Fontes and Hobbs file motions to dismiss Finchem election suit

By: - December 14, 2022 2:30 pm

Secretary of State candidates Mark Finchem, on the left, and Adrian Fontes, during a debate in September. Screenshot via Arizona Citizens Clean Election Commission/Arizona PBS

Democratic Secretary of State-elect Adrian Fontes and Secretary of State Katie Hobbs have filed motions to dismiss Republican Mark Finchem’s lawsuit seeking to overturn his loss in the secretary of state race. 

Last week, Finchem and failed congressional candidate Jeff Zink filed a suit demanding the courts overturn Fontes’ and Rueben Gallego’s midterm election wins, and making sprawling claims of election malfeasance at the hands of Maricopa County and Hobbs. 

The lawsuit includes no evidence that ballot tabulators malfunctioned anywhere in Arizona — the issues in Maricopa County were caused by malfunctioning ballot printers — or that voters were disenfranchised. This week Finchem filed a new amended lawsuit which did not include Zink, who lost his election to Gallego, an incumbent Democratic congressman, by more than 50 percentage points. 

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Finchem wants his election loss to Fontes overturned, a statewide hand-recount of all ballots and a court order that the attorney general investigate Hobbs for what he claims was self-dealing and threatening public officials. 

Finchem lost the race to Fontes by almost 5 percentage points, a point noted by attorneys for Hobbs in the opening of their motion to dismiss

“Yet rather than respect the will of the people, Plaintiff asks that the entire election be ‘annulled,’ and that the Court order a special election in just this one race to be ‘counted by hand’ and without mail-in ballots as authorized by law,” Hobbs’ attorneys wrote. “An election contest must rest on facts known to a plaintiff when a contest is filed, not wild speculation and conspiracy theories aimed at undermining the work of Arizona’s election officials; and election contests must rest on the law currently in effect, not the law as Plaintiff would prefer it to be.”

Finchem, a Republican lawmaker from Oro Valley, is represented by Daniel McCauley, a Cave Creek attorney who specializes in trusts and wills, not election law. McCauley earlier this month was hired by the Cochise County board of supervisors to defend its decision not to certify election results by the deadline in state law, but he failed to show up to a court hearing. A judge ultimately ordered the county to certify its election.

Finchem has been a champion of election denialism and was a vocal advocate of the Arizona Senate’s partisan “audit” of the 2020 election results in Maricopa County. He also spread a number of conspiracy theories and participated in alternative media affiliated with the QAnon movement

Hobbs’ attorneys refuted long debunked claims made in the Finchem suit that the equipment in Maricopa County was not certified. They also pointed out that while Finchem accused Hobbs of “misconduct” for not recusing herself from running the election at the state level while she was a candidate for governor, there is no state statute that requires her to do so, and she is required to fulfill her duties as secretary of state, which include certifying elections. 

In the suit, Finchem further alleged that emails from Hobbs’ office to social media companies alerting them to misinformation posted on their sites was also proof of “misconduct” by the office. 

“This is not ‘misconduct’ by any stretch of the imagination, but rather the actions of a public official fulfilling her own duties, ensuring that all Arizonans’ votes are counted, and identifying false information that undermined confidence in Arizona’s safe and secure elections systems and dedicated elections officials,” attorneys representing Hobbs wrote. “That Plaintiff calls any of this behavior ‘misconduct’ should tell the Court and the public all they need to know about this baseless litigation.”

Fontes’ motion to dismiss was harsh in its criticism of the lawsuit, calling it a “flimsy tantrum of conspiracy theories and outright falsities” by a “twice sanctioned litigant.” 

“To use a turn of phrase: ‘Enough is enough,’” the motion to dismiss says. “The People of Arizona have spoken, rejected Plaintiff’s firebrand of divisive and dangerous rhetoric, and elected Adrian Fontes in order to preserve our democracy for future generations.” 

Fontes’ attorneys asked the court to not only dismiss the case, but award attorney fees and sanctions if the court deems them necessary. In court Tuesday, an attorney representing Hobbs said the actions by Finchem’s attorneys were “sanctionable.” 

“What Plaintiff seeks is not democracy, but a dictatorship that places his will and whim above the law as made by the People our elected representatives swear to serve,” Fontes’ attorneys say in the motion. “This Court cannot allow such a travesty come to pass when Plaintiff has failed to articulate anything remotely constituting misconduct or illegal voting that somehow effected the 2022 General Election.” 

Oral arguments on the motions are set for Friday morning, and Maricopa County Superior Court Judge Melissa Julian said an evidentiary hearing could be done next week if the case is not dismissed.

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Jerod MacDonald-Evoy
Jerod MacDonald-Evoy

Reporter Jerod MacDonald-Evoy joins the Arizona Mirror from the Arizona Republic, where he spent 4 years covering everything from dark money in politics to Catholic priest sexual abuse scandals. Jerod has also won awards for his documentary films which have covered issues such as religious tolerance and surveillance technology used by police. He brings strong watchdog sensibilities and creative storytelling skills to the Arizona Mirror.

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