PHOENIX (CN) — A federal judge in Arizona dismissed a suit Friday seeking to ban electronic voting machines ahead of the November midterm election, brought by Republican candidates who claim the machines may have security flaws.
In the suit, Arizona gubernatorial candidate Kari Lake and secretary of state candidate Mark Finchem claimed an injunction to stop the use of voting machines was necessary since the "voting system does not reliably provide trustworthy and verifiable election results." Former President Donald Trump — a frequent purveyor of baseless election fraud claims — has endorsed Lake and Finchem in their respective races.
Lake and Finchem claimed that voting on paper ballots and hand-counting those votes was the only efficient and secure method for proceeding in November.
In arguments, the pair contended that contractors found some concerns after completing a partisan audit of the 2016 presidential election. Chiefly, the contractors allegedly found cybersecurity best practices weren’t used, antivirus software patches were neglected, computer logs were cleared, and some files were missing from the election management system.
U.S. District Judge John Tuchi on Friday found the supposed evidence conjectural and not concrete.
“Ultimately, even upon drawing all reasonable inferences in plaintiffs’ favor, the court finds that their claimed injuries are indeed too speculative to establish an injury in fact, and therefore standing,” wrote Tuchi.
Tuchi wrote that in previous election fraud cases, courts have ruled in favor of the plaintiffs when actual fraud had occurred. In Curling v. Kemp, Georgia voting machines had been hacked and the secretary of state refused to act. Tuchi said the plaintiff’s case is nothing like that case.
“Here, as the secretary points out, a long chain of hypothetical contingencies must take place for any harm to occur— (1) the specific voting equipment used in Arizona must have “security failures” that allow a malicious actor to manipulate vote totals; (2) such an actor must actually manipulate an election; (3) Arizona’s specific procedural safeguards must fail to detect the manipulation; and (4) the manipulation must change the outcome of the election,” Tuchi wrote.
None of that has occurred, Tuchi found.
Additionally, Tuchi said if he had entertained the abstract claims for injunctive relief, he would violate the Purcell principle, barring courts from ordering changes to election rules in the period just before an election. The U.S. Supreme Court's 2006 ruling in Purcell v. Gonzalez established the principle.
“In applying Purcell, courts have made clear that it stands for more than just the proposition that federal courts should avoid changes in law that may cause voter confusion,” wrote Tuchi. “The county defendants are correct to assert that courts applying Purcell also ‘caution federal courts to refrain from enjoining election law too close in time to an election if the changes will create administrative burdens for election officials.’ The injunctive relief plaintiffs seek would not just be challenging for Arizona’s election officials to implement; it likely would be impossible under the extant time constraints.”
According to Scott Jarrett, an expert witness during oral arguments and the director of elections for Maricopa County, switching to a hand-only count would devastate the county’s ability to conduct business. The county would require thousands more workers even as they already struggle to maintain enough at a paltry wage. Jarrett also said they’d need much more real estate to conduct a hand count.
Tuchi additionally dismissed motions by the plaintiffs to supplement the record, post-arguments, with video allegedly showing unauthorized individuals accessing the electronic management server (EMS) room without authorization. According to the plaintiffs, the video would discredit expert testimony from Jarrett that the room was secure.
“The request is extraordinarily and inexcusably untimely, and in any event does not remedy the speculative nature of plaintiffs’ claims,” Tuchi wrote. “Plaintiffs initiated this action according to their preference. The court set the hearing by an order issued well in advance, and plaintiffs had ample time to prepare their evidence.”
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