Party fined $18,000 in costs, attorneys fees to AZ Sec. of State...
By Ernest A. Canning on 3/18/2021, 3:30pm PT  

In his maiden speech on the floor of the U.S. Senate on Wednesday, Georgia's new Democratic U.S. Senator Raphael Warnock noted that "the four most powerful words in a democracy are 'the People have spoken'". That message, however, may not have made it out to the state Republican Party in Arizona.

When it was first filed on Nov. 12, 2020, Arizona Republican Party v. Fontes looked like a relatively insignificant case --- just one of 64 frivolous cases in which former President Donald J. Trump and his right-wing allies suffered swift and humiliating losses in both state and federal courts. Indeed, this particular case was so weak and trivial that, just 6 days after the case had been filed, Judge John R. Hannah, Jr. granted the motions to dismiss that were filed by Maricopa County and by intervenor defendants, Arizona's Democratic Secretary of State Katie Hobbs and the Arizona Democratic Party.

However, as a result of subsequent events --- Donald Trump's Big "Stop the Steal" Lie, which formed the underpinning of the 64 frivolous lawsuits and culminated in the violent January 6 insurrection at the U.S. Capitol, along with the introduction of 253 voter suppression laws by Republicans in 43 state legislatures under the guise of "election integrity" --- this case became extraordinarily significant on March 15, 2021.

In a 10-page order, Judge Hannah explained, in detail, why he was imposing monetary sanctions (attorney's fees and costs) upon the AZ GOP and its attorneys.

The Court found that the underlying case was "groundless" --- that there was "no rational argument based upon the evidence or the law" that could be presented that would have justified the claims made in their ill-fated lawsuit. It also concluded the AZ GOP engaged in "bad faith" and "gaslighting".

Where Republicans claimed the lawsuit was brought to enhance voter confidence in the Presidential Election's results, the Court concluded the case was actually filed to "cast false shadows on the election's legitimacy" --- a "false shadow" that the AZ Republican Party has since used to justify its introduction of two dozen voter suppression bills in the Grand Canyon State legislature...

AZ Risk Limiting Audits

Under AZ law, the Court detailed in its sanctions decision, election officials are required to perform Risk Limiting Audits (RLAs) of hand-marked paper ballots that are electronically tallied. "The audit ends with the hand count of the sampled ballots, and the electronic tabulation becomes the official count," the Court noted, "unless [the] difference between the hand count and the machine count of those same ballots exceeds a 'designated margin' determined in advance by experts. [Citation]."

The AZ legislature, which doesn't mandate that RLAs be performed at the precinct level, delegated the authority to determine how the RLA is to be conducted to the AZ Secretary of State. In accordance with that delegation, Secretary of State Katie Hobbs created an Election Procedures Manual (EPM) directing that the RLAs were to be performed at voting centers --- as opposed to at the precinct level.

Three days before the AZ GOP filed the case, the Maricopa County publicly announced it had completed its RLA which substantiated the validity of the electronic tally, as the Court notes, adding that the County issued a report [PDF] to that effect the day before the case was filed.

In their lawsuit, the AZ GOP asked the Court to order Maricopa County to conduct a second RLA --- this time at the precinct level. The AZ Republicans did not produce any evidence of fraud or even a hint that errors were made in the voting center RLA. In dismissing the case, the Court not only refused to order a second, precinct level RLA but also noted that there was no legal basis to issue such an order.

GOP gaslighting, then and now

Incredibly, despite the fact that AZ GOP representatives "participated" in last November's Maricopa RLA, both the Republican Party plaintiff and their attorneys denied they were aware of the Maricopa County RLA results at the time they filed the lawsuit.

The Court, which charged the AZ GOP with constructive knowledge of the RLA results, did not specifically rule that the Party and its attorneys deliberately lied about the extent of their knowledge at the time they filed their complaint. It didn't have to:

Perhaps the most telling fact of all is what the plaintiff did after the other parties disclosed, in response to the complaint, that the Maricopa County hand count was complete and that it showed the electronic tabulation was flawless. At that point the plaintiff could have quietly walked away from the lawsuit and publicized the audit results to reassure the public. Instead it filed its petition to enjoin the election canvass. (Emphasis added).

These were the facts that led the Court to conclude that the true purpose of the lawsuit wasn't to ensure public confidence in the result. To the contrary, this lawsuit was filed as part of a specious GOP effort to undercut the legitimacy of the November 2020 Presidential Election.

Nonetheless, on January 27, the Maricopa County Board of Supervisors, in order to "ensure accuracy", voted unanimously to conduct a forensic audit of its ballot tabulating equipment, which is separate from the elections results themselves. Two independently accredited testing labs were hired by the County for the assessment. Both labs found "No Issues" regarding voting system source code, malicious software or hardware, network and Internet connectivity or accuracy of the voting system, according to the audit results posted by the County.

The Court's observation about GOP "gaslighting" extends well beyond this one case. As Georgia's Sen. Warnock eloquently observed, during his March 17 First Floor Speech, Republican "politicians in [his] home state and all across America, in their craven lust for power, have launched a full-fledged assault on voting rights. They have focused on winning at any cost; even the cost of democracy itself."

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing