Ruling: Attorneys for Lake, Finchem owe $122K in fees

PHOENIX — Attorneys for Kari Lake and Mark Finchem are on the hook for $122,000 in legal fees for Maricopa County for filing what a federal appeals court called a “frivolous’’ challenge to the use of voting machines in Arizona.

Judge Ronald Gould, writing for the majority, said Andrew Parker and Kurt Olsen made “false and misleading allegations’’ in their 2022 lawsuit claiming that voting machines were unreliable and subject to manipulation. They had sought an order on behalf of the two GOP candidates requiring that ballots be counted by hand. Both Finchem and Lake lost their elections.

Gould also said the lawyers even misrepresented to the court that all voting in Arizona is done by machine when, in fact, most people use paper ballots, with electronic tabulation. And he said that U.S. District Court Judge John Tuchi, who imposed the sanctions after throwing out the case, was correct in concluding that the lawsuit was based on “speculation and conjecture.’’

Gould further said the sanctions are merited not just because they filed an action without merit but that their lawsuit misled the public and caused “baseless concern about a topic of national importance.’’

Friday’s ruling was not unanimous.

Appellate Judge Patrick Bumatay said the lawsuit may “not have been drafted with perfect precision’’ and they “played hardball.’’ But he said none of that merited having to pay the cost of the county’s lawyers in defending the case.

“Nothing they did was deceptive, intentionally false, or beyond the bounds of zealous advocacy,’’ Bumatay wrote.

He also took a slap at Tuchi who, in imposing the penalty, said he wanted to “send a message’’ to others who might decide to file baseless lawsuits.

“It should go without saying that sanctions cannot be weaponized against litigants with certain political views or beliefs,’’ Bumatay wrote. “Nor should we use them to deter attorneys from representing the unpopular or the unorthodox.’’

All this is about the lawsuit that Lake and Finchem filed in 2022 alleging that the machines used to tally the paper ballots “cannot be deemed reliable secure and do not meet the constitutional and statutory mandates to guarantee a free and air election.’’ They also argued the use of components from other countries made them vulnerable to hacking.

They sued to have the 2022 election — the one in which Lake was running for governor and Finchem for secretary of state — conducted with paper ballots which would be counted by hand, calling it “the most effective and presently only secure election method.’’

U.S. District Court Judge John Tuchi rejected their claims. He said they amounted to a “long chain of hypothetical contingencies’’ — ones that never occurred in Arizona — that would have to take place for any harm to occur.

The pair had no better luck with the 9th Circuit Court of Appeals which concluded they never presented any evidence that the machines used in Arizona to count ballots had actually ever been hacked. The Supreme Court refused to disturb that ruling.

What that left, however, was the question of whether the lawyers should be punished for filing the lawsuit in the first place.

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The lawyers said that the decision to impose legal fees came even before they got a chance to bring in their experts to make their case that voting machine counts are unreliable.

That’s true. Tuchi said the claim was based on a lot of “what if’’ speculations, including:

• The specific voting equipment used in Arizona must have security failures that allow a malicious actor to manipulate vote totals;
• Such an actor must actually manipulate an election;
• Arizona’s specific procedural safeguards must fail to detect the manipulation; and
• The manipulation must change the outcome of the election.

The two attorneys said that decision to deny them the chance to gather evidence denied their clients their day in court. What it amounts to, they said, is the court accepting the government’s claims about how reliable the system is and then punishing them for disputing those claims, something they called “contrary to law and dangerous.’’

What all that shows, they argued, is that the whole purpose of the penalty was to prevent future challenges to the state’s electronic voting systems “without regard to the merits of the challenge.’’

“The sanctions order effectively immunizes electronic voting systems against testing in federal court,’’ they said.

Gould remained unconvinced, even with Tuchi saying he wanted to “send a message.’’

“The district court’s statement does not blanketly prohibit all voting-related litigation,’’ he wrote. “Rather the district court stressed that plaintiffs’ attorneys are being sanctioned because they filed a baseless action.’’

And he said the fact the litigation “may mislead the public and cause baseless concern about a topic of national importance’’ makes it especially important to use sanctions to deter similar lawsuits.

In a separate ruling however, the appellate court agreed to overturn $12,200 in sanctions that Tuchi had ordered against nationally known constitutional lawyer Alan Dershowitz.

Dershowitz had argued that he was just a consultant for Lake and Finchem and, unlike Olsen and Parker, was not involved in crafting the litigation. But the trial judge noted Dershowitz had, in fact, signed the pleadings without having a reasonable basis to believe they were not frivolous and were based on facts.

Gould found nothing legally wrong with the finding.

But he noted that this is the first time the 9th Circuit has concluded that attorneys like Dershowitz, who say they are in only an advisory role, can be sanctioned. So the court agreed to make its applications prospective only and let Dershowitz off the financial hook for what he had done in this case.