Intentional misconduct is an element of the elections contest statute cause of action for claims against the county board. A.R.S. § 16-672(A)(1). Well…misconduct is. That misconduct, according to this judge, must be shown by “clear and convincing evidence.” That is an enhanced evidentiary burden over the usual “preponderance of the evidence” standard. The latter meaning slightly more likely than not to be true; or greater than 50% chance. “Clear and convincing” is a mid point between greater than 50% chance of being true and beyond a reasonable doubt.
9th circuit defines it in their jury instructions as “When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.”
For a number of reasons, I am not certain that “clear and convincing” is actually the required and appropriate evidentiary standard. I can go into that, but its a deep dive and most find it is tmi.
Intentional is a pretty arbitrary mens rea applied in a civil context. We aren’t talking about a criminal offense - yes what they did was criminal, but that isn’t part of the election contest statute. And we even impose culpability with potential lengthy incarceration time under both negligence and recklessness. So I am unsure why this is the standard - it is not prescribed by the legislature in the statute. They could have written “intentional misconduct” but they chose to omit that word. We are to assume that the absence of a term in a statute is the equivalent of its exclusion unless otherwise noted.
In tort law, “intentional” means that you intended the act. Not that you intended the outcome. Culpability in most personal injury torts does not hinge on whether you intended to harm someone; only that you intended the act that inflicted the harm. In an elections contest context, simply changing the printer configuration is an intentional act. Skipping the chain of custody forms for drop box votes until they arrive at a central facility is an intentional act. To be considered unintentional, it would require a showing of force, coercion, incapacitation, or sleep. Failing to act by itself, without more, would be unlikely to be considered intentional. Failing to act time after time after time after time would not rise to the level of intentional, but it would be quite easy to find recklessness. Which is often treated the same as intentional.
Disenfranchisement would warrant some sort of remedy. But that was the weakest part of the argument. There is no reliable way to ascertain how many people this prevented from voting. We know it did. But it is pure speculation in any other form. Judge didn’t like it because its a big 17k margin to overcome with basically a guess as to whether it altered the outcome or not. It is probably wrong to consider this question in a vacuum without viewing it in light of the other misconduct claim. I can understand his reluctance on that basis. You gotta be able to identify a sufficient number of people who didn’t cast a vote specifically on this basis. That will be virtually impossible. You’d never know who was a hack plant to sabotage your evidence at trial and who was legitimately disenfranchised.
The inability to get the necessary evidence an ordinary civil case would provide along with time to perfect arguments is the crime of this statute. It never contemplated this kind of shenanigan. If this judge is correct in his application of the law and the standards, this law is incapable of providing relief from lawless elections.
Intentional misconduct is an element of the elections contest statute cause of action for claims against the county board. A.R.S. § 16-672(A)(1). Well…misconduct is. That misconduct, according to this judge, must be shown by “clear and convincing evidence.” That is an enhanced evidentiary burden over the usual “preponderance of the evidence” standard. The latter meaning slightly more likely than not to be true; or greater than 50% chance. “Clear and convincing” is a mid point between greater than 50% chance of being true and beyond a reasonable doubt.
9th circuit defines it in their jury instructions as “When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.”
For a number of reasons, I am not certain that “clear and convincing” is actually the required and appropriate evidentiary standard. I can go into that, but its a deep dive and most find it is tmi.
Intentional is a pretty arbitrary mens rea applied in a civil context. We aren’t talking about a criminal offense - yes what they did was criminal, but that isn’t part of the election contest statute. And we even impose culpability with potential lengthy incarceration time under both negligence and recklessness. So I am unsure why this is the standard - it is not prescribed by the legislature in the statute. They could have written “intentional misconduct” but they chose to omit that word. We are to assume that the absence of a term in a statute is the equivalent of its exclusion unless otherwise noted.
In tort law, “intentional” means that you intended the act. Not that you intended the outcome. Culpability in most personal injury torts does not hinge on whether you intended to harm someone; only that you intended the act that inflicted the harm. In an elections contest context, simply changing the printer configuration is an intentional act. Skipping the chain of custody forms for drop box votes until they arrive at a central facility is an intentional act. To be considered unintentional, it would require a showing of force, coercion, incapacitation, or sleep. Failing to act by itself, without more, would be unlikely to be considered intentional. Failing to act time after time after time after time would not rise to the level of intentional, but it would be quite easy to find recklessness. Which is often treated the same as intentional.
Disenfranchisement would warrant some sort of remedy. But that was the weakest part of the argument. There is no reliable way to ascertain how many people this prevented from voting. We know it did. But it is pure speculation in any other form. Judge didn’t like it because its a big 17k margin to overcome with basically a guess as to whether it altered the outcome or not. It is probably wrong to consider this question in a vacuum without viewing it in light of the other misconduct claim. I can understand his reluctance on that basis. You gotta be able to identify a sufficient number of people who didn’t cast a vote specifically on this basis. That will be virtually impossible. You’d never know who was a hack plant to sabotage your evidence at trial and who was legitimately disenfranchised.
The inability to get the necessary evidence an ordinary civil case would provide along with time to perfect arguments is the crime of this statute. It never contemplated this kind of shenanigan. If this judge is correct in his application of the law and the standards, this law is incapable of providing relief from lawless elections.
Thank you for laying this out so wellđź‘Ś