By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A federal appeals court on Monday tossed out claims by losing 2022 candidates Kari Lake and Mark Finchem that machines used to tabulate votes are so inherently unreliable they violate their constitutional rights.

In an 11-page opinion, the three-judge panel said the pair never presented any evidence the machines used in Arizona to count ballots had actually ever been hacked. In fact, the judges noted, the attorney for the failed Republican hopefuls “conceded that their arguments were limited to potential future hacking, and not based on any past harm.”

At best, the judges said, their complaint cites “opinions by purported experts” on manipulation risk and alleges that “difficulties” have occurred in other states using electronic tabulation equipment.

And there’s something else.

Lake and Finchem first sought to bar the use of tabulation machines in the 2022 election.

But that is now over, the judge said, meaning they no longer have any claim the use of the devices would affect them as candidates. What that leaves, they said, is a more generic claim the use of electronic tabulation systems denies them a “fundamental right” to vote.

But none of that, the judges said, is enough to bring a constitutional challenge into federal court.

“Plaintiffs simply have not plausibly alleged a real and immediate threat of future injury,” the said, instead advancing “only conjectural allegations of potential injuries.”

There was no immediate response from either Lake or Finchem.

In filing suit ahead of the 2022 race, the pair alleged the machines are unreliable because they are subject to hacking. And they said the use of components in computers from other countries makes them vulnerable.

They sought to have the 2022 election conducted with paper ballots that would have been counted by hand, calling it “the most effective and presently the only secure election method.”

The appellate judges, however, noted U.S. District Court Judge John Tuchi, who rejected their claims before the 2022 vote, did a deep dive into their allegations. And what they amounted to, Tuchi said, was a “long chain of hypothetical contingencies” — ones that have never occurred in Arizona — that would have to take place for any harm to occur.

That includes:

• Specific voting equipment used in Arizona must have security flaws that allow malicious actors to manipulate vote totals;
• Such a person must actually manipulate an election;
• The state’s procedural safeguard must fail to detect the manipulation;
• That manipulation must change the outcome of the election.

“This is the kind of speculation that stretches the concept of imminence beyond its purpose,” the appellate judges said.

They also cited the safeguards in the system, starting with certification of tabulation machines and pre-election “logic and accuracy” tests where a set of paper ballots with known total votes is fed through the tabulators and the results compared with what the machines reports.

Then after the election, party representatives select a sample of ballots for a hand recount under the oversight of each county’s elections department, the appellate judges noted. And they said the state’s Elections Procedures Manual requires the hardware from tabulators to be stored in secure locations and sealed with tamper-resistant seals.

Those regulations also say tabulators cannot be connected to the internet or any external networks and may not contain remote access software or any capability to remotely access the system.

The judges also noted Lake and Finchem, in their complaint about how machine counting is flawed, cited the hand count of ballots in Maricopa County by Cyber Ninjas ordered by then-Senate President Karen Fann after the 2020 election.

The court pointed out, however, even that report found “no substantial differences” between its hand count and the official totals. In fact, it actually showed Democrat Joe Biden won by a wider result over Republican Donald Trump than the reported tally.

The judges were no more impressed by arguments by Lake and Finchem that there is a constitutional right to a certain level of accuracy in the Arizona tabulation system.

“That claim plainly fails,” the appellate judges said.

“It is the job of democratically elected representatives to weigh the pros and cons of various balloting systems, recognizing that no balloting system is perfect,” they said. “Indeed, the possibility of fraud can never be completely eliminated.”

Monday’s ruling does nothing to affect Lake’s ongoing efforts to have state judges overturn her 17,117-vote loss to Democrat Katie Hobbs for governor or, at the very least, order a new election.

She continues to claim there were issues with the 2022 race, including what she said was the failure of Maricopa County to properly compare the signature on envelopes containing early ballots with those on file. And Lake separately has accused Maricopa County Recorder Stephen Richer of illegally inserting more than 300,000 phony ballots into the system and sabotaging Election Day votes by printing the ballots in the wrong size.

None of these have been accepted by trial judges, with Lake now seeking review — and permission to introduce what she says is new evidence — at the state Court of Appeals. Richer, meanwhile, has sued Lake for defamation.

Finchem, who lost to Secretary of State Adrian Fontes by more than 120,000 votes, has abandoned his appeal after losing at trial court. What remains is an effort by Finchem to pay more than $40,000 in Fontes’ legal fees and another $7,434 penalty imposed by Maricopa County Superior Court Judge Melissa Julian for filing what she said was a lawsuit that was “groundless and not brought in good faith.”