The AZGOP shouldn’t have been sanctioned for a 2020 election lawsuit, Supreme Court rules

The Arizona Republican Party’s lawsuit challenging the post-election hand-count process in 2020 wasn’t groundless or filed in bad faith, and the party doesn’t have to pay attorney’s fees for the Secretary of State’s Office, the Arizona Supreme Court ruled on Thursday.

The unanimous ruling overturns decisions by a trial court judge and the Arizona Court of Appeals that ordered the AZGOP — and its attorneys — to pay legal fees for the state to defend the case.

“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,” Justice John Lopez wrote for the Supreme Court. “Even if done inadvertently and with the best of intentions, such sanctions present a real and present danger to the rule of law.”

The Arizona Republican Party celebrated the ruling in a statement provided to the Arizona Mirror.

“This ruling reaffirms the fundamental legal principle that raising questions about the interpretation and application of election laws is a legitimate use of the judicial system, not a groundless or bad faith action,” the party said. “We remain committed to ensuring that election laws are followed precisely, upholding the integrity of our electoral process.”

The lawsuit was filed more than a week after the 2020 election and argued that the state law requiring limited post-election hand-count audits conflicted with the state’s Elections Procedures Manual, making it illegal to select ballots for the audit from voting centers instead of by precinct.

State law requires each county to hand count 1% of all early ballots, as well as the ballots from 2% of precincts after each election. The Election Procedures Manual issued by the secretary of state permits counties that use voting centers instead of precincts, a list that includes Maricopa County, to hand count the ballots from 2% of voting centers instead.

Maricopa County Superior Court Judge John Hannah dismantled the legal arguments that the AZGOP and its attorneys made. In addition to ignoring the law and the legislature’s intent when allowing for voting centers, Hannah said the Republican Party sought a remedy that the law doesn’t allow and waited far too long to file its suit.

The judge also said the party demonstrated it was not motivated by sincerely challenging a public policy, but instead by making a political case and sowing distrust about Arizona’s elections.

Hannah said the most telling fact may be that the AZGOP sued to block Maricopa County’s election canvass after the hand count showed a perfect match with the machine count of ballots, writing that it would “create a cloud over the legitimacy of this election and its results” if the court let the canvass happen.

“This is why the Court raised the question whether the plaintiff brought suit in order to ‘cast false shadows on this election’s legitimacy.’ Undercutting the election’s legitimacy by raising ‘questions’ is exactly what the plaintiff did in this passage,” Hannah wrote. “It is a threat to the rule of law posing as an expression of concern. It is direct evidence of bad faith.”

The three-judge appeals panel unanimously agreed, writing that the AZGOP first sought to challenge the hand-count audit procedures but then dropped that in order to block Maricopa County from certifying its election results, belying the true purpose of the lawsuit.

“The court system exists to hear legitimate legal disputes, not for airing political disputes or grievances,” the appeals court wrote.

But the Supreme Court said both of the lower courts got it exactly wrong when they determined that the Arizona Republican Party’s lawsuit was both “groundless” and “not made in good faith.” 

Writing for the unanimous court, Lopez said that the trial and appeals courts improperly concluded that, although the AZGOP’s arguments were “a long shot,” they raised valid questions about how post-election hand-counts are conducted under a vote center model and whether the Elections Procedures Manual conflicts with state law.

Lopez also keyed in on the rationale that the lawsuit was “political” as a reason to sanction the Arizona Republican Party and its attorneys. It’s impossible to divorce politics from law in election-related cases, the Supreme Court ruled, and subjecting attorneys to a higher risk of sanctions because election cases are politically motivated “intolerably chills citizens and their attorneys precisely in an arena where we can least afford to silence them.”

“Our courts should be cautious that, in their zeal to ensure that election challenges are properly grounded in fact and law under the guise of defending an ‘election’s legitimacy,’ they do not inadvertently inflict 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,” he wrote.

Noting that Arizona courts — including the Supreme Court — have improperly conflated the “absence of good faith with the presence of bad faith,” the courts have effectively made part of the statute that mandates fee awards irrelevant. So, the justices concluded, there needs to be a clear definition for what “not made in good faith” means as it relates to sanctions.

The new standard is that a claim must both be groundless and the plaintiff knows it is groundless — or is indifferent to that fact — and pursues it anyway. Rather than evaluate “good faith” with a subjective standard and “groundlessness” with an objective standard, Lopez wrote, courts should use the standard set in the Arizona Rule of Civil Procedures to evaluate whether a claim is made in good faith. 

“The virtue of this approach is that it extricates our courts from the morass of attempting to discern the subjective motives of attorneys and parties in bringing a case and avoids conflating motive and the objective reasonableness of litigation conduct when considering a fees award,” Lopez wrote.

***UPDATE: This story has been updated with a comment from the Arizona Republican Party.