Earlier this year, U.S. District Judge John J. Tuchi Threw Out ‘Conjectural’ Arizona Lawsuit That Demanded Ban on Electronic Voting Machines:

Kari Lake (R) sued Secretary of State Katie Hobbs (D) in April, alleging that the electronic voting machines used in state elections were at risk of hacking, election tampering, and voter fraud. State lawmaker Mark Finchem, the GOP candidate for Secretary of State, joined Lake in the case, which also named members Board of Supervisors for Maricopa and Pima counties.

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Note: This lawsuit was bankrolled by Coup Plotter and election denier “My Pillow Guy,” Mike Lindell.

The Republicans wanted an injunction barring the use of electronic voting machines in the upcoming November election, when Lake and Hobbs will face each other in the state’s gubernatorial race.

U.S. District Judge John J. Tuchi issued the ruling dismissing the complaint on Friday.

He found that Lake and Finchem lacked standing to sue, a threshold issue in any case. Noting that a plaintiff is required to state an injury in fact — and not one that is “conjectural or hypothetical” — Tuchi found that Lake and Finchem failed to meet that standard.

Tuchi said that “a long chain of hypothetical contingencies must take place for any harm to occur” to Lake that would allow her to sue.

Those hypotheticals, according to Tuchi:

(1) the specific voting equipment used in Arizona must have “security failures” that allow a malicious actor to manipulate vote totals;

(2) such an actor must actually manipulate an election;

(3) Arizona’s specific procedural safeguards must fail to detect the manipulation; and

(4) the manipulation must change the outcome of the election.
“Plaintiffs fail to plausibly show that Arizona’s voting equipment even has such security failures,” Tuchi writes. “And even if the allegations in Plaintiff’s complaint were plausible, their alleged injury is not ‘certainly impending’ as required by [legal precedent].”

Tuchi also agreed with Hobbs’ argument that the lawsuit is barred under the Eleventh Amendment, which prohibits individuals from suing states in federal court. Lake had argued that Arizona’s method of voting “must produce a reliable count of the votes,” and, according to Lake, “Arizona’s equipment and system do not.”

Tuchi said that he “finds this line of argument unpersuasive.”

“Because the Constitution charges states with administering elections, Plaintiffs’ claims can only stem from an argument that Defendants are violating state law by using what Plaintiffs allege are insecure or inaccurate voting systems,” Tuchi wrote. “Plaintiffs argued at the hearing in this matter that their claims do not depend on any application of Arizona state law, and the Court need not determine whether Defendants’ procedures comply with state law to grant Plaintiffs relief, but as set forth above, they are incorrect. Indeed, Arizona state laws set forth detailed requirements concerning how ballots are counted and how voting systems are used.”

In a footnote, Tuchi also had sharp words for Lake’s allegations about the use of paper ballots in the state.

“In any event, insofar as Plaintiffs argue a constitutional violation grounded in Arizona’s failure to require voting by paper ballots, their allegations are flatly wrong,” Tuchi wrote. “The Court finds for purposes of determining jurisdiction, that as set forth supra, 99.98% of voters in Arizona cast their votes by marking and submitting paper ballots in the 2020 election, and the remaining 0.02% — representing mostly sight impaired voters — cast their ballots on system-generated paper ballots which could be verified before casting to ensure they reflected those voters’ choices.”

Tuchi also said that Lake’s lawsuit is untimely, noting that the plaintiffs requested “a complete overhaul of Arizona’s election procedures” ahead of the November midterm elections.

“The injunctive relief Plaintiffs seek would not just be challenging for Arizona’s election officials to implement; it likely would be impossible under the extant time constraints,” Tuchi added.

Tuchi then dismissed Lake’s claim “in its entirety.”

“While the Court agrees with Plaintiffs that the right to vote is precious, and should be protected, Plaintiffs lack standing because they have articulated only conjectural allegations of potential injuries that are in any event barred by the Eleventh Amendment, and seek relief that the Court cannot grant[,]” Tuchi wrote.

The Maricopa County Board of Supervisors filed a Rule 11 Motion for sanctions on the plaintiffs and their attorneys. Today, Judge Tuchi granted that motion as to the plaintiffs’ attorneys.

Excerpt:

While it is a very close call, the Court finds the record as it stands insufficient to compel a finding as to whether Plaintiffs brought this lawsuit for an improper purpose. The Court is not inclined to further develop the record on this issue, particularly in light of its findings regarding other violations of Rules 11(b)(2) and 11(b)(3), as discussed above. Rule 11 confers discretion, see Perez v. Posse Comitatus, 373 F.3d 321, 325–26 (2d Cir. 2004), and it counsels restraint. See Keegan, 78 F.3d at 437. The deterrent goal of Rule 11 can be furthered in this case without conducting further inquiry into the circumstances under which this lawsuit was filed.

It should be clear, however, that the Court does not find that Plaintiffs have acted appropriately in this litigation. The Court shares the concerns expressed by other federal courts about misuse of the judicial system to baselessly cast doubt on the electoral process in a manner that is conspicuously consistent with the plaintiffs’ political ends. See O’Rourke v. Dominion Voting Systems, Inc., 552 F. Supp. 3d 1168, 1176 (D. Colo. 2021) (“While Plaintiffs’ counsel insist that the lawsuit was not intended to challenge the election or reverse the results, the effect of the allegations and relief sought would be to sow doubt over the legitimacy of the [subsequent] presidency and the mechanisms of American democracy (the actual systems of voting) in numerous states.”); King, 556 F. Supp. 3d at 689 (“[T]his case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.”); Trump v. Clinton, — F. Supp. 3d —-, 2022 WL 16848187, at *5–8 (S.D. Fla. Nov. 10, 2022) (“The rule of law is undermined by . . . efforts to advance a political narrative through lawsuits without factual basis or any cognizable legal theory.”).

* * *

The Court has already concluded that Plaintiffs’ claims are frivolous in that they are “both baseless and made without a reasonable and competent inquiry.” Townsend, 929 F.2d at 1362. It further agrees with Defendants that under the circumstances, it was objectively unreasonable and vexatious for Plaintiffs’ counsel to initiate additional, time- and resource- intensive preliminary injunction proceedings based on frivolous claims and to continue making false and misleading representations about Arizona elections. The remaining question under Section 1927 is whether Plaintiffs’ counsel acted recklessly or in bad faith. See Blixseth, 796 F.3d at 1008. The Court concludes they did.

Plaintiffs’ counsel waited nearly seven weeks after filing this case to move for a preliminary injunction, despite alleging imminent and irreparable injury in their original Complaint. (See Compl. ¶¶ 156–66.) By the time of the MPI hearing on July 21, 2022, the midterm election was fewer than four months away. As noted, the relief Plaintiffs requested was remarkable and perhaps unprecedented. And as the Maricopa County Defendants note, the timing of Plaintiffs’ MPI resulted in “wasting the time of election employees on the eve of the August 2022 primary election and forcing the unnecessary expenditure of taxpayer resources.” (Mot. at 11.) Further, Plaintiffs’ counsel filed the MPI soon after counsel for the Maricopa County Defendants notified them as to the frivolousness of Plaintiffs’ claims and the applicable bars to relief, including the Purcell doctrine.

* * *

Plaintiffs knew or reasonably should have known that the Court could not and would not grant the wide-ranging, late-breaking relief they sought. The Court finds that Plaintiffs’ counsel acted at least recklessly in multiplying the proceedings.

SANCTIONS

The Court concludes that sanctions are warranted under Rule 11 and 28 U.S.C. § 1927. It finds that Plaintiffs made false, misleading, and unsupported factual assertions in their FAC and MPI and that their claims for relief did not have an adequate factual or legal basis grounded in a reasonable pre-filing inquiry, in violation of Rules 11(b)(2) and (b)(3). The Court further finds that Plaintiffs’ counsel acted at least recklessly in unreasonably and vexatiously multiplying the proceedings by seeking a preliminary injunction based on Plaintiffs’ frivolous claims, in violation of Section 1927.

* * *

Here, while there are reasons to believe that Plaintiffs themselves contributed to the violations of Rule 11(b)(3) in this case—including that they themselves apparently have voted on paper ballots, contradicting allegations and representations in their pleadings about Arizona’s use of paper ballots—there is not a sufficient record that compels the Court to exercise its discretion to sanction Plaintiffs under that part of the rule. Thus, although the Court does not find that Plaintiffs have acted appropriately in this matter—far from it— the Court concludes that sanctions are warranted only against Plaintiffs’ counsel, who signed and filed the offending papers. To sanction Plaintiffs’ counsel here is not to let Plaintiffs off the hook. It is to penalize specific attorney conduct with the broader goal of deterring similarly baseless filings initiated by anyone, whether an attorney or not.

* * *

Here, the Court finds that payment of the Maricopa County Defendants’ reasonable attorneys’ fees is an appropriate sanction for the conduct of Plaintiffs’ counsel, which forced Defendants and their counsel to spend time and resources defending this frivolous lawsuit rather than preparing for the elections over which Plaintiffs’ claims baselessly kicked up a cloud of dust. Plaintiffs’ counsel are therefore held jointly and severally liable for the Maricopa County Defendants’ attorneys’ fees reasonably incurred in this case.

IT IS THEREFORE ORDERED granting the Maricopa County Defendants’ Rule 11 and 28 U.S.C. § 1927 Motion for Sanctions (Doc. 97).

The plaintiffs’ attorney is Andrew Parker of Parker Daniels Kibort out of Minneapolis, Minnesota, the My Pillow Guy’s lawyer.

May 18, 2022 Docket Entry: “Remark: Out of state attorney Alan M Dershowitz terminated as counsel of record for noncompliance with admission procedures; party or parties represented by other admitted counsel. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS).”




ark Finchem

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