I invited Arizona attorney Jack Clifford to finish up his reporting for us on Kari Lake’s election trial with a comment on the judge’s Christmas Eve decision dismissing Lake’s election lawsuit. The AP story on it is here. Jack writes:
I write to share my final thoughts on the Lake v. Hobbs litigation. As always, these thoughts are my own and are not written on behalf of any client or my firm.
At this point, everyone interested in the story has heard that Judge Peter A. Thompson ruled in favor of the defendants on all counts on December 24 2022. A copy of the opinion is here 4531 (maricopa.gov).
The court permitted two counts from the original ten in the Complaint to proceed to Trial: 1) the claim that ballot-on-demand (“BOD”) printer malfunctions experienced on Election Day were caused intentionally and that these malfunctions resulted in a changed outcome (Complaint Count II); and 2) the claim that Maricopa County violated its own election procedures manual (“EPM”) as to chain of custody procedures in such a way as to result in a changed election outcome (Complaint Count IV).
After laying out the “clear and convincing” burden of proof Lake needed to carry, the court summarized and evaluated the witnesses and evidence Lake presented. The court looked to Arizona case law going back to 1898, before we became a state in 1912, for the proposition “it is . . . unwise to lay down any rule by which the certainty and accuracy of an election may be jeopardized by the reliance upon any proof affecting such results that is not of the most clear and conclusive character.” (See opinion for the citations.)
The “clear and convincing” burden of proof is a much higher burden of proof than the “preponderance of the evidence” used in most civil cases, but much lower than the “beyond a reasonable doubt” standard normally applied in criminal cases. Most folks consider the preponderance of evidence standard to be 51 percent likely, or simply “more likely than not.” The “beyond a reasonable doubt” standard is closer to 98% or 99% likely, or just plain way, way more likely than not likely. The “clear and convincing” standard is in between. I do not know that saying you must prove something to be 75 percent more likely than not is correct in order to meet that burden, but you get the idea.
What difference does it make? Lots of difference. Here’s how. Much of Lake’s case was hearsay. Ms. Honey relied on what another person said in an affidavit about ballots being added to the stream of ballots by Runbeck employees without a chain of custody for them and in violation of law. She did not see this happen with her own eyes. Defense counsel was unable to cross examine the person who allegedly saw the deed take place.
Freshman law students will tell you those statements were not made in person inside the courtroom, were not subject to cross examination at trial, and are hearsay on their face. In general, hearsay statements are not admissible in a trial. The law of evidence favors testimony limited to what witnesses saw or experienced themselves and not what somebody else told them.
Hearsay can be admitted as evidence at trial if an exception to the hearsay rule of exclusion applies. In a case tried to a judge, the judge can admit such statements but should give those statements only the weight the judge feels they deserve. In a trial where the plaintiff must meet or exceed the “clear and convincing” standard of proof, hearsay statements, no matter how sexy or juicy, may not get the job done.
Ms. Honey also relied on a voicemail by someone named Betty or Betsy (I am not sure which) to the effect that chain of custody documents for the not quite 300,000 early ballots placed in drop boxes on election day could not be located and produced before the trial. A stronger case might have been made if Betty came to court to speak in person. That did not happen.
Ms. Honey seemed to concede such “election day drop off” chain of custody documents may exist, but she had not seen them yet. In a civil case that goes to trial a year or more after it is filed, a party who is unable to find and produce relevant documents before trial may suffer an inference that no such documents actually exist. In this case, tried just six weeks after the election, no such inference was made.
A similar analysis may be applied to the testimony of Robert Baris. He took a survey he deemed an exit poll. He also repeated what voters told him directly. Surveys or polls compile what others say and offer an analysis of the total results. None of the voters who responded to Baris’s poll were in the courtroom or were subject to cross examination.
These days, surveys are often admitted into evidence in civil cases based on an exception to the hearsay rule, but the weight given them is almost always an issue. The trier of fact (the judge or jury) can usually ignore the results if he or they want to. They can give the survey great and persuasive weight, little weight, or none at all.
If they think the survey was seriously flawed, or the survey taker exhibited prejudice or bias, or was not sufficiently skilled in his craft, or the like, such polling evidence likely will not carry the day, even in a civil case. That is why the Defense was so energetic in attacking Baris with the rating given him by FiveThirtyEight and having Dr. Mayer besmirch Baris’s reputation.
In the end, the court in was unwilling to substitute Baris’s opinion for the voters’ take on the issue. The court said:
But election contests are decided by votes, not by polling responses, and the Court has found no authority suggesting that exit polling ought to be used in this manner. Given that exit polling is done after a vote has been cast – the weight of authority seems to be contrary to this proposition.
If Lake’s burden was merely a preponderance of the evidence, Baris’s testimony might have carried the day. But that is not this case.
The court said this: “Indeed, to the extent that a range of outcomes was suggested by Mr. Baris, he suggested that – with his expected turnout increase on Election Day of 25,000-40,000 votes the [final] outcome could be between a 2,000-vote margin for Hobbs to a 4,000-vote margin for Plaintiff [Lake].” If Baris’s work did not show clearly and convincingly that Lake would have won in every possible way you looked at it, it likely did not get over the high bar set by Arizona law.
Maybe this example illustrates the point. Not long before I started my legal career just over 40 years ago, surveys similar to exit polls were regularly excluded from evidence in trademark cases because courts thought they were rank hearsay. Gradually, courts began to admit them in the 1970’s and 1980’s when the “give survey evidence only the weight it deserves” approach began to take hold. The fact that Baris testified that his approach included a “range” of outcomes and his work saw a scenario where Hobbs won anyway was important. At least that is my take on the question.
Kari Lake has promised to appeal.