The Arizona Supreme Court heard oral arguments last week from the Arizona Republican Party (AZGOP) and opposing litigant Arizona Secretary of State (AZSOS) over lower courts awarding sanctions against the AZGOP for filing a “groundless” lawsuit “in bad faith.” The AZGOP sued Arizona officials immediately after the 2020 election for conducting a post-election audit that the AZGOP contended did not comply with the law.
The AZGOP said the law required the audit to be conducted at the precinct level, but the audit was conducted at the voting center level according to the state’s Election Procedures Manual (EPM), which the AZGOP claimed contradicted state law.
AZGOP said A.R.S. § 16-602 requires precinct-level audits. The relevant part of that statute, (B)(1), provides, “ At least two percent of the precincts in that county, or two precincts, whichever is greater, shall be selected at random from a pool consisting of every precinct in that county.” In contrast, the EPM states that vote centers will be used for the audits in counties that utilize vote centers.
Maricopa County Superior Court Judge John Hannah, who was appointed to the bench by Democratic former Governor Janet Napolitano, and the Arizona Court of Appeals ruled against the AZGOP, awarding sanctions of $18,237.59 against the AZGOP and its attorneys. Those courts emphasized that the AZGOP should have known previously about the legal discrepancy, so the doctrine of laches blocked the lawsuit as being filed too late.
Dennis Wilenchik, attorney for the AZGOP, provided oral argument first, followed by Karen Hartman-Tellez, attorney for the AZSOS. The justices frequently interrupted the pair. Justice Clint Bolick told Wilenchik that while challenges to irregularities can be brought after the election, challenges to voting procedures must be brought before the election. Wilenchik responded and said the lawsuit wasn’t merely challenging procedures but challenging EPM violations.
Wilenchik said the lower courts’ decisions were “terrible” since they ruled that filing a lawsuit for “political reasons” constituted bad faith. “I don’t believe there’s any finding of bad faith other than the political reasons,” he said.
Justice Ann Timmer, widely considered the most left-leaning justice on the court, asked him to define bad faith. He responded that it was a “subjective analysis,” which translated to “be harmful or waste this court’s time.”
He said a lawsuit is groundless if “there’s no legitimate issue involved,” and the “bad faith part of it I think, involves an intentional purpose to simply have no purpose at all.”
Chief Justice Robert Brutinel asked Wilenchik why the AZGOP asked for an injunction if this wasn’t a challenge to the election results. Wilenchik said that was to stop the lawsuit from being thrown out as moot since the audit had already been conducted.
Timmer pointed out that since the audit had already been conducted, perhaps the lawsuit was brought too late. Wilenchik retorted that it wasn’t a “proper audit” since the law wasn’t complied with.
Next, Hartman-Tellez began oral argument for the AZSOS. Timmer interrupted her immediately, challenging her for “saying that a claim is groundless that seeks to enforce the plain language of the election statute.” Timmer asked, “Why is it sanctionable when the statute itself spoke in terms of precincts?”
Hartman-Tellez responded, “This case was brought against the wrong parties, at the wrong time, and sought the wrong relief.”
Justice Bill Montgomery asked Hartman-Tellez whether the AZSOS had any discretion in following the EPM, and she said no. He responded and pointed out that if they had no discretion, then filing a writ of mandamus to order the AZSOS to comply with the statute was “appropriate,” and a court “could have issued [an order] instructing county officials to then conduct an audit pursuant to the precincts as stated in the statute.”
He added, “There’s no merit to the legal argument,” saying, “There is a fair conflict between the two statutes, would you agree?” Hartman-Tellez said the lawsuit should have been filed against the AZSOS.
Montgomery said, “You don’t have to sue the legislature to ask for a declaration about what the law is. Why do you have to sue the Secretary of State to ask when to resolve this conflict?” Other justices pointed out that the AZSOS intervened in the case within a few days after filing it. One noted that if they sued the wrong entity, that could later be remedied.
Justice Kathryn King asked Hartman-Tellez why laches makes a lawsuit groundless. Hartman-Tellez said the audit had been completed before the AZGOP filed the lawsuit.
Montgomery asked her how the lawsuit could have been brought before the election since the audit wasn’t conducted until afterward.
“So the audit has occurred that might raise an issue with compliance with the statute,” he said. “How do you bring the challenge ahead of time?”
Bolick said, “Political motivation is present in every election lawsuit, so shouldn’t be a ground for [bad faith].”
Justice John Lopez IV asked her about a previous statement made by Hannah. He said, “The trial court stated that, in essence, that the questioning of the legitimacy of this election, a closely decided election’ as ‘a threat to the rule of law,’ and ’a direct evidence of bad faith.’ Is that a correct statement? Do you, do stand by that statement?” Hartman-Tellez responded yes.
The court did not indicate when it would issue its ruling, but similar rulings are usually issued a couple of weeks later. The oral arguments can be viewed on the Arizona Supreme Court’s website under Arizona/Republican Party v. Stephen Richer/Adrian Fontes. The case summary is here.
– – –
Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
