By Howard Fischer
Capitol Media Services
PHOENIX -- The state Court of Appeals has upheld a ruling declaring a lawsuit filed by the Arizona Republican Party after the 2020 election was groundless and filed in bad faith and ordering the party to pay more than $18,000 in legal fees.
In a ruling late Thursday, the three-judge panel said that Maricopa County Superior Court Judge John Hannah Jr. was correct in tossing the demand by the GOP that a legally required post-election hand count audit of ballots be done by precinct.
Appellate Judge Michael Brown said it was clear that the Election Procedures Manual specifically allowed Maricopa County to use vote centers. That enables residents to cast a ballot at any location rather than just at a home precinct.
That manual, which has the force of law, had been prepared by the Secretary of State's Office and approved in 2019 by both then-Gov. Doug Ducey and Mark Brnovich who was attorney general at the time.
Brown also said even if the Republican Party believed that the manual conflicts with state law, the time to file suit was before the election. Instead, he noted, the party went to court not only after the election -- the one where Joe Biden outpolled Donald Trump in the presidential race -- but after the audit was complete.
But the judges did more than swat down the party's complaint.
They agreed with Hannah that the lawsuit was not only groundless but also brought in bad faith. And that, they said, makes the party liable to Secretary of State's Office for the $18,238 in legal fees it already had racked up but now for any additional costs incurred in having to deal with the appeal.
A party spokeswoman said the GOP was "surprised by the court's decision'' and will be meeting with legal counsel to decide what action to take next.
The issue stems from the legally required random hand count of ballots. That procedures has officials from both parties select a batch of ballots and races within those ballots to determine if what the machine tallied matches what humans concluded.
In all cases, the match was 100%.
But Jack Wilenchik, representing the Republicans, charged that the law requires the audits be conducted at 2% of voting precincts.
Only thing is, Maricopa County -- and six others -- use voting centers where any individual can go to cast a ballot. So the audit was conducted at 2% of these vote centers. Wilenchik argued that was illegal and sought to hold up the formal canvass of the election results.
In his 2021 ruling, however, Hannah said that when legislators allowed counties to establish vote centers they also gave the secretary of state the power, through the official Election Procedures Manual, to allow audits in that method.
Then there was that timing issue. The judge said it was "inexcusable'' that the party filed suit three days after Maricopa County had publicly announced the result of the hand count.
But what really provoked Hannah's ire -- and his decision to order the party to pay the legal fees run up by the private attorney hired by then Secretary of State Katie Hobbs -- was the party's admission that "public mistrust following this election motivated this lawsuit.''
"The plaintiff is effectively admitting that the suit was brought primarily for an improper purpose,'' the judge wrote.
"It is saying that it filed this lawsuit for political reasons,'' he continued. " 'Public mistrust' is a political issue, not a legal or factual basis for litigation.''
And he said the evidence showed the party filed filing an utterly meritless lawsuit solely to undermine public confidence in the 2020 General Election, even accusing the party of "gaslighting'' him in how it sought to frame the legal issues as it sought to escape those fees.
Hannah said it was clear from the start there was no legal basis for the party and its attorney to demand a different kind of hand count audit of ballots than the one spelled out in state law.
"That statement shows the groundlessness of the plaintiff's legal position, because it is flat wrong as a matter of law,'' the judge wrote in his ruling.
And something else bothered Hannah: what the GOP did after being told that the 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,'' Hannah said. "Instead it filed its petition to enjoin the election canvass.''
The judge was particularly angry that Wilenchik suggested that awarding Hobbs her legal fees would, in Hannah's words, "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,'' the judge wrote. "It is direct evidence of bad faith.''
Hannah had one other legal bone to pick with the party: the claim that it was exercising its First Amendment rights.
"The First Amendment does not give a litigant the right to file and maintain a groundless lawsuit,'' he wrote.
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