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Arizona judge considering lawsuit by losing secretary of state candidate

Rep. Mark Finchem, of Arizona, gestures as he speaks during an election rally in Richmond, Va., in October.
Steve Helber
Rep. Mark Finchem, of Arizona, gestures as he speaks during an election rally in Richmond, Va.

By Howard Fischer
Capitol Media Services

PHOENIX -- A judge is questioning whether a laundry list of allegations by Mark Finchem about the general election provide any legal basis at all for his request she set aside the election he lost for Arizona secretary of state to Adrian Fontes.

And she could impose financial penalties on Finchem and his attorney if she ultimately finds his arguments legally frivolous

At a hearing Friday, Daniel McCauley argued that a new election is merited because Secretary of State Katie Hobbs asked Twitter to remove a post in January 2021, one Hobbs said provided incorrect information about voter rolls. He told Maricopa County Superior Court Judge Melissa Julian that was hardly an innocent act.

"The evidence, for want of a better term that's out there, shows clearly that, as the secretary of state ... (Hobbs) cajoled the Twitter people into censoring possibly as much as 50 percent of her constituency'' he said. "This was a political issue.'
Julian questioned the relevance of all that.

"How do you get from the Twitter communications to misconduct under the elections statute?'' she asked.

The judge pointed out that anyone seeking to overturn an election must show either fraud, which Finchem is not alleging, or misconduct. And, more to the point, Julian noted, there has to be a showing that the action actually affected the outcome of the race, evidence she suggested appears to be missing.

Julian appeared no more impressed by McCauley's claim that Hobbs had acted improperly in telling county boards of supervisors that they had to formally certify the returns for the general election by the Nov. 28 deadline and could not instead conduct their own recount. Mohave and Cochise County, which initially had balked, eventually complied, though it took a court order to get a vote in Cochise.

"Where would I find the authority for the proposition that the boards have discretion in respect to whether or not to complete the canvass, their parts of the canvass, and certify, and whether or not they can direct a recount of some kind if they are concerned about it?'' she asked McCauley.

"I don't think it's been really tried,'' he conceded. But he said it falls under the responsibility of county supervisors "to make sure their constituents get a full and fair election.''

McCauley does have another argument in his request the Julian order a do-over of the race that Finchem lost by more than 120,000 votes.

He said there is no evidence that the companies that certified the equipment used in the election had themselves been properly certified. And he said experts have told him that affected the outcome.

But the judge pointed out that there actually are documents signed by the executive director of the federal Elections Assistance Commission, already filed in this case, showing the companies are in good standing. McCauley sniffed at that, saying the certification had to be signed by the person who chairs the commission.

And there appears to be another problem with that argument.
Julian noted that questions about the certification of equipment could have been raised before the election -- and before nearly 2.6 million ballots had been cast. The judge said there is a legal concept that arguments that could have been brought earlier, when there was time to examine them and have hearings, cannot suddenly be brought up later because someone is dissatisfied with the results.

And there's something else that could prove fatal to the claim.
In filing suit, Finchem named only Hobbs and Fontes as defendants. Yet he wants Julian to order a new election in all 15 counties who are not defendants in the case.

Andrew Gaona, who represents Hobbs, urged the judge to reject Finchem's request for a full-blown trial to present evidence and instead dismiss the lawsuit outright. He called the filing a "political sideshow'' and said Julian should "send a strong message to (Finchem) and future litigants like him that the judiciary is not the appropriate venue to air political grievances and conspiracy theories.''

Fontes' attorney Craig Morgan echoed the sentiment, saying that Finchem and his attorney are trying to undo millions of votes.

"And the problem with that ... is that there's absolutely no legal or factual basis asserted by which to do so,'' he said. "They have failed to state with any reasonable particularity at all how anything that happened that they allege could have affected the outcome of the election.''

And Morgan, like Gaona, wants Julian to not just dismiss the case but to levy a financial penalty to require Finchem or McCauley -- or both -- to pay the legal fees of those who had to defend against what he called a "frivolous lawsuit.''
the claim.

"I do think this court needs to make a stand and remind all counsel and litigants alike that there are standards for filing a lawsuit,'' Morgan told the judge.

"This is just one in a series of meritless lawsuits that continue to perpetuate divisive and, frankly, harmful rhetoric,'' he said. "And these just need to stop.''