IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KARI LAKE, Plaintiff/Appellant,

v.

KATIE HOBBS, et al., Defendants/Appellees.

_________________________________
KARI LAKE, Petitioner,

v.

THE HONORABLE PETER THOMPSON, Judge of the SUPERIOR

COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

KATIE HOBBS, personally as Contestee; ADRIAN FONTES, in his official

capacity as Secretary of State; STEPHEN RICHER, in his official capacity
as Maricopa County Recorder, et al., Real Parties in Interest.

No. 1 CA-CV 22-0779

No. 1 CA-SA 22-0237
(Consolidated)
FILED 2-16-2023

Appeal from the Superior Court in Maricopa County

No. CV2022-095403
The Honorable Peter A. Thompson, Judge

AFFIRMED; RELIEF DENIED

 COUNSEL

Blehm Law PLLC, Scottsdale

By Bryan James Blehm

Olsen Law PC, Washington, DC

By Kurt Olsen
Co-Counsel for Kari Lake

Perkins Coie, LLP, Phoenix

By Alexis E. Danneman

Elias Law Group, LLP, Seattle, WA

By Abha Khanna

Elias Law Group, LLP, Washington, DC

By Lalitha D. Madduri, Christina Ford, Elena Rodriguez Armenta
Co-Counsel for Katie Hobbs

Coppersmith Brockelman, PLC, Phoenix

By D. Andrew Gaona
Counsel for Secretary of State Adrian P. Fontes

Maricopa County Attorney’s Office, Phoenix

By Thomas P. Liddy, Joseph Eugene La Rue, Joseph Branco, Karen J.
Hartman-Tellez, Jack O’Connor, Sean M. Moore, Rosa Aguilar

The Burgess Law Group, Phoenix

By Emily M. Craiger
Co-Counsel for Maricopa County Recorder Stephen I. Richer; Election Day
Director Scott Jarrett; Supervisors Bill Gates, Clint L. Hickman, Jack Sellers,
Thomas Galvin, Steve Gallardo; and Maricopa County Board of Supervisors

Davillier Law Group, LLC, Phoenix

By Veronica Lucero, Arno Naeckel
Counsel for Amicus Curiae David Mast

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 LAKE v. HOBBS, et al.
Opinion of the Court

OPINION

Chief Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann1 joined.

C A T T A N I, Chief Judge:

¶1 Kari Lake appeals the Maricopa County Superior Court’s

ruling rejecting her request to set aside Katie Hobbs’s 17,117 vote win in
Arizona’s 2022 gubernatorial election. Lake’s arguments highlight election-
day difficulties, but her request for relief fails because the evidence
presented to the superior court ultimately supports the court’s conclusion
that voters were able to cast their ballots, that votes were counted correctly,
and that no other basis justifies setting aside the election results.
Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 After voting returns were announced, Lake filed this election

contest against Hobbs as contestee; the Arizona Secretary of State (now
Adrian Fontes); and Maricopa County elections officials.2 Lake’s 10-count
complaint primarily alleged that Maricopa County election results were
tainted by misconduct on the part of the Maricopa County Defendants, as
well as by illegal votes. See A.R.S. §§ 16-672(A)(1), (4). Lake sought a
declaration that she, not Hobbs, was the victor or, alternatively, an order
invalidating the election results. See A.R.S. §§ 16-676(B), (C).

1 Judge Peter B. Swann retired from this court effective November 28,
2022. In accordance with the authority granted by Article 6, Section 3, of
the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice
of the Arizona Supreme Court has designated Judge Swann as a judge pro
tempore in the Court of Appeals to participate in the resolution of cases
assigned to this panel for the duration of Administrative Order 2022-162.

2 The Maricopa County Defendants include the County’s elections

officials and board: Maricopa County Recorder Stephen Richer; Maricopa
County Director of Elections Scott Jarrett; the Maricopa County Board of
Supervisors; and Supervisors Bill Gates, Clint Hickman, Jack Sellers,
Thomas Galvin, and Steve Gallardo.

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 LAKE v. HOBBS, et al.
Opinion of the Court

¶3 The superior court dismissed eight of the ten counts for

failure to state a claim, for undue delay, as duplicative, as outside the scope
of an election contest, or for some combination thereof. The court granted
Lake’s request for a trial on claims alleging that: (1) an official interfered
with ballot-on-demand printers, leading to tabulators rejecting misprinted
ballots and costing Lake votes, and (2) the Maricopa County Defendants
violated chain-of-custody requirements when handling early ballots
submitted on election day, permitting some number of ballots to be
unlawfully added to the official results. Both claims were premised on
allegations of official misconduct under A.R.S. § 16-672(A)(1). After a bench
trial, the superior court found that Lake had failed to prove any element of
either claim—including alleged misconduct or an effect on the election
results—and confirmed Hobbs’s election as governor.

¶4 Lake now challenges the superior court’s rulings on five of

her ten claims. She asserts that legal errors tainted the court’s rulings and
that factual errors undermined the court’s bench-trial ruling on her
printer/tabulator and chain-of-custody claims. Finally, she asserts that the
court erroneously dismissed her signature-verification and constitutional
(equal protection and due process) claims, and she asks us to order a new
election.

DISCUSSION

¶5 Arizona law recognizes only limited grounds to contest

election results for state office, and such election contests must be brought
in the manner authorized by statute—here, A.R.S. § 16-672. See Griffin v.
Buzard, 86 Ariz. 166, 168 (1959); Sorenson v. Superior Court, 31 Ariz. 421, 422–
23 (1927); see also Donaghey v. Att’y Gen., 120 Ariz. 93, 95 (1978) (“The failure
of a contestant to an election to strictly comply with the statutory
requirements is fatal to his right to have the election contested.”). Only
claims falling within the statutory terms are cognizable. Henderson v. Carter,
34 Ariz. 528, 534–35 (1928) (“The remedy may not be extended to include
cases not within the language or intent of the legislative act.”). “[W]e are
not permitted to read into [the election contest statute] what is not
there . . . .” Grounds v. Lawe, 67 Ariz. 176, 187 (1948).

¶6 Generally, even in an election contest, official returns are

prima facie evidence of the number of votes cast and for whom, and the
challenger has the burden to prove otherwise. Hunt v. Campbell, 19 Ariz.
254, 268 (1917); Findley v. Sorenson, 35 Ariz. 265, 271–72 (1929); Oakes v.
Finlay, 5 Ariz. 390, 395 (1898); see also Moore v. City of Page, 148 Ariz. 151, 159
(App. 1986) (drawing “all reasonable presumptions [to] favor the validity

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 LAKE v. HOBBS, et al.
Opinion of the Court

of an election”). Arizona has a “strong public policy favoring stability and

finality of election results,” Donaghey, 120 Ariz. at 95, and mere technical
violations are insufficient to invalidate an election. Territory v. Bd. of
Supervisors, 2 Ariz. 248, 252–53 (1887); Miller v. Picacho Elementary Sch. Dist.
No. 33, 179 Ariz. 178, 180 (1994). Mistakes or omissions do not invalidate
an election unless they affect the result or at least render it uncertain.
Findley, 35 Ariz. at 269; Miller, 179 Ariz. at 180. To satisfy this standard, the
challenger must show “ballots procured in violation of a non-technical
statute in sufficient numbers to alter the outcome of the election.” Miller,
179 Ariz. at 180.

I. Preliminary Legal Questions.

¶7 Lake argues that the superior court applied several incorrect

legal standards and definitions when assessing her claims. We review such
questions of law de novo. Fitzgerald v. Myers, 243 Ariz. 84, 88, ¶ 8 (2017).

¶8 Lake first asserts that the challenger in an election contest

need only prove her claim by a preponderance of the evidence, not clear
and convincing evidence, as the superior court required. The
preponderance standard is satisfied by proof that the fact in issue “is more
probable than not,” whereas the heightened clear and convincing evidence
standard requires proof that the fact in issue “is highly probable or
reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284–85, ¶ 25 (2005)
(citations omitted).

¶9 Lake cites no authority for her argument that a

preponderance of the evidence standard applies in an election contest, and
we are aware of none. Although Arizona appellate courts have not
expressly stated that the clear and convincing standard applies in all
election contests, our courts have long noted the general principle that only
proof of “the most clear and conclusive character” will overturn an election.
See Oakes, 5 Ariz. at 398; see also Hunt, 19 Ariz. at 268, 271 (holding that
“nothing but the most credible, positive, and unequivocal evidence should
be permitted to destroy the credit of official returns,” and requiring “clear
and satisfactory proof” of the alleged fraud “to overcome the prima facie
case made by the returns of an election”); Buzard v. Griffin, 89 Ariz. 42, 50
(1960) (requiring clear and convincing evidence in a contest alleging fraud);
cf. Griffin, 86 Ariz. at 173 (noting that an election contest does not require
proof beyond a reasonable doubt as necessary to convict in a criminal
action).

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 LAKE v. HOBBS, et al.
Opinion of the Court

¶10 A higher burden of proof is consistent with the holdings in

those cases. And it is further supported by Arizona’s “strong public policy
favoring stability and finality of election results,” Donaghey, 120 Ariz. at 95,
and by the presumption of “good faith and honesty” of elections officials.
Hunt, 19 Ariz. at 268. We thus agree with the superior court that Lake was
required to prove her case by clear and convincing evidence.

¶11 Lake also asserts that the superior court erred by requiring
proof that the alleged official misconduct “did in fact affect the result” of
the election, positing instead that some unquantifiable uncertainty suffices.
But election results are not rendered uncertain unless votes are affected “in
sufficient numbers to alter the outcome of the election.” Miller, 179 Ariz. at
180. This rule requires a competent mathematical basis to conclude that the
outcome would plausibly have been different, not simply an untethered
assertion of uncertainty. See Reyes v. Cuming, 191 Ariz. 91, 94 (App. 1997)
(setting aside an election because illegal votes “indisputably changed the
outcome of the election,” proven by the fact that the losing candidate had
been in the lead until illegal votes were counted); Huggins v. Superior Court,
163 Ariz. 348, 352–53 (1990) (holding that although the aggregate number
of illegal votes exceeded the margin of victory, the number was not “of
sufficient magnitude to change the result” after a “pro rata deduction of the
illegal votes according to the number of votes cast for the respective
candidates” in that district) (quoting Grounds, 67 Ariz. at 182).

¶12 Finally, Lake contends that the superior court erred by

defining “misconduct” under § 16-672(A)(1) as requiring proof that an
elections official intended to improperly affect the result. We agree that
there may be circumstances under which something less than intentional
misconduct may suffice. Cf. Findley, 35 Ariz. at 269 (explaining that “honest
mistakes or mere omissions” are insufficient to invalidate an election
“unless they affect the result, or at least render it uncertain”) (emphasis
added). Nevertheless, Lake’s claims alleging misconduct do not entitle her
to relief. Ultimately, her arguments about legal standards and definitions
are unavailing because her claims fail under any standard for reasons set
forth below.

II. Bench Trial Claims.

¶13 On review after a bench trial, we accept the superior court’s

factual findings unless clearly erroneous. Shooter v. Farmer, 235 Ariz. 199,
200, ¶ 4 (2014). The superior court assesses witness credibility, weighs the
evidence, and resolves conflicting facts and expert opinions, all factual
determinations to which we defer. Id. at 201, ¶ 4; Grounds, 67 Ariz. at 182.

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Opinion of the Court

We review de novo, however, any questions of law, including the ultimate

legal conclusions drawn from the superior court’s factual findings. Ariz.
Bd. of Regents v. Phx. Newspapers, Inc., 167 Ariz. 254, 257 (1991); Pima Cnty.
v. Pima Cnty. L. Enf’t Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13 (2005).

A. Printer/Tabulator Claim.

¶14 Lake alleged that Maricopa County elections officials, either

negligently or intentionally, failed to adequately test ballot-on-demand
printers or in some other manner “injected” misconfigured ballots that
could not be read by on-site tabulators at vote centers. This claim fails
because, at most, the evidence regarding misconduct was disputed, and
ample evidence supported the superior court’s conclusion that the
printer/tabulator issues resulted from mechanical malfunctions that were
ultimately remedied.

¶15 More importantly, Lake presented no evidence that voters

whose ballots were unreadable by on-site tabulators were not able to vote.
To the contrary, Lake’s cybersecurity expert confirmed that any
misconfigured ballots (or ballots that on-site tabulators could not read for
other reasons) could be submitted physically through secure “Door 3,”
duplicated onto a readable ballot by a bipartisan board at Maricopa
County’s central tabulation facility, and ultimately counted.

¶16 Lake’s claim thus boils down to a suggestion that election-day

issues led to long lines at vote centers, which frustrated and discouraged
voters, which allegedly resulted in a substantial number of predominately
Lake voters not voting. But Lake’s only purported evidence that these
issues had any potential effect on election results was, quite simply, sheer
speculation.

¶17 Lake’s expert testified that tens of thousands of voters were,

in his words, “disenfranchised” by printer/tabulator issues. But the expert
based his opinion on the number of people who declined to complete his
exit poll on election day and who he thus assumed had been unable to vote.
The expert testified—based on about 50 fewer people than expected
completing his exit poll on election day—that he could “infer . . . by the
absence of their participation” that a population equaling approximately
16% of the total election-day turnout across Maricopa County had been
deprived of their right to vote, and that the deprivation derived from
printer/tabulator issues. But the expert failed to provide any reasonable
basis for using survey responses or non-responses to draw inferences about
the motivations or preferences of people who did not vote. The expert

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 LAKE v. HOBBS, et al.
Opinion of the Court

offered no basis for linking any individual’s alleged failure to vote to the
printer/tabulator issues specifically (as opposed to any other reason), or to
otherwise equate a failure to vote with elections officials depriving
potential voters of an opportunity to do so. Likewise, he offered no basis
for his opinion on the rate of ostensibly-tabulator-induced non-voting—
approximately 16% of election-day voters—other than the fact that he
picked the number precisely because it was “what it would have needed [to
be] in order for it to change the outcome.”

¶18 Whatever the merits of the expert’s actual poll results, his
conclusions regarding alleged “disenfranchise[ment]” were baseless. Thus,
the superior court did not err by finding this testimony insufficient to call
into question the election results. And lacking proof that the results were
in any way uncertain, Lake’s printer/tabulator claim fails.

B. Chain-of-Custody Claim.

¶19 In this claim, Lake alleged that Maricopa County failed to

maintain proper chain-of-custody documentation or follow chain-of-
custody procedures for early ballot packets submitted in drop boxes on
election day and that these failures might have permitted some unspecified
number of ballots to be wrongfully inserted before being counted.

¶20 Arizona law requires the “officer in charge of elections” to

document “the chain of custody for all . . . ballots during early voting
through the completion of provisional voting tabulation.” A.R.S. § 16-
621(E). Early ballot packets submitted at vote centers on election day need
not be counted on location so long as they “are transported in a secure and
sealed transport container to the central counting place to be counted
there.” Ariz. Sec’y of State, 2019 Elections Procedures Manual (“EPM”) 193
(Dec. 2019); see also Ariz. Pub. Integrity All. v. Fontes, 250 Ariz. 58, 63, ¶ 16
(2020) (EPM “has the force of law”). A “retrieval form” must be “attached
to the outside of the secure ballot container or otherwise maintained in a
manner prescribed by the County Recorder or officer in charge of elections
that ensures the form is traceable to its respective secure ballot container.”
EPM at 62. “When the secure ballot container is opened by the County
Recorder or officer in charge [of] elections (or designee), the number of
ballots inside the container shall be counted and noted on the retrieval
form.” Id.

¶21 At best, Lake’s evidence on chain-of-custody misconduct was

disputed, and the superior court reasonably credited testimony from
Maricopa County elections officials over testimony from Lake’s witness.

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Opinion of the Court

See Shooter, 235 Ariz. at 201, ¶ 4; Grounds, 67 Ariz. at 182. Regarding

ostensibly missing chain-of-custody documentation, Lake’s evidence was
either misdirected (e.g., a witness who reported not receiving certain forms
in response to a public records request but who also confirmed that she
“know[s] they exist”) or was provided by individuals who were not present
or could not see the relevant area. For their part, Maricopa County elections
officials confirmed the existence of chain-of-custody forms documenting
how election-day early ballot packets are processed from vote center to
tabulation. The court had ample basis to conclude that Lake failed to prove
improper chain-of-custody documentation.

¶22 Lake also asserts that Maricopa County elections officials

wrongfully failed to count election-day early ballot packets immediately
upon receipt from vote centers, which she argues left the process vulnerable
to manipulation. County elections officials explained that, given the
volume of ballot packets received from vote centers on election day, they
scan tamper-evident seals, complete chain-of-custody documents, open the
ballot transport containers, sort the ballot packets by type into mail trays,
place those trays into secure cages, and estimate the number of early ballot
packets based on the number of trays. A bipartisan team transports those
secure cages to Maricopa County’s certified election services vendor, where
a bipartisan team of County employees supervise as the vendor scans and
counts each early ballot packet. Lake argues that this process does not
satisfy the EPM’s directive that “[w]hen the secure ballot container is
opened . . . the number of ballots inside the container shall be counted.”
EPM at 62. But she does not cite authority imposing any express time
requirement or otherwise explain how an initial estimate followed by
precise count—when bipartisan teams of county personnel monitor the
early ballot packets throughout the process—does not qualify as “counted.”

¶23 Moreover, even assuming, for the sake of argument, that

Maricopa County’s election-day process resulted in a technical violation of
the EPM, Lake failed to present evidence, as opposed to speculation, that
any such breach affected the election results. Lake suggests the difference
between the County Recorder’s initial estimate of election-day early ballot
packets received—“over 275,000” or “275,000+”—and the precise count
after the vendor scanned those packets—291,890—somehow rendered at
least 25,000 votes illegal. Questionable mathematics aside, Lake does not
explain (or offer any legal basis) for how the difference between an initial
estimate and a final, precise figure invalidates any vote.

¶24 Finally, the only other evidence Lake presented to show that
the purported chain-of-custody violation affected the election results was

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Opinion of the Court

an affidavit from one of the vendor’s employees who stated that the vendor
permitted its employees to insert their own (and their family members’)
ballots into batches of early ballot packets coming from the Maricopa
County facility. The affiant estimated that she “personally saw about 50
ballots” inserted in this manner. But the superior court “d[id] not give the
Affidavit much weight.” Instead, the court credited testimony by Maricopa
County elections officials that the practice was not permitted and likely did
not happen, noting specifically that “County employees—who follow the
EPM—have eyes on the ballot process” at the vendor’s facility. We defer to
these credibility determinations. See Shooter, 235 Ariz. at 201, ¶ 4.
Moreover, even taking the affidavit as true, 50 ballots (even if all were
against Lake) is orders of magnitude short of having any plausible effect on
the outcome. See Miller, 179 Ariz. at 180. The superior court did not err by
denying Lake’s chain-of-custody claim.

III. Summary Dismissal of Lake’s Other Claims.

¶25 We review de novo the superior court’s ruling dismissing

Lake’s other claims before trial. See Coleman v. City of Mesa, 230 Ariz. 352,
355–56, ¶¶ 7–8 (2012). We assume the truth of the complaint’s well-pleaded
factual allegations relating to those claims but are mindful that “mere
conclusory statements are insufficient.” Id. at 356, ¶ 9; see also Hancock v.
Bisnar, 212 Ariz. 344, 348, ¶¶ 16–17 (2006) (applying Ariz. R. Civ. P. 8
standards to election contest complaint); Griffin, 86 Ariz. at 170. We will
affirm the dismissal if the challenger “would not be entitled to relief under
any interpretation of the facts susceptible of proof.” Coleman, 230 Ariz. at
356, ¶ 8 (citation omitted).

A. Signature-Verification Claim.

¶26 The superior court construed Lake’s signature-verification

claim as a challenge to Maricopa County’s existing election procedures, a
type of claim that must be brought before an election occurs, not after. See,
e.g., Sherman v. City of Tempe, 202 Ariz. 339, 342, ¶¶ 9–11 (2002) (noting that
requiring such challenges be brought before the election avoids post-
election requests “to overturn the will of the people, as expressed in the
election” based on grounds that existed beforehand). Lake asserts that her
complaint did not challenge the validity of Maricopa County’s signature-
verification procedures but rather alleged violations of those procedures
during the 2022 election, and that the superior court therefore erred by
dismissing this claim.

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Opinion of the Court

¶27 In Arizona, early ballots are returned in envelopes containing

a ballot affidavit that the voter must sign. See A.R.S. § 16-547(A), (D). Before
the early ballot is tabulated, the ballot-affidavit signature must be verified.
See A.R.S. § 16-550(A). To do so, the county recorder must compare the
signature on the ballot affidavit with the voter’s “registration record” to
verify that the voter made the signature on the ballot affidavit. A.R.S. § 16-
550(A).

¶28 To complete signature verification, the EPM (in effect since

2019) directs elections officials to consult the voter registration form and
“additional known signatures from other official election documents in the
voter’s registration record, such as signature rosters or early ballot/PEVL
request forms.” EPM at 68. Likewise, the signature-verification process
described in Maricopa County’s 2022 Elections Plan involves a comparison
of the ballot-affidavit signature against “a historical reference signature that
was previously verified and determined to be a good signature for the
voter,” drawn from documents including “voter registration forms, in-
person roster signatures and early voting affidavits from previous
elections.” Maricopa County’s process also contemplates “multi-level
signature verification,” with a first-level reviewer comparing the ballot-
affidavit signature to up to three signatures on file, and if the signature does
not match those exemplars, further review by a manager, who compares
the signature against all of the signatures on file for the voter.

¶29 If the signature-verification process results in a determination

that the signatures “correspond,” the ballot may be tabulated; if the
signatures do not match, the voter must, if reasonably possible, be
contacted, given an opportunity to cure the mismatch, and have their vote
counted. See A.R.S. § 16-550(A); EPM at 68–69.

¶30 Although she now argues otherwise, Lake’s signature-

verification claim alleged a procedural violation of the election process.
Lake’s complaint alleged that the Maricopa County Recorder “accepted a
material number” of early ballot packets with an “affidavit signature that
the Maricopa County Recorder or his designee determined did not match
the signature in the putative voter’s ‘registration record.’” But this assertion
was premised on first-level reviewers’ rejection rates, not on the ultimate
determination after Maricopa County’s multi-level signature-verification
process. Thus, at best, Lake’s signature-verification claim attacked
Maricopa County’s process for verifying signatures that first-level
reviewers questioned—a challenge to the County’s election procedures, not
a claim that the overall procedures were violated. Accordingly, the superior
court correctly concluded that Lake’s contest attacked the manner of

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Opinion of the Court

holding an election. See, e.g., Sherman, 202 Ariz. at 342, ¶ 10 (timing of

publicity pamphlet distribution); Tilson v. Mofford, 153 Ariz. 468, 470–72
(1987) (manner of drafting ballot initiatives and descriptions in publicity
pamphlets); Kerby v. Griffin, 48 Ariz. 434, 449 (1936) (printing and
circulating publicity pamphlets). And because Lake waited until after the
election to challenge a signature-verification process of which she was on
notice months before the election, the superior court correctly dismissed the
claim. See Kerby, 48 Ariz. at 444.

B. Equal Protection and Due Process Claims.

¶31 Lake argues that the superior court erred by dismissing her
claims asserting equal protection and due process violations. Her
arguments fail, however, because these claims were expressly premised on
an allegation of official misconduct in the form of interference with on-site
tabulators—the same alleged misconduct as in Lake’s printer/tabulator
claim. See supra ¶¶ 14–18. Because these claims were duplicative of a claim
that Lake unsuccessfully pursued at trial, the superior court did not err by
dismissing them.

CONCLUSION

¶32 For the foregoing reasons, we affirm the superior court’s

ruling confirming Hobbs’s election as governor.

¶33 We deny Hobbs’s request for an award of attorney’s fees on

appeal because she offered no substantive basis for the award. See ARCAP
21(a)(2); see also Ariz. R.P. Spec. Act. 4(g) (cross-referencing ARCAP 21’s
requirements).

AMY M. WOOD • Clerk of the Court

FILED: AA

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