Ariz. Republican Party v. Richer

Appeal from the Superior Court in Maricopa County No. CV2020-014553, The Honorable John R. Hannah, Jr., Judge.

Wilenchik & Bartness P.C., Phoenix By Dennis Wilenchik, Lee Miller, John D. Wilenchik Counsel for Plaintiff/Appellant.

Maricopa County Attorney's Office, Civil Services Division, Phoenix By Thomas P. Liddy, Emily Craiger, Joseph I. Vigil, Joseph J. Branco, Joseph E. LaRue Counsel for Defendants/Appellees, Maricopa County Recorder &Maricopa County Board of Supervisors.

Law Offices of Sherman & Howard L.L.C., Phoenix By Craig A. Morgan, Shayna Stuart, Jake Tyler Rapp Counsel for Intervenor Defendant/Appellee, Arizona Secretary of State.

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

OPINION

BROWN, JUDGE.

¶1 The Arizona Republican Party ("ARP") appeals the superior court's dismissal of its complaint challenging the hand count audit process Maricopa County used for the 2020 general election. ARP also challenges the court's decision to award attorneys' fees in favor of Arizona's Secretary of State ("Secretary") under A.R.S. § 12-349. Because ARP has not shown the court erred in dismissing the complaint or abused its discretion in awarding fees, we affirm.

BACKGROUND

¶2 Arizona law requires election authorities from each of the 15 counties to verify the accuracy of electronic vote counts by manually counting random batches of ballots. See A.R.S. § 16-602(B). This process, known as the "hand count audit," starts before election day when the county elections officer informs the county political party chairs of how many of the parties' designees will be needed to perform the audit. A.R.S. § 16-602(B)(7). At least one week before election day, the party chairs name the individuals who will physically count the ballots. Id. After the polls close, the party chairs take turns randomly choosing a few polling places to be audited. A.R.S. § 16-602(B)(1). The party chairs also select the races to be audited, except that the presidential race is always included. A.R.S. § 16-602(B)(2), (5).

¶3 If the hand count audit reveals evidence that the machine tabulation may have been inaccurate, the audit expands in stages. A.R.S. § 16-602(C). But if the initial audit matches the machine result for a given race, "the results of the electronic tabulation constitute the official count for that race." Id. Regardless, the audit must be completed before the canvassing of a county's election results. A.R.S. § 16-602(I).

¶4 The statutory provision at issue, A.R.S. § 16-602 (addressing selection of polling places for the hand count audit), reflects the longstanding practice of organizing elections based on precincts. When that practice is followed, a county's board of supervisors establishes "a convenient number" of precincts before each election and then designates one polling place in each precinct for the voters who reside in that precinct. A.R.S. § 16-411(A), (B). Consistent with that approach, § 16-411(B) refers to sampling of "precincts."

¶5 In 2011, however, the legislature amended § 16-411 to authorize "the use of voting centers in place of or in addition to specifically designated polling places." 2011 Ariz. Sess. Laws. ch. 331, § 3 (1st Reg. Sess.) (H.B. 2303) (emphasis added). The legislature also amended § 16-602(B) to require that the "hand count shall be conducted as prescribed by this section and in accordance with hand count procedures established by the secretary of state in the official instructions and procedures manual ["EPM"] adopted pursuant to § 16-452." 2011 Ariz. Sess. Laws. ch. 331, § 8 (1st Reg. Sess.) (H.B. 2303); see Ariz. Sec'y of State, 2019 Elections Procedures Manual ("2019 EPM") (Dec. 2019). But the legislature did not change the procedures in § 16-602(B)(1), which outlines what each county must do in conducting a hand count, including the requirement that "[a]t least two percent of the precincts in that county, or two precincts, whichever is greater, shall be selected at random from a pool consisting of every precinct in that county." (Emphasis added.)

¶6 The 2012 and 2014 versions of the EPM included a provision covering hand count auditing procedures that allowed counties using vote centers to treat them as precincts for purposes of the audit. In 2019, the Secretary adopted the version of the EPM at issue, which likewise allows "counties that utilize vote centers" to consider "each vote center . . . to be a precinct/polling location and the officer in charge of elections must conduct a hand count of regular ballots from at least 2% of the vote centers, or 2 vote centers, whichever is greater." 2019 EPM, at 215. As required by A.R.S. § 16-452(B), the 2019 EPM was approved by the governor and the attorney general.

¶7 As stated by the legislature, the purpose of the EPM is to "achieve and maintain the maximum degree of correctness, impartiality, uniformity and efficiency on the procedures for early voting and voting, and of producing, distributing, collecting, counting, tabulating and storing ballots." A.R.S. § 16-452(A). And as recognized by our supreme court, the "EPM has the force of law; any violation of an EPM rule is punishable as a class two misdemeanor." Ariz. Pub. Integrity All. v. Fontes, 250 Ariz. 58, 63, ¶ 16 (2020). But if an EPM provision conflicts with a statute, that provision is unenforceable. Leach v. Hobbs, 250 Ariz. 572, 576, ¶ 21 (2021).

¶8 On September 16, 2020, the Maricopa County Board of Supervisors ("Board") announced it would be using vote centers for the November 3, 2020 general election. The day after the polls closed, the "Maricopa County Chairs" of the Republican, Democratic, and Libertarian parties met to select the vote centers and early ballots subject to auditing. The physical hand count, which audited 2,917 ballots cast on voting machines and more than 5,000 ballots cast through mail-in ballots, started on Saturday, November 7 and concluded on Monday, November 9. The hand count audit showed that "[n]o discrepancies were found."

¶9 On November 12, ARP sued the Maricopa County Recorder and the Board (collectively "County"). The complaint sought an order declaring that certain provisions of the 2019 EPM addressing hand counts conflict with state statutes. ARP also requested mandamus relief directing the County to conduct a hand count of the election results "in strict accordance" with § 16-602(B)(1), which requires a sampling of two percent of "precincts," not "vote centers." At the same time, ARP applied for an order to show cause, alleging that conducting a hand count based on precincts would result "in a different method of data analysis that is certain to produce different results." ARP asserted that

if precincts are sampled instead of voting centers, then the data is much easier for [ARP] and/or members of the public to cross-reference or cross-check with other voter registration data, since voter registration data is already "sortable" by precinct (but not by "vote center"). In other words, whatever hardship vel non it may cause to the county to sample precincts instead of vote centers, such hardship is vastly outweighed by the benefit to the public in being able to analyze and sort (and organize, process) the sampling data, thereby creating transparency to the public and confidence in the integrity of our elections, which is clearly the point to this statute to begin with (and which has clearly taken on a special

and obvious importance in this election, which cannot be understated).

¶10 On November 13, the Secretary and the Arizona Democratic Party moved to intervene as defendants. The next business day, the court held a show cause hearing and later that day issued a minute entry granting the motions to intervene and setting expedited briefing deadlines for all pending matters, including a potential request for injunctive relief from ARP.

¶11 The Secretary, the County, and the Democratic Party separately moved for dismissal. The Secretary argued in part that (1) ARP's lawsuit was barred by laches; (2) ARP was wrong as a matter of law because § 16-602(B) is silent on the procedures for counties that use vote centers and it expressly authorizes the Secretary to fill that gap; (3) the lawsuit suffered from procedural defects, including failure to request injunctive relief postponing the official canvass, which had to be completed no later than November 23; and (4) ballots would be treated arbitrarily because several other counties used vote centers to perform their hand count audits.

¶12 Addressing laches, the Secretary argued ARP had known for "nearly a decade" that the EPM authorizes hand count audits based on samples from vote centers, and the County followed that process in the March 2020 presidential preference election and the August 2020 primary election. Yet, ARP raised no challenge to the procedure the EPM authorized until after the County had completed the hand count for the 2020 general election, causing prejudice to the Secretary, the County, and "Arizona voters, who deserve finality." The Secretary requested attorneys' fees under § 12-349, which mandates a fee award if a claim is brought, among other reasons, "without substantial justification."

¶13 After outlining the procedures and results of the hand count audit, and attaching a copy of the audit report, the County argued ARP had no basis to claim it was unaware that its...