Tuesday, March 16, 2021

Arizona Republican Party Undermined Election’s Integrity; Is Assessed Attorney’s Fees

Conducting litigation is not inexpensive. Parties understand that, win or lose, they will likely be responsible for the attorney’s fees they incurred. One exception is where the other party acted in bad faith. In those cases, the court may require the other party to pay your fees. That is what happed late Monday in the case of Arizona Republican Party v. Adrian Fontes, et al.

The Maricopa County judge undertook a ten-page analysis of how the Arizona Republican Party used the courts to purposely undermine public confidence in the electoral process.  From the Court’s conclusion:

“Arizona law gives political parties a privileged position in the electoral process on which our self-government depends. The public has a right to expect the Arizona Republican Party to conduct itself respectfully when it participates in that process. It has failed to do so in this case.” (This and all other quotations are from the court’s opinion.)

As background, the lawsuit itself was previously dismissed for being “groundless because the relief sought was not legally available from the parties that were sued at the time the suit was filed.”

The mere fact of a suit is “groundless” is not enough for a court to assess attorney’s fees. The rules for assessing fees are set out in state law. “A.R.S. section 12-349 requires the court to assess reasonable attorney's fees and expenses against an attorney or party that brings or defends a claim without substantial justification or solely or primarily for delay or harassment.”

The judge began his analysis by noting that the Republican Party’s legal position was “flat wrong as a matter of law.” He noted that “[a]n election challenge based on a procedural statute states a cause of action only if the plaintiff alleges that fraud has occurred or that the result would have been different had proper procedures been followed.” Plaintiff’s statement that “that fraud was ‘not germane to the case’ is to say that there was no colorable cause of action in the first place.”

The Republican Party, even after conceding that there was no fraud, refused to admit that they had sued the wrong party. “When a litigant resorts to that kind of sophistry, instead of simply admitting it made a mistake, it invites inquiry into its motives. The Court now turns to that inquiry.”

After reciting what plaintiffs claimed they were trying to accomplish, the judge found absolutely no merit in it. “These were flimsy excuses for a lawsuit.” 

The judge continued: “The plaintiff is effectively admitting that the suit was brought primarily for an improper purpose. It is conceding that the method of sampling ballots for the hand count audit is a minor procedural requirement, not a necessary step toward a fair election. It is saying that it filed this lawsuit for political reasons. ‘Public mistrust’ is a political issue, not a legal or factual basis for litigation.”

The judge was just getting warmed up. Next, he questioned the plaintiff’s basic integrity. “The plaintiff is not characterizing either its litigation posture or the Court’s inquiry honestly. The Court’s questions addressed the plaintiff’s own arguments. For the plaintiff to suggest otherwise is gaslighting. It evinces a lack of good faith. By their own admission, the responsible individuals here made no serious pre-filing effort to determine the validity of the claims. …

“Perhaps the most telling fact of all is what the plaintiff did after the other parties disclosed, in response to the complaint, that the Maricopa County hand count was complete and that it showed the electronic tabulation was flawless. At that point the plaintiff could have quietly walked away from the lawsuit and publicized the audit results to reassure the public. Instead it filed its petition to enjoin the election canvass.”

It was because of statements made by the plaintiffs themselves that “the Court raised the question whether the plaintiff brought suit in order to 'cast false shadows on the election’s legitimacy.' Undercutting the election’s legitimacy by raising 'questions' is exactly what the plaintiff did. It is what the plaintiff does again when it suggests that an adverse ruling on the secretary of state’s fee application will cause the public to question the Court’s impartiality and undermine respect for the courts. … It is a threat to the rule of law posing as an expression of concern. It is direct evidence of bad faith.”

The court concluded that the Arizona Republic Party owed the Arizona Secretary of State $18,237.59, an amount it found to be “reasonable and appropriate.”

So when you hear people claiming that Americans are losing faith in the integrity of the election process, this case illustrates at least one reason.

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