From Thursday's Finchem v. Fontes, decided by the Arizona Court of Appeals (Judge Samuel A. Thumma, joined by Judges Michael J. Brown and Andrew M. Jacobs):
Mark Finchem appeals from two awards of attorneys' fees as sanctions totaling $47,706.50 based on his filing of this election challenge without substantial justification…. Finchem, the Republican Party nominee for Arizona Secretary of State, lost the November 8, 2022, election by more than 120,000 votes. On December 9, 2022, … Finchem filed a Verified Statement of Election Contest (VSEC), challenging that result and requesting a special election. Finchem's amended VSEC asserted (1) misconduct and (2) illegal votes…. After oral argument, in a thirteen-page Rule 54(b) final judgment entered in late December 2022, the court granted the motions to dismiss. The judgment concluded that the amended VSEC "fail[ed] to state a meritorious challenge," "cannot sustain an election contest," and that the allegations are "not well-pled facts; they are legal conclusions masquerading as alleged facts." …
[B.] The Superior Court Did Not Err in Finding Finchem's Claims Were Groundless.
… In finding Finchem's claims were groundless, the superior court properly noted sanctions in election cases are, and should be, rare, given "the potential chilling effect a sanctions award may have on legitimate challenges in the future." With that starting point, however, the court then looked at the record and concluded Finchem's claims were groundless.
After summarizing the allegations in the amended VSEC, the superior court concluded that none of the alleged "misconduct presented a 'fairly debatable' election challenge as Finchem did not and could not allege that any of these acts rendered uncertain the outcome of an election he lost by over 120,000 votes." Finchem has not shown that was wrong. Instead, … Finchem argues that the amended VSEC "specifically called into question more than 261,000 votes." … [T]he argument is not supported. Nowhere does the amended VSEC assert that 261,000 votes were missing or cast illegally, instead addressing 60,000 votes in Maricopa County and 20,000 votes in Pima County—a total of 80,000. That number is still 40,000 votes less than what Finchem would have needed to challenge the results of an election he lost by more than 120,000 votes.
