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Did it again...filed bar complaints in the Kari Lake "election fraud" litigation [1]

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Date: 2023-06-06  

In the early days of 2021, I started the (very long) process of filing bar complaints against some of the 2020 “election fraud” filers. The cases against Texas AG Ken Paxton and his First Assistant Brent Webster are now pending in two different Courts of Appeal in Texas. That is, the State Bar of Texas did initiate a formal complaint, but the process is still far from “over.”

Disciplinary complaints against attorneys in Washington, D.C. filed around the same time were dismissed based on a purported policy of not getting involved in “political” cases. However, the ODC in DC seems to have changed their position on this (the folks at Lawyers Defending American Democracy say they have lobbied vigorously for DC to change its policy—politicians should NOT be immune from ethics—as much as they believe they should be). A formal disciplinary hearing against Rudolph Giuliani (which was made available to the public online late last year) resulted in the filing of disciplinary charges---which are still winding their way through the byzantine bar disciplinary system.

Also going on in December of 2022 was litigation in Arizona filed by Kari Lake. Lake’s attorneys had previously been to Federal court (where their case was dismissed with sanctions), but then almost immediately filed a slightly repackaged complaint in Maricopa County Superior Court. Thanks to the wonders of modern technology, I was able to observe the two-day hearing in this matter remotely as well.

Once all of Lakes’ claims had been dismissed and the appeals started, I thought about filing a bar disciplinary complaint then, but contacted the folks at LDAD. LDAD attorneys informed me that they preferred to select only the most “meritorious” cases, so that they will be taken seriously by bar disciplinary authorities. We both mulled the possibility that we could be accused of the same thing we were accusing them of doing if we filed too many cases. Additionally the trial judge in Maricopa County declined to impose sanctions. At this point, I set aside filing anything and waited to see how things played out.

As some here know, Lake filed an appeal (which was dismissed), then went to the AZ Supreme Court—which dismissed all but one claim—which was remanded back to the trial court on one technical fact issue. After yet another two-day trial, this last count was also dismissed. But...surprisingly (or not), Lake and her attorneys have appealed this dismissal as well. Prolonging or “expanding” litigation is itself a sanctionable offense.

I found out that the 65 Project (another pro-democracy lawyer group challenging false “election fraud” litigation) filed a complaint against one of Lake’s attorneys in Maryland (where he is also apparently licensed in addition to DC) back in February. So, I am not the first for the DC-based attorneys. My understanding is that a number of Arizona State Bar disciplinary complaints are still pending from the 2020 litigation. Obviously, don’t expect to see anything happen too soon here, either. But—as Grandma used to say—“If you don’t stand for something, you’ll fall for anything.”

Here is the full submission (did not include names and bar numbers of the attorneys):

Official results of the 2022 Arizona election for state governor confirm that (now) Governor (and former AZ Secretary of State) Katie Hobbs won with 1,287,890 votes against challenger Kari Lake’s 1,270,774 votes.[1] Yet, gubernatorial candidate Kari Lake—along with the assistance of the aforementioned attorneys—engaged in an Arizona redux of “Big Lie 2.0.” That is, they presented a false reality based on distorted facts and conspiracy theories, along with a baseless argument that elections should be decided by courts, not voters.

The Case

On or about December 9, 2022, the aforementioned attorneys filed a Special Action Complaint in Maricopa County Superior Court alleging that “the number of illegal votes cast in Arizona’s election on November 8, 2022, far exceeds the 17,117 vote margin between Arizona Republican gubernatorial candidate Kari Lake and Democrat gubernatorial candidate Secretary of State Katie Hobbs.” The suit named Lake as the sole Plaintiff. Of Arizona’s 15 counties, Governor Hobbs received more votes in Apache, Coconino, Maricopa, Pima, and Santa Cruz Counties. Hereafter, Plaintiff and her attorneys will be collectively referred to as “Lake” for brevity.

Named Defendants were Katie Hobbs in her personal capacity as a candidate and her official capacity as Secretary of State, along with the Maricopa County Recorder, the Maricopa County Director of Elections, and members of the Maricopa County Board of Supervisors as individuals and as a Board. There were no named defendants from any of the other counties where Hobbs had won.

Among the allegations of the suit:

¶5: “Rampant and clear violations of federal and state law have become pervasive at the Secretary of State level under Secretary Hobbs and in the Maricopa County Recorder and Elections Department.”

¶6: Hobbs and other Maricopa County elections officials “participated in an unconstitutional government censorship operation using an Election Misinformation Reporting Portal created by the Department of Homeland Security (“DHS”) and the Cybersecurity and Information Security Agency (“CISA”).”

¶9: “Video footage, first-hand accounts, and expert testimony directly contradict Maricopa County officials public statements” about technical tabulator issues.

¶11: “Thousands of voters, disproportionately Republican, gave up voting due to the long wait times or simply avoided the polls after seeing the chaos reported on the news.”

¶13: “Testimony by whistleblowers and witnesses with first-hand knowledge shows that Maricopa County officials violated Arizona chain of custody laws for hundreds of thousands of these mail-in ballots.”

Other allegations revolved around “voters reporting that their voter record had been changed or that for some unknown reason to them they were registered to vote, unsolicited,” (p.15) and Maricopa County officials failed to reject signatures on mail-in ballot envelopes that did not match voters’ signatures on record (p. 16).

As a matter of background, U.S. District Judge John J. Tuchi (District of Arizona) had previously sanctioned Kurt Olsen (among other attorneys, including Alan Dershowitz) on December 1, 2022. Sanctions were imposed pursuant to Rule 11 and 28 U.S.C. §1927 for a very similar case involving election challenges brought by Kari Lake and Mark Finchem. Olsen also appeared as an attorney on at least one of the (dismissed) 2020 “Big Lie” lawsuits challenging the Presidential election.

In the federal case, the Plaintiffs had sought to ban the use of electronic tabulators and force a hand count. Judge Tuchi found that these attorneys had “made false, misleading, and unsupported factual assertions in their FAC and MPI and that their claims for relief did not have an adequate factual or legal basis grounded in a reasonable pre-filing inquiry.” Although Judge Tuchi declined to sanction the Plaintiffs—notwithstanding that they contributed to the violations—he did determine that Plaintiff’s had not acted appropriately in this matter—“far from it.” Judge Tuchi went on to admonish:

“…the Court will not condone litigants ignoring the steps that Arizona has already taken toward this end and furthering false narratives that baselessly undermine public trust at a time of increasing disinformation about, and distrust in, the democratic process. It is to send a message to those who might file similarly baseless suits in the future.”

Apparently learning nothing from Judge Tuchi, Olsen teamed up with Blehm and re-filed essentially the same case in Maricopa County state court. In their demand for relief, Lake and her attorneys requested an opportunity to inspect ballots, a forensic examination (there had already been a recount), an order striking all “invalid” signatures and ballots “on an absolute or pro-rated basis,” an order setting aside the certified results of the 2022 gubernatorial election and declaring Kari Lake the winner, or, in the alternative, an injunction requiring Maricopa County to re-conduct the election.

The defendants filed a Motion to Dismiss. Out of ten counts, eight of them were dismissed by the Honorable Peter A. Thompson, Maricopa County Superior Court Judge on December 19th. Count II (illegal tabulator configurations) and Count IV (ballot chain of custody) were not dismissed because, under the liberal allowance of “well-pled facts and all reasonable inferences” standard, Lake had “stated a claim under Arizona law.”

As to the remaining 8 counts:

Count I: Violation of Free Speech. The verified complaint failed to set forth either an unconstitutional infringement of Plaintiff’s (or anyone else’s) free speech, nor misconduct under Arizona statutes.

Count III: Invalid signatures on Mail-In Ballots. Here, the claim was ruled to be barred by laches, because the AZ AG had approved the early ballot signature verification process on April 6, 2022, and Plaintiff had ample opportunity to challenge this without waiting until the election was over. This is the one count that was remanded (and again dismissed) after appeal, arguably because Lake could not have known how the signature verification process would have worked in actual operation until after the election.

Counts V and VI: Equal Protection and Due Process. Judge Thompson found that these were essentially “bootstrapped constitutional arguments” that were beyond the remedies provided by Arizona’s election contest statutes.

Count VIII: Secrecy Clause. Lake (and her attorneys) argued that the mail-in ballot procedure violated the right to a secret vote. However, the current absentee ballot procedures had been adopted in 1991. Lake (or anyone) had 30 years to challenge this, so again it was ruled barred by laches.

Count IX: Inadequate remedy. Judge Thompson’s rationale was that if he adopted Lake’s suggested remedy, it would have required him to engage in judicial legislation. “Count IX must be dismissed because it is unnecessary by its own terms and requests an unavailable remedy.”

Count X: Constitutional Rights. Civil rights claims must be brought in a separate action and not as part of a Special Action under Arizona election challenge statutes.

Prior to hearing the matter on the two surviving counts, Judge Thompson granted Lake’s request to inspect 50 randomly selected “ballot-on-demand” (BOD) printed ballots, 50 randomly selected early ballots cast from six separate Maricopa County batches, and 50 randomly selected BOD printed ballots that were marked “spoiled” on election day. Along with instructions for conducting the inspections (e.g., if could not interfere with the ongoing recount), Judge Thompson spelled out in particularity what Lake would have to “prove” at trial to prevail.

During the two-day trial, testimony focused on issues around a printing glitch that apparently caused a lot of real chaos during the early part of election day. In Maricopa County, voters were not required to vote at a specific precinct, but were allowed to vote at any of the polling locations in Maricopa county. Upon verification of the voter’s identity, the system would print a ballot that was specific to that voter’s address (the ballot-on-demand, or BOD, a feature of the Dominion Democracy Suite 5.5 voting system). However, some of the BOD printers had been mis-calibrated and were printing 19 inch ballots on 20 inch pieces of paper. The misprinted ballots would then be rejected by the ballot counter, resulting in “spoiled ballots.” Frantic poll workers scrambled to locate someone in tech support to fix the problem and issue voters new ballots. Both sides admitted that this created frustration for voters, some of whom left. The issue was eventually resolved, apparently before the late afternoon “rush” to vote.

Part of Lake’s argument was that this snafu was the result of deliberate malfeasance on the part of county election officials (no evidence), or alternatively, the delays and voters abandoning the lines inordinately affected Republicans (no evidence). Lake presented the testimony of Richard Baris from Big Data Poll,[2] who alleged that some 25 to 40 thousand voters (larger than the margin of Hobb’s victory) who had agreed to conduct an exit interview never returned.

A few days after the trial, Judge Thompson dismissed Lake’s remaining claims, stating that she had failed to prove any of the elements of her remaining two claims. The Defendants filed for sanctions, making the argument for bad faith and frivolousness, as well as unnecessary expansion of the proceedings. Judge Thompson denied the request for sanctions, although he did award Katie Hobbs taxable costs of $5,900 pursuant to Arizona “loser pays” statutory provisions. Judge Thompson stated that the Defendants “offered no substantive basis” for an award of sanctions. At the conclusion of trial, Judge Thompson made a specific finding that “Plaintiff’s claims presented in this litigation were not groundless and brought in bad faith…”

Indeed, throughout these proceedings, Judge Thompson seemed to bend over backward to give Lake every opportunity to present her case. He also managed to keep the proceedings civil and even complimented both sides for doing so. If Lake had dropped the case at this point, whether sanctionable conduct had occurred to this point might be debatable. But Lake and her attorneys would not drop the matter.

The case was taken to the Arizona Court of Appeals, which affirmed Judge Thompson’s prior rulings on February 16, 2023. While the case was pending at the Court of Appeals, Lake and her attorneys filed two Petitions with the Arizona Supreme Court. Although Lake couched her requests in terms of attempts to “accelerate” the appeal process (due to the impending installation of Hobbs as Governor), the Supreme Court consolidated the appeal and the special action while dismissing the first request without prejudice. The Court of Appeals decision provides a good summary of Lake’s lack of evidence, as well as some shift in her argument (¶30). The Court of Appeals also affirmed Judge Thomson’s denial of sanctions.

Not surprisingly, Lake’s next stop was the Arizona Supreme Court. In what Lake characterized as a “victory,” the Supreme Court denied review for all of her claims except for the original Count III. The question was whether Lake’s claim involving the signature verification was a challenge to existing policies (and could be barred by laches) or a claim that Maricopa County failed to follow the policies in the 2022 election. As to Respondent’s request for sanctions, the Supreme Court limited the issue to Lake’s claim that “35,563 unaccounted for ballots were added to the total of ballots at a third party processing facility.”

However, on May 4, the Supreme Court imposed sanctions against Lake’s attorneys for statements they had made in pleadings before it; Although Lake had presented “colorable” claims in her initial complaint, her attorneys stated the 35,563 unaccounted for ballots were an “undisputed fact”—notwithstanding multiple days of trial and seemingly interminable legal wrangling. In its ruling, the Arizona Supreme court makes clear that,

“Candidates are free to timely challenge election procedures and results, and the public has a strong interest in ensuring the integrity of elections….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.” [Emphasis added]

The case now came back before Judge Thompson. Here, Judge Thompson again made it clear that Lake had the burden of proving misconduct on the part of Maricopa County officials in the ballot signature verification process. After yet another two-day hearing—where even most of Lake’s witnesses testified to the good-faith efforts to verify signatures—no evidence of foul play on the part of Maricopa County election officials emerged. Although Lake presented a “signature verification expert” who stated—in his opinion—officials needed to spend a certain period of time to ensure verification, there is no statutory or regulatory requirement for this. Judge Thompson noted that Lake appeared to have “shifted her strategy, and that Lake’s request for the Court itself to determine whether signatures were consistent or not would result in a violation of the constitutional separation of powers.

In finding yet again that Lake and her attorneys had failed to meet the standard of proof, over six months after the election Judge Thompson confirmed the election of Katie Hobbs as Governor of Arizona. Throughout this litigation, Judge Thompson (who appears to have the patience of Job) declined to impose sanctions, stating that (in his opinion) “there is no doubt that each side believes firmly in its position with great conviction.”

The Rules

The Arizona Bar Rules of Professional misconduct require attorneys to bring only meritorious claims and contentions (ER 3.1). It can be argued that some of Lake’s claims were likely frivolous and some of them may have been non-frivolous, only because there was some legal ambiguity. However, instead of viewing each claim in isolation and classifying it as “frivolous” or “non-frivolous,” we should also examine how much real “evidence” was (or should have been) available before the case was filed.

Arizona ER 8.4 prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; as well as engaging in conduct that is prejudicial to the administration of justice.

The DC Rules of Professional Conduct have similar provisions. District of Columbia Rule of Professional Conduct 3.1 states that A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous…” Rule 3.3 (1) states that, “A lawyer shall not knowingly make a false statement of fact or law to a tribunal.” Although the lawyer has a potentially conflicting duty to “use legal procedure for the fullest benefit of a client’s cause,” there is “also a duty not to abuse legal procedure.” (Comment (1) to Rule 3.1). Moreover, a lawyer may be guilty of misrepresentation if the lawyer “incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.” (Comment (1) to Rule 4.1, Truthfulness in Statements to Others).

Rule 8.4 of the District of Columbia Rules of Professional conduct defines “misconduct” to include (c) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, as well as (d) conduct that seriously interferes with the administration of justice.

Argument

Bar Disciplinary authorities are typically mindful of the necessity to refrain from potentially chilling legal challenges that might politely be deemed “creative.” It may be difficult to discern a creative legal argument from a frivolous one. Disputed facts have to be resolved, so the question here becomes would any reasonable person believe alleged facts which fail to be proven in court. At what point does anyone know with any degree of certainty that some combination of facts and legal arguments are so far “out there” as to be sanctionable?

One of the primary elements of a nonfrivolous case is good faith. That is, even (politely termed) novel and creative arguments should have an objective that involves improving the law or society in some way. When the objective (which we can determine from the remedy requested) is to overturn an election and invalidate thousands of legal votes on spurious contentions, there is strong suggestion that such actions are not motivated by good faith, but by more corrupt impulses.

Revisiting some of the allegations in the original complaint:

¶5: “Rampant and clear violations of federal and state law have become pervasive at the Secretary of State level under Secretary Hobbs and in the Maricopa County Recorder and Elections Department.”

One of Lake’s witnesses was an attorney from the RNC who was “observing.” This witness reported observing wait times of up to 80 minutes, further alleging (without specific evidence) that it “suppressed” mostly Republican voters. The long lines and wait times were not disputed, but there was no evidence whatsoever of any deliberate malfeasance or illegal activity on the part of either (then) Secretary of State Hobbs or any of the Maricopa County officials. The allegation that Republican voters were somehow more affected than everyone else seemed to derive from an entitled claim of victimhood rather than any evidence that Republican voters had been singled out.

¶6: Hobbs and other Maricopa County elections officials “participated in an unconstitutional government censorship operation using an Election Misinformation Reporting Portal created by the Department of Homeland Security (“DHS”) and the Cybersecurity and Information Security Agency (“CISA”).”

What this involved was a complaint about the Secretary of State doing her job—which was to ensure the integrity of the election against known interference from hostile foreign entities.

¶9: “Video footage, first-hand accounts, and expert testimony directly contradict Maricopa County officials public statements” about technical tabulator issues.

Wherever this “evidence” was, it never appeared in Judge Thompson’s courtroom.

¶11: “Thousands of voters, disproportionately Republican, gave up voting due to the long wait times or simply avoided the polls after seeing the chaos reported on the news.”

Another Lake witness was Richard Baris. Baris is the CEO of Big Data Poll, which has been banned from FiveThirtyEight (don’t know the reason). Baris testified that there was a discrepancy of some 25 to 40 thousand voters who had agreed to conduct an exit poll and never returned. However (because the problems occurred earlier in the day), impatient and frustrated voters had the option of going to any one of the other five polling stations to vote. Again, with no real evidence how many voters—especially how many Republican voters—did not vote because of the long lines—Baris concluded that there was “no doubt Lake would have won.”

¶13: “Testimony by whistleblowers and witnesses with first-hand knowledge shows that Maricopa County officials violated Arizona chain of custody laws for hundreds of thousands of these mail-in ballots.”

There was some testimony that some of the ballot Inbound Receipt of Delivery Forms were not completely filled out, creating a chain of custody problem. There was testimony about some Maricopa County employee named “Betty,” who no one could precisely identify. Much of this so-called “evidence” came from hearsay statements, some which may have originated from Republican voters who for the past two years have been primed, and even urged, to spot and report “irregularities,” without fully understanding the process.

In this case—as in many that came before it in 2020--we are presented with pleadings that suggest (1) a plethora of blatant statutory and rule violations on the part of Maricopa County election workers that (2) affected the election to a degree that the results are invalid, and (3) the incompetence/malfeasance of Maricopa County elections officials (many who themselves are Republicans) cheated Republican voters from having their votes counted and cheated Lake of the election. Only when we get to court do we see the flimsiness (or nonexistence) of any real evidence. Some attorneys have asked whether Lake’s attorneys even knew what their own witnesses were going to say under oath.

A secondary (but important) consideration is that the actions of Lake and her attorneys imposed costs on Maricopa County citizens and diversion of public resources that could likely have been put to more productive use elsewhere (e.g., genuinely beefing up election security). Arizonans are still fiscally recovering from the Cyber Ninja debacle that arose out of the 2020 election.

Another potential problem created by the onslaught of fabricated “election fraud” litigation is that it could create the quintessential “boy-who-cried-wolf” scenario. It is possible there could be a case (especially in smaller jurisdictions dominated by crony politics) where there is real malfeasance during an election. A truly legitimate case may face a skeptical judiciary—what about all those prior cases that wasted time and judicial resources based on nothing more than conspiracy theories?—and the case will not receive the scrutiny it deserves.

In his closing arguments in the disciplinary hearing against Rudolph Giuliani, Mr. Hamilton P. Fox admonished that “we should not be oblivious to what is going on in this country.” There is a massive and coordinated multi-jurisdictional strategy to undermine confidence in electoral results so that they can be manipulated—preferably by judges who have been hand-picked to rule in your favor.

As Mr. Fox also said in his Giuliani arguments, “Courts are not in the business of taking away people’s votes.” Here, Lake and her attorneys were essentially asking the courts to throw out the votes of folks who stood in the lines and endured the frustrations that they were complaining of. Duly licensed attorneys should not be asking courts to invalidate elections. The extraordinary remedy—combined with the inadequacy of evidence—goes to the crux of whether or not their arguments were made in good faith.

In one of the (many) cases that were part of the original conspiracy in 2020, U.S. Chief Judge Matthew Brann (Middle District of Pennsylvania) best articulates the problem that we are seeing before us here:

“The intent of these lawsuits is to disenfranchise millions of voters…[based on] nothing more than speculation, conspiracy theories and a fundamental misunderstanding of the electoral process…In the United States of America, this cannot justify the disenfranchisement of a single voter.”

We should also be mindful that such actions could negatively impair the functioning of legitimate government by creating doubt and instability. Attorneys who attempt to overturn a valid election by creating doubt and keeping finality tied up in the courts present a threat to civic stability and democratic processes.

Finally, the disciplinary process is as much about deterrence as it is about punishment. The Lake lawsuit prompted Ryan Heath, another Arizona attorney, to file a writ of mandamus with the Arizona Supreme Court, parroting Lake’s demands that the election be set aside and reversing Judge Thompson ‘s order. Heath’s suit was summarily dismissed by the Arizona Supreme Court. This suggests that such conspiracy-based, fringe lawsuits are becoming contagious. Ironically, Heath alleges that he has filed bar complaints against attorneys on both sides of the Lake litigation.

Yet, until disciplinary authorities decide to do something about the more malevolent and widespread malfeasance that is currently being perpetrated by attorneys operating under the authority of a law license, the threats to our system will not go away. Although most all of these cases are handled appropriately by the courts and dismissed, the relentless pursuit of them—under the appearance of purported legal justification—keeps the conspiracy theories and false flags constantly in the public consciousness. This has prompted some mental health professionals to diagnose American society with mass psychosis.

It has been suggested the current disciplinary rules may be inadequate to deal with the magnitude of the threat to our democratic system that we now face. Disciplinary rules and processes are designed primarily to resolve attorney-client disputes or help attorneys avoid conflicts of interest. Indeed, individual attorneys who are presented with these suits (and the deep pockets of dark money that seem to be funding them) may appreciate some guidance before they potentially subject themselves to disciplinary proceedings. Attorneys are bombarded with the same alternative facts and false, inflammatory rhetoric as everyone else, and it might be helpful if state bars developed standards of credible evidence.

As Mr. Hamilton Fox concluded in his arguments at the end of the Giuliani hearing, attorneys who engage in sham election fraud litigation have “done a fundamental harm to the fabric of this country that could be irreparable….We have a duty to send a message to other attorneys” that this conduct will not be tolerated.

On 5-31-2023, Lake appealed Judge Thompson’s dismissal of Count III.

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