This afternoon a federal judge sanctioned lawyers for failed Arizona gubernatorial candidate Kari Lake, who sued to force the state to use paper ballots in the November election. In point of fact, the state does use paper ballots, something which could have been determined by the plaintiff and her lawyers had they bothered to conduct “the factual and legal pre-filing inquiry that the circumstances of this case reasonably permitted and required.”
That’s not a sentence you ever want to read if you’re on the pointy end of a sanctions order. Nor are you looking for several pages eviscerating your complaint as a collection of “mere conjectural claims of potential injuries,” followed by the ominous warning that “Rule 11 requires more.”
Safe to say that US District Judge John J. Tuchi was not amused at being forced to spend months dealing with the garbage lawsuit Mike Lindell cooked up to “sue all the machines.” The MyPillow CEO has a team of lawyers he regularly employs for these windmill tilts, including one Alan Dershowitz, late of Harvard Law School, who actually put his name on this pile of dreck.
In April, a consortium of plaintiffs, including Lake and secretary of state candidate Mark Finchem, sued demanding that the state use only paper ballots for the upcoming election. The court characterized this as “entirely frivolous because Defendants are already doing what Plaintiffs want them to do. ”
The plaintiffs then grafted onto this false premise several thousand pages of speculation about the vulnerability of voting machines to hacking, specifically citing the case of Curling v. Raffensperger, in which US District Judge Amy Totenberg found in 2019 that voting machines were subject to hacking. In fact, the only “machines” used in Arizona are optical scanners for ballot tabulation, not the internet-enabled touch screen voting devices at issue in Curling.
Here, Plaintiffs’ misrepresentations about Arizona’s use of paper ballots played a central role in the purported basis for Plaintiffs’ claims. By alleging and implying that Arizona does not currently have an auditable paper-ballot system, Plaintiffs set up a strawman, constructed in substantial part based on the Curling case and concerns about voting machines in other jurisdictions. But the strawman was just that. Arizona already follows the course to “eliminate or greatly mitigate” the risks of manipulation and interference that Prof. Halderman recommended in the Curling litigation: It uses paper ballots and reserves BMDs for the small number of voters who need or request them. … And again, even those BMD-assisted voters produce a paper ballot or voter-verifiable paper audit trail.
The plaintiffs made further false statements implying that there was no audit of the machines to ensure accuracy — which is simply false.
“Plaintiffs and their experts may be entitled to opine about the sufficiency of the testing that Arizona’s machines undergo, but they are not entitled to allege that no such testing takes place,” Judge Tuchi wrote.
The court imposed Rule 11 sanctions on plaintiffs’ counsel for the two false statements of fact, but it refused to penalize them for filing the lawsuit for illegitimate, non-legal ends.
“While it is a very close call, the Court finds the record as it stands insufficient to compel a finding as to whether Plaintiffs brought this lawsuit for an improper purpose,” the judge wrote.
Similarly, the court called the plaintiffs’ suggestion that the infamous Cyber Ninjas hand recount constituted “proof of concept” as “wholly unpersuasive to any objective reader with an understanding of the underlying facts” but treated it as a mistake rather than a sanctionable false assertion of fact.
But Judge Tuchi did impose sanctions under 28 USC § 1927 for multiplying the proceedings “unreasonably and vexatiously,” both for waiting seven weeks from the time the case was filed to demand an injunction overhauling the state’s entire voting apparatus and for demanding a hand count which would be manifestly infeasible according to the plaintiffs’ own experts.
It’s a stinging indictment of plaintiffs’ counsel, who failed to verify the gravamen of their claims.
As discussed herein, any objectively reasonable investigation of this case would have led to publicly available and widely circulated information contradicting Plaintiffs’ allegations and undercutting their claims. Thus, Plaintiffs either failed to conduct the reasonable factual and legal inquiry required under Rule 11, or they conducted such an inquiry and filed this lawsuit anyway. 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.
And while Judge Tuchi casts extreme side eye at the plaintiffs, noting that he “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,” his harshest language was for the lawyers.
“To sanction Plaintiffs’ counsel here is not to let Plaintiffs off the hook,” he wrote. “It is to penalize specific attorney conduct with the broader goal of deterring similarly baseless filings initiated by anyone, whether an attorney or not.”
So Alan Dershowitz, along with attorneys Andrew Parker and Kurt Olsen, will be jointly and severally liable for the Maricopa County Defendants’ attorneys’ fees. It’s an ignominious end to the Harvard emeritus professor’s long legal career, and an even more ignominious end to the Big Lie claims brought by Donald Trump and his acolytes.
Lake v. Hobbs [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.