An Arizona-based federal judge has ordered sanctions against the legal team assembled by gubernatorial candidate Kari Lake (R) and another plaintiff in a failed lawsuit against winning opponent Katie Hobbs (D) and other defendants from two Arizona county government boards.
The attorneys being sanctioned are not directly named in Thursday’s order, but according to the court docket, Harvard Law School Prof. Alan Dershowitz is Lake’s lead attorney in the matter. Also on her legal team are co-lead attorneys Andrew D. Parker, Jesse Hersch Kibort, and Joseph Alan Pull of Minneapolis. Further listed as a member of her legal team is attorney Kurt B. Olsen of Washington, D.C.
Those attorneys are presumably the ones sanctioned on Thursday for filing a complaint by Lake and Arizona State Representative Mark Finchem (R-11), another plaintiff.
The same legal team represented both plaintiffs, the docket indicates.
Dershowitz, when contacted by Law&Crime about the judge’s order, explained the litigation in these terms:
I have not challenged the results of any Arizona elections. I have given legal advice about the future use of machine counting by companies that refuse to disclose the inner workings of their machines. I support transparency in elections.
The Lake/Finchem lawsuit as a whole, according to its opening salvo, sought to question the Grand Canyon State’s use of electronic ballot-counting devices. The case was filed in April, and — as Dershowitz noted — that was long before the results of the November 2022 midterms:
This is a civil rights action for declaratory and injunctive relief to prohibit the use of electronic voting machines in the State of Arizona in the upcoming 2022 Midterm Election, slated to be held on November 8, 2022 (the “Midterm Election”), unless and until the electronic voting system is made open to the public and subjected to scientific analysis by objective experts to determine whether it is secure from manipulation or intrusion. The machine companies have consistently refused to do this.
Plaintiffs have a constitutional and statutory right to have their ballots, and all ballots cast together with theirs, counted accurately and transparently, so that only legal votes determine the winners of each office contested in the Midterm Election. Electronic voting machines cannot be deemed reliably secure and do not meet the constitutional and statutory mandates to guarantee a free and fair election. The use of untested and unverified electronic voting machines violates the rights of Plaintiffs and their fellow voters and office seekers, and it undermines public confidence in the validity of election results. Just as the government cannot insist on “trust me,” so too, private companies that perform governmental functions, such as vote counting, cannot be trusted without verification.
The lawsuit elsewhere bemoaned what it called “glaring failures with electronic voting systems” and alleged that “[m]ost” voting “machines are over a decade old, have critical components manufactured overseas in countries, some of which are hostile to the United States, and use software that is woefully outdated and vulnerable to catastrophic cyberattacks.”
Hobbs was sued in her capacity “as Arizona Secretary of State and the chief election officer in Arizona.” Other named defendants besides Hobbs included individual members of the Maricopa County Board of Supervisors and the Pima County Board of Supervisors.
U.S. District Judge John J. Tuchi rubbished the lawsuit in August — again, before the Midterms — and on Thursday ascertained that sanctions were appropriate.
Tuchi, a Barack Obama appointee, noted in August that Arizona election equipment is rigorously tested before it is used to count votes.
“Before a single vote is cast, Arizona’s election equipment undergoes thorough testing by independent, neutral experts. Electronic voting equipment must be tested by both the Secretary’s Certification Committee and an Election Assistance Commission (“EAC”) accredited testing laboratory before it may be used in an Arizona election,” Judge Tuchi noted, citing various state laws and noting the specific firms which conducted the independent tests.
In addition to the equipment certification process, Arizona’s vote tabulation results are subject to four independent audits — two audits occur before the election, and two audits after. The first of these audits is a logic and accuracy test, which is performed by the Arizona Secretary of State on a sample of the tabulation equipment.
[ . . . ]
The second required audit also takes place before election day. For the second audit, Arizona counties must perform a logic and accuracy test on all of their tabulation equipment. (Citation omitted.) In 2020, the second Maricopa County audit also took place on October 6, and the tabulators counted the ballots with 100% accuracy.
The third audit is a post-election hand count, the judge said. The fourth is a “post-election logic and accuracy test performed by the counties.”
A recitation of how the system was supposed to work was provided not just to buttress the opinion that Lake’s lawsuit was unwarranted — it was also used to cite the state-level nature of elections processes.
Judge Tuchi ruled that the plaintiffs lacked standing to sue because her claims were “too speculative to establish an injury in fact.” And, even if the plaintiffs did have standing, the judge ruled that the 11th Amendment barred their claims because the core of the dispute arose under state law, not federal law, and therefore did not belong in federal court.
“Because the Constitution charges states with administering elections, Plaintiffs’ claims can only stem from an argument that Defendants are violating state law by using what Plaintiffs allege are insecure or inaccurate voting systems,” the judge wrote in August.
With the lawsuit dismissed, the judge addressed a request for sanctions on Thursdsay, Dec. 1. In a 30-page order, he wrote as follows:
The Court concludes that sanctions are warranted under Rule 11 and 28 U.S.C. § 1927. It finds that Plaintiffs made false, misleading, and unsupported factual assertions in their FAC and MPI and that their claims for relief did not have an adequate factual or legal basis grounded in a reasonable pre-filing inquiry, in violation of Rules 11(b)(2) and (b)(3). The Court further finds that Plaintiffs’ counsel acted at least recklessly in unreasonably and vexatiously multiplying the proceedings by seeking a preliminary injunction based on Plaintiffs’ frivolous claims, in violation of Section 1927.
Judge Tuchi wrote that only the attorneys — not the plaintiffs themselves — would be sanctioned, though he noted that the plaintiffs acted “far” from “appropriately” in the matter.
“Here, while there are reasons to believe that Plaintiffs themselves contributed to the violations of Rule 11(b)(3) in this case — including that they themselves apparently have voted on paper ballots, contradicting allegations and representations in their pleadings about Arizona’s use of paper ballots — there is not a sufficient record that compels the Court to exercise its discretion to sanction Plaintiffs under that part of the rule,” the judge wrote — leaving the plaintiffs’ attorneys themselves on the hook for the defendants’ fees.
While the judge generally suggested that the plaintiffs had connected themselves with a less than admirable piece of litigation, he was careful not to bash them repeatedly or entirely. For instance, the judge declined to agree with the government officials that the plaintiffs brought the case “for an improper purpose” — namely when it became “politically profitable” to do so “to further their political campaigns” among voters who believed the 2020 election was “stolen” from Donald Trump.
Despite that finding, the judge did criticize the general trend toward using the federal courts to attempt to settle grievances over allegedly “stolen” elections.
“The Court shares the concerns expressed by other federal courts about misuse of the judicial system to baselessly cast doubt on the electoral process in a manner that is conspicuously consistent with the plaintiffs’ political ends,” he noted.
As support for that premise, the judge cited a spate of Trump-related election lawsuits connected to the 2020 presidential contest, including Trump’s thus-far-failed racketeering lawsuit against Hillary Clinton and a bevy of other real or perceived political foes.
The judge agreed to award “the Maricopa County Defendants’ reasonable attorneys’ fees” as a sanction, but the precise calculation of those fees remains an outstanding question. It will be settled, the judge ruled, through future paperwork submissions that are due no later than 14 days from Thursday’s order.
The lawsuit, Judge Tuchi concluded, “forced Defendants and their counsel to spend time and resources defending this frivolous lawsuit rather than preparing for the elections over which Plaintiffs’ claims baselessly kicked up a cloud of dust.”
“Plaintiffs’ counsel are therefore held jointly and severally liable for the Maricopa County Defendants’ attorneys’ fees reasonably incurred in this case,” he said — meaning everyone is on the hook.
The judge concluded with this missive about the case:
Imposing sanctions in this case is not to ignore the importance of putting in place procedures to ensure that our elections are secure and reliable. It is to make clear that the Court will not condone litigants ignoring the steps that Arizona has already taken toward this end and furthering false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process. It is to send a message to those who might file similarly baseless suits in the future.
Five members of the Maricopa County Board of Supervisors requested the sanctions; Hobbs — who has been declared the winner of the 2022 Arizona governor’s race against Lake — was not among those awarded sanctions on Thursday.
The order granting sanctions is here.
[Editor’s note: this piece has been updated since its initial publication to include comments from Dershowitz.]
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