Is the mere potential for hacking enough to ban voting machines? 

A federal appeals court judge on Tuesday failed to buy into some of Kari Lake’s favorite talking points, including that she actually won the 2022 election for governor and that hand-counting ballots in elections is more accurate and less prone to error than counting with tabulators. 

A three-judge panel for the 9th Circuit Court of Appeals, headed by Judge Andrew Hurwitz, heard arguments in a Phoenix courtroom in the appeal of Lake’s 2022 case challenging the constitutionality of using tabulators to count votes in Maricopa and Pima counties. 

Lake, a Republican who lost the governor’s race to Democrat Katie Hobbs, was joined in the suit by former Republican candidate for secretary of state Mark Finchem. The suit, filed seven months before the election, in April 2022, sought to bar Maricopa and Pima counties from using electronic machines to record or count votes, and to force them to use paper ballots — something that Arizona already does — to be counted by hand. 

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U.S. District Court Judge John Tuchi dismissed the suit last August and later ordered lawyers for Lake and Finchem to pay $122,000 in sanctions, calling the case frivolous and accusing the two of making false claims about Arizona elections. Tuchi put a particular focus on their claims that Arizonans use electronic devices to vote, when more than 99% of voters in Arizona mark paper ballots, which are then counted by electronic tabulating machines. 

Hurwitz, an Obama-appointed Democrat, was joined on the court of appeals bench Tuesday by Judge Patrick Bumatay, a Donald Trump appointee, and Judge Ronald Gould, who was appointed by Bill Clinton. 

Andrew Parker, an attorney for Lake and Finchem, told the court Tuesday that bad actors who hack into election systems could switch votes, add votes and dilute and diminish votes without being detected. 

But after some tense back and forth between Parker and Hurwitz, the attorney admitted that his clients had no evidence that tabulators in Maricopa nor Pima counties had ever been hacked in the past. Tabulators in Arizona are not connected to the internet.

Gould asked if Parker could supply any evidence that hand counting ballots would be more reliable than machine vote counts, and Parker answered that the entire suit argued that point, but he wasn’t required to provide evidence until further along in the legal proceedings. 

“We all know that hand counting can be manipulated,” Hurwitz said. “The Supreme Court told us that in Bush v. Gore. We all know that from history.” 

He asked Parker if the lawsuit contended that any system of voting that was susceptible to manipulation should be deemed unconstitutional, and if so, what system could Arizonans possibly use to vote? 

Parker responded that hand counting resulted in “minimal errors or issues or fraud over hundreds of years,” although he admitted that fraud could occur. But he argued that machines were susceptible to fraud that was more frequent and widespread, and more likely to cause harm than possible manipulation in hand counts. 

Hurwitz did not agree. 

“It’s the reason that electoral systems went to different methods of counting, because it was widely documented that hand counting was the most inaccurate way of counting,” he said. 

Kara Karlson, representing Secretary of State Adrian Fontes, told the judges that Lake and Finchem’s entire case was based on speculation, and that for their suit to be valid, they would need concrete evidence of harm, not speculation that it could possibly occur. 

“Any form of vote counting is susceptible to manipulation,” she said, but states have the right to administer elections in the way they think is best. 

Emily Craiger, an attorney representing the counties, later argued that, if fraud is uncovered, the state should put a stop to that particular action, not the entire voting system in which it occurred.

Bumatay asked Parker to speak to a long list of hypothetical contingencies that had to take place for any harm to occur because of tabulator fraud that Tuchi outlined in his dismissal. 

“This isn’t speculative at all,” Parker answered. “It has happened a number of times across the country. Even in Arizona, the voter registration computerized system was hacked.” 

Parker was referring to hacking in general, not hacking of the tabulator system. 

Craiger told the judges that Arizona’s voter registration system and election management systems are completely separate. The election management systems are not connected to the internet, while the voter registration system is public-facing and posted online, Craiger said. 

Hurwitz also asked Parker if Lake and Finchem were now appealing the case as voters instead of candidates, since they both lost their races, even though Lake has filed numerous challenges and appeals to the election results and never conceded to Hobbs. 

Parker said they were still acting as candidates, since they were candidates at the time they filed the suit. Although Lake claims to have won the 2022 election she actually lost, she is reportedly mulling a bid for the U.S. Senate in 2024, while Finchem has moved from Oro Valley to Prescott to mount a campaign for the Arizona Senate.

The court recessed for the day after hearing arguments in the Lake case, and will issue a decision at an undetermined later date. 

The Lake team voiced its displeasure with how the judges interacted with Parker via social media. 

“When our Attorney is given a chance to substantively answer the questions from the judges he is doing a wonderful job,” Lake’s campaign account posted on X, the site formerly known as Twitter. “We would like to see him be given a chance to complete a thought…”

Matthew Martinez, a member of Lake’s team, posted a screenshot to X Tuesday afternoon showing someone else holding a water bottle for Gould, and poking fun at Gould for not being able to hold his own water. Gould is 76 years old and has multiple sclerosis

Martinez later deleted the post, saying he didn’t know that Gould had an illness that leaves him with impaired coordination. 

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