ARIZONA SUPREME COURT

KARI LAKE, Petitioner-Plaintiff/ Case No. ________________

Contestant,
Court of Appeals Case No. 1 CA-CV
v. 22-0779 & No. 1 CA-CV __________
(filed Dec. 30, 2022)
KATIE HOBBS, personally as
Contestee and in her official capacity Maricopa County Superior Court No.
as the Secretary of State, Respondent- CV2022-095403
Defendant/Contestee,

and

STEPHEN RICHER, in his official

capacity as Maricopa County Recorder,
et al., Respondents/Defendants.

PETITION FOR TRANSFER

Kurt B. Olsen (admitted pro hac vice) Bryan James Blehm

Olsen Law PC Ariz. Bar #023891
D.C. Bar No. 445279 Blehm Law PLLC
1250 Connecticut Ave. NW, Ste. 700 10869 N. Scottsdale Rd., Suite 103-256
Washington, DC 20036 Scottsdale, Arizona 85254
Tel: 202-408-7025 Tel: (602) 752-6213
Email: ko@olsenlawpc.com Email: bryan@blehmlegal.com

Counsel for Plaintiff-Petitioner

 TABLE OF CONTENTS

Introduction ................................................................................................................ 1
Background ................................................................................................................ 1

Argument.................................................................................................................... 3

I. Transfer to this Court is appropriate. ............................................................... 3

A. Extraordinary circumstances justify transfer. .......................................3

1. The Election-Day chaos targeted Republican voters. .................3

2. The need for a duly elected governor warrants expediting

this matter. ...................................................................................4

3. This matter presents novel legal issues of statewide

importance. ..................................................................................5
B. This Court must qualify its election-contest decisions. ........................6
II. Judicial economy favors transfer. .................................................................... 7

Conclusion ................................................................................................................. 7

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 INTRODUCTION

Pursuant to Rule 19(a), Ariz. R. Civ. App. P., petitioner Kari Lake asks this

Court to transfer special-action appellate review of Maricopa County Superior Court

case No. CV-2022-095403 from the Arizona Court of Appeals, Division One, for

the following reasons.

• The extraordinary circumstances of (1) a targeted attack on Election-Day

voters, (2) purely legal issues of statewide importance, and (3) the need for

expedition under the fast-moving electoral calendar;

• The need to qualify this Court’s decisions regarding (1) a clear-and-

convincing versus preponderance-of-evidence standard in election contests,

(2) the use of laches to ratify a vested right to violate election laws in future

elections, and (3) clarification that the election contests’ statutory nature does

not preclude finding unconstitutional elections to qualify as “misconduct”

under A.R.S. §16-672(A)(1).

BACKGROUND

A significant majority of voters no longer trust the outcomes of elections in

Arizona. A functioning republic cannot exist for long in these circumstances. The

evidence put forward in this case, including the changing and conflicting testimony

of Maricopa officials, and sworn testimony by whistleblowers employed by

Maricopa, proved that Maricopa officials:

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• Caused the chaos arising at nearly two thirds of Maricopa’s 223 vote centers,

admitted, after first denying, that illegally misconfigured ballots were injected

into the election, causing tabulators to reject tens of thousands of ballots,

disproportionally targeting Republican voters. At trial, counsel for Maricopa

blamed Republicans for voting on Election Day: “You reap what you sow.”

Ct. App. Appx:675 (Tr., 274:16).

• Violated A.R.S. §16-621(E)’s chain-of-custody requirements with respect

nearly 300,000 Election Day drop box (“EDDB”) ballots, including the

inexplicable injection of over 25,000 ballots between November 9 and

November 10.

• Allowed tens of thousands of ballots with voters’ signatures which clearly did

not match the record signature and were not properly cured to be counted in

the 2022 general election in violation of A.R.S. §16-550.

The number of illegally suppressed votes and illegal votes cast in Arizona’s general

election on November 8, 2022, far exceeds the 17,117 vote margin between Kari

Lake Secretary of State Katie Hobbs. The evidence adduced at trial showed that

Arizona’s election process is broken. This Court is the only body which has the

power to restore trust in Arizona’s elections.

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 ARGUMENT

I. TRANSFER TO THIS COURT IS APPROPRIATE.

A. Extraordinary circumstances justify transfer.

Three extraordinary circumstances warrant transfer under Rule 19(a)(3):

(1) Maricopa’s electoral chaos targeted Republican voters, depriving Arizona of a

“free and equal” election; (2) respondent Katie Hobbs is due to be sworn in on

January 2, 2023; and (3) purely legal issues of statewide importance justify reversal

and, thus, a new election.

1. The Election-Day chaos targeted Republican voters.

The evidence put forward at trial and in Lake’s special-action petition shows

Republican voters were targeted on Election Day to disrupt their votes. This is true

both for Election-Day voters versus mail-in voters and for Republican Election-Day

voters versus Democrat Election-Day voters. Without wading into statistics, this

Court should reverse the dismissal of the constitutional counts because “the Equal

Protection and Due Process Clauses protect against government action that is

arbitrary, irrational, or not reasonably related to furthering a legitimate state

purpose.” Coleman v. City of Mesa, 230 Ariz. 352, 362 (2012). Maricopa’s deviation

from Arizona law was arbitrary, irrational, and furthered no legitimate purpose.

Moreover, even the statistical issues present purely legal question. First,

dismissing Counts V and VI for failing to state a claim are purely legal. Coleman v.

City of Mesa, 230 Ariz. 352, 355 ¶7 (2012). Second, in the bench trial on the

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tabulator issue, the trial court rejected statistical evidence on whether Maricopa’s

chaos disenfranchised enough voters to make the results uncertain based on incorrect

standards of review by requiring clear-and-convincing evidence that election

officials intended their misconduct to alter the result and did, in fact, alter the result.

To the contrary, this Court requires only that nonquantifiable misconduct render the

outcome “uncertain.” Findley v. Sorenson, 35 Ariz. 265 (1929); Hunt v. Campbell,

19 Ariz. 254, 265-66 (1917); Miller v. Picacho Elementary Sch. Dist. No. 33, 179

Ariz. 178, 180 (1994). This Court can—indeed, must—reverse on purely legal

issues, without addressing factual disputes.

2. The need for a duly elected governor warrants expediting

this matter.
The need for a timely determination justifies transfer, including in electoral

matters. Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz.

396, 404-05 (2020). This Court transferred Fleischman v. Protect Our City, 214

Ariz. 406, 409 ¶14 (2007), to “obtain a timely determination whether [a] proposed

initiative [would] be on the ballot for the next city election.” Like Fleischman, this

case requires timely resolution of whether Maricopa’s 2022 general election should

be vacated and a new one held.

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 3. This matter presents novel legal issues of statewide
importance.
This Court accepts transfers concerning matters of general or widespread

importance. Hall v. Elected Officials’ Ret. Plan, 241 Ariz. 33, 38 ¶13 (2016).

Similarly, the constitutionality of municipal code provisions for removing

magistrates warranted transfer because many other municipal codes included similar

provisions, providing statewide effects. Winter v. Coor, 144 Ariz. 56, 57 (1985). If

removing municipal magistrates qualifies, installing a Governor a fortiori does.

Special action is appropriate because the issues are purely legal. Sierra

Tucson, Inc. v. Lee ex rel. County of Pima, 230 Ariz. 255, 257 ¶¶6-7 (App. 2012)

(motion to dismiss); Mendez v. Robertson, 202 Ariz. 128, 129, ¶¶1-3 (App. 2002)

(standard of review); Nordstrom v. Cruikshank, 213 Ariz. 434, 438 (App. 2006)

(interpretating statutes); Dobson v. State ex rel., Comm'n on App. Ct. Appointments,

233 Ariz. 119, 121 ¶7 (2013) (interpretating constitution).

There is scarcely a matter of greater statewide importance than protecting the

integrity of the electoral process, Reynolds v. Sims, 377 U.S. 533, 562 (1964) (“the

political franchise of voting [is] a fundamental political right, because preservative

of all rights"), which our Constitution mandates: “All elections shall be free and

equal, and no power, civil or military, shall at any time interfere to prevent the free

exercise of the right of suffrage.” Ariz. Const. art. II, §21. Petitioner asks this Court

expeditiously to resolve these critical issues.

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 B. This Court must qualify its election-contest decisions.

Transfer is appropriate under Rule 19(a)(1) for three reasons:

• Qualify Oakes v. Finlay, 5 Ariz. 390, 398 (1898) and McClung v. Bennett,

225 Ariz. 154, 156, ¶7 (2010). The trial court relied on Oakes and McClung

for a clear-and-convincing standard applicable to all election contests. Oakes

is a common-law decision that predates the election-contest statute, and the

McClung language is dicta. Contestants bear the burden of proof and must

battle presumptions of election officials’ compliance with the law, but burdens

can shift if contestants rebut those presumptions, Averyt v. Williams, 8 Ariz.

355, 359 (1904), and the preponderance-of-evidence standard applies, Aileen

H. Char Life Interest v. Maricopa Cty., 208 Ariz. 286, 291 (2004), barring

allegations of fraud, Buzard v. Griffin, 89 Ariz. 42, 50 (1960), or statutory

revisions to the burden of proof. See, e.g., A.R.S. §16-121.01.

• Qualify Harris v. Purcell, 193 Ariz. 409, 412 (1998), and progeny on

laches. The trial court dismissed signature-verification claims for 2022 based

on Maricopa County’s having failed adequately to verify signatures on mail-

in ballots in 2020. “No vested right to violate an ordinance may be acquired

by continued violations.” Acker v. Baldwin, 18 Cal. 2d 341, 346 (1941);

Rivera v. City of Phx., 186 Ariz. 600, 602 (App. 1996) (improper building

permits cannot establish vested right to violate ordinances). This Court should

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 narrow its laches precedents to make clear that prior violations do not insulate

new violations.

• Qualify Griffin v. Buzard, 86 Ariz. 166, 168 (1959). The trial court found

claims that Maricopa’s 2022 election violated the federal and Arizona Equal

Protection and Due Process Clauses fall outside §16-672(A)(1)’s limited

bounds. This Court should clarify that unconstitutional elections can be

“misconduct” under A.R.S. §16-672(A)(1). Otherwise, contestants must bring

separate actions under 42 U.S.C. §1983 to raise constitutional grounds. The

Legislature could not have intended “misconduct” to be so narrow, and the

Supremacy Clause would forbid state efforts to insulate elections from federal

challenges.

II. JUDICIAL ECONOMY FAVORS TRANSFER.

A new Governor is scheduled to be seated under a cloud of electoral

uncertainty and impropriety. This action requires this Court’s speedy, final

resolution, without resort to an intermediate decision by the Court of Appeals.

CONCLUSION

WHEREFORE, this Court should transfer and expeditiously hear the special

action pending in the Court of Appeals.

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Dated: December 31, 2022 Respectfully submitted,

/s/ Bryan James Blehm

Kurt B. Olsen (admitted pro hac vice) Bryan James Blehm, Ariz. Bar #023891
Olsen Law PC Blehm Law PLLC
1250 Connecticut Ave. NW, Ste. 700 10869 N. Scottsdale Rd., Suite 103-256
Washington, DC 20036 Scottsdale, Arizona 85254
Tel: 202-408-7025 Tel: (602) 752-6213
Email: ko@olsenlawpc.com Email: bryan@blehmlegal.com

Counsel for Plaintiff-Petitioner

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 CERTIFICATE OF COMPLIANCE

Pursuant to Arizona Rules of Civil Appellate Procedure Rule 4, the

undersigned counsel certifies that the Petition for Transfer is double spaced and uses

a proportionately spaced typeface (i.e., 14-point Times New Roman) and contains

1,399 words according to the word-count function of Microsoft Word.

Dated: December 31, 2022 Respectfully submitted,

/s/ Bryan James Blehm

Bryan James Blehm, Ariz. Bar #023891
Blehm Law PLLC
10869 N. Scottsdale Rd., Suite 103-256
Scottsdale, Arizona 85254
Tel: (602) 752-6213
Email: bryan@blehmlegal.com

Counsel for Plaintiff-Petitioner

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 CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

Pursuant to Rule 4, Rules of Civil Appellate Practice, the undersigned certifies

that the foregoing Petition for Transfer was e-filed via AZTURBO COURT on this

31st day of December, 2022 and served as follows:

E-FILED: AZTurboCourt:
Clerk of the Court
ARIZONA SUPREME COURT
1501 W. Washington Street, Room 411
Phoenix, Arizona 85007

[Get Supreme Court address; serve/add Court of Appeals as courtesy?

SERVED: Copies emailed to:

Honorable Peter Thompson

Maricopa County Superior Court
c/o Sarah Umphress
sarah.umphress@jbazmc.maricopa.gov

Amy M. Wood, Clerk

Court of Appeals, Division One
inform@appeals.az.gov

Daniel C. Barr
Alexis E. Danneman
Austin Yost
Samantha J. Burke
Perkins Coie LLP
2901 North Central Avenue
Suite 2000
Phoenix, AZ 85012
dbarr@perkinscoie.com
adanneman@perkinscoie.com

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ayost@perkinscoie.com
sburke@perkinscoie.com
Attorneys for Defendant Katie Hobbs

and

Abha Khanna*
ELIAS LAW GROUP LLP
1700 Seventh Avenue, Suite 2100
Seattle, WA 98101
akhanna@elias.law
Telephone: (206) 656-0177

and

Lalitha D. Madduri*
Christina Ford*
Elena A. Rodriguez Armenta*
ELIAS LAW GROUP LLP
250 Massachusetts Ave NW, Suite 400
Washington, D.C. 20001
lmadduri@elias.law
cford@elias.law
erodriguezarmenta@elias.law
Attorneys for Defendant Katie Hobbs

and

D. Andrew Gaona
COPPERSMITH BROCKELMAN PLC
2800 North Central Avenue, Suite 1900
Phoenix, Arizona 85004
agoana@cblawyers.com
Attorney for Defendant Secretary of State Katie Hobbs

and

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Sambo Dul
STATES UNITED DEMOCRACY CENTER
8205 South Priest Drive, #10312
Tempe, Arizona 85284
bo@statesuniteddemocracycenter.org
Attorney for Defendant Secretary of State Katie Hobbs

and

Thomas P. Liddy
Joseph La Rue
Joseph Branco
Karen Hartman-Tellez
Jack L. O’Connor
Sean M. Moore
Rosa Aguilar
Maricopa County Attorney’s Office
225 West Madison St.
Phoenix, AZ 85003
liddyt@mcao.maricopa.gov
laruej@mcao.maricopa.gov
brancoj@mcao.maricopa.gov
hartmank@mcao.maricopa.gov
oconnorj@mcao.maricopa.gov
moores@mcao.maricopa.gov
aguilarr@mcao.maricopa.gov
Attorneys for Maricopa County Defendants

and

Emily Craiger
The Burgess Law Group
3131 East Camelback Road, Suite 224
Phoenix, Arizona 85016
emily@theburgesslawgroup.com
Attorneys for Maricopa County Defendants

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James E. Barton II
BARTON MENDEZ SOTO PLLC
401 West Baseline Road Suite 205
Tempe, Arizona 85283
James@bartonmendezsoto.com

and

E. Danya Perry (pro hac vice forthcoming)

Rachel Fleder (pro hac vice forthcoming)
Joshua Stanton (pro hac vice forthcoming)
Lilian Timmermann (pro hac vice forthcoming)
PERRY GUHA LLP
1740 Broadway, 15th Floor
New York, NY 10019
dperry@perryguha.com
Attorneys for Amici Curiae
Helen Purcell and Tammy Patrick

/s/ Bryan James Blehm