Kari Lake, et al. v. Adrian Fontes, Arizona Secretary of State, et al.

As 2022 candidates for Governor and Secretary of State, petitioners sued Arizona’s Secretary of State and two counties to challenge whether electronic voting machines assure a fair and accurate vote under the Due Process Clause and their rights as candidates and voters. Petitioners also sought a preliminary injunction, and six cyber or national-security experts testified on the voting machines’ unsuitability to provide a secure and accurate vote. The testimony and evidence showed actual electronic vote tampering in prior elections, which the district court disregarded in finding petitioners’ claims too speculative for Article III standing, based in part on safeguards the counties claimed to follow. The Ninth Circuit affirmed citing, inter alia, Lance v. Coffman, 549 U.S. 437 (2007), for the lack of particularized injury in voters’ challenges. New evidence from other litigation and public-record requests shows defendants made false statements to the district court regarding the safeguards allegedly followed to ensure the accuracy of the vote, on which the district court relied. That enables petitioners to seek to amend their allegations on standing under 28 U.S.C. §1653 to show a non-speculative likelihood that the same harms will recur in future elections, which harms did indeed occur in the 2022 election. The questions presented are:

1. Whether an Article III case or controversy existed at all relevant times and still exists.

2. Whether petitioners may amend their allegations of jurisdiction under §1653 to allege recently discovered pre-litigation injury.

3. Whether petitioners’ injuries—if moot—are nonetheless capable of repetition, yet evading review.