Clifford: Lake v. Hobbs, day 2 // (Scott Johnson)
Attorney John A. “Jack” Clifford works with Merchant & Gould. P.C. P.C. We received this report from him on the Lake-v.-Hobbs trial, which concluded yesterday. Here is the AP’s report on the second day. Here is Jack’s day one report. This is Jack’s day two report:
As I said, my comments are my personal observations and not those of my law firm or clients.
* Thursday’s Kari Lake v. Katie Hobbs trial was a rubber meet the road. Richard D. Baris (aka Rich Baris, a/k/a “The People’s Pundit”), conducts polling for Big Data Poll. He conducted exit polling by reaching out to likely voters and asking them to report their vote to him. If they voted by mail, or in person, they would report the time they filled out their ballot.
* He screened registered voters and agreed to their participation. He testified that 93 per cent of those who participated in his poll completed it if they voted early, but only 72 per cent did so if the intention was to vote in person on election Day.
* He described the differences in participation between the groups as far more than he had seen in other polls.
* Based on the 21 percent “participation decline”, where a typical difference in early voters and day-of-voting respondents would be just 5 percent, he concluded that many participants in-person to vote simply didn’t vote as planned on election Day.
* He stated that they didn’t vote because of the problems at polls. He concluded that 32.7 per cent of in-person voters in Maricopa County had experienced an issue at the polls on election day that prevented them from voting.
* He estimated the number of these “disenfranchised voter” and the likely way that they would vote. He estimated that these voters would be between 15,000 and 29,000 likely Republican voters lost.
* He stated that the issues of election day had “definitely impacted [the outcome] of the election and [were] substantial sufficient to change the leaderboard and the outcome.” I have no doubt.”
* Baris wore a black suit and a deep maroon tie to look like a mortician. Baris spoke without the report and recalled many facts and statistics from his work from memory. Some of his answers were complex and he was known to answer before counsel had finished. This annoyed both the judge and court reporter. He used a lot of survey and consumer research jargon.
* Based on years of experience conducting consumer surveys for trademark litigation, I believe that I understand what Baris meant and how he did it. I know that two survey experts could evaluate the same question and arrive at opposite results. It was clear that not one of the lawyers present was familiar with the survey process and the jargon. His testimony was difficult to follow due to this.
* He testified that he was able to get a feel for the thoughts of participants in his research and that outside factors such as press coverage were incorporated into his results. He said that some participants did not vote in person because of “the difficulties.”
* Baris was cross-examined to establish that his company was not well-regarded by others in his sector. FiveThirtyEight, a polling aggregator, graded Big Data Poll with an “F” and that the firm wasn’t a member any trade associations in the sector.
* Baris replied that it was more important than being right and that he didn’t see the value of joining a clique or paying dues to an industry organization.
* Counsel tried to launch a series of nitpicking accusations against Baris’s data, and his conclusions. It is difficult to argue with an expert about his work because the lawyer is on the expert’s turf and is often able explain and justify why they did what they did. Baris was a good guy, even though he clearly wasn’t an establishment pollster. It is obvious that so many establishment pollsters have been wrong that it is time for change in the polling industry. After this witness, the plaintiff resigned.
* The defense called Kenneth Mayer (Ph.D.), from the University of Wisconsin Madison Department of Political Science. He appeared professional in a suit, white shirt, and red tie. There was a wall of books behind him. He has testified in numerous other cases for plaintiffs and defendants as well as on behalf of Republicans or Democrats. He spoke clearly and appeared confident and authoritative.
* His testimony was a broadside about the work and testimony Baris.
* Mayer once asked that he be addressed simply as “Dr. Mayer, please,” didn’t do any research for his testimony. He looked at and accepted the data provided by Maricopa county about the election, reviewed the original complaint and the attached affidavits, and then he looked at Baris’s report. He also viewed the trial testimony.
* He claimed he was an expert in election wait times. He concluded that there was no evidence that large numbers of voters were unable [in person] to vote on election day due to issues with tabulators and that “disenfranchisement occurred.” He accepted the wait time reported by Maricopa County, but did not verify them. He dismissed them as normal wait times.
* Mayer’s harsh criticism of Baris and his conclusions was unqualified. Many of his answers appeared to me to indicate that he didn’t really understand what Baris did or what the essentially standard procedure is in conducting polling research. Mayer didn’t claim to be an expert in exit polling. His forte was waiting times. This weakened his testimony in my opinion.
* Mayer doesn’t conduct polling but is comfortable criticizing those who do. According to Mayer, Big Data Poll’s reputation was not good based on the FiveThirtyEight F rating. This was a smear based upon another’s opinion and not a valid criticism of Baris’s work during this election.
* Mayer assumed that just because a voter is registered to vote as a Republican or Democrat, it means that the voter will vote that way. It is not about the voter’s affiliation, but how they would vote on election day. Baris clearly understood this distinction, and Mayer didn’t seem to understand it. Mayer didn’t follow Barris’ lead.
* Mayer criticised Baris for making predictions about nonvoters, such as those who are disenfranchised, based on actual voter turnout. He stated that this should not be done. Baris actually said that he didn’t do that.
* Mayer’s report was subject to cross-examination. He made generalized criticisms of Donald Trump and his claims about the 2020 election. In an attempt to paint Lake’s 2022 allegations with the same brush, he used words like “baseless” to describe Trump’s 2020 claims. This did a good job in showing Dr. Mayer’s bias to the court.
* Mayer admitted that Lake won at least 70% of the votes cast in person on election night.
* I rate this battle of experts as slightly favoring Baris. I value those who do original voter research more than those who criticize others’ work. This is my bias.
* The defendants were then referred to as Rey Valenzuela (Maricopa County Director of Election Services and Early voting). He appeared to be in charge for the early voting process. He made a good impression, and he was calm and confident.
* He spoke about “ballot packages”, which consist of a marked, sealed ballot in a green envelope with a unique ID number and signature. The envelope also has a sworn affidavit printed on it. This is the early voting ballot package.
* He testified that things went well for him in this election. Plaintiff’s case was not in dispute by much of what he said.
* He demonstrated that the process of collecting ballot packets and creating a chain to custody for early voters should have been simple. He stated that small batches of ballot packages were placed in drop boxes and counted by the county. The county also completed the chain of custody documents before the packets were handed to Runbeck. But, he could not explain why or how larger batches were handled differently.
* Early ballots sent by mail are subject to another process. The trays are weighed so that postage can be charged. After that, Runbeck can have them counted. The defendants’ counsel had difficulty getting him to explain each step. They were so complicated that the witness had to repeatedly stop and step back in order to explain them. Inadvertently, Ms. Lake found this testimony helpful. Although we have a process for conducting our elections here, it could not have been created by a large group of politicians.
* Mr. Jarrett was then recalled following his testimony on day 1. Jarrett was responsible for same-day voting and is Co-Director of Election Services in the County. He seemed to attack Mr. Parihk’s testimony about the 19-inch ballot printed using 20-inch paper. He also spoke about the chain of custody for the 294,000 early ballots that were dropped off at drop boxes or at polls on election day. All of these were considered early votes, and processing them took several hours.
* He testified that these ballots, or more correctly ballot packets, are not counted until they are given to Runbeck (the county’s contractor). Runbeck scans the envelopes of green packets to create pdf images with the signatures. Then he weighs them and counts how many there are.
* These envelopes are not counted by the county until they are handed to Runback. The county watches Runbeck operate its machinery at this stage. He stated that this was the process. He stated that chapter 9 of the County election manual didn’t require that the county count the packets, or complete the chain of custody documentation before giving them to Runbeck.
* He admitted that the County knew three locations where the printer settings were changed to the “shrink-to-fit” setting on day 2. He didn’t mention it yesterday.
* He also testified that the printer heat settings were also modified in the field to correct the errors reported. The problem was that the registration marks on the ballots weren’t clear enough to scan at the polling station. He offered many excuses for the problems that were encountered on election day.
* He appeared a bit defensive and admitted to many problems on election Day, but he seemed to shrug off them all since most of those problems were eventually fixed. Most of the ballots were finally counted, even though duplicate ballots were required first.
* He provided a lengthy explanation about how many polling stations were open on election day. Locations with wait times exceeding 90 minutes or 120 minutes were likely to be within two miles of another location, which might have wait times of just a few minutes.
* He explained that his team had instructed voters to use the county website to locate voting locations and view wait time at each one when they were deciding where to vote. He seemed to blame voters who left the voting line due to it taking too long. These voters should have used county’s web site to find a shorter line elsewhere.
* Ryan Macias was the name he was given at that time. His appearance reminded of Robert Downey Jr.’s Tony Stark, with the identical facial hair and hair gel. He is a veteran consultant and government employee, and he is an expert in omnibus technology.
* He was asked by defendant Hobbs for an unpaid position as an election observer in the Arizona 2022 primary election. He refuted Mr. Parihk’s testimony and said that he did not see any errors sufficient to result in a different election outcome.
* He also stated that he did not see any evidence of intentional interference in the election. He seemed to think that there could be many reasons for the 19-inch ballot printed on 20-inch paper.
* He also stated that the chain custody procedures used for early votes were appropriate and that disqualifying large numbers of such ballots due to an “administrative problem with chain of custody documentation would disenfranchise many voters. He was against it.
* A PowerPoint deck from Macias was shown to him during cross-examination. His own work dealt with the serious consequences and harms that a broken chain can cause to elections. This brief cross examination was a textbook example of what I found to be a serious flaw in the smooth sailing boat that was his examination.
* I didn’t see Macias being helpful to the defendants in general, mainly because he was so impeached by his own words on cross. The defendants tried to rehabilitate Macias with questions on redirect, but it was weak.
* The court then proceeded to close statements.
* Plaintiff’s counsel made a strong argument at the beginning — Ms. Lake only needed a few more votes than 17,000 to win, which was only.06%. Mr. Baris demonstrated that the problems at the polls had impacted between 15,000 to 29,000 Republican votes.
* Counsel cited the Teigan decision of the Wisconsin Supreme Court in . That seemed to me to be quite effective.
* The closing theme of the plaintiff’s case stated that the defendants’ excuses were not valid while the plaintiff’s case is. Plaintiff’s expert, for example, found 19-inch ballots printed on 20-inch paper at all six locations he visited with the limited ballot review. The county admitted only three locations where the “shrink to fit” setting was used.
* In closing, defense counsel claimed that “the Plaintiff’s case was hearsay” that Ms. Hobbs has won. Counsel stated that Mr. Baris had fabricated numbers and that there was no basis for predicting what non-voters would do, based on actual voter behavior.
* He claimed that Baris’s commonsense approach was lacking in merit and that he engaged with sleight-of-hand math.
* Mr. Parihk was accused of being associated with the Stop the Steal campaign.
* During his brief closing, one of the defendants’ lawyers lost control of his emotions. It felt more like a rant on the ethics of plaintiffs’ lawyers for bringing the matter in the first instance than a summary of the evidence and testimony presented over two days. They hit a low point, I thought.
* It was alleged that all the problems with this process and the “mishaps of machine” were caused because Lake’s supporters were told to wait until election day to vote. This was the theme of defense: that the problems were not the responsibility of election officials but were rather the fault of Republican voters.
* Referring to Lake’s campaign, counsel claimed “the plaintiff’s case wasn’t evidence of a flawed election, it was evidence for a flawed campaign.”
* He challenged the judge to end election disputes here and now, by denying plaintiff’s claim amounting only to sour grapes or conspiracy theories.
* This is a section of attorney Thomas P. Liddy’s closing, which shows how he felt about having the opportunity to defend the election process within Maricopa County. He serves as Chief of the Civil Division in the Office of Maricopa County Attorney.
Unbelievable. It is almost as gross that the Hobbs attorney treats Voters with as much contempt as she does for them. WATCH
— Kari Lake (@KariLake December 22, 2022
Scott says that conspiracy theory seems to be the prevailing aspersion. Students of ancient history should be aware that Liddy is the son G. Gordon Liddy, the Watergate figure.
* Plaintiff’s counsel stated in his brief rebuttal that defendants were blaming the problems on Republicans voting on election day.
* He said that Mr. Baris could be believed because he spoke to voters and wasn’t hired to just look at the election by plaintiffs after the fact.
* The court placed the matter under advisement. Judge Thompson stated that he would issue a ruling immediately, but had to carefully review everything so the parties could not expect a decision on that day. As he stood up to leave courtroom, he looked a lot like Atlas.
