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Kari Lake’s Trumpian Lawsuit

In trying to overturn the 2022 election she lost, she’s following in the footsteps of her role model.
December 13, 2022
Kari Lake’s Trumpian Lawsuit
Kari Lake (Photo by John Moore/Getty Images)

Kari Lake, the loser of the Arizona gubernatorial race, has filed suit in Arizona state court against Katie Hobbs, the governor-elect and current secretary of state, along with a slew of election officials, challenging the election outcome à la the Big Lie 2020. Like Donald Trump before her, Lake is attempting to use the courts to create political sound bites to feed the base—despite an apparent absence of supportive facts or law. So far, she isn’t getting much MAGA traction from a ploy that’s bespoke to Trump. Her legal case looks like a loser, too.

We know this in part because Lake already tried a pre-election lawsuit, back in April. She asked a federal court to order that Arizona use only paper ballots in the November election, claiming that electronic machines are vulnerable to hacking. Trouble is, Arizona doesn’t even use the kind of touch-screen system her lawsuit sought to decommission. Earlier this month, U.S. District Judge John J. Tuchi sanctioned Lake’s lawyers—including former Harvard professor Alan Dershowitz, of Trump impeachment fame—for filing their pre-election claims without having conducted “the factual and legal pre-filing inquiry that the circumstances of this case reasonably permitted and required.” Tuchi ordered the lawyers to reimburse the other side for their attorneys’ fees spent defending the lawsuit.

What the likes of Trump and Lake understand—and what evades non-lawyers—is that litigants can file any sort of garbage to initiate a lawsuit. There’s no automatic gatekeeper at the courthouse door banning bogus cases that have no basis in fact or law. Somebody has to affirmatively file a motion with the court asking it to dismiss a garbage case, unless a judge takes it upon themselves—in a process known as “sua sponte”—to ax the case without even being asked.

You can count on the media to cover the fact of a high-profile lawsuit and speculate as to its merits—wrongly assuming, or at least implying, that there must be a “there there” in the first place. The back-and-forth mythology created by such coverage then takes on a life of its own. Non-lawyers—especially those with a bias one way or another—rapidly come to believe that where there is smoke, there is fire. Meanwhile, it doesn’t matter to the plaintiffs and their unethical lawyers what happens with the lawsuit; what matters is that people think it’s alleging something real.

In the federal lawsuit from earlier this year, the judge rebuked the plaintiffs and their lawyers for claiming falsely that there existed no audit mechanism when there is in fact a paper ballot system in Arizona that’s auditable. Lake’s claim was “entirely frivolous,” Judge Tuchi wrote, “because Defendants are already doing what Plaintiffs want them to do.” He sanctioned her lawyers for making two false factual statements of fact and for extending the proceedings “unreasonably and vexatiously,” noting that the court “shares the concerns expressed by other federal courts about misuse of the judicial system to baselessly cast doubt on the electoral process in a manner that is conspicuously consistent with the plaintiffs’ political ends.”

The problem is, such sanctions are very rarely granted. And when they are, the penalties imposed are insufficient to deter the same lawyers from making the same mischief again. The latest Lake lawsuit is a case in point. The political payoff is just too juicy for lawyers to be bothered by the off-chance possibility that a court will react to having been manipulated.

This round, Lake makes the sweeping claim that thousands of Arizonans voted illegally last month—a number that, in her estimate, “far exceeds” the 17,117-vote margin that handed Hobbs the win. Lake adds that the widely reported tabulator and printer problems experienced on election day “set off a domino chain of electoral improprieties, rampant administrative chaos and confusion, . . . and ultimately the prevention of qualified voters from having their votes counted.” Lake says she has “video footage, first-hand accounts, and expert testimony” as proof.

Of course, we’ve seen these kinds of My-Pillow-Guy factual assertions before. Eye-rolling is understandable. On the factual questions, nonetheless, if Lake manages to get the case to the discovery phase—which, if she gets her way, could allow her to inspect the ballots and conduct a “forensic examination” of the technical glitches that occurred—it would be a “win,” even if she doesn’t get the extraordinary relief she wants. Which is a Trumpian “order setting aside the certified result of the 2022 Arizona gubernatorial election and declaring that Kari Lake is the winner of the 2022 Arizona gubernatorial election.”

On the law side, in addition to her signature-matching complaints and other critiques of the election procedures employed under Arizona law, Lake includes a handful of over-the-top constitutional claims relating to the individual rights of “citizens” who are not even parties to the lawsuit. For example, without naming any department of the U.S. government as a defendant, she asserts that Hobbs and other election officials engaged in “per se violations of the First Amendment” by allegedly reporting election-related information to the Department of Homeland Security and the Cybersecurity and Information Security Agency.

Next, she makes a significant assumption, “arguendo”—that is, for the sake of argument—that an unknown Arizona employee caused the tabulator problems that certain vote centers in Maricopa County experienced. Allegedly, “Republican election-day voters” were especially “burdened” by this. From this shaky foundation, Lake concludes that the Equal Protection Clause of the U.S. Constitution was violated, justifying an order “setting aside” the entire election. She cites the Supreme Court’s 2000 decision in Bush v. Gore.

There’s more.

Pointing again at the hypothetical bad state actor, Lake next argues that the same technical glitches violated the constitutional rights of a “class of voters” she identifies as “Republicans” under the Fourteenth Amendment’s Due Process Clause, as well, which again warrants an order “setting aside the election in its entirety.” For good measure, Lake throws in a claim that “all absentee ballots cast in the 2022 general election are illegal votes” in violation of the Sixteenth Amendment to the U.S. Constitution, among other things, which basically allowed the federal government to collect income tax.

The technical legal response to much of this is . . . huh?

The fact that there is frivolousness afoot here doesn’t mean getting rid of these claims will be swift or costless. Precisely because some of Lake’s assertions are so head-scratching, the defendants will have to conduct careful research and draft motions that do the job of both sides—that is, give Lake the benefit of every doubt and then defeat that strawman, thus enabling the judge to have confidence in ruling (presumably) against her. Given how high political emotions ran after 2020, with physical threats against election officials at record highs, this process is no joke. Like countless other politicians in the Republican party, Lake doesn’t care.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.