Clerk of the Superior Court

*** Electronically Filed ***

M. De La Cruz, Deputy
5/4/2023 4:25:46 PM
Filing ID 15936506

1
Bryan James Blehm, Ariz. Bar No. 023891
Blehm Law PLLC
2 10869 N. Scottsdale Rd., Suite 103-256
Scottsdale, Arizona 85254
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(602) 752-6213
4 [email protected]
5
Kurt Olsen, D.C. Bar No. 445279
6 admitted pro hac vice
OLSEN LAW, P.C.
7
1250 Connecticut Ave., NW, Suite 700
8 Washington, DC 20036
(202) 408-7025
9
[email protected]
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Attorneys for Contestant/Plaintiff
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ARIZONA SUPERIOR COURT
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13 MARICOPA COUNTY

14
KARI LAKE, No. CV2022-095403
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16 Contestant/Plaintiff, PLAINTIFF KARI LAKE’S MOTION
FOR STATUS CONFERENCE
17 vs.
18
KATIE HOBBS, personally as Contestee; (Assigned to Hon. Peter Thompson)
19 ADRIAN FONTES in his official capacity
20 as the Secretary of State; et al.,

21 Defendants.
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PL.S MOT. FOR STATUS CONF., No. CV2022-0954033

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MOTION FOR STATUS CONFERENCE VIA TELEPHONE

2 Contestant and Plaintiff Kari Lake respectfully moves the Court to schedule a status
3 conference as soon as the Court's calendar will permit to address further proceedings in this
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case after the remand from the Arizona Supreme Court. Further, because many of the counsel
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6 in this matter live far from the Court, Lake respectfully requests that the Court hold the status

7 conference by telephone or videoconference.

8
This Motion is supported by the entire record in this case, the appellate decisions and
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10 orders of Division One of the Arizona Court of Appeal and the Arizona Supreme Court, and

11 the following Memorandum of Points and Authorities.

12
MEMORANDUM OF POINTS AND AUTHORITIES
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In a series of rulings in December 2022, this Court dismissed all 10 counts of Plaintiff-
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15 Contestant Lake’s election contest of the November 8, 2022, general gubernatorial election.
16 The Arizona Court of Appeals affirmed the dismissal, but the Arizona Supreme Court
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reversed the dismissal of one count—Count III on signature verification—to allow further
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19 proceedings in this Court. Today, the Supreme Court issued the final order in the appeal and
20 directed its Clerk to enter the mandate forthwith. When the case returns to this Court, Lake
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respectfully submits that it would streamline further proceedings to have a status conference
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23 to address procedural and evidentiary issues that likely will arise on remand.

24 I. PROCEDURAL BACKGROUND
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On December 9, 2022, Plaintiff-Contestant Lake brought a 10-count complaint to
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challenge the November 8, 2022, general gubernatorial election under Arizona’s election-
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28 contest statue. ARS § 16-672. In an Under Advisement Ruling dated December 19, 2022,

PL.S MOT. FOR STATUS CONF., No. CV2022-095403 2

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this Court dismissed Counts I, III, and V through X on the pleadings. The Court then held a

2 two-day bench trial on Counts II and IV on December 21-22, 2022, and dismissed those two
3
counts in an Under Advisement Ruling dated December 24, 2022. The Court then finalized
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its actions in a Minute Entry dated December 27, 2022.
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6 In an Opinion dated February 16, 2023, Division One of the Arizona Court of Appeals
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affirmed, although that court disagreed with this Court’s ruling on the question whether
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Maricopa officials must have intended their alleged misconduct to affect the outcome of the
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10 election, stating:
11 Lake contends that the superior court erred by defining “misconduct” under §
16-672(A)(1) as requiring proof that an elections official intended to improperly
12 affect the result. We agree that there may be circumstances under which
something less than intentional misconduct may suffice. Cf. Findley, 35 Ariz. at
13 269 (explaining that “honest mistakes or mere omissions” are insufficient to
14 invalidate an election “unless they affect the result, or at least render it
uncertain”) (emphasis added).
15
Court of Appeals Opinion ¶ 11 (2023) Mar. 22, 2023) (emphasis in original). The Court of
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17 Appeals nonetheless affirmed because it found the alleged misconduct did not involve a

18 sufficient number of votes to affect the outcome of the election. Id.

19
In an Order dated March 22, 2023, the Arizona Supreme Court affirmed the Court of
20
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Appeals with respect to all counts except Count III (signature verification). The Supreme

22 Court disagreed with this Court’s finding that laches barred Count III “because Lake could
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not have brought this challenge before the election.” Order, at 3 (Mar. 22, 2023). As such,
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the Supreme Court remanded Count III for further proceedings, stating:
25
26 IT IS FURTHER ORDERED remanding to the trial court to determine
whether the claim that Maricopa County failed to comply with A.R.S. § 16-
27 550(A) fails to state a claim pursuant to Ariz. R. Civ. P. 12(b)(6) for reasons
other than laches, or, whether Petitioner can prove her claim as alleged pursuant
28 to A.R.S. § 16-672 and establish that “votes [were] affected ‘in sufficient
numbers to alter the outcome of the election’” based on a “competent

PL.S MOT. FOR STATUS CONF., No. CV2022-095403 3

 mathematical basis to conclude that the outcome would plausibly have been
1 different, not simply an untethered assertion of uncertainty.” (Opinion ¶ 11.)
2
Id. 4-5 (emphasis in original).
3
The Supreme Court issued its final order today and directed its Clerk to issue the
4
5 mandate forthwith. Upon issuance of the mandate, the case would return to this Court for
6 further proceedings on Count III.
7
II. JUSTIFICATION FOR STATUS CONFERENCE
8
9 This Court likely will need to decide several procedural and evidentiary issues on

10 remand. These additional issues may arise from proceedings related to the Arizona Supreme
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Court’s remand of Count III.
12
Pursuant to ARS § 16-677(A), parties to an election contest may petition the trial court
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14 to inspect the ballots. Plaintiff-Contestant Lake intends to petition this Court to inspect the
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ballots verified by Maricopa, based on new evidence that came to light in 2023. In addition,
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Lake has filed a special action in this Court to compel Maricopa to produce ballot envelopes
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18 and related public records for the 2022 election in response to Lake’s Public Records
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Request. The new special action thus relates directly to the facts underpinning the remanded
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Count III, and Lake thus intends to move to consolidate the new special action with the
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22 above-captioned special action pursuant to ARCP 42.
23 In addition, pursuant to the Arizona Supreme Court’s remand order, the defendants
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may move to dismiss under Rule 12(b)(6) for reasons other than laches. Depending on what
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26 issues (if any) Defendants intend to raise under Rule 12(b)(6), the parties may have

27 competing views on which issues—e.g., ballot inspection under § 16-677 or dismissal under
28
Rule 12(b)(6)—should or must be briefed and decided first. A status conference would likely

PL.S MOT. FOR STATUS CONF., No. CV2022-095403 4

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aid the Court and the parties in setting the procedural calendar for further proceedings.

2 Plaintiff-Contestant Lake is also contemplating a motion to reconsider the dismissal

3
of Count IV (logic-and-accuracy testing) under ARCP 60(b)(3) within the same likely time
4
frame as the proceedings remand. Indeed, she may also bring a new and separate action under
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6 42 U.S.C. § 1983 and state law to press her federal and Arizona constitutional claims. Under
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this Court’s Rule 3.1(c)(1), the new case likely would relate to this action, and either party
8
or the Court may consolidate the actions under ARCP 42. Given the relatedness of the
9
10 potential motion to reconsider and potential independent action, the issue of consolidation
11 may provide further justification for a status conference.
12
Because of the exigency of resolving election contests before new terms begin in
13
14 January, the election-contest statute requires expedited hearings. See ARS § 16-676(A)-(B).
15 Although the election-contest statute does not expressly rule out civil discovery, the timing
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of election challenges often does not allow discovery. Because that exigency is now lacking,
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18 Plaintiff-Contestant Lake may seek discovery as part of either the remand itself or her motion

19 for reconsideration. Similarly, a new action for constitutional violations would have the
20
benefit of civil discovery. The issue of discovery provides further justification for a status
21
22 conference.

23 To aid the Court and to prevent any surprise at a status conference, Plaintiff-
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Contestant Lake respectfully submits that the parties should submit a joint status report at
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least 5 court days prior to the status conference.
26
27 III. JUSTIFICATION FOR TELEPHONIC PARTICIPATION
28 Pursuant to this Court’s Rule 3.2(e), the Court has discretion to order or allow parties

PL.S MOT. FOR STATUS CONF., No. CV2022-095403 5

 1
to participate by telephone or videoconference in any proceeding. Because some counsel live

2 in the Washington, DC, and Seattle areas, Plaintiff-Contestant Lake respectfully requests that
3
the Court either hold the status conference telephonically or allow counsel to participate
4
remotely by telephone, even if the Court holds the status conference in court or chambers.
5
6 CONCLUSION
7 WHEREFORE, Plaintiff-Contestant Lake respectfully submits that a status
8
conference would aid the Court and the parties in arranging for the orderly presentation of
9
10 legal and evidentiary issues that may arise in the further proceedings in this matter on remand

11 from the Arizona Supreme Court.

12
Date: May 4, 2023 Respectfully submitted
13
14
/s/ Bryan James Blehm
__________________________________
15 Kurt B. Olsen (admitted pro hac vice) Bryan James Blehm, Ariz. Bar #023891
16
Olsen Law PC Blehm Law PLLC
1250 Connecticut Ave. NW, Ste. 700 10869 N. Scottsdale Rd., Suite 103-256
17 Washington, DC 20036 Scottsdale, Arizona 85254
Tel: 202-408-7025 Tel: 602-753-6213
18
Email: [email protected] Email: [email protected]
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Counsel for Plaintiff-Contestant
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PL.S MOT. FOR STATUS CONF., No. CV2022-095403 6

 1
Bryan James Blehm, Ariz. Bar No. 023891
Blehm Law PLLC
2 10869 N. Scottsdale Rd., Suite 103-256
Scottsdale, Arizona 85254
3
(602) 752-6213
4 [email protected]
5
Kurt Olsen, D.C. Bar No. 445279
6 admitted pro hac vice
OLSEN LAW, P.C.
7
1250 Connecticut Ave., NW, Suite 700
8 Washington, DC 20036
(202) 408-7025
9
[email protected]
10
Attorneys for Contestant/Plaintiff
11
ARIZONA SUPERIOR COURT
12
13 MARICOPA COUNTY

14
KARI LAKE, No. CV2022-095403
15
16 Contestant/Plaintiff, [PROPOSED] ORDER

17 vs.
18 (Assigned to Hon. Peter Thompson)
KATIE HOBBS, personally as Contestee;
19 ADRIAN FONTES in his official capacity
20 as the Secretary of State; et al.,

21 Defendants.
22
23 On considering “Plaintiff Kari Lake’s Motion for Status Conference,” the materials
24
filed in conjunction therewith, and the entire record herein, the Court finds that the motion is
25
well taken and it is hereby
26
27 ORDERED that Plaintiff’s motion is GRANTED;
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IT IS FURTHER ORDERED that by May __, 2023, counsel shall file a Joint Status

[PROPOSED] ORDER, Case No. CV2022-095403 1

 1
Report stating their respective clients’ positions on forthcoming motions, discovery, and any

2 related proceedings;
3
IT IS FURTHER ORDERED that counsel for the parties appear telephonically for
4
a status conference at _____ [a.m./p.m.] (Pacific) on May __, 2023;
5
6 SO ORDERED.
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Dated: ______________________, 2023
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11 PETER A. THOMPSON
SUPERIOR COURT JUDGE
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[PROPOSED] ORDER, Case No. CV2022-095403 2

 1
Bryan James Blehm, Ariz. Bar No. 023891
Blehm Law PLLC
2 10869 N. Scottsdale Rd., Suite 103-256
Scottsdale, Arizona 85254
3
(602) 752-6213
4 [email protected]
5
Kurt Olsen, D.C. Bar No. 445279
6 admitted pro hac vice
OLSEN LAW, P.C.
7
1250 Connecticut Ave., NW, Suite 700
8 Washington, DC 20036
(202) 408-7025
9
[email protected]
10
Attorneys for Contestant/Plaintiff
11
ARIZONA SUPERIOR COURT
12
13 MARICOPA COUNTY

14
KARI LAKE, No. CV2022-095403
15
16 Contestant/Plaintiff, PROOF OF SERVICE

17 vs.
18 (Assigned to Hon. Peter Thompson)
KATIE HOBBS, personally as Contestee;
19 ADRIAN FONTES in his official capacity
20 as the Secretary of State; et al.,

21 Defendants.
22
23 I certify that, on May 4, 2023, I electronically filed with the Arizona Superior Court
24
for Maricopa County, using the AZ Turbo Court e-filing system, Plaintiff Kari Lake’s Motion
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for Status Conference. On that date, I also caused a copy of the same to be emailed to:
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28

PROOF OF SERVICE, Case No. CV2022-095403 1

 1 Honorable Peter Thompson
Maricopa County Superior Court
2 c/o Sarah Umphress
3 [email protected]
4 Alexis E. Danneman
5 Austin Yost
Samantha J. Burke
6 Perkins Coie LLP
7
2901 North Central Avenue
Suite 2000
8 Phoenix, AZ 85012
[email protected]
9
[email protected]
10 [email protected]
Attorneys for Defendant Katie Hobbs
11
12 and
13 Abha Khanna*
14 ELIAS LAW GROUP LLP
1700 Seventh Avenue, Suite 2100
15 Seattle, WA 98101
[email protected]
16
Telephone: (206) 656-0177
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and
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19 Lalitha D. Madduri*
Christina Ford*
20 Elena A. Rodriguez Armenta*
21 ELIAS LAW GROUP LLP
250 Massachusetts Ave NW, Suite 400
22
Washington, D.C. 20001
23 [email protected]
24
[email protected]
[email protected]
25 Attorneys for Defendant Katie Hobbs
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and
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PROOF OF SERVICE, Case No. CV2022-095403 2

 1 Craig A. Morgan
SHERMAN & HOWARD, LLC
2 201 East Washington Street, Suite 800
3 Phoenix, Arizona 85004
[email protected]
4
Attorney for Defendant Secretary of State Adrian Fontes
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and
6
7 Sambo Dul
STATES UNITED DEMOCRACY CENTER
8 8205 South Priest Drive, #10312
9 Tempe, Arizona 85284
[email protected]
10
Attorney for Defendant Secretary of State Adrian Fontes
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and
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13 Thomas P. Liddy
Joseph La Rue
14 Joseph Branco
15 Karen Hartman-Tellez
Jack L. O’Connor
16
Sean M. Moore
17 Rosa Aguilar
18 Maricopa County Attorney’s Office
225 West Madison St.
19 Phoenix, AZ 85003
20 [email protected]
[email protected]
21
[email protected]
22 [email protected]
23
[email protected]
[email protected]
24 [email protected]
25 Attorneys for Maricopa County Defendants
26 and
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PROOF OF SERVICE, Case No. CV2022-095403 3

 1 Emily Craiger
The Burgess Law Group
2 3131 East Camelback Road, Suite 224
3 Phoenix, Arizona 85016
[email protected]
4
Attorneys for Maricopa County Defendants
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6
/s/ Bryan James Blehm
7 Bryan James Blehm
Counsel for Plaintiff-Contestant Kari Lake
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PROOF OF SERVICE, Case No. CV2022-095403 4