Kari Lake's attorney must pay sanctions for 'frivolous' election lawsuit

Without comment Tuesday, the justices rejected claims by lawyer Andrew Parker that it was wrong for U.S. District Court Judge John Tuchi to impose the sanctions after Parker and Kurt Olsen, his co-counsel, had claimed the machines used to tabulate ballots can produce inaccurate results. The trial judge said those claims were little more than speculation, backed only by "vague'' allegations about electronic voting systems generally.

Parker sought review by the high court because Tuchi decided that he and Olsen should pay Maricopa County's costs and attorneys' fees not only because there was no legal basis for the lawsuit but also because the judge said its filing shortly before the 2022 election was politically motivated. 

Tuchi wrote that he imposed the sanctions "to make clear that the court will not condone litigants ... furthering false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process." He said the sanctions "send a message to those who might file similarly baseless suits in the future.''

Parker and Olsen had no better luck at the 9th Circuit Court of Appeals, where the majority of a panel of judges found that the penalty was merited not just because Parker and Olsen filed an action without merit but also because their lawsuit misled the public and caused "baseless concern about a topic of national importance.''

Lost at ballot box and in court

Lake and Finchem filed suit ahead of the 2022 election in which their names were on the ballot — she as  Republican candidate for governor and he as GOP candidate for secretary of state.

Through their attorneys, Lake and Finchem alleged that the machines used to tally paper ballots "cannot be deemed reliably secure and do not meet the constitutional and statutory mandates to guarantee a free and fair election.'' They also argued that the use of components from other countries made them vulnerable to hacking.

They asked Tuchi to require that the 2022 election be conducted with paper ballots that would be counted by hand, calling it "the most effective and presently only secure election method.''

Not only did their claim get thrown out, but both candidates ultimately lost their races: Lake to Democrat Katie Hobbs and Finchem to Democrat Adrian Fontes. Both also failed in state court appeals to overturn the election results.

Their separate bid to overturn Tuchi's dismissal of their bid to have ballots counted by hand was rejected two years ago by the Supreme Court.

That left only the question of the sanctions imposed on their lawyers.

Olsen chose not to appeal to the Supreme Court.

Parker's attorney, Nathan Lewin, did appeal, pointing out that the 9th Circuit decision upholding the penalties was not unanimous.

Appellate Judge Patrick Bumatay said that leaving the sanctions in place risked "inadvertently inflicting real damage to our republic by slamming the courthouse door on citizens and their counsel legitimately seeking to vindicate rights, which is also important to maintaining public confidence in elections.''

"By sanctioning parties and their lawyers for bringing debatable, long-shot complaints, courts risk chilling legal advocacy and citizens raising 'questions' under the guise of defending the rule of law,'' he wrote. "Even if done inadvertently and with the best of intentions, such sanctions present a real and present danger to the rule of law.''

Lewin, in his argument to the Supreme Court, echoed that theme.

"Creative, aggressive, and novel claims and arguments are necessary for a system of justice to adapt to novel issues and circumstances — all the more so in a world of increasingly rapid change,'' he told the justices.

Allegations 'simply false'

But Tuchi said this was not about punishing lawyers for being creative. He said there were a series of factual and legal problems with the lawsuit, starting with the claim that Arizonans do not now vote by hand on paper ballots.

In fact, the judge noted, the system requires that virtually every vote — with some exceptions for voters with disabilities — is done on paper. Tuchi said that creates a verifiable paper trail and allows voters to review it for their own ballot to determine whether tabulation machines correctly recorded their choices.

"Allegations to the contrary are simply false,'' the judge wrote.

Tuchi also found fault with the claims that a hand count done in Maricopa County as part of an Arizona Senate "audit'' after the 2020 election proves hand counting is "superior'' and it isn't necessary to use machines.

It took roughly 2,000 people more than two and a half months to hand count just the presidential and Senate races in that one county, Tuchi said.

More problematic, the judge said, is that Lake and Finchem and their attorneys "cherry-picked” the findings of that audit ordered by the Senate and conducted by the Cyber Ninjas firm.

"They conspicuously failed to mention that the Cyber Ninjas report states that 'there were no substantial differences between the hand count of the ballots provided and the official election canvass results,' '' the judge noted. In fact, Tuchi said even Cyber Ninjas called that an "important finding because the paper ballots are the best evidence of voter intent and there is no reliable evidence that the paper ballots were altered to any material degree.''

He said Lake's and Finchem's attorneys failed to conduct the kind of inquiry that court rules require before filing a lawsuit and forcing those they sue to have to defend themselves in court, he said.

"Any objectively reasonable investigation of this case would have led to publicly available and widely circulated information contradicting plaintiffs' allegations and undercutting their claims,'' Tuchi wrote.

"Thus, plaintiffs either failed to conduct the reasonable factual and legal inquiry required (under court rules), or they conducted such an inquiry and filed this lawsuit anyway,'' he said. "Either way, no reasonable attorney, after conducting an objectively reasonable inquiry into the facts and law, would have found the complaint to be well-founded.''

He also noted that Lake and Finchem waited for seven weeks after filing the lawsuit to seek an injunction against the use of the tabulation machines that year, all despite clear legal precedent that courts cannot make such radical changes so close to an election.

There was no immediate response from Parker. Olsen, who has been working for the U.S. Department of Justice on election matters according to news reports, could not be reached for comment.