Arizona Court of Appeals, Division One holds that First Amendment considerations do not shield a claimant or an attorney from entry of an attorneys’ fees award under A.R.S. § 12-349.

The Arizona Republican Party sued the Maricopa County Recorder and the Maricopa County Board of Supervisors, challenging the hand count audit process Maricopa County used for the 2020 general election. 

A.R.S. § 16-602 establishes a process for a post-election hand count audit:  members of each political party hand count random batches of ballots from two percent of precincts.  In 2020, however, Maricopa County elected to use voting centers rather than precincts, which state law authorized the County to do.  For purposes of the hand count, the applicable Election Procedures Manual (“EPM”) allowed counties to consider vote centers as precincts in the two percent sample.

After the 2020 hand count audit was complete, the Republican Party applied for a preliminary injunction to enjoin the County from certifying the results of the votes on the basis that a new hand count was required.  The Republican Party alleged that the EPM provisions concerning hand counts conflict with state statutes.  The County and intervenors Secretary of State and the Arizona Democratic Party moved to dismiss the suit.  The superior court dismissed the case, finding laches barred the Republican Party’s claims and no basis for relief existed.

At issue on appeal was whether an award of attorneys’ fees under A.R.S. § 12-349 may be entered against parties in a politically charged case.  The superior court granted a fee award, finding that the Republican Party’s lawsuit lacked substantial justification.  The Court of Appeals affirmed.  It held that the First Amendment does not shield parties who bring or defend meritless claims from an award of attorneys’ fees.  Analyzing the two elements of section 12-349 separately, the Court of Appeals first concluded that the Republican Party’s claims were groundless because they lacked evidence, a viable legal theory, and any basis for relief.  Second, the Court of Appeals affirmed the superior court’s finding of bad faith based on statements made by counsel, inconsistent positions between briefings, and a lack of evidence supporting the claims.  Likewise, the Court of Appeals rejected the Republican Party’s contentions that the superior court acted in bad faith by awarding fees because of its own political motives.  Finally, the Court of Appeals entered an award of attorneys’ fees on appeal against the Republican Party and made it joint and several against the Party and its counsel.

Judge Brown authored the opinion, in which Judges Howe and Furuya joined.

Posted by: Sarah Pook Lawson