In Arizona Republican Party v. Stephen Richer, the Arizona Supreme Court examined whether sanctions imposed on the Arizona Republican Party (ARP) for a post-election lawsuit were appropriate.[1] This case arose from the contentious 2020 general election in Maricopa County, Arizona. Following that election, officials conducted a mandatory hand count of ballots. The ARP challenged the hand count review of ballots cast at voting centers instead of county precincts. The ARP argued that this practice violated Arizona state law, specifically A.R.S. § 16-602, which they contended requires hand counts to be conducted by county precincts.[2]

In 2011, the Arizona State Legislature amended A.R.S. § 16-411(B) to permit county boards of election supervisors to use voting centers “in place of or in addition to specifically designated polling places” in each precinct.[3] Voting centers allow any voter in the county to cast their ballot at any location, which deviates from the precinct-based voting method. In 2019, the Arizona Secretary of State published an updated Election Procedures Manual (EPM) which allowed the mandatory post-election hand count of ballots to be conducted by vote centers instead of by precincts.[4] State law requires each county to hand count 1% of all early ballots, as well as the ballots from 2% of precincts after each election.[5] The EPM permitted counties that use voting centers instead of precincts, including Maricopa County, to hand count the ballots from 2% of voting centers instead of precincts.[6]

However, A.R.S. 16-602(B)(1), the section of the law requiring hand counting of ballots by precinct, was not changed, creating a potential discrepancy between the statute and the state EPM.[7]

In the 2020 election, Maricopa County utilized voting centers instead of traditional precincts. After the election, Maricopa County proceeded to hand count ballots based on voting centers, as outlined in the EPM.[8]

Shortly after the election, the ARP filed a lawsuit challenging the procedures used in the mandatory post-election hand count of ballots. ARP contended that the hand count should have been conducted by precincts as mandated by A.R.S. § 16-602, rather than by voting centers, as allowed by the EPM. The ARP sought a declaratory judgment and mandamus relief to compel Maricopa County to conduct the hand count by precincts rather than by voting centers.[9]

Initially, the Superior Court dismissed the ARP’s lawsuit on procedural grounds, ruling that the ARP’s claims were groundless and not made in good faith. The court found several procedural defects in the ARP’s complaint, including the failure to name the Secretary of State as a defendant and the timing of the lawsuit, which was filed after the hand count had already been completed. The court also imposed attorney’s fees on the ARP, citing A.R.S. § 12-349, which mandates fee awards for claims that are both groundless and not made in good faith.[10]

The ARP appealed the Superior Court’s decision, but the three-judge appeals panel unanimously upheld the Superior Court’s decision, agreeing that the ARP’s lawsuit was procedurally flawed and warranted sanctions.[11]

The ARP appealed to the Arizona Supreme Court. In a unanimous decision issued on May 2, 2024, the Supreme Court reversed the lower courts’ rulings, finding that the ARP’s claims were not groundless and thus did not justify the imposition of sanctions.[12]

Justice John R. Lopez IV wrote for the majority: 

"By sanctioning parties and their lawyers for bringing debatable, long-shot complaints, courts risk chilling legal advocacy and citizens raising ‘questions’ under the guise of defending the rule of law. Even if done inadvertently and with the best of intentions, such sanctions present a real and present danger to the rule of law.”[13]

Justice Lopez emphasized several key points in the opinion. First, the ARP’s claim was fairly debatable, not groundless. The argument that A.R.S. § 16-602 requires hand counts by precincts rather than by voting centers was a legitimate legal question. This distinction was crucial because the ARP’s interpretation of the statute suggested a plain-language conflict with the EPM, making the claim more than, in the words of the Superior Court, “barely colorable.”[14]

Second, the Arizona Supreme Court addressed the procedural issues that led to the dismissal of the ARP’s lawsuit. While the ARP had not named the Secretary of State as a defendant, this did not render the lawsuit groundless, as the Maricopa County officials responsible for implementing the challenged procedures were appropriate defendants. Moreover, the court found that the request for mandamus relief was “not groundless because it was at least fairly debatable, even if a ‘long shot,’ whether the County was obligated to conduct a hand count consistent with § 16-602(B) or an arguably conflicting EPM provision.”[15]

The Arizona Supreme Court also examined the applicability of the election law time bar, which generally precludes post-election challenges to pre-election procedures. The court noted that the hand count process spans both pre-election and post-election periods, making it debatable whether the ARP’s challenge was time-barred. This nuanced interpretation allowed for the possibility that post-election challenges to such procedures could be legitimate.[16]

Finally, the court discussed the doctrine of laches, which involves dismissing claims that are unreasonably delayed and cause prejudice. While the lower courts had dismissed the ARP’s complaint on these grounds, the supreme court found that the timing of the ARP’s lawsuit—filed shortly after the election but before the official canvass—did not “present the sort of extraordinary circumstances that would render the equitable defense of laches a source of objective legal groundlessness.”[17]

Justice Lopez also shot down the rationale that the lawsuit was “political” as a reason to sanction the Arizona Republican Party and its attorneys. He wrote, “Invariably, political motives are inextricably intertwined with the legal or factual considerations in pursuing election cases.”[18]

The court ruled that it is impossible to separate politics from law in election-related cases, and subjecting attorneys to a higher risk of sanctions because election cases are politically motivated “intolerably chills citizens and their attorneys precisely in an arena where we can least afford to silence them.”[19]

Justice Lopez wrote:

"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."[20]

This ruling will likely influence future election-related litigation in Arizona, providing clearer standards for when attorney’s fees can be awarded and reinforcing the right to legal advocacy in the electoral process.

[1] Ariz. Republican Party v. Richer, 547 P.3d 356 (Ariz. 2024).

[2] Id. at 360.

[3] 2011 Ariz. Sess. Laws ch. 331, § 3 (1st Reg. Sess.).

[4] Office of Ariz. Sec’y of State, 2019 Election Procedures Manual (2019), available at https://apps.azsos.gov/election/files/epm/2019_elections_procedures_manual_approved.pdf; A.R.S. § 16-411(B).

[5] A.R.S. § 16-602(B)(1).

[6] Office of Ariz. Sec’y of State, supra note 4.

[7] The legislature also amended § 16-602(B) in 2011 to direct that “[t]he 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 adopted pursuant to section 16-452.” But the legislature left unchanged § 16-602(B)(1)’s requirement that the hand count sample be selected from “[a]t least two percent of the precincts in that county, or two precincts, whichever is greater.” See § 16-602(B)(1). Thus, despite having adopted a new practice of utilizing voting centers, § 16-602’s hand count is arguably limited to precincts alone. Indeed, “voting centers” are not mentioned in § 16-602. Nevertheless, the 2019 EPM provides that voting centers are to be treated as precincts for the purpose of the hand count. See Office of Ariz. Sec’y of State, supra note 4, at 216; Richer, 547 P.3d at 360.

[8] Richer, 547 P.3d at 360.

[9] Id.

[10] Id. at 361.

[11] Id. at 363.

[12] Id.

[13] Id. at 370.

[14] Id. at 362.

[15] Id. at 364.

[16] Id. at 365.

[17] Id. at 366.

[18] Id. at 369.

[19] Id.

[20] Id.

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