Judge tosses Finchem's election challenge for lack of evidence

PHOENIX — A judge dismissed Republican Mark Finchem’s attempt to overturn his election loss, saying late Friday that he presented no evidence to support such a radical move.

Maricopa County Superior Court Judge Melissa Julian also said she may order Finchem and his attorneys to pay the legal fees for Adrian Fontes, the Democrat who defeated Finchem in the Arizona secretary of state’s race, and for Secretary of State Katie Hobbs, who also was sued.

In a 13-page order, Julian said Finchem failed to present any evidence that showed the outcome of the race — and his loss by more than 120,000 votes — was in any way affected by misconduct or fraud by anyone.

“Honest mistakes or mere omissions on the part of election officials, or irregularities in directory matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain,’’ Julian said. “A valid election contest may not rely upon public rumor or upon evidence about which a mere theory, suspicion, or conjecture may be maintained.’’

And in this case, there is not even evidence of mistakes, the judge said.

“Mr. Finchem does not allege that any of the votes cast were actually illegal,’’ she said. Nor, said Julian, did he present evidence that ballots were cast by people ineligible to vote.

“What Mr. Finchem argues is a case of missing votes,’’ the judge said. That includes claims people were disenfranchised because they were frustrated due to the malfunction of tallying machines at some Maricopa County vote centers and by delays, and left without voting, leading to “suspicions that some votes may not have been counted.’’

That is insufficient to void an election, the judge ruled.

Julian was no more impressed by Finchem’s claims of “misconduct’’ by Hobbs, including the fact that she failed to recuse herself from her role in overseeing elections after her rival in the governor’s race, Republican Kari Lake, said there appeared to be a “conflict of interest.’’

The judge said Arizona law does require public officials to step aside from decisions in which they have a financial or proprietary interest in the outcome. But Julian said that didn’t apply here and nothing required Hobbs to step away from her public duties merely because she also was a candidate this year.

Julian also rejected a claim by Finchem’s attorney, Daniel McCauley, that Hobbs acted improperly in telling county boards of supervisors that they had to formally certify the returns for the general election by the Nov. 28 deadline and could not instead conduct their own recounts. Mohave and Cochise County, which initially balked, eventually complied, though it took a court order in Cochise’s case.

“Where would I find the authority for the proposition that the boards have discretion in respect to whether or not to complete the canvass, their parts of the canvass, and certify, and whether or not they can direct a recount of some kind if they are concerned about it?’’ the judge asked McCauley.

“I don’t think it’s been really tried,’’ he conceded. But he said it falls under the responsibility of county supervisors “to make sure their constituents get a full and fair election.’’

Julian wasn’t buying it.

“The law does place the final burden on the secretary to ensure the canvass and certification of a general election is completed within the statutorily prescribed timeframes,’’ the judge wrote. “It is not ‘misconduct’ for the secretary of state to communicate with other governing bodies to ensure the canvass and certification are completed.’’

Twitter issue not relevant, judge says

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McCauley also argued a new election is merited because an aide to Hobbs asked Twitter in January 2021 to remove a post that Hobbs said provided incorrect information about voter rolls. He contended that wasn’t an innocent act.

“The evidence, for want of a better term that’s out there, shows clearly that, as the secretary of state ... (Hobbs) cajoled the Twitter people into censoring possibly as much as 50% of her constituency,’’ McCauley said. “This was a political issue.’’

He said a decision by Twitter to suspend Finchem’s account one week before the election “was directly caused by Hobbs’ illicit censoring of her constituents in concert with Twitter.’’

Julian questioned the relevance.

“How do you get from the Twitter communications to misconduct under the elections statute?’’ she asked.

Anyway, she ruled, any decision by Twitter to suspend Finchem’s account in October 2022, as he alleged, is legally irrelevant in an election challenge “as Twitter is not an ‘election official.’ ‘’

‘Vague sense of unease’ isn’t evidence

Separately, Julian tossed out a series of claims that the machinery used in the election was not certified. She said the evidence shows that wasn’t true.

“Indeed, even if the voting machines were incorrectly certified: what then?’’ the judge asked.

“What, apart from a general pall of suspicion could result from such a conclusion?’’ she continued, noting that there wasn’t an allegation that issues with who signed the machines’ certification certificates caused even one illegal vote to be cast. “The law in Arizona does not permit an election challenge to proceed based solely upon a vague sense of unease.’’

Attorney Andrew Gaona, who represents Hobbs, called the lawsuit filing a “political sideshow’’ and said Julian should “send a strong message to (Finchem) and future litigants like him that the judiciary is not the appropriate venue to air political grievances and conspiracy theories.’’

Fontes’ attorney Craig Morgan echoed the sentiment, saying there was “absolutely no legal or factual basis asserted’’ to seek to overturn the election. He said that Finchem or McCauley, or both, should be required to pay the legal fees of those who had to defend against what he called a “frivolous lawsuit.’’

“I do think this court needs to make a stand and remind all counsel and litigants alike that there are standards for filing a lawsuit,’’ Morgan told the judge. “This is just one in a series of meritless lawsuits that continue to perpetuate divisive and, frankly, harmful rhetoric. And these just need to stop.’’

Julian gave the defense attorneys 10 days to file a formal request for their fees.