By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX - A trial judge will give Kari Lake one more chance to try to prove that Maricopa County was not properly verifying the signatures on early ballot envelopes.

But in a ruling late Monday, Maricopa County Superior Court Judge Peter Thompson threw out the separate claims of the failed Republican gubernatorial candidate that problems with equipment at voting centers led to some ballots cast on Election Day not being counted.

He said that Lake, having failed to convince him the first time - a decision upheld by the Arizona Supreme Court - is now improperly trying an entirely new theory in a bid to convince him to overturn the results of the 2022 election.

Thompson also took a slap at Lake's attorneys who claimed at a hearing last week they had new "bombshell'' evidence of fraud and lying by county election workers.

Some of that "proof'' was based on a report prepared for the county about Election Day problems by retired Supreme Court Chief Justices Ruth McGregor. Attorney Kurt Olsen claimed her report backs Lake's contention that the county knew the equipment would fail on Election Day.

The judge said that claim "is 180 degrees from what the report actually says.''

Lake had no comment on having that claim thrown out, again, by the judge.

But in a Twitter post, she hailed the first part of the ruling as giving her "the opportunity to EXPOSE election fraud IN COURT.''

All this is based on her contention that first-level reviewers of the signatures on ballot envelopes found that anywhere from 15% to 40% of them did not match an individual's voter registration record. Yet most of the ballots were still counted after higher-level reviews.

Attorneys for the county said this is no surprise.

They said the second-tier reviewers had not just more training on signature verification but had access to more examples of each voter's signature, beyond the original voter registration effort.

And they said there was a third level of review, called "curing,'' where election workers actually contacted voters - their phone numbers are on the envelopes - to determine if the ballots were truly theirs and whether there might be a reason for a mismatch, including age or ailments.

The trial, set to begin Wednesday, will allow both sides to present evidence.

But in agreeing to hear Lake's arguments, Thompson said it will take far more than her claims for him to conclude the laws on signature verification were broken and that he should set aside the results which showed Lake losing to Democrat Katie Hobbs by 17,117 votes.

"She must demonstrate at trial ... that Maricopa County's higher level signature reviewers conducted no signature verification or curing and in doing so had systematically failed to materially comply with the law,'' the judge said.

But that's just part of the hurdle.

Thompson said she also would need to prove that all this changed the outcome of the election. And the judge, relying on a directive he received from the Supreme Court to take another look at the issue, said Lake must prove that by "competent mathematical basis,'' and not just some theory, about how Lake might actually have outpolled Hobbs.

And there's one more thing: The judge said Lake has to prove all that by "clear and convincing evidence.''

That is less than "beyond a reasonable doubt,'' the standard for criminal cases. But it more difficult to prove than what normally occurs in civil trials where the standard of "preponderance of the evidence,'' meaning that it is more likely than not that something occurred.

In a prepared statement, Clint Hickman, chairman of the Maricopa County Board of Supervisors, said the county has beaten back numerous challenges to its election procedures.

"I look forward to once again showing our work,'' he said. "We have nothing to hide.''

While Lake will be able to present her evidence and arguments about signature verification, Thompson said there is no reason she should get a do-over of her claims that problems at vote centers on Election Day disenfranchised some Maricopa County voters.

But Thompson said Lake, having failed the first time with her claims, is now trying to change the rules.

He pointed out that her initial lawsuit - the one that was dismissed - charged that the on-site printers at vote centers were not certified and had vulnerabilities that left them susceptible of hacking.

Now, the judge said, Lake is saying that the problem was with the on-site tabulators which were refusing to read many of the ballots fed into them.

"Suggesting that the tabulators were maliciously configured to not read ballots is different in kind from alleging that the printers could not write the ballots correctly,'' Thompson said. And he said if Lake was changing her theory, that should have been done before the first trial in December, not now.

"In fact, the law does not permit amendments of election contest complaints at any time after the contest filing deadline has passed, even to conform to the evidence,'' he wrote.

The judge was no more impressed by Lake's claim that the equipment failures were the result of fraud.

That is based on testimony by Clay Parikh, an expert witness called by Lake, who said at the December trial that the only possible cause of the malfunctions on Election Day could be willful and intentional systemic manipulation.

Yet Thompson said another expert testifying the very next day --and also a witness called by Lake - undermined that theory. He said that the problems with the printers and tabulators were mechanical issues, ones that could often be resolved by such actions as cleaning the tabulators and adjusting the settings on the printers.

Thompson said that was the same conclusion reached by McGregor after review, testing and evaluation of the equipment - even if Lake's lawyers falsely stated otherwise.

Finally, there's the question of whether any of this, even if true, could have affected the outcome.

The judge pointed out that even if ballots could not be read by the tabulators at the voting centers, individuals had the option of putting their ballots into a locked box to be taken to a central location and counted later, meaning there was no evidence that anyone who wanted to vote did not get the opportunity.