Mark Finchem’s Frivolous Election Challenge Dismissed With Prejudice, Faces Sanctions

Another clown show crashes in court! Insurrectionist and QAnon election denier Rep. Mark Finchem and his incompetent lawyer suffered a humiliating defeat in their frivolous election challenge. Dismissed with prejudice (cannot refile) and the judge invited attorneys for Hobbs and Fontes to file motions for Rule 11 sanctions.

The Arizona Mirror reports, Mark Finchem’s ‘frivolous’ bid to overturn the election is booted from court:

A Maricopa County Court Superior Judge rejected Mark Finchem’s attempt to overturn his election loss by more than 120,000 votes, ruling Friday [and invited attorneys for Hobbs and Fontes to file motions for] sanctions against the Republican’s attorney.

Finchem had been seeking to overturn his loss last month to Adrian Fontes, who won by about 5 percentage points. Finchem said his Democratic opponent only won because of massive election malfeasance at the hands of Maricopa County and Secretary of State Katie Hobbs, though he provided no evidence anything affected the election outcome.

He wanted his election loss to Fontes overturned, a statewide hand-recount of all ballots and a court order that the attorney general investigate Secretary of State Katie Hobbs, who was elected governor in the same election, for what he claimed was self-dealing and threatening public officials.

In a ruling posted late Friday evening, Judge Melissa Julian dismissed what she called a “frivolous” case brought by Finchem and invited attorneys for Hobbs and Fontes to file motions seeking sanctions.

Julian issued a blistering retort to claims made by Finchem’s attorney in which she said that the claims failed on their merits, were not brought in a timely fashion or were not applicable to Arizona law.

Howard Fischer provides the details, Judge scorches Finchem, will consider sanctions:

In a 13-page order, Julian said the Republican contender failed to present any evidence that showed the outcome of the race – and his loss by more than 120,000 votes – was in any way affected by misconduct or fraud by anyone.

“Honest mistakes or mere omissions on the part of election officials, or irregularities in director matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain,” Julian said. “A valid election contest may not rely upon public rumor or upon evidence about which a mere theory, suspicion, or conjecture may be maintained.”

And here, the judge said, there is not even the evidence of mistakes.

“Mr. Finchem does not allege that any of the votes cast were actually illegal,” she said. Nor, said Julian, did he present evidence that ballots were cast by people ineligible to vote.

“What Mr. Finchem argues is a case of missing votes,” the judge said. That includes claims that people were disenfranchised because they were frustrated due to the malfunction of tallying machines at some Maricopa County vote centers and delays and left without voting, leading to “suspicions that some votes may not have been counted.”

And that, said the judge, is insufficient to void an election.

Julian was no more impressed by Finchem’s claims of “misconduct” by Hobbs, including the fact that she failed to recuse herself from her role in overseeing elections after her foe, Republican Kari Lake, said there appeared to be a “conflict of interest.”

The judge said Arizona law does require public officials to step aside from decisions in which they have a financial or proprietary interest in the outcome. But Julian said that didn’t apply here and nothing there required Hobbs to step away from her public duties merely because she also was a candidate this year.

Julian was no more impressed by a claim by Daniel McCauley, Finchem’s attorney, that Hobbs had acted improperly in telling county boards of supervisors that they had to formally certify the returns for the general election by the Nov. 28 deadline and could not instead conduct their own recount. Mohave and Cochise County, which initially had balked, eventually complied, though it took a court order to get a vote in Cochise.

“Where would I find the authority for the proposition that the boards have discretion in respect to whether or not to complete the canvass, their parts of the canvass, and certify, and whether or not they can direct a recount of some kind if they are concerned about it?” she asked McCauley.

“I don’t think it’s been really tried,” he conceded. But he said it falls under the responsibility of county supervisors “to make sure their constituents get a full and fair election.”

Julian wasn’t buying it.

“The law does place the final burden on the secretary to ensure the canvass and certification of a general election is completed within the statutorily prescribed timeframes,” the judge wrote. “It is not ‘misconduct’ for the secretary of state to communicate with other governing bodies to ensure the canvass and certification are completed.”

McCauley also argued that a new election is merited because an aide to Hobbs asked Twitter in January 2021 to remove a post, one Hobbs said provided incorrect information about voter rolls. He argued that was hardly an innocent act.

“The evidence, for want of a better term that’s out there, shows clearly that, as the secretary of state … (Hobbs) cajoled the Twitter people into censoring possibly as much as 50% of her constituency,” McCauley said. “This was a political issue.”

And he said that a decision by Twitter to suspend Finchem’s account one week before the election “was directly caused by Hobbs’ illicit censoring of her constituents in concert with Twitter.”

Julian questioned the relevance of all that.

“How do you get from the Twitter communications to misconduct under the elections statute?” she asked. Anyway, she ruled, any decision by Twitter to suspend Finchem’s account in October of this year, as he alleged, is legally irrelevant in an election challenge “as Twitter is not an ‘election official.’ ”

Separately, Julian tossed out a series of claims that the machinery used in the elections was not certified. She said the evidence presented shows that wasn’t true.

“Indeed, even if the voting machines were incorrectly certified: what then?” the judge asked.

“What, apart from a general pall of suspicion could result from such a conclusion?” she continued, noting that there wasn’t even an allegation that issues with who signed the certification certificates caused even one illegal vote to be cast. “The law in Arizona does not permit an election challenge to proceed based solely upon a vague sense of unease.”

Andrew Gaona, who represents Hobbs, called the lawsuit filing a “political sideshow” and said Julian should “send a strong message to (Finchem) and future litigants like him that the judiciary is not the appropriate venue to air political grievances and conspiracy theories.”

Fontes’ attorney Craig Morgan echoed the sentiment, saying there was “absolutely no legal or factual basis asserted” to seek to overturn the election. And he said that Finchem or McCauley – or both – should be required to pay the legal fees of those who had to defend against what he called a “frivolous lawsuit.”

“I do think this court needs to make a stand and remind all counsel and litigants alike that there are standards for filing a lawsuit,” Morgan told the judge.

“This is just one in a series of meritless lawsuits that continue to perpetuate divisive and, frankly, harmful rhetoric,” he said. “And these just need to stop.”

Julian gave the defense attorneys 10 days to file a formal request for their fees.

The Arizona Mirror continues:

Julian’s ruling came after an hour-long hearing Friday morning, during which attorneys for Hobbs and Fontes said there was no legitimate reason for the courts to entertain Finchem’s challenge.

“The parties’ papers largely speak for themselves,” Andy Gaona, an attorney representing Hobbs, said during oral arguments. “The fact of the matter is that Arizonans chose someone else for that job.”

Gaona hit on the fact that Finchem’s suit falsely claims that voting equipment in Arizona is unaccredited and asked the court to end the “political sideshow” adding that “the judiciary is not the venue to air political grievances.”

Fontes’ attorney, Morgan, once again asked the court to consider sanctions against Finchem’s attorney for bringing a “frivolous lawsuit” that was not up to the standards of the court or the election contest statute.

Most of the oral argument time was spent with Finchem’s attorney, McCauley, who frequently engaged in a back-and-forth with Julian on differing interpretations of the election contest statute. 

In a error-filled response to Hobbs’ and Fontes’ motions to dismiss, McCauley asserted that the court was required to hear Finchem’s case because it is an “election contest” and not a civil lawsuit, so it is governed by different procedural rules that don’t allow it to be dismissed.

Julian asked McCauley about his novel argument, bringing up the fact that the case law he cited actually used civil proceedings in its findings. McCauley argued otherwise, stating that he and Finchem intended to file a “motion for summary judgment,” a move that is used in civil proceedings, because there was evidence of “significant misbehavior.”

“Aren’t you saying that the civil rules don’t apply? So, how could you file a motion for summary judgment?” Judge Julian shot back. 

McCauley said the plan was a hedge against Julian ruling the case was a civil proceeding.

Morgan interjected that he had “heard so many contradictions today my head hurts.” He noted that Finchem’s suit asks for discovery, which applies under the civil proceeding rules that McCauley and Finchem were simultaneously arguing did not apply to the case.

“I’m embarrassed for the voters, I’m embarrassed for the State of Arizona,” Morgan said.

McCauley also did not provide any further evidence to back up any of his claims that election equipment in Maricopa County, or anywhere else in the state, was not accredited, something Julian appeared to have taken note of. 

“How do you then say there is no accreditation? I’m struggling with that,” Judge Julian asked McCauley.

He responded that documentation provided by the Election Assistance Commission proving the accreditation was valid was forged, though he also admitted that he and his expert had not seen any of the documentation provided by Fontes and Hobbs attorneys.

In her ruling, Julian noted McCauley’s accusations of forgery during Friday’s oral arguments.

“This allegation appears nowhere in the Amended Statement and was asserted for the first time in response to the pending motions,” the judge wrote. “This new allegation is wholly unsupported by the record.”

Julian also took aim in her ruling at Finchem’s that Hobbs engaged in “misconduct” by refusing to recuse herself during the election, her office flagging misinformation on Twitter and claiming that she “threatened” election officials for refusing to certify election results.

“These are not well-pled facts; they are legal conclusions masquerading as alleged facts,” she wrote. “As such, this court is not obliged to assume their truth. Further, and even as ‘legal conclusions,’ Arizona law does not support them.”

Julian noted that Finchem’s case did not cite a single statute, rule or appellate decision to support his claim of “misconduct” by Hobbs. Julian found the other claims made in the suit to be equally as uncompelling and lacking in evidence. 

The attorneys for Hobbs and Finchem have 10 days to file motions requesting Julian sanction McCauley and Finchem. State law allows a judge to force a party to a lawsuit to pay attorney’s fees and penalties if their lawsuit “is groundless and is not made in good faith.”

In Friday’s hearing, McCauley said he was prepared to be sanctioned by the State Bar of Arizona for bringing the suit.

“I took this (case) because they needed somebody to do this,” McCauley said. “I guess it does not matter if I get sanctioned here. I’m 75, semi-retired, and it will be two years or so before they get to it.”

ALERT: Arizona court dismisses election denier Mark Finchem's (R) lawsuit contesting his loss in the AZ secretary of state race. The judge rejected all of Finchem's claims, calling them "frivolous," "wholly unsupported by the record" and "fatally flawed." https://t.co/vuB5VKeSK6

— Democracy Docket (@DemocracyDocket) December 17, 2022

Monday is “Krazy Kari” Lake’s turn in the barrel. She will fair no better in court.