By Howard Fischer
Mail | Twitter: @azcapmedia

PHOENIX — Failed gubernatorial candidate Kari Lake says she had an absolute right to publicly accuse Maricopa County Recorder Stephen Richer of illegally sabotaging the election with missized ballots, even though a judge ruling in her challenge to the 2022 election had already rejected that complaint as unproven.

Ditto her claim Richer had illegally injected 300,000 fake ballots into the vote count.

And now Lake is trying to use a special state law designed to protect free speech rights to get a court to throw out his defamation lawsuit that she “spread intentional or reckless falsehoods” about his role in the 2022 election.

In new legal filings, Lake and her attorneys are telling Maricopa County Superior Court Judge Jay Adelman that Richer should not even be given a chance to bring evidence into court to show how Lake, her campaign and the Save Arizona Fund, which Lake has used to raise funds, made false statements he said harmed him and his family and results in threats of violence and death for family members.

The reason, she said, is that 2006 law requires judges to immediately dismiss lawsuits they determine are “substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.” And that, said Lake, makes the question of whether she was telling the truth or not legally irrelevant.

Richer filed suit in June arguing Lake made repeated claims he intentionally printed ballots with 19-inch images on 20-inch ballots to sabotage the 2022 general election. That is because on-site tabulators at vote centers would not read the smaller images, resulting in lines at polling places and in some cases, according to Lake, people — who she presumes would have voted for her — leaving without being able to vote.

He also cited her comments that he illegally inserted more than 300,000 phony early ballots into the system.

Dan Maynard, Richer’s attorney, told Adelman that Lake made those statements at a Jan. 29 rally, “weeks after a trial judge found that Lake had provided nothing more than ‘speculation’ and ‘conjecture’ to support her claims of intentional misconduct.” The judge in that case where Lake was challenging the results of the gubernatorial race also ruled she had “brought forward no evidence” to contradict testimony that the 2022 election was conducted in accordance with established procedures.

“Lake knew that her ballot size sabotage and bogus ballot injections claims were false before the Jan. 29 rally or, at a minimum, she was reckless as to the truth or falsity of those claims,” Maynard wrote in the legal filings.

All irrelevant, said Lake, under the state’s Strategic Action Against Public Participation statute.

Lake’s lawyers argue the purpose of the law is to “prevent public officials from using private litigation as a means to punish and prevent speech on political issues that should be considered as part of the open public discourse guaranteed by the United States and Arizona constitutions.”

And the scope of that law, they contend, is very broad.

“Evaluation of the protections of (the law) have nothing to do with whether the speech is ‘false,’ as plaintiff has alleged,” they told Adelman. That, they said, is underlined by the fact that the law allows anti-SLAPP motions to be filed even before there is a finding by a judge of whether the statements are true or false.

“The statute is designed to protect speakers from the often-arduous litigation in determining such a question,” her lawyers said.

And what any judge ruled in Lake’s unsuccessful legal bids to overturn the election results, they said, doesn’t matter.

“Even if judges in other actions in this controversy have held that Lake failed to present sufficient evidence of fraud to prevail in a claim (as opposed to finding it ‘false’), she is still entitled to have an opinion and state her beliefs about what happened in the 2022 election and whose is to blame for mistakes,” her legal team said. “‘False’ speech is not at issue here, only the type of speech that may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials that the U.S. Supreme Court has specifically said must be protected.”

Lake says her views of the purpose of the anti-SLAPP laws — and the unusual legal remedy of having the lawsuit dismissed even before any evidence can be heard — are backed by a “statement of intent” legislators put into the 2006 law.

“The threat of strategic lawsuits against public participation, personal liability and burdensome litigation costs significantly chill and diminish citizen participation in government, voluntary public service and the exercise of these important constitutional rights,” it reads. And she said it doesn’t matter that a plaintiff — in this case, Richer — doesn’t get his day in court.

“Under this law, even though it may look like defendants have an advantage — getting a libel case dismissed solely because it interferes with their free speech rights — it is essential to realize that is exactly what the Legislature intended,” Lake said. “Speech about the integrity of the election process is exactly the type of ‘public participation’ that the Legislature chose to protect.”

And that, her legal team said, is exactly what is at issue here.

“Defendants’ speech about the ballot size sabotage and bogus ballot injection issues qualifies as core political speech about the integrity of the 2022 election, which is a matter of tremendous concern,” they said.

Lake and her attorneys also say she has special protections under the anti-SLAPP law because Richer is a “state actor.” And that, they said, puts the legal burden on him to prove that his lawsuit “was not substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise” of her free speech rights.

In a prepared statement, Lake said her effort to have Richer’s lawsuit dismissed is justified.

“His unlawful attempt to abuse our legal system in order to insulate himself from criticism of his awful job performance establishes a dangerous precedent in our nation’s history,” she said. Lake called the lawsuit an attack on the First Amendment that “would have a chilling effect on Americans’ ability to speak out and criticize public officials, government officials, and politicians.”

In filing the original lawsuit for Richer, Maynard said that Lake, like all Americans, has a right to express views that others find distasteful or offensive as well as to criticize the government. But he told Adelman what Lake has said and done — accusing him of sabotaging the 2022 general election after she lost by more than 17,000 votes — crosses the line of what is legal.

Richer is seeking unspecified compensatory and punitive damages not only from Lake but also from her campaign and the Save Arizona Fund, which Lake has used to raise funds.

He also wants a court ruling that the statements made about him are false as well as an order for Lake and the other two defendants to remove any false and defamatory statements about him removed from any websites and social media accounts they control.

In his own prepared statement when the lawsuit was filed, Richer explained his decision to sue after seven months of what he said has been constant harassment, intimidation and threats to himself and his family due to “falsehoods’’ being spread by Lake, her campaign and the Save Arizona Fund.

“While I followed the law and respected the will of millions of Arizona voters after the 2022 election, the defendants chose to engage in a concerted campaign to destroy my reputation, threaten my livelihood, and rob me and my loved ones of our safety and well-being,’’ he said. “I firmly believe in the protections afforded to all of us under the First Amendment, but when people harm their fellow citizens through defamation, they should be held accountable.”