Attorneys Sanctioned in AZ Election Lawsuit Expose Possible Dirty Tricks by Maricopa County Government

Attorneys Andrew Parker and Kurt Olsen, who represented Kari Lake and Mark Finchem, were sanctioned by a U.S. district court judge in May 2023. They were each ordered to pay $122,000 for Maricopa County’s attorneys’ fees in a lawsuit filed before the 2022 midterm elections. Now, they are drawing attention to what looks like possible dirty tricks to confuse the courts by the Maricopa County government.

Anyone who has ever been punished for something they did not say will understand this pushback.

The lawsuit alleged that Arizona did not use paper ballots. The court found their case without merit, rejected their request to ban electronic voting machines, and ordered sanctions for falsely claiming Arizona doesn’t use paper ballots.

Chief Justice Robert Brutinel wrote in the court ruling at the time: “Sometimes campaigns and their attendant hyperbole spill over into legal challenges. But once a contest enters the judicial arena, rules of attorney ethics apply.”

“Although we must ensure that legal sanctions are never wielded against candidates or their attorneys for asserting their legal rights in good faith, we also must diligently enforce the rules of ethics on which public confidence in our judicial system depends and where the truth-seeking function of our adjudicative process is unjustifiably hindered,” added Brutinel.

It looks like Brutinel may have been manipulated to protect political power grabs.

Lake’s attorneys are now fighting back and filed their argument on Wednesday that the District Court abused its discretion in issuing that sanctions order, and they want the action reversed.

Their complaint says that entering the order in May was improper, the factual findings were incorrect, and the legal conclusions misapplied and applied wrong standards.

Olsen and Parker expressed disagreement with Maricopa’s suggestion or implication that governments could acquire immunity from legal consequences by engaging in activities that might be unconstitutional for an extended period without being challenged or sued.

KEY POINT: The legal team is critical of the idea that prolonged engagement in what is potentially unconstitutional practices would shield state and local governments from judicial review or accountability and go on further to make the argument that if accepted by the court, it would allow entities to avoid constitutional limitations on their actions simply by asserting that they have been illegally conducting those actions for an extended period without facing legal challenges.

In other words, the law does not permit governments to evade constitutional scrutiny by claiming they have engaged in potentially unconstitutional practices without legal consequences for an extended time.

KEY POINT: Lake’s law team is saying that the government can’t get away with being unconstitutional because they have been unconstitutional for a long time, and no one else noticed.

So this is about paper ballots – how can a court rule they are not allowed to talk about something crucial to the American electoral process?

In summary, Parker and Olsen argue that the District Court unreasonably misread the Amended Complaint, particularly in alleging that Arizona does not use paper ballots. They provided detailed reasons, including logical requirements of the complaint, lack of denial about paper ballots, improper interpretations by the District Court, and explicit acknowledgment in the Motion for Preliminary Injunction (MPI) that Arizona uses paper ballots.

The newest filing asserts that Maricopa’s response does not address these points substantively but relies on the District Court’s errors, suggesting a concession of the lack of defense.

Specifically, Olsen and Parker highlight Maricopa’s citation of paragraph 153 of the Amended Complaint as dispositive, emphasizing that the paragraph does not assert Arizona’s non-use of paper ballots.

According to the document:

Maricopa does cite paragraph 153 of the Amended Complaint (“Plaintiffs seek for the Court to Order, an election conducted by paper ballots, as an alternative to the current framework”) as purportedly dispositive of the paper ballot issue. Maricopa Br. 26. Paragraph 153 was addressed in the Attorneys’ brief. See App. Br. 50. The paragraph does not assert that Arizona doesn’t use paper ballots.

Even the District Court acknowledged that the Amended Complaint does not express that Arizona does not use paper ballots. 1-ER-36. Read fairly; Paragraph 153 proposes an “alternative” vote counting framework that, as a whole, meaningfully differs from Arizona’s existing system; the paragraph does not claim that Arizona’s current system lacks all proposed features or all constitutionally necessary characteristics. See App. Br. 50.

While paragraph 153 could have been phrased more artfully, the paragraph does not make a false allegation.”

The attorneys argue that Maricopa and the District Court misinterpreted the complaint, making an unfair and unwarranted sanction against them under Rule 11.

Under Rule 11, by signing a document, an attorney or unrepresented party certifies that, to the best of their knowledge, information and belief formed after reasonable inquiry:

  1. The document is not presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
  2. The legal contentions are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
  3. The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

If a court determines that Rule 11 has been violated, it may impose appropriate sanctions, including monetary sanctions, non-monetary directives, or other measures. The purpose of Rule 11 is to encourage responsibility in filing legal documents and to discourage tactics that unnecessarily burden the court and other parties.

Here is the Allellants’ Reply to the Sanctions Order:

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