The Arizona Republican Party sent a warning to a judge last night, saying he is in "dangerous First Amendment territory into which the Court should not dream of treading". The AZGOP is trying to convince Maricopa County Superior Court Judge John Hannah not to order it to pay Arizona $18,000 in legal fees spent on the post-election lawsuit Hannah determined to be "futile" and "meritless".
The case alleged that Maricopa County had violated the law by hand counting ballots at 2% of the vote centers used on November 3 instead of 2% of precincts. (The difference in the number of ballots checked is minimal.) After hearing arguments from the parties, Judge Hannah found that the County (and several other counties) had properly followed the law and dismissed the case with prejudice.
Earlier this month, Arizona Secretary of State Katie Hobbs asked the Court to allow it to recover her attorneys' fees from the GOP, pursuant to an Arizona statute (A.R.S. 12-349) designed to discourage inappropriate legislation.
The AZGOP's Response (below) begins by attempting to demonstrate why the party and the attorneys had a good faith basis for filing the lawsuit. (Here is the article containing the Complaint.) Noting that he had to file the case within hours of learning of the possible legal problems with the audit and that neither he nor the party knew that the hand count audit had already taken place.
"(U)ndersigned counsel cannot emphasize enough that he was first approached about this case, and had to write up the Complaint and Application for Order to Show Cause, on the same night in between 6 PM and midnight, on November 11, 2020. Counsel was extremely mindful of the (infamous) elections-law case of Lubin v. Thomas (2006), in which the Arizona Supreme Court found that a filing was untimely even though it was filed within the statutory time limits, simply because the Court felt that it had “a very short time in which to review and decide the matter.”. In spite of this, the Application showed a well-reasoned (and certainly “debatable”) argument, which the Court chose not to accept; but to even contemplate sanctions on the basis of lacking substantial justification is wholly unwarranted." (citations omitted)
The Response then takes a turn towards the dark side, warning the Judge that he may have shown bias in last week's Minute Entry, when he described the decision about sanctions in a stark way.
"But more troublingly, there is a degree of bias in the way that the Court frames this issue – to “cast false shadows on the election’s legitimacy.” The Court has apparently concluded, even though it was not an issue to be litigated in this suit, that it would be “false”—and even constitute harassment—to doubt the legitimacy of this election. This puts the Court at odds with around a third of the general population, and around half of the Republican Party in this State, according to polls conducted by NPR, Reuters and Politico among others."
Upon further review, however, the Judge's use of the "false shadows" term was only in the context of stating what the Secretary of State would need to prove, not expressing his conclusion.*
The AZGOP Response ends with a strident political appeal that the judge look to the larger picture - even if that picture has been largely drawn by the President, his supporters and the ongoing parade of lawsuits:
Public mistrust following this election motivated this lawsuit, and there is absolutely nothing improper or harassing about that. Courts are intended to be a forum for airing democratic grievances and safeguarding the integrity of elections. These goals are not well served when courts are openly hostile to anyone who dares to even question an election, much less when courts equate widely-held political beliefs to mere “harassment.” Because in this territory, one man’s “harassment” is another man’s crusade; one man’s heresy is another man’s religion. This is dangerous First Amendment territory into which the Court should not dream of treading, both in order to maintain the appearance of impartiality of the Court, and to encourage like respect in the citizens that it serves as well as other hard-working officers of the court. (emphasis added)
Wilenchik asks Judge Hannah to set a hearing on whether or not attorneys' fees should be assessed against the AZGOP (and/or its attorneys).
The Arizona Republican Party has several other lawsuits active in both the trial courts and the appellate courts. Wilenchik has an election contest stalled in front of the U.S. Supreme Court, Arizona's Republican slate of electors has their Arizona Kraken case stalled in front of the 9th Circuit, and they just filed a new suit in Texas U.S. District Court with several of the same attorneys challenging the laws governing next week's counting of the Electoral College votes.
* From the Order: "This order explains why the Arizona Republican Party’s case was meritless, and the dismissal order filed November 19, 2020 was required, under applicable Arizona law. What remains is intervenor Arizona Secretary of State's application for an award of attorneys' fees. That application will require the Court to decide whether the Republican Party and its attorneys brought the case in bad faith to delay certification of the election or to cast false shadows on the election’s legitimacy."