Judge rejects suit, confirms Fontes’ win

A judge Friday evening dismissed Rep. Mark Finchem’s lawsuit seeking a do-over of the race for Arizona secretary of state and affirmed Adrian Fontes as winner of the Nov. 8 election.

Maricopa County Superior Court Judge Melissa Julian issued her ruling eight hours after a hearing that veered from allegations of improper interference with social media platforms to unfounded claims about questionable vote tabulation machines to the prospect of disbarring Finchem’s attorney for filing a frivolous lawsuit.

Finchem, a Republican from Oro Valley, lost to Democrat Fontes in the Nov. 8 election by 120,208 votes. Julian’s ruling affirms that result. Fontes is slated to take the oath of office Jan. 2.

Finchem’s lawsuit revolved around allegations of misconduct by current Secretary of State Katie Hobbs for allegedly failing to ensure the tabulation machines were properly approved by the federal Elections Assistance Commission, despite evidence provided to the court that shows the machines had such approval. Finchem also cited other alleged misconduct, suggesting that the late October suspension of his Twitter account was likely due to Hobbs’ interference.

Julian rejected all of the misconduct allegations. “None of these alleged acts constitutes ‘misconduct’ sufficient to survive dismissal,” she wrote.

Julian also granted a request from attorneys for Hobbs and Fontes for sanctions, giving them 10 days to file their demand.

The judge’s ruling quashes Finchem’s attempt to get a redo of the secretary of state race.

Earlier in the day, Finchem’s attorney, Daniel McAuley, told the court a do-over is needed.

“We’re asking for a revote on the specific contest that unjustly enriched Mr. Fontes, as we see it,” he said.

McAuley compared the request to the runoff election that Georgia conducted for a U.S. Senate seat, although Arizona statewide elections don’t have a runoff provision.

Congressional GOP candidate Jeff Zink had joined Finchem in filing the original complaint, but later dropped out of the lawsuit.

McAuley argued that the motions to dismiss, filed by attorneys for the Secretary of State’s Office as well as by Secretary of State-elect Fontes, are not allowed in an election contest.

McAuley said the litigation is an election “contest,” not a complaint, and therefore court rules on civil cases should not govern it. McAuley said the case should go straight to an argument on the alleged misconduct by the secretary of state.

He complained that he has not had time to delve into the research needed to argue for a new election because he’s had to respond to the dismissal motions.

But the very complaint McAuley filed last week cited the discovery rules allowed under civil complaints. The judge also pointed to state Supreme Court rulings that treat election challenges as a civil matter.

Attorney Andy Gaona, for Hobbs’ office, and Craig Morgan, for Fontes, had asked Julian to dismiss what they called a “baseless” case.

Morgan asked the judge to take appropriate action to ensure frivolous cases are not allowed to continue.

“I’ve heard so many contradictions, my head hurts,” Morgan said.

McAuley, who is well into his 70s, seemed nonplussed by the suggestion of legal sanctions.

“I’m semi-retired,” he said. “I want to be out of the law.”

He figured any complaint to the Arizona Bar challenging his ability to continue to practice law would have little impact, as he would be 76 or 77 by the time any disbarment decision would happen.

But McAuley said he took Finchem’s case because someone needed to air these complaints about what he deemed as election misconduct.