by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association
The Nation has entered the homestretch of the 2024 presidential election. We seem destined to find out what it means to be inflicted with the ancient Chinese curse: “May you live in interesting times.” The 2020 presidential election resulted in an ocean of election-related litigation across multiple jurisdictions, which in turn resulted in a river of sanctions and discipline from courts and state bars against lawyers who brought those election lawsuits.
It is possible that the 2024 presidential election will not once again result in dozens of election challenges. But, to paraphrase Del Griffith, played by the late, great John Candy in the classic movie Planes, Trains and Automobiles, you would have a better chance to find a three-legged ballerina than to avoid the 2024 election winding up in the courts. Therefore, it is worth noting recent decisions from the Supreme Court of Arizona and a disciplinary panel of the State Bar of Arizona, which set Arizona apart from other jurisdictions on this topic.
In Arizona Republican Party v. Richer, 257 Ariz. 210 (2024), the Republican Party brought suit challenging how Maricopa County election officials conducted a mandatory hand recount following the 2020 presidential election. The superior court dismissed the complaint on the merits and sanctioned the Republican Party and its attorneys under A.R.S. § 12-349 for bringing claims that were “groundless and is not made in good faith.” According to the superior court, the plaintiff’s lawyers engaged in sanctionable bad faith by bringing a lawsuit primarily for “political reasons.” The court held that the ostensible reason for the lawsuit – a by-the-book hand recount to dispel public mistrust – was a political issue, not a legal or factual basis for litigation.
The court of appeals affirmed both the merits of the dismissal and the § 12-349 sanctions. The lawyers for the Republican Party appealed the § 12-349 sanctions to the Arizona Supreme Court, which vacated the sanctions. The Supreme Court rejected the trial court’s “rigid delineation” between a political motivation for bringing an election lawsuit and a valid factual or legal justification for such a claim, noting that “political motives are inextricably intertwined with the legal or factual considerations in pursuing election cases.”
The Supreme Court then made a statement that regrettably has not been heard from an adjudicative body anywhere else in the dozens (maybe hundreds) of election and attorney discipline cases that have resulted from the 2020 election: “Any suggestion that a party or attorney faces enhanced risk of sanction merely because they couple political motives with a long-shot effort to vindicate a legal right in the election law context intolerably chills citizens and their attorneys precisely in an arena where we can least afford to silence them. Our courts should be cautious that, in their zeal to ensure that election challenges are properly grounded in fact and law under the guise of defending an ‘election’s legitimacy,’ they do not inadvertently inflict real damage to our republic by slamming the courthouse door on citizens and their counsel legitimately seeking to vindicate rights, which is also important to maintaining public confidence in elections.”
The “real damage” the Richer court is referring to has already been done over the last four years. And it was done intentionally. There has been a national effort by political interest groups to file bar complaints against all lawyers involved in 2020 election challenges. These groups have found a receptive audience in state bars, almost none of whom taken a skeptical view of bar complaints filed by non-aggrieved parties (i.e., not a client, judge or litigation opponent of a given lawyer), who are political adversaries of the targeted lawyers and are unabashed in their belief that “good faith” is a synonym for “people who agree with me and are on my team.” Admittedly, this is a condition common among lawyers even outside of political cases.
The impact of the Richer decision has already been felt locally. In January, the State Bar of Arizona charged the lawyers who represented gubernatorial candidate Kari Lake in litigation against gubernatorial candidate (now governor) Katie Hobbs over the use of electronic voting machines, alleging violations of ER 1.1 (competence), ER 1.3 (diligence), ER 3.1 (meritorious claims and contentions), ER 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and ER 8.4(d) (conduct prejudicial to the administration of justice). The Richer decision was issued in May. In August, a disciplinary panel for the State Bar, relying heavily on Richer, dismissed the charges after an evidentiary hearing.
Elections are how we resolve differences without violence. Elections are run by people, which means elections are run imperfectly, which means sometimes there will be disputes over how elections are conducted. Courts, which rely on lawyers to facilitate the orderly pursuit of truth, are how we resolve election disputes without violence. Deterring lawyers from taking election cases is playing with fire. The state bars, interest groups and courts that have spent the last four years punishing lawyers who have brought legal challenges to elections have done so without any sign that they have given thought to where and how these disputes will be resolved if the courthouse doors are closed.
The Supreme Court in Richer was right to point this out. Hopefully the message will spread because another round of election litigation in a few short weeks seems inevitable. It is perhaps a natural human urge to channel Vlad the Impaler and make an example of opponents by mounting their corpses on spikes outside the city limits as a warning to anyone else who might challenge the powers that be. Everyone likes a good dance in the end zone. But that does not mean the urge should be indulged. Political parties, candidates and voters from both sides of the political spectrum should be allowed to pursue whatever remedies they are entitled to in court, and the lawyers who represent those interests should not have to fear for their license just for doing so.
About Joseph A. Brophy
Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jkwlawyers.com.
The original article appeared in the June 2024 issue of Maricopa Lawyer and can be viewed here:
https://jkwlawyers.com/wp-content/uploads/2024/11/MARICOPA-LAWYER-OCT.pdf
