IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

ARIZONA REPUBLICAN PARTY, Plaintiff/Appellant,

v.

STEPHEN RICHER, as Maricopa County Recorder; and the MARICOPA 

COUNTY BOARD OF SUPERVISORS, by and through, 

CLINT HICKMAN, JACK SELLERS, THOMAS GALVIN, 

BILL GATES, STEVE GALLARDO, Defendants/Appellees.

ADRIAN FONTES, in his official capacity as Arizona Secretary of State;

ARIZONA DEMOCRATIC PARTY, Intervenors/Appellees.

1

No. 1 CA-CV 21-0201 

Appeal from the Superior Court in Maricopa County

No. CV2020-014553

The Honorable John R. Hannah, Jr., Judge

AFFIRMED

COUNSEL

Wilenchik & Bartness P.C., Phoenix

By Dennis Wilenchik, Lee Miller, John D. Wilenchik

Counsel for Plaintiff/Appellant

1 The caption has been amended to include all parties in this litigation 

and to reflect the substitution of the public officers currently serving in the 

capacities listed. See ARCAP 27(c)(2). 

FILED 4-20-2023
ARIZONA REPUBLICAN PARTY v. RICHER, et al.

Opinion of the Court

2

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 

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which 

Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, 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).
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3

¶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. 
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¶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 
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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 ARP’s county chair had participated 

in the audit, because no later than November 11, ARP had received a copy 

of the report in a different lawsuit. The County argued that ARP

participated—through its county chair—in the process to select vote centers 

instead of precincts, and that the county chair’s participation in the hand 

count audit “shows [ARP’s] unreasonable delay without justification.” 

¶14 The Democratic Party urged dismissal on similar grounds

and referred to a November 12 letter from the Arizona Attorney General’s 

office to Republican legislative leaders in response to “a number of 
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6

inquiries regarding the scope and nature of the manual hand count audit” 

given the County’s use of voting centers. Providing initial thoughts on the 

issue, the letter stated in part:

Some have asserted that the audit should be conducted only 

using precincts . . . . The statute [§ 16-602], however, is silent

on how the hand count audit should be conducted when 

voting centers are used. Instead, the statute directs the 

Secretary of State to fill in that gap and establish additional 

hand count procedures with the approval of the Governor 

and Attorney General, which was done in 2019.

¶15 In its four-page response covering all three motions to 

dismiss, ARP briefly addressed its argument that the County failed to 

conduct the hand count in accordance with § 16-602(B). The majority of the 

response focused on ARP’s position that the delay in filing the suit was not 

unreasonable because there had never been a “real case or controversy”

over the hand count procedure until the 2020 general election cycle and that 

no prejudice existed for the other parties because there was “plenty of time” 

to issue the canvass. 

¶16 ARP also applied for a preliminary injunction to enjoin the 

Board from certifying the results of the votes and issuing an official canvass 

until the merits of the complaint could be litigated. After outlining its legal 

reasoning that a new hand count was required, ARP asserted:

Given the importance of this election, and of doing everything 

with respect to this election “by the book,” there are also 

powerful public-policy reasons to grant this preliminary 

injunction. If an injunction is not granted, then there will be 

lingering questions about the legitimacy of [the election] results

which could otherwise be answered through a proper hand 

count. This is also the basic prejudice that [ARP] and the 

voting public will suffer if the Court declines to grant an 

injunction – it will create a cloud over the legitimacy of this election 

and its results. 

(Emphasis added.)

¶17 Following a one-hour oral argument held on November 18, 

the superior court issued a minute entry denying the request for 

preliminary injunction and dismissing ARP’s complaint with prejudice. 

The court stated that a more detailed ruling would follow and set a deadline 
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by which the Secretary could submit a motion for attorneys’ fees under 

§ 12-349. 

¶18 In applying for fees, the Secretary outlined many reasons in 

support of the assertion that ARP’s claim was groundless, including that 

the challenged EPM provision had been “on the books for nearly a decade” 

and ARP had not objected to it in previous elections, and that ARP failed to 

timely seek injunctive relief. The Secretary also argued the claim was made 

in bad faith, asserting ARP’s motives in filing the suit were to “delay final 

election results and sow doubt about the integrity of Arizona’s elections 

system.” 

¶19 The superior court issued a detailed ruling addressing the 

merits of ARP’s case. The court found that ARP’s request for declaratory 

relief could not succeed because of ARP’s unreasonable delay in pursuing 

the claim. The court also concluded that ARP had no claim for mandamus 

relief because County election officials followed the 2019 EPM and they 

lacked discretion to vary from it when performing the hand count. 

¶20 Responding to the Secretary’s fee application, as well as 

addressing the court’s merits ruling, ARP argued in part that its lawsuit 

was justified because it hinged on the plain language of § 16-602(B), and 

that because the 2019 EPM conflicts with the statute, the statute must 

control. ARP also asserted it was unaware the hand count had already 

occurred because the hand count results had not yet been published on the 

Secretary’s website, and the County was still counting votes when the 

complaint was filed. ARP asserted its claims were not brought in bad faith 

because it did not initially seek to delay the canvass until becoming aware 

that the County intended to certify it, which the Secretary argued would 

have made its claims moot. ARP also asserted that by “even 

contemplating” awarding attorneys’ fees the court would be “close to 

engaging in very serious interference with the First Amendment right to 

petition government for a redress of grievances.” See U.S. Const. amend. I. 

¶21 In another detailed ruling, the court granted the Secretary’s 

fee request for attorneys’ fees under § 12-349, ordering ARP and its counsel 

to pay the $18,237.59 award, jointly and severally. ARP timely appealed, 

and we have jurisdiction under A.R.S. § 12-120.21(A)(1). 

¶22 After briefing in this appeal was complete, ARP moved to 

stay the appeal and revest jurisdiction in the superior court to allow ARP to

move to disqualify the judge who decided this case, based on newly 

discovered evidence of alleged bias and prejudice. We granted ARP’s 
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motion to stay the appeal. After a different judge denied the motion to 

disqualify in the superior court, ARP unsuccessfully sought special action 

relief in this court. ARP did not seek to amend the notice of appeal to 

include the superior court’s order denying its motion to disqualify. Thus, 

that ruling is not at issue in this appeal. 

DISCUSSION

¶23 Broadly stated, ARP argues the superior court erred by (1) 

rejecting the merits of its claim that state law requires hand counts to be 

conducted based on precincts, not vote centers; and (2) awarding attorneys’ 

fees under § 12-349 on the grounds that ARP’s lawsuit was brought without 

substantial justification. As an initial matter, we address two procedural 

factors that impact our resolution of these issues. 

¶24 First, rather than summarizing the relevant facts and 

procedural history in the “statement of facts” section of its opening brief, 

ARP includes numerous reasons it believes the court’s rulings were 

improper. This tactic violates our appellate rules and needlessly injects 

uncertainty into the briefing process by leaving opposing counsel and this 

court to sort through a muddled presentation to discern what arguments 

have been fairly presented. See ARCAP 13 (outlining how appellate briefs 

should be organized and what content is appropriate in each section). We 

could justifiably ignore each of the “arguments” that ARP improperly 

embedded in its statement of facts section; however, in our discretion we 

have considered all assertions of error. 

¶25 Second, ARP has not provided transcripts of the show cause 

hearing or the oral arguments held in the superior court. See Baker v. Baker, 

183 Ariz. 70, 73 (App. 1995) (“A party is responsible for making certain the 

record on appeal contains all transcripts or other documents necessary for 

us to consider the issues raised on appeal.”); see also ARCAP 11(c)

(explaining the appellant’s duty to order transcripts). Without such 

transcripts, we generally presume that the matters discussed at those 

hearings support the court’s rulings. See Baker, 183 Ariz. at 73 (“When a 

party fails to include necessary items, we assume they would support the 

court’s findings and conclusions.”). We recognize that in some instances, 

transcripts of hearings involving primarily procedural matters or oral 

arguments on pending motions might not be “necessary” for our 

consideration of an appeal. But for certain matters, such as the § 12-349 fee 

award before us, statements made by counsel and the court during nonevidentiary hearings may be particularly relevant to our analysis, as shown 

below. 
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I. Dismissal of Claim for Declaratory Relief

¶26 ARP argues the superior court erred in dismissing its claim 

for declaratory relief, which sought a ruling that the hand count sampling 

must be based on “precincts,” under the “plain language” of § 16-602. We 

review de novo the grant of a motion to dismiss for failure to state a claim. 

Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012). We “assume the truth 

of all well-pleaded factual allegations and indulge all reasonable inferences 

from those facts, but mere conclusory statements are insufficient.” Id. at 

¶ 9. 

¶27 The superior court dismissed ARP’s claim for declaratory 

relief on several grounds, including laches. “In the context of election 

matters, the laches doctrine seeks to prevent dilatory conduct and will bar 

a claim if a party’s unreasonable delay prejudices the opposing party or the 

administration of justice.” Lubin v. Thomas, 213 Ariz. 496, 497, ¶ 10 (2006); 

see also League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, 558, ¶ 6 (2009) 

(“Laches will generally bar a claim when the delay [in filing suit] is 

unreasonable and results in prejudice to the opposing party.”). 

¶28 The superior court found that ARP unreasonably delayed

pursuing its claim because it could have been filed much earlier. For 

example, ARP could have filed its claim earlier the same year in connection 

with the 2020 presidential preference and primary elections, or when the 

Board passed the resolution authorizing vote centers on September 16, 

2020. Instead, ARP “waited until after the election, after the statutory 

deadline for commencing the hand count audit, and (as it turned out) after 

the completion of the audit.” The court found that ARP failed to acknowledge 

the prejudice to the County caused by the delay, including the tax dollars

spent in conducting another audit under tight deadlines and disrupting an 

orderly administration of the election. 

¶29 ARP contends that dismissal of its claim for declaratory relief

was wrong because the court ignored the language of § 16-602(B). But in 

its opening brief, ARP states that it is not appealing the court’s laches ruling. 

Even if that statement does not reflect explicit waiver, ARP makes no 

attempt to challenge the court’s detailed analysis supporting the conclusion 

that the request for declaratory relief “was way too late.” Thus, ARP has 

waived any challenge to the court’s laches ruling. See State v. Carver, 160 

Ariz. 167, 175 (1989) (explaining that failure to “present significant 

arguments, supported by authority,” in an opening brief on a particular 

claim usually results in waiver). 
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¶30 Nonetheless, in its reply brief ARP asserts that the Secretary

and the County misconstrued ARP’s failure to address laches in the 

opening brief. According to ARP, the declaratory relief claim “is not even 

rationally susceptible to a ‘laches’ argument—the statute still says what it 

says, and there is no conceivable prejudice to talking about it now as 

opposed to months from now.” We generally do not consider arguments 

raised for the first time in a reply brief. See Dawson v. Withycombe, 216 Ariz. 

84, 111, ¶ 91 (App. 2007). Even so, ARP does not inform us where this 

argument was raised in the superior court. See BMO Harris Bank N.A. v. 

Espiau, 251 Ariz. 588, 594–95, ¶ 25 (App. 2021) (explaining that arguments 

not presented to the trial court are waived on appeal). Nor does ARP point 

to any portion of the record suggesting that it conveyed to the court a desire 

to continue pursuit of the declaratory judgment claim as guidance for future

elections. Instead, the court explained its understanding of ARP’s claim:

It is telling that [ARP] lost interest in the declaratory judgment 

claim, and pivoted instead to the request for an injunction to 

stop the certification of the election and the canvass of the 

results, as soon as the defendants made clear that the hand 

count audit has been completed. [ARP] could have pursued 

the declaratory judgment claim to determine how to audit 

future voting center elections. That it did not do so 

demonstrates that its real interest was not the audit procedure 

as such. 

¶31 On appeal, ARP does not challenge the court’s reasoning that 

it apparently had no interest, for future elections, in litigating its claim that 

the 2019 EPM’s hand count provision for vote centers is invalid because it 

conflicts with § 16-602(B). Thus, ARP has waived any argument that the 

court erred in dismissing its claim for declaratory relief. Similarly, ARP has 

waived any claim that the court erred in dismissing its claim for mandamus 

relief and denying the request for a preliminary injunction because ARP 

presents no challenges to those rulings in its opening brief. See Carver, 160 

Ariz. at 175. 

II. Award of Attorneys’ Fees 

¶32 “Except as otherwise provided by and not inconsistent with 

another statute,” in any civil action a court “shall assess reasonable attorney 

fees” when an attorney or party “brings or defends a claim without 

substantial justification,” which means “that the claim or defense is 

groundless and is not made in good faith.” A.R.S. § 12-349(A)(1), (F). A fee 

award under § 12-349 must be supported by a preponderance of the 
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evidence. See Phx. Newspapers, Inc. v. Dep’t of Corr., 188 Ariz. 237, 244 (App. 

1997) (construing an earlier, similar, version of § 12-349). We review the 

court’s application of § 12-349 de novo, but we view the evidence in a 

manner most favorable to sustaining the decision, and we will affirm unless 

the court’s findings are clearly erroneous. Id. at 243–44.

¶33 When awarding fees, a trial court “shall set forth the specific 

reasons for the award” and may consider various factors, A.R.S. § 12-350, 

but “the findings need only be specific enough to allow a reviewing court 

to test the validity of the judgment,” Rogone v. Correia, 236 Ariz. 43, 50, ¶ 22

(App. 2014). The following § 12-350 factors are relevant here: (1) the extent 

of efforts to determine a claim’s validity before it was asserted; (2) the extent 

of post-filing efforts to eliminate invalid claims; (3) the availability of facts 

to help determine the validity of a claim; (4) “whether the action was 

prosecuted . . . , in whole or in part, in bad faith”; and (5) the extent to which

the party prevailed. See A.R.S. § 12-350(1)–(3), (5), (7). 

¶34 In addressing ARP’s challenge to the superior court’s fee 

ruling, we note that the two § 12-349 elements (groundless, lack of good 

faith) are not easily distinguishable, and other cases often analyze them 

jointly. We believe the better approach is to provide separate analysis, but 

we also recognize some overlap will exist given the breadth of each 

element. 

A. Groundless Determination

¶35 Whether a claim is groundless involves an objective

determination. Rogone, 236 Ariz. at 50, ¶ 22. A claim is groundless if the 

proponent is unable to present any rational argument, based on the law or 

the evidence, supporting the claim. Id. 

¶36 In awarding fees to the Secretary under § 12-349, the court 

explained that it had “considered only those facts and circumstances” that 

both ARP and its counsel “have had a fair opportunity to address, either 

during the litigation on the merits or in response to [the Secretary’s] fee 

application.” The court then stated, for several reasons, that ARP’s claim 

was groundless. 

¶37 First, the court found that “the relief sought was not legally 

available from the parties that were sued at the time the suit was filed. The 

other parties pointed out these procedural defects in their motions to 

dismiss, but [ARP]’s response to the motions barely addressed them.” Until 

ARP filed its lawsuit, it never objected to using vote centers or raised any 

issue about the hand count audit that would occur as part of the 2020 
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general election even though the County used the same procedure twice in 

elections held earlier that year. As noted, ARP has not challenged the 

court’s laches finding. Thus, ARP’s inability to offer any viable legal 

rationale for waiting until after the 2020 election procedures were 

established, much less after the hand count audit was completed, supports 

the court’s finding that ARP’s attempt to require Maricopa County to 

perform a new audit was groundless. 

¶38 Second, the court explained that even if it could have 

reasonably overlooked the laches problem as a matter of equity, electionlaw principles “unambiguously barred the claim after the election.” ARP 

argues that its claim based on the alleged conflict between the 2019 EPM 

and § 16-602 was not groundless. However, the context and timing of a

lawsuit challenging election procedures is critical. As the court explained, 

for decades Arizona courts have applied the principle that “if parties allow 

an election to proceed in violation of the law which prescribes the manner 

in which it shall be held, they may not, after the people have voted, then 

question the procedure.” Kerby v. Griffin, 48 Ariz. 434, 444 (1936); see also

Sherman v. City of Tempe, 202 Ariz. 339, 342, ¶ 9 (2002) (stating that actions 

for procedural violations must be brought before the election); Tilson v. 

Mofford, 153 Ariz. 468, 470 (1987) (holding that procedures must be 

challenged before the election). 

¶39 The court then rejected ARP’s assertion that “every election is 

subject to being investigated, audited in strict accordance with the law, and 

challenged for falsity” after the fact through an election contest. Citing 

Findley v. Sorenson, 35 Ariz. 265, 269 (1929), the court explained that an

election challenge based on a procedural statute states a cause of action only 

if the plaintiff alleges that fraud has occurred or that the result would have 

been different had proper procedures been followed. Id. (“[H]onest 

mistakes or mere omissions on the part of the election officers, or 

irregularities in directory matters, even though gross, if not fraudulent, will 

not void an election, unless they affect the result, or at least render it 

uncertain.”). The court added:

To say as [ARP] does that this case was “about auditing 

results, which by definition is simply checking them to ensure

voter confidence and integrity,”. . . and that fraud was “not 

germane to the case,”. . . is to say that there was no colorable 

cause of action in the first place. 

¶40 ARP argues that a hand count audit is not an “election 

procedure,” suggesting that an election is over when the polls close. The 
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13

procedures of an election are set forth in detail in statutes and the EPM. See 

generally A.R.S. §§ 16-400 to -678; 2019 EPM. Hand count procedures start 

no later than two weeks before election day, when the county official 

informs the county political party chairs how many of their respective 

members are needed to serve on the “Hand Count Boards.” See 2019 EPM,

at 213. Party chairs “must” designate their members at least seven days 

before the election. Id. Hand count procedures continue until the County 

completes the audit report, in this case, on November 9, 2020. Contrary to 

ARP’s contention, the only reasonable interpretation of Arizona’s case law, 

considered in the context of election statutes and the 2019 EPM, is that a 

hand count audit constitutes an election procedure. Thus, as the superior 

court concluded, in the absence of fraud or a specific showing that a 

different outcome would have occurred, a party lacks a legal basis to file a 

court action demanding that an alternative election procedure must be 

performed. 

¶41 Third, the court found that ARP failed to address the principle 

that “a writ of mandamus cannot issue to public officials who have no legal 

discretion concerning the matter at issue.” See Adams v. Bolin, 77 Ariz. 316, 

322–23 (1954). Applying that rule, County election officials were legally 

required to follow the 2019 EPM and had no discretion to vary from it for 

purposes of the hand count. See Ariz. Pub. Integrity All., 250 Ariz. at 61, ¶ 4

(“[W]hen public officials, in the middle of an election, change the law based 

on their own perceptions of what they think it should be, they undermine 

public confidence in our democratic system and destroy the integrity of the 

electoral process.”). And as the court had explained earlier, election

officials who performed the hand count could have been charged with a 

crime if they chose to ignore the 2019 EPM. ARP has not challenged these 

findings. 

¶42 Fourth, the court found that ARP’s declaratory relief claim 

was “misdirected” because it sued the wrong party. Without citing 

authority, ARP argues that it needed to name only the County because if 

ARP had merely included the Secretary in its lawsuit, then the County 

would not have been “bound by any judgment or rulings in the case.” The 

County, however, is bound by the statutory election procedures, the EPM, 

and pertinent case law, the same as any other county. See id. at 63, ¶ 16.

Thus, ARP provides no reasonable justification for failing to sue the 

Secretary when one of the express purposes of the lawsuit was to invalidate 

a portion of the 2019 EPM. 

¶43 In sum, ARP was or should have been aware of the wellestablished principles that the EPM has the force of law, and that the time 
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to challenge election procedures is before an election. Seeid.;see also Sherman, 

202 Ariz. at 342, ¶ 9. ARP makes no reasonable argument that it had any 

chance of success when it failed to continue pursuit of the declaratory 

action. If ARP was interested in obtaining a judicial decision on whether 

hand counts carried out in counties that have decided to use vote centers is 

legally impermissible, then ARP could have litigated that issue in due 

course so the issue would be clarified for future elections. As the superior 

court noted, ARP presumably had no interest in doing so. Thus, the record 

supports the court’s findings that ARP’s claims were groundless. 

B. Bad Faith Determination 

¶44 Whether a party or its attorney acted in bad faith in pursuing 

a claim or defense is a subjective inquiry. See Rogone, 236 Ariz. at 50, ¶ 22. 

The relevant case law has not defined what constitutes bad faith under 

§ 12-349, but rather only “offers illustrations of that standard as the courts 

have applied it case by case.” City of Sedona v. Devol, 196 Ariz. 178, 182–83, 

¶ 23 (App. 1999). 

¶45 The superior court found that ARP’s claim was not made in 

good faith for several reasons. The court explained in part that ARP’s claim 

seemed to presume that sampling by precinct would reveal precincts where 

the number of votes exceeded the number of registered voters, but the 

purpose of the hand count audit is “to assure that the machines are working 

properly.” The court determined there was “no evidence at all of phantom 

voters or manipulated vote totals or any other wrongdoing that might show 

up in a ‘cross-check’ against voter rolls.” The court also concluded that 

ARP’s suit was motivated by “political reasons” based on “[p]ublic 

mistrust,” which is an improper purpose. Additionally, the court rejected 

ARP’s attempt to avoid payment of fees by relying on the First Amendment, 

stating that it “does not give a litigant the right to file and maintain a 

groundless lawsuit.”

¶46 ARP argues that a bad faith inquiry under § 12-349 should be 

based on the types of conduct that “constitute an ‘improper purpose’ under 

the common law in a claim for abuse-of-process.” In ARP’s view, without 

this proposed limit judges could “liberally sanction people for holding 

political views that differ from their own,” as it contends happened in this 

case. The cases ARP cites, see, e.g., Crackel v. Allstate Ins. Co., 208 Ariz. 252

(App. 2004), do not involve attorneys’ fees awarded under § 12-349. While 

ARP’s examples of improper purpose could likely constitute grounds for 

supporting a finding of bad faith in the context of § 12-349, nothing in the 

text of the statute limits a court’s analysis to the examples ARP identifies. 
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Opinion of the Court

15

¶47 We are not persuaded by ARP’s contention that the superior 

court awarded fees under § 12-349 primarily for political motives. ARP 

argues the court was motivated by its own political views about voter 

fraud, the election, and former President Trump, such that it improperly 

relied on cases about election contests to “shoehorn in” its desire to make a 

“political statement.” ARP contends the court opined on these issues for no 

other reason than to “make a political statement that would be read and 

widely published by media.” ARP thus concludes that a finding of bad 

faith over a “political issue” of “public mistrust” following the November 

election is not the kind of bad faith contemplated by § 12-349. 

¶48 ARP contends that “[d]uring the hearing in this matter, [the 

judge] went out [of] his way to question what evidence [ARP] had of actual 

fraud in the election; and in his Ruling on sanctions, he flippantly 

characterized the public’s concern with ‘voter fraud’ as a ‘theory for which 

no evidence exists.’” ARP’s contention reveals its failure to acknowledge 

the problem it was facing—that the lawsuit was based at least partially on 

the public’s concern about elections in general, rather than focusing on 

claims reasonably supported by the law. 

¶49 ARP also overlooks the court’s finding that ARP changed 

from demanding a “fair election” to wanting “nothing more than a hand 

count audit conducted ‘completely by the book and in strict accordance 

with the law.’” And even more significant, ARP ignores its admission, 

made in response to the Secretary’s fee application, that “[p]ublic mistrust 

following this election motivated this lawsuit.” Addressing that admission, 

the superior court appropriately concluded: 

[ARP] is effectively admitting that the suit was brought 

primarily for an improper purpose. It is conceding that the 

method of sampling ballots for the hand count audit is a 

minor procedural requirement, not a necessary step toward a 

fair election. It is saying that it filed this lawsuit for political 

reasons. “Public mistrust” is a political issue, not a legal or 

factual basis for litigation. 

¶50 ARP argues it never argued or alleged “fraud,” but the record 

shows otherwise. In ARP’s response to the motions to dismiss it stated that 

“perhaps most importantly (and obviously) of all, concern about potential 

widespread voter fraud has taken on a special significance in this general 

election, warranting a thorough focus on these laws and compelling [ARP] 

to take action.” (Emphasis added.) According to the record provided to us, 

ARP made claims about protecting the integrity of the election and first 
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Opinion of the Court

16

invoked the specter of fraud. If the court made comments about fraud at 

one of the two hearings it conducted, it was ARP’s burden to provide 

transcripts to prove it. Regardless, ARP’s concern about who introduced 

the issue of fraud into the litigation overlooks the court’s well-reasoned 

analysis outlined above that redoing an election procedure requires a party 

to allege fraud or that the alternative procedure would change the election’s 

outcome. 

¶51 In its rulings, the superior court specifically relied on 

statements made by ARP’s counsel, which presumably occurred during the 

hearings, as ARP has not asserted the statements were made in any other 

context. And in its decision on the merits, the court expressly stated that it 

had “considered the oral arguments of counsel.” In addressing whether 

ARP (1) brought claims for an improper purpose, (2) tried to distance itself 

from its own arguments, and (3) suggested that the court asked unfair 

questions about the public policy behind the hand count statute, the court 

explained: “[ARP] is not characterizing either its litigation posture or the 

Court’s inquiry honestly. The Court’s questions addressed [ARP]’s own 

arguments. For [ARP] to suggest otherwise is gaslighting. It evinces a lack 

of good faith.” Because ARP has not supplied transcripts, we presume that 

the matters raised and debated during the oral arguments support the 

court’s ruling. See Baker, 183 Ariz. at 73. Thus, we cannot conclude that 

ARP’s contentions about the court’s perception of those conversations 

support ARP’s view. Furthermore, the court thoroughly explained its 

reasoning in both the ruling on the merits and the ruling on attorneys’ fees.

¶52 Finally, we find no merit in ARP’s contention that the First 

Amendment essentially immunizes a party who challenges election 

procedures from § 12-349 sanctions. ARP suggests “it may be beneficial”

for us “to weigh in on what a finding of ‘bad faith’ under § 12-349 really 

requires, and when a judge’s formulation of it becomes so erroneous as to 

violate First Amendment rights.” According to ARP, the superior court 

admitted that it “considers a political belief held by one third of the public, 

as well as the country’s former President, to be mere ‘bad faith.’” ARP

argues that allowing “such a broad definition of bad faith would violate 

any rational definition of what is permissible under the First Amendment, 

and would allow county judges to liberally sanction people for holding 

political views that differ from their own—which is exactly what the lowercourt judge did in this case.” The record shows otherwise.

¶53 The superior court issued its fee ruling based on the record 

before it. Responding to the fee application, ARP took issue with the court’s

comment (in the merits ruling) that it would be necessary to decide whether
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Opinion of the Court

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ARP brought its case in bad faith “to cast false shadows on the election’s 

legitimacy.” ARP asserted that the comment was “at odds” with around “a 

third of the general population,” and “half of the Republican Party in this 

State, according to polls conducted by NPR, Reuters, and Politico among 

others.”

¶54 ARP contends that the election’s “legitimacy” was not an 

issue properly before the court. But ARP ignores its own filing. In 

requesting the preliminary injunction, ARP explicitly referenced concerns 

about the election’s legitimacy if the injunction was not granted. Supra, 

¶ 16. Addressing those concerns in the context of the Secretary’s fee

request, the court stated: “This is why the Court raised the question 

whether [ARP] brought suit in order to ‘cast false shadows on the election’s 

legitimacy.’ Undercutting the election’s legitimacy by raising ‘questions’ is 

exactly what [ARP] did in this passage.” ARP’s assertions about the election’s 

legitimacy, along with its failure to properly acknowledge or address the 

court’s legal analysis on the legal flaws in its case, severely undermine 

ARP’s claim that the superior court’s ruling was politically motivated. And 

ARP cites no authority suggesting that general allegations about public 

mistrust and the legitimacy of the election, to the extent they could be 

relevant in a proper election-related lawsuit, provided any legal 

justification for filing its claims here. 

¶55 ARP also asserts that because politically charged election 

cases “are already hard to file and litigate,” judges need to “avoid 

deliberately becoming a part of the ‘political thicket.’” ARP argues that 

affirming the fee award in this case would

endorse this judge’s behavior, which only served to inflame 

and escalate an otherwise straightforward legal issue with his 

own personal political beliefs; and it only serves to chill 

lawyers and the public from seeking to raise important issues

of obvious public concern in court. It would turn the courts 

into just another hostile political forum, where people have 

every right to fear irrational reprisals from biased judges —

even though our courts are designed to be the one place

where this does not happen. 

For the reasons explained above, as well as those set forth in the superior 

court’s comprehensive rulings addressing the merits and attorneys’ fees, 

we reject ARP’s insinuation that the judge was biased and that his rulings

were affected by political beliefs. See Stagecoach Trails MHC, L.L.C. v. City of 

Benson, 232 Ariz. 562, 568, ¶ 21 (App. 2013) (recognizing that judges are 
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Opinion of the Court

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presumed to be “free of bias and prejudice,” and “judicial rulings alone do 

not support a finding of bias or partiality without a showing of an 

extrajudicial source of bias or a deep-seated favoritism” (citation omitted)).

¶56 Further, like the superior court, we are not imposing any new 

requirement or limitation on the filing of an election-related lawsuit. 

Instead, as with any lawsuit, claims filed in an election matter are subject to 

the well-established principles—derived from statutes, rules, and case

law—that govern all civil lawsuits in this state. See, e.g., A.R.S. § 12-349; 

Ariz. R. Sup. Ct. 42, ER 3.1 (“A lawyer shall not bring or defend a 

proceeding, or assert or controvert an issue therein, unless there is a good 

faith basis in law and fact . . . .”); see also King v. Whitmer, 556 F. Supp. 3d

680, 727 (E.D. Mich. 2021) (“Although the First Amendment may allow 

[attorneys] to say what they desire on social media, in press conferences, or 

on television, federal courts are reserved for hearing genuine legal disputes 

which are well-grounded in fact and law.”). 

¶57 ARP cites no authority suggesting that courts refrain from

holding a party and its attorney accountable for filing lawsuits that lack 

merit because of First Amendment considerations, and the few cases 

addressing this topic confirm the opposite view. The First Amendment 

does not shield attorneys or parties from a court’s obligation under § 12-349 

to award attorneys’ fees against a party or attorney who brings or defends 

a claim without substantial justification. See Larsen v. Comm’r, 765 F.2d 939, 

941 (9th Cir. 1985) (“The right to petition protected by the First Amendment 

does not include the right to maintain groundless proceedings.”); see also In 

re Itel Sec. Litig., 791 F.2d 672, 676 (9th Cir. 1986) (rejecting an argument that 

a court’s power to impose sanctions for frivolous litigation is limited by the 

First Amendment); King, 556 F. Supp. 3d at 727; cf. Bill Johnson’s Restaurants, 

Inc. v. NLRB, 461 U.S. 731, 743 (1983) (“Just as false statements are not 

immunized by the First Amendment right to freedom of speech, baseless 

litigation is not immunized by the First Amendment right to petition.”)

(citations omitted). The court system exists to hear legitimate legal 

disputes, not for airing political disputes or grievances. See King, 556 F.

Supp. 3d at 727 (“It is not . . . acceptable to use the federal judiciary as a 

political forum to satisfy one’s political agenda.”). 

¶58 ARP has not shown that any of the court’s § 12-349 findings 

are clearly erroneous, or that the court abused its discretion in granting the 

Secretary’s fee request. 
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Opinion of the Court

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CONCLUSION

¶59 We affirm the superior court’s dismissal of ARP’s complaint

and application for preliminary injunction, and the court’s award of 

attorneys’ fees. The Secretary requests an award of attorneys’ fees incurred 

on appeal under § 12-349, for the same reasons outlined by the superior 

court. In its reply brief, ARP does not address the fee request. We award 

reasonable attorneys’ fees to the Secretary subject to compliance with 

ARCAP 21. The award is joint and several against ARP and its counsel.