In a blistering 30-page opinion, a federal judge ordered sanctions against the attorneys of Kari Lake and Mark Finchem in their lawsuit against voting machines, hoping to deter “similarly baseless suits in the future.”
Lake and Finchem, Trump-endorsed Republicans who failed in their bids for governor and secretary of state, filed suit in April in an attempt to block Maricopa and Pima counties from using any electronic device to cast or count votes. They asked the court to order the counties to require paper ballots and conduct a hand count of all the ballots cast.
U.S. District Court Judge John Tuchi dismissed the suit in August, calling it full of “conjectural allegations of potential injuries.”
Before the dismissal, the five members of the Republican-dominated Maricopa County Board of Supervisors — the defendants in the case — had asked for sanctions for the “numerous false allegations about Arizona elections” the candidates and their attorneys made in their federal complaint.
In his order granting sanctions on Thursday, Tuchi delivered strong punches to the arguments that Lake, Finchem and their attorneys put forth in what he deemed a “frivolous complaint.”
While the plaintiffs sought “massive, perhaps unprecedented federal judicial intervention” to change Arizona’s election system before the recent election, “they never had a factual basis or legal theory that came anywhere close to meeting that burden,” the judge wrote.
He added later in the 30-page order that he would “not condone litigants … furthering false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process.”
Bill Gates, county Board of Supervisors chair, said in a statement the sanctions were a “win for the rule of law” and that they will serve as a consequence for those who file baseless and meritless lawsuits.
There are “too many examples in recent years of attorneys trying to weaponize the court for political purposes,” he said. “It is wrong, it is unethical, and these attorneys must be held accountable if we are to protect our democratic republic.”
Court records show the out-of-state attorneys used by Lake and Finchem include Alan Dershowitz, an internationally famous lawyer, author and Harvard Law School professor; three lawyers from Parker Daniels Kibort LLC, in Minnesota: Andrew Parker, Jesse Kibort and Joseph Pull; and Kurt Olsen, a Washington, D.C.-based lawyer who helped with a lawsuit challenging the 2020 election results that was rejected by the U.S. Supreme Court.
Neither the attorneys nor Lake and Finchem returned messages seeking comment for this article.
‘Simply false’ claims: It’s a paper-based voting system, judge affirms
Lake and Finchem’s lawsuit was filed as Republican lawmakers failed to pass the sort of significant election-procedure changes they sought during this year’s legislative session. The complaint echoed conspiracy theories about Dominion Voting Systems and vote-tabulating machines put forth by former President Donald Trump and his legal team after he lost the presidential election in 2020 to President Joe Biden.
The plaintiffs made specific falsehoods in the lawsuit that Tuchi found worthy of sanctions.
They alleged that Arizona voters don’t vote with paper ballots, but that’s “simply false,” Tuchi wrote.
The plaintiffs claim in pleadings that they never alleged in the lawsuit that the system isn’t based on paper ballots, but that’s also incorrect, Tuchi wrote. He gave specific examples, such as where Lake and Finchem said they were required to cast their votes “through electronic voting systems,” and that overall, the lawsuit has an “overarching implication” that Arizona does not have an “auditable, paper-ballot based voting system.”
Tuchi noted the lawsuit attacks the county’s use of “optical scanners and ballot marking devices,” even though 99.98% of Maricopa County voters marked their ballots themselves.
“A system that uses paper ballots for recording votes and electronic machines for tabulating them remains a ‘paper-based voting system,'” Tuchi wrote, referring to the U.S. Election Assistance Commission of Glossary of Terms database.
If it weren’t paper-based, he noted, then Cyber Ninjas, the contractor used by the state Senate in its partisan audit of the 2020 election last year, would not have been able to examine a portion of the paper ballots.
The false claim created a “straw man” argument that played a central role in the basis for the lawsuit, Tuchi found.
The lawsuit also alleges that the Dominion Voting Systems equipment used by the county was “improper, absent objective evaluation.” That’s also wrong, Tuchi said, because all of Arizona’s election equipment is tested by “independent, neutral experts … and a testing laboratory accredited by the Election Assistance Commission.”
“Plaintiffs and their experts may be entitled to opine about the sufficiency of the testing that Arizona’s machines undergo, but they are not entitled to allege that no such testing takes place,” Tuchi wrote.
Other claims debunked: Connections to internet, lack of independent testing
Tuchi also reviewed several other allegations in the lawsuit that were of concern but didn’t meet the legal standard for levying sanctions.
Lake and Finchem’s suit claimed it was “well-founded” that Maricopa County’s voting machines are improperly connected to the internet. But Tuchi said the special master assigned by the state Senate, former U.S. Rep. John Shadegg, found what the county had been saying − that the machines were not hooked up to the internet.
Senate President Karen Fann said in March that Shadegg’s finding should bring some closure on the question.
Another false allegation in the lawsuit was that tabulation machines used by the county are not tested independently by experts, the opinion states.
Those problems, however, along with the county’s allegation that Lake and Finchem filed the lawsuit “to further their political campaigns” and other claims that were speculative did not merit sanctions.
No matter how much “weight one assigns” to Lake and Finchem’s evidence, a giant flaw remains in the case: The plaintiffs never showed how their allegations would be likely to spoil the election. They raised plenty of questions about that but “went no further,” Tuchi wrote.
Lake and Finchem made false claims about voting procedures and election conspiracies their main campaign talking points. Lake filed a lawsuit against Maricopa County after election results showed she lost to her Democratic opponent, Secretary of State Katie Hobbs, and has said she will file another one.
Sanctions designed to deter ‘baseless filing’ by other attorneys
Under court rules, the sanctions “must be limited” to what’s needed to deter similar conduct in the future, the opinion states. And although Lake and Finchem did not act “appropriately” in the case, it’s their lawyers who “signed and filed the offending papers.”
“To sanction Plaintiffs’ counsel here is not to let Plaintiffs off the hook,” Tuchi wrote. “It is to penalize specific attorney conduct with the broader goal of deterring similarly baseless filing initiated by anyone, whether an attorney or not.”
The order holds the attorneys “jointly and severally liable” for the county’s attorneys’ fees, meaning that each person is legally responsible for paying the total amount.
County officials on Thursday didn’t have an estimate of their attorneys’ fees in the case.
The final sanctions order won’t come for at least a month. Tuchi gave the county two weeks to file the total amount of attorneys’ fees incurred since the lawsuit was first filed. The plaintiffs have two additional weeks after that to file a response as to the “reasonableness” of the amount of fees.