PHOENIX — They’ve lost big in court. Twice.
But the Arizona Republican Party isn’t giving up trying to evade sanctions for filing what judges have called a baseless and politically motivated lawsuit attacking election processes Maricopa County used during the November 2020 election in which then-President Donald Trump went down in defeat.
The state GOP now wants the Arizona Supreme Court to overturn lower court rulings that found the lawsuit it filed after the election was pursued in bad faith. The decisions left the party and its lawyers on the hook for nearly $27,000 in legal fees the Secretary of State’s Office racked up defending the case.
The GOP argues that if the lower court decisions stand, they will have a chilling effect on anyone’s ability to sue over election issues.
“Under this opinion, whenever a person brings a case in a politically charged context, it risks sanctions because the public interest in the case grants the person political reasons, as happened here,’’ party lawyer Jack Wilenchik wrote. “This rule severely curtails the right to petition courts in the political context by discouraging litigation of political cases, lest the litigant be sanctioned for acting in ‘bad faith.’ ‘’
The Republican Party lawsuit alleged that the process Maricopa County used to conduct hand-count audits to check the accuracy of vote tabulation machines was illegal.
One of a host of election-related lawsuits filed across the nation in the wake of Trump’s loss, it claimed state law requires the audits to be done by precincts, and the county instead audited vote centers, which are combined voting locations where anyone registered in the county can cast their ballots.
Then-Secretary of State Katie Hobbs — now governor — stepped in to defend the case because the procedures were also used in multiple other counties.
Process allowed by state
The process used by the counties is explicitly allowed by the state’s Elections Procedure Manual, a large document that sets out detailed rules for every part of election administration and implements state law. The manual used in 2020 was created by Hobbs and approved by the then-governor and attorney general, Doug Ducey and Mark Brnovich, respectively. Hobbs is a Democrat and Brnovich and Ducey are Republicans.
The same procedure had been used since the Legislature approved the use of vote centers in a 2011 law. Manuals approved in 2012 and 2014 — when Republicans held all three top state offices — plus the 2019 one that Hobbs crafted all laid out the hand-count audit rules for counties using vote centers.
Until the GOP lawsuit, no one complained they conflicted with state law.
The court of appeals, in an April ruling, agreed with a trial court judge who said the GOP had no basis to sue and did so for political reasons. The court upheld sanctions the trial court imposed against the state party and ordered it to pay more than $18,000 in defense legal fees.
A spokesman for Democratic Secretary of State Adrian Fontes declined to comment on the new filing.
So did current Arizona Republican Party Chair Jeff DeWit, who inherited the lawsuit filed under the watch of former Chair Kelli Ward. DeWit was elected chair at a state party meeting in January.
Lawyers “disturbed” by ruling
But Wilenchik, in an interview with Capitol Media Services, insisted that letting the ruling stand would have far-reaching effects on any election challenge lawsuit.
“I think there’s a lot of lawyers out there in that realm, dealing with political cases, that are disturbed by what the Court of Appeals did there, to say that merely having some political angle to the case makes it bad faith and therefore sanctionable,” he said.
In seeking the sanctions, the secretary of state’s lawyers listed several reasons the GOP lawsuit was groundless, including that the vote center audit process has been used for nearly a decade without objection.
The Court of Appeals ruling noted that the secretary asserted the lawsuit was intended to “delay final election results and sow doubt about the integrity of Arizona’s elections system.’’ The judges said a lawsuit brought after an election for a procedure that was well known ahead of time — in this case for nearly a decade — was “groundless.’’
Ultimately, the appellate judges ordered the Republican Party to pay nearly $9,000 in additional legal fees and costs the secretary of state had to pay to defend the case on appeal. That brought the total the state GOP owes to nearly $27,000, costs that come on top of the party’s own legal fees.
The appeals court ruling largely followed rulings made by Maricopa County Superior Court Judge John Hannah, who tossed the GOP lawsuit and levied the initial sanctions. The judge said it was “inexcusable’’ that the party filed suit three days after Maricopa County had publicly announced the result of the hand count.
In a declaration filed before that ruling, Wilenchik said he had been unaware that the hand-count had even been done because the secretary’s website listed Maricopa County’s tally as pending.
“Public mistrust” cited
Hannah’s 2021 ruling said the sanctions were merited because of the party’s own admission that “public mistrust following this election motivated this lawsuit.”
“ ‘Public mistrust’ is a political issue, not a legal or factual basis for litigation,’’ the judge said, and the Court of Appeals agreed.
But Wilenchik contends both got it wrong.
“The Court of Appeals held that the (Arizona Republican Party) was motivated by the public mistrust regarding the elections and wanted to ensure they were conducted properly,’’ Wilenchik wrote in his Supreme Court petition.
“This is a laudable reason, not an improper one,’’ he continued. “Ensuring proper election procedures are followed puts to rest public concerns.’’
The Arizona Republican Party’s filing also pushes the high court to reverse the lower courts’ fee awards on First Amendment grounds.
The party “used its right to petition courts for a redress of grievances in a political context; this is the very core of First Amendment exercise,’’ Wilenchik wrote. “The Court of Appeals shockingly concluded this was an ‘improper purpose’ that constituted `bad faith.’ ‘’
He acknowledged that the case was brought in a “charged, political setting.’’
First Amendment argument
“But it is precisely in controversial settings that the First Amendment finds its greatest application,’’ he wrote. “Parties need a guarantee they will not be accused of acting for an ‘improper purpose’ or in ‘bad faith’ merely for advancing a controversial political position.’’
That position, however, was rejected by Hannah and the Court of Appeals panel.
“The First Amendment does not shield attorneys or parties from a court’s obligation under (the law) to award attorneys’ fees against a party or attorney who brings or defends a claim without substantial justification,’’ appeals court Judge Michael Brown wrote.
Wilenchik also pressed the high court to review the case on the underlying issue of whether doing hand-count audits at the vote center level instead of at the precinct-level is legal. Because the lawsuit was thrown out for other reasons, that core issue was never addressed.
The procedures manual has the force of law and counties are required to follow the rules it lays out. But the Supreme Court has previously ruled any provision that directly conflicts with state election law is voided.
Now that the GOP has filed its formal petition, the Supreme Court must decide whether to take the case or reject it and let the lower court rulings stand. That can sometimes take months.
If the Supreme Court takes the case and the GOP loses again, it could be slapped with additional legal costs incurred by the secretary of state. And Wilenchik and his firm could end up paying some or all of them.
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