"False, misleading": Judge sanctions Kari Lake lawyers for "baseless" election lawsuit

Sanctions were imposed as "a message to those who might file similarly baseless suits in the future"

Published December 2, 2022 1:01PM (EST)

Republican candidate for Arizona Governor Kari Lake holds up a sledgehammer as she speaks to supporters that are waiting around as ballots continue to be counted during her primary election night gathering at the Double Tree Hotel on August 03, 2022 in Scottsdale, Arizona. (Justin Sullivan/Getty Images)
Republican candidate for Arizona Governor Kari Lake holds up a sledgehammer as she speaks to supporters that are waiting around as ballots continue to be counted during her primary election night gathering at the Double Tree Hotel on August 03, 2022 in Scottsdale, Arizona. (Justin Sullivan/Getty Images)

A federal judge in Arizona on Thursday ordered sanctions against lawyers representing failed Republican gubernatorial candidate Kari Lake and secretary of state candidate Mark Finchem over their baseless lawsuit against Secretary of State Katie Hobbs and two county government boards.

While the attorneys being sanctioned were not named in Thursday's order, Harvard Law School professor Alan Dershowitz is listed as Lake's lead attorney, according to the court docket. Attorneys Andrew Parker, Jesse Hersch Kibort, and Joseph Alan Pull of Minneapolis, as well as Kurt Olsen of Washington, D.C. also make up Lake's legal team.

The cosigners of the original complaint — which has now been amended — include Paker, Olsen and Dershowitz who have also signed an opposition to the request for sanctions. They are presumed to be the attorneys who were sanctioned on Thursday.

"I have not challenged the results of any Arizona elections," Dershowitz told Law&Crime about the judge's order. "I have given legal advice about the future use of machine counting by companies that refuse to disclose the inner workings of their machines. I support transparency in elections."

The lawsuit brought by Lake and Finchem sought to question the electronic ballot-counting devices in Arizona to stoke doubt about the results of the 2022 midterm election. However, as Dershowitz stated, the case was filed back in April, long before any ballots were counted.

The lawsuit also alleged that there are "glaring failures with electronic voting systems," and that most of them are "over a decade old, have critical components manufactured overseas in countries, some of which are hostile to the United States, and use software that is woefully outdated and vulnerable to catastrophic cyberattacks."

Hobbs, who defeated Lake in the gubernatorial race, is a defendant in the case and is being sued in her role as Arizona's secretary of state and chief election officer. The suit also lists individual members of the Maricopa County Board of Supervisors and the Pima County Board of Supervisors as defendants.

U.S. District Judge John Tuchi threw out the lawsuit in August, months before the midterm elections, and this week ordered sanctions.

"Before a single vote is cast, Arizona's election equipment undergoes thorough testing by independent, neutral experts," Tuchi noted in August. "Electronic voting equipment must be tested by both the Secretary's Certification Committee and an Election Assistance Commission ("EAC") accredited testing laboratory before it may be used in an Arizona election." 

Tuchi also cited various state laws as evidence and referenced the firms who do indeed run independent tests to show the lawsuit is unwarranted.

"In addition to the equipment certification process, Arizona's vote tabulation results are subject to four independent audits — two audits occur before the election, and two audits after," he said. 

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Lake's claims were seen as "too speculative to establish an injury in fact" and Tuchi ruled that the 11th Amendment prevents the plaintiff's claims from being heard because the issue is rooted in Arizona state law, and thus did not belong in a federal court. 

"Because the Constitution charges states with administering elections, Plaintiffs' claims can only stem from an argument that Defendants are violating state law by using what Plaintiffs allege are insecure or inaccurate voting systems," Tuchi wrote in August.

In a 30-page order on Thursday, Tuchi addressed the request for sanctions:

The Court concludes that sanctions are warranted under Rule 11 and 28 U.S.C. § 1927. It finds that Plaintiffs made false, misleading, and unsupported factual assertions in their FAC and MPI and that their claims for relief did not have an adequate factual or legal basis grounded in a reasonable pre-filing inquiry, in violation of Rules 11(b)(2) and (b)(3). The Court further finds that Plaintiffs' counsel acted at least recklessly in unreasonably and vexatiously multiplying the proceedings by seeking a preliminary injunction based on Plaintiffs' frivolous claims, in violation of Section 1927.

While Tuchi noted that the plaintiffs behaved "far from appropriately," by attaching themselves to poor litigation, he confirmed that only the attorneys would be sanctioned.

Here, while there are reasons to believe that Plaintiffs themselves contributed to the violations of Rule 11(b)(3) in this case — including that they themselves apparently have voted on paper ballots, contradicting allegations and representations in their pleadings about Arizona's use of paper ballots — there is not a sufficient record that compels the Court to exercise its discretion to sanction Plaintiffs under that part of the rule.

Tuchi did not denounce the plaintiffs and did not agree with government officials who alleged that Lake and Finchem only brought the case when it became "politically profitable" to further their political campaigns following the same tactics as former President Donald Trump in 2020.

However, Tuchi did criticize the growing trend of candidates using federal courts to challenge elections they deemed "stolen."

"The Court shares the concerns expressed by other federal courts about misuse of the judicial system to baselessly cast doubt on the electoral process in a manner that is conspicuously consistent with the plaintiffs' political ends," he wrote. Tuchi also referenced Trump's 2020 presidential contest and his failed racketeering lawsuit against his 2016 opponent Hillary Clinton.

Under the sanction, Lake's attorneys must pay back the "Maricopa County Defendants' reasonable attorneys' fees" which will be calculated and settled within no later than 14 days from Thursday's order.

Tuchi explained that the defendants and their legal team must be reimbursed because they were forced "to spend time and resources defending this frivolous lawsuit rather than preparing for the elections over which Plaintiffs' claims baselessly kicked up a cloud of dust."

In his conclusion, Tuchi added a warning to anyone seeking to bring forward the same issue in the future: "Imposing sanctions in this case is not to ignore the importance of putting in place procedures to ensure that our elections are secure and reliable. It is to make clear that the Court will not condone litigants ignoring the steps that Arizona has already taken toward this end and furthering false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process. It is to send a message to those who might file similarly baseless suits in the future."

By Samaa Khullar

Samaa Khullar is a former news fellow at Salon with a background in Middle Eastern history and politics. She is a graduate of New York University's Arthur L. Carter Journalism institute and is pursuing investigative reporting.

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Alan Dershowitz Elections Kari Lake Katie Hobbs Mark Finchem Politics