Judge scorches Finchem, will consider sanctions

A judge late Friday quashed a bid by Mark Finchem to overturn his loss to Adrian Fontes for secretary of state, saying he presented no evidence to support such a radical move.

And Maricopa County Superior Court Judge Melissa Julian said she may order Finchem and his attorneys to pay the legal fees for Fontes and Secretary of State Katie Hobbs who had also been sued.

In a 13-page order, Julian said the Republican contender failed to present any evidence that showed the outcome of the race – and his loss by more than 120,000 votes – was in any way affected by misconduct or fraud by anyone.

“Honest mistakes or mere omissions on the part of election officials, or irregularities in director matters, even though gross, if not fraudulent, will not void an election, unless they affect the result, or at least render it uncertain,” Julian said. “A valid election contest may not rely upon public rumor or upon evidence about which a mere theory, suspicion, or conjecture may be maintained.”

And here, the judge said, there is not even the evidence of mistakes.

“Mr. Finchem does not allege that any of the votes cast were actually illegal,” she said. Nor, said Julian, did he present evidence that ballots were cast by people ineligible to vote.

“What Mr. Finchem argues is a case of missing votes,” the judge said. That includes claims that people were disenfranchised because they were frustrated due to the malfunction of tallying machines at some Maricopa County vote centers and delays and left without voting, leading to “suspicions that some votes may not have been counted.”

And that, said the judge, is insufficient to void an election.

Julian was no more impressed by Finchem’s claims of “misconduct” by Hobbs, including the fact that she failed to recuse herself from her role in overseeing elections after her foe, Republican Kari Lake, said there appeared to be a “conflict of interest.”

The judge said Arizona law does require public officials to step aside from decisions in which they have a financial or proprietary interest in the outcome. But Julian said that didn’t apply here and nothing there required Hobbs to step away from her public duties merely because she also was a candidate this year.

Julian was no more impressed by a claim by Daniel McCauley, Finchem’s attorney, that Hobbs had acted improperly in telling county boards of supervisors that they had to formally certify the returns for the general election by the Nov. 28 deadline and could not instead conduct their own recount. Mohave and Cochise County, which initially had balked, eventually complied, though it took a court order to get a vote in Cochise.

“Where would I find the authority for the proposition that the boards have discretion in respect to whether or not to complete the canvass, their parts of the canvass, and certify, and whether or not they can direct a recount of some kind if they are concerned about it?” she asked McCauley.

“I don’t think it’s been really tried,” he conceded. But he said it falls under the responsibility of county supervisors “to make sure their constituents get a full and fair election.”

Julian wasn’t buying it.

“The law does place the final burden on the secretary to ensure the canvass and certification of a general election is completed within the statutorily prescribed timeframes,” the judge wrote. “It is not ‘misconduct’ for the secretary of state to communicate with other governing bodies to ensure the canvass and certification are completed.”

McCauley also argued that a new election is merited because an aide to Hobbs asked Twitter in January 2021 to remove a post, one Hobbs said provided incorrect information about voter rolls. He argued that was hardly an innocent act.

“The evidence, for want of a better term that’s out there, shows clearly that, as the secretary of state … (Hobbs) cajoled the Twitter people into censoring possibly as much as 50% of her constituency,” McCauley said. “This was a political issue.”

And he said that a decision by Twitter to suspend Finchem’s account one week before the election “was directly caused by Hobbs’ illicit censoring of her constituents in concert with Twitter.”

Julian questioned the relevance of all that.

“How do you get from the Twitter communications to misconduct under the elections statute?” she asked. Anyway, she ruled, any decision by Twitter to suspend Finchem’s account in October of this year, as he alleged, is legally irrelevant in an election challenge “as Twitter is not an ‘election official.’ ”

Separately, Julian tossed out a series of claims that the machinery used in the elections was not certified. She said the evidence presented shows that wasn’t true.

“Indeed, even if the voting machines were incorrectly certified: what then?” the judge asked.

“What, apart from a general pall of suspicion could result from such a conclusion?” she continued, noting that there wasn’t even an allegation that issues with who signed the certification certificates caused even one illegal vote to be cast. “The law in Arizona does not permit an election challenge to proceed based solely upon a vague sense of unease.”

Andrew Gaona, who represents Hobbs, called the lawsuit filing a “political sideshow” and said Julian should “send a strong message to (Finchem) and future litigants like him that the judiciary is not the appropriate venue to air political grievances and conspiracy theories.”

Fontes’ attorney Craig Morgan echoed the sentiment, saying there was “absolutely no legal or factual basis asserted” to seek to overturn the election. And he said that Finchem or McCauley – or both – should be required to pay the legal fees of those who had to defend against what he called a “frivolous lawsuit.”

“I do think this court needs to make a stand and remind all counsel and litigants alike that there are standards for filing a lawsuit,” Morgan told the judge.

“This is just one in a series of meritless lawsuits that continue to perpetuate divisive and, frankly, harmful rhetoric,” he said. “And these just need to stop.”

Julian gave the defense attorneys 10 days to file a formal request for their fees.