Today the Maricopa County Superior Court issued an order imposing sanctions against former Secretary of State candidate Mark Finchem and his attorney, Daniel McCauley, under A.R.S. § 12-349. At a future date, when Secretary of State Fontes and Governor Hobbs itemize and file their statements of attorneys’ fees, the Court will “allocate those fees as appropriate between Finchem and McCauley.”
The ruling serves as a reminder for election litigation 101: there is no generalized “complain about the election” statute in Arizona. The election contest statute is closest, and perhaps that is why it used more often post-2020. But using the contest statute for a generalized election grievance is like attempting to jam a square peg into a round hole. A contest lawsuit requires a tight fit between the alleged election maladministration and the electoral result. Moreover, there must be a viable mathematical path to victory reasonably established in the complaint. An election contest lacking these requirements, and taken all the way to trial, risks the very sanctions award issued today.
The takeaway: if election integrity advocates want to litigate generalized election grievances – which may prove necessary in many instances – they need to pass a new statutory vehicle into law. There are many potential solutions. But continuing to use the contest statute risks more sanctions awards.