AZGOP must pay Secretary of State’s legal fees for ‘bad-faith’ 2020 election lawsuit: appeals court

An Arizona appellate court ruled Thursday that the Arizona Republican Party and its lawyers must pay the attorneys’ fees for the Arizona Secretary of State’s Office in a lawsuit that challenged how Maricopa County audited ballots in the 2020 election and sought to stop the county from certifying Donald Trump’s loss.

The lawsuit challenged procedures for post-election hand counts on the grounds that the county’s use of a “vote center” model instead of voting precincts meant the audit that was conducted was illegal.

But a trial court judge said the case was without merit, and ruled that the AZGOP was liable for the money it cost the Secretary of State’s Office to fight the lawsuit because it was both groundless and brought in bad faith, and that it was little more than an attempt to undermine the legitimacy of the 2020 election.

On Thursday, an Arizona Court of Appeals panel upheld the ruling that the Republican Party and its attorneys must pay $18,237.59 to the Secretary of State’s Office — and said it would also require them to pay the office’s costs for the appeal. That amount has not been determined.

The AZGOP was represented by Phoenix attorneys Jack Wilenchik, Dennis Wilenchik and Lee Miller, a former assistant secretary of state. It’s unclear if the party will appeal the appellate ruling to the Arizona Supreme Court.

“We were surprised by the court’s decision, and will be speaking with legal counsel soon to discuss the best path forward. We are committed to ensuring that elections are fair and accurate,” the party said in a statement provided by a spokeswoman.

The lawsuit was filed more than a week after the 2020 election, and argued that the state law requiring limited post-election hand-count audits conflicted with the state’s Elections Procedures Manual, making it illegal to select ballots for the audit from voting centers instead of by precinct.

State law requires each county to hand count 1% of all early ballots, as well as the ballots from 2% of precincts after each election. The Election Procedures Manual issued by the secretary of state permits counties that use voting centers instead of precincts, a list that includes Maricopa County, to hand count the ballots from 2% of voting centers instead.

Maricopa County Superior Court Judge John Hannah dismantled the legal arguments that the AZGOP and its attorneys made. In addition to ignoring the law and the legislature’ intent when allowing for voting centers, Hannah said the Republican Party sought a remedy that the law doesn’t allow and waited far too long to file its suit.

The judge also said the party demonstrated it was not motivated by sincerely challenging a public policy, but instead to make a political case and sow distrust about Arizona’s elections.

Hannah said the most telling fact may be that it sued to block Maricopa County’s election canvass after the hand count showed a perfect match with the machine count of ballots, writing in it would “create a cloud over the legitimacy of this election and its results” if the court let the canvass happen.

“This is why the Court raised the question whether the plaintiff brought suit in order to ‘cast false shadows on this election’s legitimacy.’ Undercutting the election’s legitimacy by raising ‘questions’ is exactly what the plaintiff did in this passage,” Hannah wrote. “It is a threat to the rule of law posing as an expression of concern. It is direct evidence of bad faith.”

The three-judge appeals panel unanimously agreed, writing that the AZGOP first sought to challenge the hand-count audit procedures, but then dropped that in order to block Maricopa County from certifying its election results, belying the true purpose of the lawsuit.

The appeals court also noted that the Republican Party repeatedly ignored its own arguments in its attempt to reverse the order to pay attorneys’ fees.

In one instance, the party admitted that it brought the lawsuit because of “public mistrust” in Trump’s loss — not a valid basis for a legal challenge — but “ignore(d)” that admission in its appeal. In another, the AZGOP told the appeals court that it never alleged fraud in the election, “but the record shows otherwise,” the judges wrote.

“According to the record provided to us, (the Republican Party) made claims about protecting the integrity of the election and first invoked the specter of fraud,” Judge Michael J. Brown wrote for the court.

And the AZGOP told the appellate court that the election’s legitimacy was never an issue in the lawsuit — but, in doing so, the party “ignores its own filing.”

“In requesting the preliminary injunction, (the AZGOP) explicitly referenced concerns about the election’s legitimacy if the injunction was not granted,” the appeals court noted.

“(The Republican Party’s) assertions about the election’s legitimacy, along with its failure to properly acknowledge or address the court’s legal analysis on the legal flaws in its case, severely undermine (the party’s) claim that the superior court’s ruling was politically motivated,” Brown wrote. “And (the AZGOP) cites no authority suggesting that general allegations about public mistrust and the legitimacy of the election, to the extent they could be relevant in a proper election-related lawsuit, provided any legal justification for filing its claims here.”

Finally, the appeals court roundly rejected the Arizona Republican Party’s claim that the sanctions are a violation of First Amendment rights to free speech, noting that the party did not cite any case law backing up its argument because none exists — and “the few cases addressing this topic confirm the opposite view.”

“The court system exists to hear legitimate legal disputes, not for airing political disputes or grievances,” Brown wrote.

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