Arizona Court of Appeals Division One affirms dismissal of Arizona Republican Party’s (ARP) challenge to Arizona’s hand-count procedure and award of attorney fees to the Secretary of State because ARP brought the suit in bad faith.

After the 2020 presidential election, ARP sued Maricopa County officials. ARP sought a declaratory judgment that the County violated state election law when it conducted a hand count based on a sampling of votes from vote centers rather than precincts, as well as an order requiring the County to redo the count accordingly. The Secretary of State and Arizona Democratic Party intervened and moved to dismiss.

A.R.S. § 16-602 provides that a hand recount should be based on ballots from a sampling of precincts. In 2011, the Legislature amended the law to authorize use of voting centers in place of traditional precinct-based polling places and provided that hand counts be conducted as prescribed in the Election Procedures Manual (EPM). However, it did not change the statutory language requiring that ballots be counted from a random sampling of precincts. The EPM provided that counties using voting centers may consider those centers to be precincts for the purpose of the hand count procedure.

The superior court dismissed ARP’s challenge based on laches, and denied mandamus relief because county officials lacked discretion to vary from the procedures described in the EPM when conducting the hand count. It also granted the Secretary’s motion for attorneys’ fees, awarding them, in a rare move, jointly and severally against ARP and its counsel.

On appeal, ARP argued that the superior court erred in dismissing its claim on the merits because the plain language of A.R.S. § 16-602 requires that a hand count be based on precincts rather than voting centers. The appeals court disagreed, finding that ARP waived any challenge to the superior court’s laches ruling because it failed to address it and that ARP could have, but failed, to file its claim earlier in connection with the primary election or when the County approved the use of vote centers.

The appeals court also affirmed the superior court’s award of attorneys’ fees. It reasoned that ARP should have known its claims were groundless because mandamus relief was not available against the defendants because they lacked discretion whether to follow the EPM. Moreover, clearly established law provides that challenges to election procedures must come before the election is held. ARP’s suit was likewise brought in bad faith because it presumed that sampling by precinct would reveal incidents where the number of votes exceeded registered voters, but that distorted the purpose of a hand count, which was only to ensure that the voting machines were working properly, and there was no evidence of fraud that such a count might reveal. By its own admission, ARP’s suit was brought for improper political purposes based on public mistrust.

The appeals court rejected ARP’s argument that the superior court was motivated by its own political views, holding instead that the superior court ruled based only on the record and addressed arguments explicitly made by ARP’s counsel. It further rejected ARP’s argument that the attorneys’ fees award violated the First Amendment because it would permit judges to deem political views they disagree with “bad faith” and thereby sanction parties that subscribe to them. The First Amendment does not immunize parties who bring suits without substantial justification from adverse attorneys’ fees awards.

Judge Brown authored the court’s opinion, which Judges Howe and Furaya joined.

Posted by: Michael Price