Judge orders AZGOP and its attorneys to pay secretary of state’s legal fees

By: - March 15, 2021 1:22 pm
AZGOP chair Kelli Ward

Arizona Republican Party Chairwoman Kelli Ward at a February 2020 rally for Donald Trump in Phoenix. Photo by Gage Skidmore | Flckr/CC BY-SA 2.0

The Arizona Republican Party and its attorneys owe Secretary of State Katie Hobbs more than $18,000 in attorney fees for filing what a judge deemed a groundless lawsuit brought in bad faith, without legal justification and possibly for the purpose of undermining the legitimacy of the 2020 general election.

In a blistering 10-page order issued Monday morning, Maricopa County Superior Court Judge John Hannah dismantled the legal arguments that the AZGOP and its attorneys made in November after they challenged the procedures that Maricopa County used for a partial hand count of ballots required by state law after each election.

State law requires each county to hand count 1% of all early ballots, as well as the ballots from 2% of precincts after each election. The election procedures manual issued by the secretary of state permits counties that use voting centers instead of precincts, a list that includes Maricopa County, to hand count the ballots from 2% of voting centers instead.

Though state statute explicitly grants the manual the force of law and directs counties to consult it when conducting the post-election hand counts, the Arizona Republican Party sued Maricopa County and then-county Recorder Adrian Fontes, arguing that he violated state law by using vote centers instead of precincts. Hannah dismissed the lawsuit, ruling that it had no merit and was legally defective on several grounds.

The AZGOP won’t have to foot the bill on its own. Hannah made the rare move of ordering its lawyers to pay attorney fees, as well. Attorneys Jack Wilenchik and Lee Miller, as well their firm, Wilenchik & Bartness, are also on the hook for the fees.

“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,” Hannah wrote.

Hannah picked apart the arguments that the AZGOP and Wilenchik made in court. The plaintiffs, he said, ignored the clear language of the law in its challenge to the post-election hand count of ballots and failed to address the issue when Hobbs’s attorneys raised it in court. 

State law says counties must conduct hand counts by precincts, but also that they must be conducted “in accordance with hand count procedures established by the secretary of state in the official instructions and procedures manual,” which explicitly says those audits can be based on vote centers.

“The plaintiff has never even acknowledged that,” the judge said.

Hannah said the AZGOP and its lawyers also failed to take note of the legislature’s clear intent when it permitted the use of vote centers that the secretary of state be able to authorize hand count audits by vote center instead of by precinct.

Furthermore, Hannah said the plaintiffs asked him for a remedy — a new hand count conducted by precinct — that the law doesn’t allow. Legal precedent states that parties cannot sue over matters of election procedure if they wait until after people have already voted. The AZGOP and its attorneys never acknowledged this, Hannah wrote. 

The AZGOP also refuses to acknowledge that it sued the wrong person, Hannah said: Because the challenge was to the secretary of state’s rules, the party should have sued Hobbs. Instead, it sued Fontes, who was bound by law to obey the elections procedures manual and subject to criminal penalties if he ignored it.

Rather, the party continued its insistence that suing Hobbs over the rules in her manual was no more necessary than suing the legislature when challenging the interpretation of a statute.

“When a litigant resorts to that kind of sophistry, instead of simply admitting it made a mistake, it invites inquiry into its motives,” Hannah wrote.

And those motives were suspect, the judge concluded.

He pointed out that, although several counties used vote centers for the 2020 election and conducted post-election hand counts of 2% of vote centers and not precincts, the AZGOP only sued Maricopa County, which the judge said suggests its concern was that something besides its professed interest in “strict compliance and election integrity.”

Hannah noted that Wilenchik wrote that “public mistrust following this election motivated this lawsuit,” which the judge called an effective admission that the suit was “brought primarily for an improper purpose.” Public mistrust, he said, is a political issue, not a legal issue or legitimate basis for litigation.

When it comes to the state GOP’s motives, Hannah said the most telling fact may be that it sued to block Maricopa County’s election canvass after the hand count showed a perfect match with the machine count of ballots, writing in it would “create a cloud over the legitimacy of this election and its results” if the court let the canvass happen.

“This is why the Court raised the question whether the plaintiff brought suit in order to ‘cast false shadows on this election’s legitimacy.’ Undercutting the election’s legitimacy by raising ‘questions’ is exactly what the plaintiff did in this passage,” Hannah wrote. “It is a threat to the rule of law posing as an expression of concern. It is direct evidence of bad faith.”

Wilenchik said he and the state Republican Party will appeal the ruling, and predicted that it will be reversed. 

He said a lawsuit to enforce the plain wording of the law is never groundless, and said Hannah’s reliance on the legislative history of the statutes at issue underscores that. Wilenchik pointed to the wording of the law saying that hand counts must be conducted as prescribed by statute, which requires the use of precincts as the basis for hand counts, and in accordance with the election procedures manual, which allows the use of vote centers. 

“Our point from day one is that there is a contradiction,” Wilenchik said. “And that in such situations, the law (the statute) trumps the Secretary’s manual.”

Wilenchik also said some election lawyers, including his colleague, former Assistant Secretary of State Lee Miller — whom the judge also ordered to pay attorney fees and explicitly singled out in his criticism — disagree with Hannah’s interpretation of the law. 

Wilenchik also took issue with Hannah’s accusation that the purpose of the lawsuit was to sow distrust about the election.

“For a county judge to say that widespread public mistrust in an election is an ‘improper’ reason for a political party to be in his court is sorely disrespectful to the views of the many Americans whom I am proud to represent,” he said.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”