bid to oust independent Kyrsten Sinema.

There was no immediate response from either Lake or any of her attorneys.

Richer sued Lake last year, saying she “spread intentional or reckless falsehoods” about what he did in the 2022 election, statements he said harmed him and his family and resulted in threats of violence and death for family members.

One involves statements Lake repeatedly made that Richer intentionally printed ballots with 19-inch images on 20-inch ballots to sabotage the 2022 general election.

There were such misprints. And they created problems because the on-site tabulators at vote centers would not read the smaller images, resulting in lines at polling places and, in some case according to Lake, people leaving without being able to vote.

Lake also has said Richer illegally inserted more than 300,000 phony ballots into the system.

The lawsuit says that Lake, her campaign, and the Save Arizona Fund, which Lake has used to raise money, all acted with “actual malice.” That is crucial because, in general, people who are considered public figures like Richer cannot sue for defamation unless they can prove by clear and convincing evidence that the person making the statement knew it to be false or that the statement was made with a reckless disregard for the truth.

Lake sought dismissal, claiming that her comments were “mere rhetorical hyperbole” that were never meant as statements of fact. But Adleman last month refused Lake’s bid to toss the case, saying that it will be up to a jury to determine whether the statements are true or not.

Her attorneys last month asked the appellate court to intercede, arguing that there is more at stake than just Lake and her committees if the case is allowed to go to trial.

“Although only defendants are on trial herein, the ability for constituents, and even his political opponents, to criticize Recorder Richer’s duties administered elections will be substantially chilled as constituents (and any candidates running against him) wonder if they too will be the targed of a defamation claim — leading to self-censorship,” her lawyers wrote.

“Being criticized and responding to ‘outrageous’ claims is part and parcel with public life,” Lake’s attorneys said. “If Recorder Richer does not want to accept that his handling of elections will be subject to criticism, he should not be a public official, and should resign is office.”

But the appellate court was not interested in keeping the case from going forward in trial court. In fact, the three-judge panel that issued Wednesday’s order refusing Lake’s bid to dismiss the case did not even ask Richer to respond to her claims.

In requesting the judges intercede, Lake’s attorneys said they need to put a halt — and now — to a trial that could run two weeks or more, “with tens of thousands of pages of exhibits, a half-dozen or more expert witnesses, which will be preceded by dozens of discovery disputes.” What the case comes down to, they said, is that Richer generally objects to being criticized.

“This is inconvenient, because Recorder Richer is an elected official, and in America, elected officials are often subject to free speech protected criticism that may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials,” they wrote.

Lake also has another theory of why she can’t be accused of libel: She actually believed the statements she made that Richer was responsible for the mis-sized ballots that created problems on Election Day.

Richer’s lawyers have pointed out in court filings that the recorder handles early voting and ballots. By contrast, the operation of polling places left is up to the county Elections Department which answers not to Richer but to the separately elected Board of Supervisors.

That doesn’t matter, Lake said, saying Richer has held himself out as the county’s chief elections officer.

“But then when people criticize him, claim he botched Election Day voting, he disavows any responsibility over Election Day.

“These tactics are unavailing because when it comes to defamation, truth is a defense, but so is making allegations against public figures one believes to be true, absent actual malice,” she said. “So when Recorder Richer tells everyone that he is in charge of elections, it is only natural that he would be criticized when things go awry on Election Day, as occurred in 2022.”