By Corinne Murdock |
On Monday, a superior court judge refused to dismiss Republican gubernatorial candidate Kari Lake’s lawsuit entirely against Maricopa County and the state. Wednesday’s planned hearing will go on.
Maricopa County Superior Court Judge Peter Thompson also denied petitions from outgoing Secretary of State and governor-elect Katie Hobbs, and Maricopa County Recorder Stephen Richer, to avoid deposition.
The judge rejected Hobbs and Maricopa County’s argument that the Rules of Civil Procedure determining whether a case qualifies for civil litigation don’t govern election contests. The judge did agree that the court timelines permitted for discovery conflicted with the constricted deadline required by statute. However, even on that point he said precedent prioritized statute over civil procedure.
“[I]n this instance the substantive statute – with its strict timelines and limited room for discovery that define the parameters of an election challenge – must prevail over civil rules which simply do not fit in these cramped confines,” wrote the judge.
Hobbs sought exemption from deposition. Her team sought application of “apex doctrine,” something which excuses high-ranking government officials and executives from testifying. The judge indicated that granting Hobbs’ request would set a standard exempting all government officials.
“While the Court is sensitive to the need to have discovery be proportional to the needs of the case, the Court is not inclined to apply a blanket rule that high-level government officials can never be called to testify,” stated the judge.
The judge rejected Lake’s request to include emails in discovery, opining that the request went beyond the intent of statute for ballot inspection. He warned that a lax interpretation would have the “potential for transforming election contests of limited scope into a lighting-round of discovery disputes.”
The judge also addressed Lake’s claims that Hobbs and the county violated the First Amendment. As AZ Free News reported earlier this month, both Hobbs and the county worked with a private company operating as a middleman between government and social media. Thompson asserted that free speech violations were “premise[d] on state action,” or direct involvement.
“[T]he First Amendment does not restrain private parties from opposing speech, or choosing what to publish,” wrote Thompson. “This is the key deficiency with the claim against the Recorder and Secretary’s respective reports to the Election Misinformation Reporting Portal—after the report is made, there is no further conceivable state action. Twitter (to take one example) takes down posts that offend its terms of service after a report is made, and neither the Recorder nor the Secretary are alleged to have control over that process or are alleged to have the authority to compel such a take-down.”
In short: the court took Hobbs and Richer at their word.
Thompson also rejected Lake’s claim that Maricopa County’s ballot-on-demand (BOD) printers lacked the required certification. He stated that relevant statute didn’t include printers. The judge did grant Lake an opportunity to present findings to support her claim of BOD interference resulting in lost votes for her in court.
Thompson rejected Lake’s attempt to include a challenge of Maricopa County’s signature verification efforts, noting that Lake had since the April release of Attorney General Mark Brnovich’s report on the subject to confront the issue — but didn’t. Thompson also rejected Lake’s claim that mail-in ballots violate the state constitution’s secrecy laws, nothing that Lake had 30 years to challenge the law.
Thompson also rejected Lake’s claims of due process and equal protection violations, indicating they were vague and repetitive.
Thompson did accept Lake’s claim that Hobbs and Maricopa County violated chain of custody law. Thompson also afforded Lake the opportunity to prove BOD printer malfeasance.