Attorney for Sec of State: ‘Kraken’ lawsuit alleges ‘utterly implausible fraud’

By: - December 8, 2020 3:01 pm
early ballot

Photo by Jim Small | Arizona Mirror

An attorney for Secretary of State Katie Hobbs urged a federal judge to dismiss a lawsuit seeking to overturn Arizona’s election results that is filled with wild and unsubstantiated allegations of voter fraud — even foreign espionage — which he described as nothing less than an “attack on democracy.”

Justin Nelson, of the Houston law firm Susman Godfrey LLP, said the lawsuit filed by attorney Sidney Powell, a former lawyer for President Donald Trump’s campaign who was fired last month and is now operating independently, should be dismissed on a number of grounds. The claims belong in state court because it’s being challenged under provisions of Arizona law, he said. And Nelson said it should be dismissed because the plaintiffs waited too long to take them to court.

But beyond that, Nelson repeatedly emphasized that the lawsuit is filled with nonsensical and baseless claims, largely from anonymous sources and “expert witnesses” with no real expertise. The allegations are devoid of facts, he said, and come from witnesses with no firsthand knowledge.

And those claims largely have nothing to do with the election in Arizona, he said. The plaintiffs — Trump’s Arizona electors and several county GOP chairmen — presented bizarre allegations that Venezuela, Iran and China rigged the 2020 presidential election through ballot tabulation machines from Dominion Voting Systems, based on a statement from an anonymous witness. Other claims stem from statements attributed to an alleged former military intelligence analyst known as Spider. The plaintiffs also claim hundreds of thousands of illegally cast votes in Arizona based on unverified numbers and alleged “data analysis.”

“They allege an utterly implausible fraud,” Nelson said.

Nelson noted that federal courts in Georgia and Michigan this week rejected similar lawsuits filed by Powell. 

“As other courts have recognized, plaintiffs’ suit is an attack on democracy. Worse, they are using the federal court system in an attempt to undermine the rule of law and obtain breathtaking, startling and unprecedented relief to overturn the will of the people,” Nelson told U.S. District Court Judge Diane Humetewa.

Julia Haller, an attorney with Powell’s firm, tried to persuade Humetewa why the lawsuit should proceed, though the judge at one point had to remind her not to argue the merits of her case and instead explain why it shouldn’t be dismissed.

“At this juncture I’m just trying to understand why this complaint should survive,” Humetewa said.

Haller disputed the notion that she should have filed her lawsuit in state court instead of U.S. District Court, saying the federal courts have supplemental jurisdiction over such claims, which she brought under federal law. She denied that the plaintiffs took too long in bringing their claims to court, saying they were not yet aware on election night of the kinds of fraud being perpetrated. And she argued that the lawsuit is fundamentally different from a lawsuit by Arizona GOP Chairwoman Kelli Ward, one of the plaintiffs, that a Maricopa County judge recently rejected.

“We are saying Arizona needs to invalidate and take a good look at what happened here, rather than move forward with this certification,” Haller said, referring to the election results that Hobbs and Gov. Doug Ducey, the two defendants named in the lawsuit, certified on Dec. 4.

Haller at times made blatantly incorrect statements about Arizona’s election procedures, describing practices from other states that aren’t used here.

For example, Haller said voting machines from Dominion, Maricopa County’s provider that has become the subject of many baseless conspiracy theories, don’t provide paper ballots showing the actual selections made by voters. She said they print out papers with QR codes instead. That is how Dominion machines in some states, such as Georgia, operate. But in Maricopa County, the only county in Arizona that uses Dominion machines, voters fill out paper ballots, and tabulation machines read the actual selections, with the ballots providing a physical record of the votes.

While describing election integrity as a bipartisan issue, Haller noted that the Democratic-controlled House of Representatives last year passed legislation making it clear that voting machines shouldn’t be connected to the internet, and that states should use paper ballots. Arizona uses paper ballots, and its voting machines aren’t connected to the internet.

Humetewa said she would rule on the motion to dismiss by Wednesday afternoon.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”