Richer's lawsuit leaves Lake with no place to hide

It shouldn't be so easy for politicians to lie, or be lied about.

A few weeks ago, I mulled the possibility of Maricopa County Recorder Stephen Richer challenging Kari Lake for the GOP nomination for U.S. Senate. I didn’t think that Richer was likely to beat Lake in a Republican primary. But he was well-positioned and capable of bursting her bubble, exposing her shallow bombast and hollow demagoguery. This was particularly true about the legitimacy of the Maricopa County election results in 2020 and 2022, a brief Richer knows cold.

That was my daydream. Richer, however, came up with a more effective and efficient way of potentially achieving the same result: he’s suing Lake for defamation.

According to Richer’s complaint, Lake has defamed him by repeatedly making two false claims: First, that he intentionally caused Election Day printers to spit out the wrong ballot size making it difficult for the tabulators to read. Second, that he injected a bogus 300,000 ballots into the counting stream.

News reports have consistently, and appropriately, noted how high of a legal standard a public official, such as Richer, has to meet in order to win a defamation case. I write to make two points. First, there shouldn’t be a two-tier standard in defamation cases. Second, on at least one of his claims – about the malfunctioning printers – Richer should be able to easily clear the higher hurdle. The damages could be, and should be, considerable.

In an ordinary defamation case, the plaintiff has to prove what was said or written about him was false, created damages, and the defendant either knew it was false or was negligent in not ascertaining its truthfulness.

In 1964, the U.S. Supreme Court ruled that for public officials, later expanded to include virtually anyone involved in a public controversy, that wasn’t enough. In such cases, the plaintiff has to prove what the court called “actual malice.” Under the Sullivan rule, rather than just showing that the defendant was negligent in not ascertaining the truthfulness of the defamatory statement, the plaintiff has to show that the defendant acted in “reckless disregard” of the statement’s truthfulness. 

According to the court, this higher standard for public officials was required by the First Amendment, which is nonsense. There is nothing about having the freedom of speech that necessitates being granted a wider berth to defame some people because of their standing or the subject matter. 

The court justified the higher standard as helping to ensure a robust public debate. Instead, it has contributed to rendering our political discourse the cesspool that it has become. Politicians can lie, and be lied about, with impunity. 

I think the freedom of speech clause in the Arizona Constitution has it right. It says: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”

I’ve long felt that the Sullivan rule went too far. Someone else who has long expressed that is Donald Trump, which I find weirder than weird. Trump is a walking, talking defamation machine. Without Sullivan, he would either have to shut up or go broke. 

But the Sullivan rule exists and Richer must meet its higher standard to recover damages. With respect to the malfunctioning Election Day printers, that should be a slam dunk.

In Maricopa County, election duties are bifurcated. The recorder, Richer, handles voter registration and mailing and processing, although not tabulating, early ballots. The Board of Supervisors is responsible for Election Day voting and the actual counting of ballots. The board has established a director reporting directly to it to carry out those activities.

In other words, Richer had nothing to do with the Election Day printers. They fell on the Board of Supervisors’ side of the line. Yet Lake repeatedly said not only that Richer caused the printers to print the wrong-sized ballots, but that he did so intentionally.

Now, it is no less defamatory to say that the board and its Election Day staff intentionally caused the production of ballots that tabulators had difficulty reading. Courts have found that there is no evidence of intentionality. But, with respect to Richer, there’s utterly no connection to the Election Day printer and tabulation problems.  

The bifurcated election duties are no deep, dark county secret. It’s well known in political circles. It’s the political equivalent of knowing your A,B,Cs. And it’s easily ascertainable with minimal effort.

Yet Lake, who claimed the competence and knowledge to be governor, persistently made the malevolent public accusation that Richer, who has no role in Election Day voting, personally and intentionally screwed up the Election Day printers. That should be a textbook example of, at the least, acting with “reckless disregard” for the truthfulness of the accusation.

The accusation that Richer somehow inserted hundreds of thousands of bogus ballots into the counting stream is just as phony, irresponsible, and defamatory. And I suspect that Richer will likewise be able to establish reckless disregard for its truthfulness.

The damages that Lake’s defamation has caused Richer are incalculable. He, as well as many other election officials, has lived under constant bombardment and physical threats due, in considerable part, to Lake’s demagogic attacks. 

In a court of law considering Richer’s defamation complaint, Lake will have no place to hide. No amount of obfuscating demagoguery will save her. Mar-a-Lago will offer no respite. Even if Richer ultimately cannot surmount the excessive Sullivan hurdle, as I think he should be able to, the truth about Lake’s unsavory conduct will be established through depositions, documents, and testimony conducted, unlike a political rally, under the threat of perjury.    

Reach Robb at robtrobb@gmail.com.