PHOENIX — Calling her bid to overturn the election “frivolous” and lacking “legal and factual merit,” attorneys who successfully defended against her claims want Maricopa County Superior Court Judge Peter Thompson to order Kari Lake and her attorneys to pay nearly $700,000 in legal fees and costs they incurred.
In legal filings Monday, Deputy Maricopa County Attorney Thomas Liddy pointed out to Thompson that he told Lake's legal team ahead of last week's two-day trial exactly what they needed to prove to win their case.
Specifically, the judge said a successful election challenge would require Lake to show four things:
- Printer malfunctions at vote centers and allegations of failure to maintain a chain of custody of ballots were intentional;
- The misconduct was an intentional act by someone involved with the election;
- Misconduct was intended to change the result of the election;
- It did in fact, alter the outcome.
Thompson, in his Saturday ruling, said Lake proved none of that. But Liddy said the judge should not dismiss that failure on all four fronts to simple error.
“Plaintiff and her attorneys knew — or at least they should have known — that they had no witness testimony or evidence that would allow them to meet the court's required showing, yet they refused to voluntarily dismiss this action,” he said. And attorneys for both Katie Hobbs as the governor elect and, separately, in her role as secretary of state joined in the county's motion.
But Liddy told Thompson that this is even more than Lake and her legal team filing a lawsuit in hope that things would go their way.
He said what Lake had was a lot of legal theories -- and no evidence. Instead, he said, the lawsuit was filed for an improper reason.
“Indeed, the entire purpose of this litigation was to plant baseless seeds of doubt in the electorate's mind about the integrity and security of the 2022 general election in Maricopa County,” he said. “And while it is one thing to do so on TV or social media sites, it is another thing entirely to attempt to use the imprimatur of the courts to try to achieve that goal.”
Liddy also pointed out that, even before the election, Lake said she the results she would accept would be that she won. He said Lake “misused this court” to further that claim the outcome was illegitimate.
And there's something else, Liddy noted, that the judge might want to take into account when deciding whether to impose financial penalties on Lake and her lawyers.
He pointed out that Lake on Sunday retweeted a link to a story published on Townhall.com which not only called the two-day proceeding conducted by Thompson a “sham trial” but saying that “legal experts believe his decision was ghostwritten, they suspect top left-win attorneys like Mark Elias emailed him what to say.”
Elias is the prime partner in one of the firms defending the governor elect.
There was no immediate response from Lake or her lawyers to the request.
Lake originally had filed 10 separate charges in her bid to have Thompson either install her as governor or, in the alternative, require Maricopa County to conduct a new election, this time under the direction of a special master appointed by the judge.
Seven of those were immediately dismissed as claims that fall outside what Arizona law allows as grounds to overturn an election.
An eighth claim charged that the county followed improper procedures in verifying signatures on early ballots. But Thompson said that claim came too late as the county has been following the same process allowed by the Election Procedures Manual for years.
That pretty much left the allegations around the printers.
Maricopa County uses vote centers, allowing any resident to vote at any of the 223 vote centers. But that also requires the ability to print out individualized ballots.
Problems at some of the vote centers resulted in ballots that could not be read by the on-site tabulators. County officials blamed the problem on printer errors. And workers at some sites, apparently seeking to fix the issue, altered the settings on the printer to “fit-to-page,” resulting in 19-inch ballots being printed out — also unreadable — on 20-inch paper.
But Thompson said the best Lake's legal team could do was opine that it was “common sense” that such widespread failures must have been the result of intentional conduct. And the judge said no witness had any personal knowledge to back that up.
He also noted that anyone who's ballot could not be tabulated on site had the option of putting it instead into a sealed box where, if necessary, it could be “duplicated by a bipartisan board onto a readable ballot, and — in the final analysis — counted.''
The judge was no more impressed by the claims of a pollster testifying for Lake that perhaps up to 40,000 people, deterred by long lines, chose not to vote, and that could have given Lake the lead. Thompson said there is no precedent to set aside actual election results and substitute poll results and statistical estimates.
What all this leaves is a section of Arizona law that requires a court to assess reasonable legal fees and expenses if someone brings a claim “without substantial justification,” defining that as “groundless and is not made in good faith.”
Separate rules that govern the professional conduct of attorneys bar lawyers from bringing suit “unless there is a good faith basis in law and fact for doing so that is not frivolous.” And those rules require lawyers to do more than accept a client's claim but must independently investigate the facts and evidence.
Liddy said that Lake's claims fall short of what is required.
“Had they do so, they would have known that they could not prove any of plaintiff’s claims that were ultimately before this court,” he said, saying that Lake and her lawyers instead took a ‘throw everything at the wall and see what sticks’ approach in this litigation.”
The lion’s share of the costs were incurred by attorneys defending Hobbs as the governor elect. That includes $550,210 in legal fees — mostly to the Elias Law Group — and $56,585 in expenses by the lawyers and the support staff plus $22,451 paid to Kenneth Mayer. He was the defense witness who testified that claims of depressed voter turnout due to printer problems was “pure speculation.”
Liddy is seeking $18,370 in legal fees for his office and another $6,320 paid to Emily Craiger, an outside attorney retained by the county.
And Andrew Gaona whose law firm represented Hobbs as secretary of state — she was named separately in that basis — is seeking $36,990 in legal fees and expenses.
This isn’t Lake's only recent brush with the courts amid claims of filing frivolous lawsuits.
Earlier this month U.S. District Court Judge John Tuchi ordered lawyers for Lake and Mark Finchem, the unsuccessful candidate for secretary of state, to pay Maricopa County's legal fees after he said they filed a “frivolous” lawsuit and furthered “false narratives” about elections.
That came in a lawsuit the pair filed seeking to require ballots in this year's elections to be counted by hand. But the judge said claims that machine counting can produce inaccurate results were little more than speculation, backed only by “vague” allegations about electronic voting systems generally.
In that case, Tuchi said he was assessing the penalty only against the lawyers for the pair — one of whom, Kurt Olsen, represented Lake in the challenge to Hobbs — and not against Lake and Finchem personally.
The county is seeking $141,690 in that case. Tuchi has yet to confirm that request.
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