Petition for Writ of Certiorari — Andrew D. Parker, et al., Petitioners v. Bill Gates, as a Member of the Maricopa County Board of Supervisors, et al.

Contents of Appendix to Petition for Certiorari

Decision of Ninth Circuit Court of Appeals

affirming district court sanctions, and dissent

No. 23-16022 (March 14, 2025)

Reported at 130 F.4th 1064………………………A-1

Order of District Court for the District of Arizona

dismissing Amended Complaint

No. CV-22-00677-PHX-JJT (August 26, 2022)

Reported at 623 F.Supp.3d 1015……………..… A-27

Order of District Court for the District of Arizona

granting motion for sanctions

No. CV-22-00677-PHX-JJT (December 1, 2022)

Reported at 643 F.Supp.3d 989……………….. A-56

Order of District Court for the District of Arizona

establishing amount of sanctions

No. CV-22-00677-PHX-JJT (July 14, 2023)

Available at 2023 WL 4548357………………... A-98

Decision of Ninth Circuit Court of Appeals

affirming dismissal of Amended Complaint

No. 22-16413 (October 16, 2023)

Reported at 83 F.4th 1199……………………. A-134

Order of Ninth Circuit Court of Appeals

denying petition for rehearing, and dissent

No. 23-16022 (August 21, 2025)

Reported at 148 F.4th 1110……………………A-143

Fed. R. Civ. P. 11……………………….................A-168

28 U.S.C. § 1927……………………………………A-171

Amended Complaint, sanctioned by District Court for

the District of Arizona

No. CV-22-00677-PHX-JJT (May 4, 2022) ……A-172

Memorandum in Support of Motion for Preliminary

Injunction, sanctioned by District Court for the

District of Arizona

No. CV-22-00677-PHX-JJT (June 8, 2022)….A-240

United States Court of Appeals

for the Ninth Circuit

No. 23-16022

KARI LAKE; MARK FINCHEM,

and

Plaintiffs,

ANDREW D. PARKER; PARKER DANIELS

KIBORT, LLC; KURT B. OLSEN; OLSEN LAW, PC,

Counsel for Plaintiffs,

Appellants,

v.

BILL GATES, as a member of the Maricopa County

Board of Supervisors; CLINT HICKMAN, as a

member of the Maricopa County Board of

Supervisors; JACK SELLERS, as a member of the

Maricopa County Board of Supervisors; THOMAS

GALVIN, as a member of the Maricopa County

Board of Supervisors; STEVE GALLARDO, as a

member of the Maricopa County Board of

Supervisors,

Defendants-Appellees,

and

ADRIAN FONTES, Arizona Secretary of State;

MARICOPA COUNTY BOARD OF SUPERVISORS;

REX SCOTT, as a member of the Pima County Board

of Supervisors; MATT HEINZ, as a member of the

Pima County Board of Supervisors; SHARON

BRONSON, as a member of the Pima County Board

of Supervisors; STEVE CHRISTY, as a member of the

Pima County Board of Supervisors; ADELITA

GRIJALVA, as a member of the Pima County Board

of Supervisors; PIMA COUNTY BOARD OF

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SUPERVISORS,

Defendants.

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

D.C. No. 2:22-cv-00677-JJT

Argued and Submitted September 11, 2024

San Francisco, California

Filed March 14, 2025

Before: Kim McLane Wardlaw, Ronald M. Gould, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Gould; Dissent by Judge Bumatay

OPINION

GOULD, Circuit Judge:

Lead attorneys for the Plaintiffs, Andrew D.

Parker and Kurt Olsen (collectively, “Lead

Attorneys”), appeal the district court’s imposition of

sanctions under Federal Rule of Civil Procedure 11(c)

and under 28 U.S.C. § 1927. We conclude that the

district court did not abuse its discretion in awarding

attorneys’ fees under Rule 11(c) because Lead

Attorneys made false, misleading, and unsupported

factual assertions in their first amended complaint

(“FAC”) and motion for preliminary injunction and did

not undertake a reasonable pre-filing inquiry. We

further

conclude

that

the

district

court’s

determination that the Lead Attorneys acted in bad

faith was not clearly erroneous, and that it therefore

did not err by imposing sanctions under 28 U.S.C. §

1927.

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BACKGROUND

The underlying dispute in this matter concerns

Arizona’s voting system. Plaintiffs filed a complaint in

Arizona district court alleging that Arizona’s current

voting system, which relies upon electronic elements,

insufficiently protects the rights of Arizona voters and

must be replaced by a system using exclusively handcounted paper ballots. Plaintiffs also filed a motion for

a preliminary injunction seeking to prohibit the use of

computerized equipment in the administration of

Arizona elections. The district court dismissed the

operative complaint for lack of Article III standing,

and we affirmed. Lake v. Fontes, 83 F.4th 1199, 1204

(9th Cir. 2023) (per curiam).

On December 1, 2022, the district court granted

Defendants’ motion for sanctions, ordered the

Plaintiffs to pay Defendants’ attorneys’ fees, and

ordered the parties to file memoranda regarding the

proper amount of attorneys’ fees. Lead Attorneys and

Defendants filed responsive briefing and, on May 24,

2023, the district court held oral argument on

Defendants’ application for attorneys’ fees. On July

14, 2023, the district court issued an order granting in

part and denying in part Defendants’ application for

attorneys’ fees and staying the obligation to pay the

fees pending resolution of all appeals. The district

court’s order held Lead Attorneys and their law firms

liable for $122,200.00 in fees. This appeal follows.

DISCUSSION

Although the substantive claim in this matter

was dismissed for lack of standing, federal courts have

jurisdiction over “collateral issues after an action is no

longer pending,” including costs, attorneys’ fees, or

sanctions, because such motions “are ‘independent

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proceeding[s] supplemental to the original proceeding

and not a request for a modification of the original

decree.’” Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 395 (1990) (quoting Sprague v. Ticonic Nat’l

Bank, 307 U.S. 161, 170 (1939)). We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291. Kaass

Law v. Wells Fargo Bank, 799 F.3d 1290, 1292

(2015).

I. Rule 11 Sanctions

Rule 11(b) states that, by “signing, filing,

submitting or later advocating” for a “pleading,

written motion, or other paper,” an attorney certifies

that:

(1) it is not presented for any improper

purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of

litigation; (2) the claims, defenses, and other

legal contentions are warranted by existing

law or by a nonfrivolous argument for

extending, modifying, or reversing existing

law or for establishing new law; [and] (3) the

factual contentions have evidentiary support

or, if specifically so identified, will likely have

evidentiary support after a reasonable

opportunity for further investigation or

discovery[.]

Fed. R. Civ. P. 11(b). A complaint that does not comply

with any one of these requirements gives grounds for

monetary sanctions. See Fed. R. Civ. P. 11(c); see also

Truesdell v. S. Cal. Permanente Med. Grp., 293 F.3d

1146, 1153 (9th Cir. 2002). In analyzing whether a

complaint is sanctionable under Rule 11, we employ

an objective standard of reasonableness and do not

consider the attorney’s subjective good faith. Bus.

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Guides, Inc. v. Chromatic Commc’ns Enter., Inc., 892

F.2d 802, 811 (9th Cir. 1989), aff’d 498 U.S. 533

(1991) (holding that Rule 11 does not allow for a “pure

heart, empty head” defense (citation omitted)).

We review the award of Rule 11 sanctions for

abuse of discretion. Montrose Chem. Corp. of Cal. v.

Amer. Motorists Ins. Co., 117 F.3d 1128, 1133 (9th Cir.

1997). To impose sanctions under Rule 11, the district

court must determine that a pleading is “both baseless

and made without a reasonable and competent

inquiry.” In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d

431, 434 (9th Cir. 1996) (quoting Townsend v. Holman

Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990)).

“Because the district court is ‘[f]amiliar with the

issues and litigants, the district court is better

situated than the court of appeals to marshal the

pertinent facts and apply the fact-dependent legal

standard mandated by Rule 11.’” Montrose Chemical

Corp., 117 F.3d at 1133 (quoting Cooter & Gell, 496

U.S. at 402). A district court “necessarily abuse[s] its

discretion if it base[s] its ruling on an erroneous view

of the law or on a clearly erroneous assessment of the

evidence.” Cooter & Gell, 496 U.S. at 405.

A. Factual Support

The district court here held that the Lead

Attorneys violated Rule 11 when they filed the FAC

because the FAC contained baseless allegations.

Central among these false and misleading allegations

identified by the district court are the claims that

Arizona does not use paper ballots and that Arizona

voting machines are not tested. Lead Attorneys

contend that the district court abused its discretion in

determining that the FAC made such claims, which

Lead Attorneys concede would be false.

Lead

Attorneys also point to some supported allegations in

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the FAC, contending that this demonstrates that the

factual allegations “have evidentiary support or . . .

will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery.”

Fed. R. Civ. P. 11(b)(3).

But the existence of some supported allegations

does not insulate Lead Attorneys from sanctions based

on other, unsupported allegations in the FAC. As

previously explained, “the mere existence of one nonfrivolous claim is not dispositive.” Townsend, 929 F.2d

at 1364. We instead consider whether the FAC, taken

as a whole, is subject to sanction. Id. The FAC alleged

that Arizona uses an electronic voting system that is

subject to manipulation and that must be replaced by

a paper voting system to protect Plaintiffs’ voting

rights. For this reason, the extent and manner of

digitization in the current Arizona voting system is

important in assessing the complaint as a whole. The

allegations about Arizona not using paper ballots and

suggestion it uses exclusively an “electronic voting

system subject to manipulation” were not supported by

any evidence placed in the record. And if unsupported

factual allegations are present in the FAC, the district

court did not abuse its discretion in imposing

sanctions. See Truesdell, 293 F.3d at 1153–54.

Our review of the FAC demonstrates that all of

the unsupported factual allegations identified by the

district court are present. We consider first the most

central and most contested of these unsupported

allegations: that Arizona does not use paper ballots.

Lead Attorneys argue that “the [first] amended

complaint acknowledges, presumes, and requires that

Arizona uses paper ballots.” Yet, the FAC makes no

mention of the current use of paper ballots. Instead,

the FAC repeatedly refers to “electronic voting

machines” and asks that the court order “an election

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conducted by paper ballots, as an alternative to the

current framework.” A reasonable person reading the

amended complaint would believe, contrary to the

facts, that Arizona does not use paper ballots at all in

its elections.

Similarly, though Lead Attorneys contend that

they never alleged that “Arizona does not have

objective, neutral, and expert testing processes for

electronic voting machines,” paragraph 57 of the

amended complaint states that “Arizona intends to

rely on electronic voting systems . . . without . . .

subjecting them to neutral, expert analysis.” The

plain meaning of the text supports the district court’s

finding, and the district court did not abuse its

discretion in finding that these factually misleading

statements rendered the FAC factually insufficient

and open to sanction. See Truesdell, 293 F.3d at 1153.

B. Speculation

Inquiry

and

Reasonable

Pre-Filing

Lead Attorneys also challenge the district

court’s holding that their claims were based on

“speculation and conjecture” and that Lead Attorneys

did not conduct a reasonable pre-filing inquiry. As an

initial matter, although Lead Attorneys contest the

district court’s characterization of the FAC as based on

“speculation and conjecture,” we have already used the

same language in affirming the dismissal of the FAC

for lack of standing. See Lake, 83 F.4th at 1204 (holding

that the FAC posits only “conjectural allegations” and

“speculation” as to any injury suffered by the

plaintiffs). The district court did not abuse its

discretion by reaching the same conclusion.

To be sanctioned under Rule 11, attorneys must

file a pleading which is “both baseless and without a

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reasonable and competent inquiry.” In re Keegan

Mgmt. Co., Sec. Litig., 78 F.3d 431, 434 (9th Cir. 1996)

(emphasis in original) (quoting Townsend, 929 F.2d at

1362). A reasonable inquiry is “an inquiry reasonable

under all of the circumstances of a case.” Townsend,

929 F.2d at 1364 (citation and quotation marks

omitted). “As the Supreme Court noted, if a lawyer

discovers that his [or her] client has a potential cause

of action only a short time before the statute of

limitations will expire, a more cursory inquiry will be

tolerated than when he [or she] has ample time to

investigate.” Id. (citation omitted).

Further, the district court did not abuse its

discretion in concluding that Lead Attorneys did not

conduct a reasonable inquiry. As explained supra

Section I.A, the FAC contained misleading and false

statements about the Arizona voting system. Facts

about the Arizona voting system are widely available,

and the current voting system in which paper ballots

are tabulated electronically has been in place for many

years. As the district court stated, in presenting

incorrect facts to the court, Lead Attorneys “either

failed to conduct the reasonable and factual legal

inquiry required under Rule 11, or they conducted such

an inquiry and filed this lawsuit anyway.” In either

event, “after conducting an objectively reasonable

inquiry into the facts and law,” no reasonable attorney

“would have found the complaint to be well-founded.”

Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir. 2005)

(citation omitted).

C. Improper Motivation

Lead Attorneys contend that the district court’s

sanctions were improperly motivated by a desire to

suppress “litigation concerning Arizona’s [electronic

voting system].”

In support of this argument,

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plaintiffs’ attorneys cite the district court’s statement

that

Imposing sanctions in this case is not to

ignore the importance of putting in place

procedures to ensure that our elections are

secure and reliable. It is to make clear that

the Court will not condone litigants ignoring

the steps that Arizona has already taken

toward this end and furthering false

narratives that baselessly undermine public

trust at a time of increasing disinformation

about, and distrust in, the democratic process.

It is to send a message to those who might file

similarly baseless suits in the future.

But Lead Attorneys mischaracterize the nature

of the district court’s concern. The district court’s

statement does not blanketly prohibit all votingrelated litigation. Rather, the district court stressed

that plaintiffs’ attorneys are being sanctioned because

they filed a baseless action. That the action concerns

a topic of national concern only increases the

importance of Rule 11’s deterrent function. Ensuring

that attorneys do not abuse the court process by filing

misleading and false claims is a legitimate function of

Rule 11 and is not undermined by the subject of the

litigation. See Cooter & Gell, 496 U.S. at 393. To the

contrary, that Lead Attorneys may mislead the public

and cause baseless concern about a topic of national

importance renders Rule 11’s deterrent function more

important than in cases of purely private concern.

II. 28 U.S.C. § 1927

Lead Attorneys also contest the district court’s

imposition of sanctions pursuant to 28 U.S.C. § 1927.

Under § 1927, an attorney may be required to pay

A-9

“excess costs, expenses, and attorneys’ fees” for

“multipl[ying] the proceedings in any case

unreasonably and vexatiously.” 28 U.S.C. § 1927. We

have held that “[s]anctions pursuant to section 1927

must be supported by a finding of subjective bad

faith.” Blixseth v. Yellowstone Mountain Club, LLC,

796 F.3d 1004, 1007 (9th Cir. 2015) (citation omitted).

“[B]ad faith is present when an attorney knowingly or

recklessly raises a frivolous argument or argues a

meritorious claim for the purpose of harassing an

opponent.” Id. (citation omitted). The district court

found that Lead Attorneys brought the motion for

preliminary injunction in bad faith based on the

motion’s timing and its frivolous nature.

Whether an attorney acted recklessly or in bad

faith is a factual finding that “[w]e will reverse . . . only

if [it is] clearly erroneous.” Pac. Harbor Cap., Inc. v.

Carnival Air Lines, Inc., 210 F.3d 1112, 1117 (9th Cir.

2000). Here, the district court’s finding was not

clearly erroneous. The motion for preliminary

injunction was frivolous for the same reasons as the

FAC, as it reiterated many of the same factual

misrepresentations. The timing of the motion further

supports the district court’s holding. Plaintiffs waited

nearly seven weeks after filing their initial complaint

to file the motion for preliminary injunction, despite

the alleged urgency of the situation. By the time of the

hearing on the preliminary injunction motion that

sought a complete overhaul of the Arizona election

system, less than four months remained before the

next election. In other words, the motion sought relief

that was impossible under the time constraints. The

district court’s express finding that this behavior was

reckless and met the standard for bad faith under §

1927 is not clearly erroneous. We therefore affirm the

district court’s imposition of § 1927 sanctions.

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CONCLUSION

We affirm the district court’s

Defendants’ motion for sanctions.

grant

of

AFFIRMED.

BUMATAY, Circuit Judge, dissenting:

In this case, candidates for political office—

Kari Lake and Mark Finchem—sought to challenge

the vote-counting procedures used by the State of

Arizona. They feared that Arizona’s use of electronic

tabulation systems makes them susceptible to

hacking by non-governmental actors. With the help of

their attorneys, Andrew Parker and Kurt Olsen, Lake

and Finchem filed a complaint that was ultimately

unsuccessful. Indeed, I agreed that Lake and Finchem

failed to persuasively establish standing to bring their

claims. See Lake v. Fontes, 83 F.4th 1199, 1201 (9th

Cir. 2023). But asserting an unpersuasive claim is

different from asserting a sanctionable one. Rather

than concluding this litigation, the district court

sanctioned Parker and Olsen under Federal Rule of

Civil Procedure 11 and 28 U.S.C. § 1927.

While the complaint may not have been drafted

with perfect precision and Parker and Olsen might

have played hardball with Arizona’s attorneys,

nothing they did was deceptive, intentionally false, or

beyond the bounds of zealous advocacy. Read in

context, their complaint challenged the reliability of

Arizona’s use of electronic systems to count ballots.

They never asserted that Arizona did not use paper

ballots, which drove the district court’s sanctions

decision. After all, voting with paper ballots was only

part of their concern for the reliability of Arizona’s vote

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counting procedures. And no party to the litigation

was fooled. Arizona’s attorneys fully understood the

nature of the claims. But the district court pressed

forward, seemingly concerned that the public might

misconstrue their claims. How the public might

misread the legalese of a complaint is not a basis for

imposing sanctions.

Even more troubling, the district court

expressly sanctioned Parker and Olsen to “send a

message” to other litigants who might raise electionlaw disputes. Lake v. Hobbs, 643 F. Supp. 3d 989, 1013

(D. Ariz. 2022). That was improper. Sanctions are not

a tool for punishing disfavored litigants or their

attorneys. It should go without saying that sanctions

cannot be weaponized against litigants with certain

political views or beliefs. Nor should we use them to

deter attorneys from representing the unpopular or

the unorthodox. Long ago, we foresaw the dangers of

Rule 11 abuse, warning that such sanctions “will be

used to chill vigorous advocacy.” Townsend v. Holman

Consulting Corp., 929 F.2d 1358, 1364 (9th Cir. 1990)

(en banc). That concern has come to pass.

Unfortunately, here in the Ninth Circuit, the

message is now loud and clear: challenge an election,

and judges stand with sanctions at the ready if they

disapprove of your claim. Because this message

threatens zealous advocacy and risks undermining

the people’s rights, I respectfully dissent.

I.

Rule 11 Sanctions Were Improper

“Rule 11 is an extraordinary remedy, one to be

exercised with extreme caution.” Operating Eng’rs

Pension Tr. v. A- C Co., 859 F.2d 1336, 1345 (9th Cir.

1988). Rule 11 sets a “low bar” for attorneys to clear.

See Strom v. United States, 641 F.3d 1051, 1059 (9th

Cir. 2011). A district court abuses its discretion in

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imposing Rule 11 sanctions when it “base[s] its ruling

on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.” Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

The district court identified four sets of

sanctionable conduct: (1) false allegations in the

complaint about the use of paper ballots; (2) false

allegations in the complaint about the testing of

Arizona’s election equipment; (3) reliance on

speculation and conjecture; and (4) failure to conduct

a reasonable pre-filing inquiry. It was an abuse of

discretion to sanction attorneys Parker and Olsen on

these grounds.

A. Allegations about Paper Ballots

At the heart of the district court’s sanctions

ruling was its belief that Lake and Finchem’s

complaint falsely stated that Arizona voters do not

cast paper ballots. But that’s wrong. First, the district

court mischaracterized Lake and Finchem’s

argument. They did not dispute that Arizonans vote

by paper ballot. Rather, their complaint sought to

vindicate the right “to have their ballots, and all

ballots cast together with theirs, counted accurately

and transparently.” Am. Compl. ¶ 2. So their

challenge focused on the security and operability of

Arizona’s vote counting system. They argued that

Arizona’s use of electronic vote-counting systems

made the process vulnerable to manipulation. Id. at ¶

153. Indeed, much of the complaint raised concerns

about the hacking risks associated with vote-counting

machines. They wanted to replace that electronictabulating system with one in which votes are

tabulated by humans. Id. True, they argued that hand

ballots must also be part of an accurate and

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transparent voting system. But because they stressed

vote tabulation—not vote casting—their argument

neither asserts nor implies, as the district court

wrongly concluded, that Arizona does not use paper

ballots. Only by misconstruing their arguments and

drawing all inferences against Lake and Finchem did

the district court reach its finding of sanctionable

conduct. The district court reasoned that their request

for injunctive relief was “entirely frivolous because

[Arizona is] already doing what [they] want the

[State] to do.” Lake, 643 F. Supp. 3d at 998. But

Arizona’s continued reliance on electronic tabulation is

undisputed. So the district court’s view was simply

wrong.

Second, the district court couldn’t point to a

single statement in the complaint that expressly said

that Arizonans do not vote by paper ballot. The district

court itself admitted as much. Id. (“Plaintiffs argue

that ‘none of these paragraphs say that Arizona does

not use paper ballots.’ . . . That is true only in the most

facile sense.”). This is reason enough to reverse the

sanctions decision. Rather than relying on clear

language from the complaint, the district court cherrypicked isolated snippets and applied faulty logic to

conclude that “Plaintiffs requested that the Court

order Arizona to do something that they contend it is

not currently doing: to use paper ballots.” Id.

Take the district court’s reliance on Paragraph

7 of the complaint. Paragraph 7 said,

Through this Action, Plaintiffs seek an Order

that Defendants collect and count votes

through a constitutionally acceptable process,

which relies on tried and true precepts that

mandates [sic] integrity and transparency.

This includes votes cast by hand on verifiable

paper ballots that maintains voter

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anonymity; votes counted by human beings,

not by machines; and votes counted with

transparency, and in a fashion observable to

the public.

Id. The district court focused on a single phrase—

“[t]his includes votes cast by hand on verifiable paper

ballots that maintains voter anonymity”—to suggest

that Lake and Finchem claimed Arizona voters do not

currently use paper ballots. That’s just wrong as a

matter of logic. Read in context, the paragraph is

advocating two things in conjunction: voting by paper

ballot and vote counting by humans. It’s undisputed

that Arizona did not hand count votes. So Lake and

Finchem were proposing a different voting system—

one with both paper ballots and human tabulation—

which did not then exist. This doesn’t mean paper

ballots were not already in use.

Likewise, the district court faulted Paragraph

153 of the complaint for stating that “Plaintiffs seek

for the Court to Order, an election conducted by paper

ballot, as an alternative to the current framework.”

Id. But the district court disregarded the context of

that statement. Right before it was the header:

“Voting on Paper Ballots and Counting Those Votes

by Hand Is the Most Effective and Presently the Only

Secure Election Method.” Am. Compl. at 38. And just

after that statement were nine bullet points detailing

how votes cast on paper ballots should be counted by

hand. Id. at 38–39. Read in full, the complaint was

again advocating both paper ballots and human

tabulation. The district court improperly assumed

that the “alternative” system referred to in Paragraph

153 must mean a different system in all respects from

the current system. But an “alternative” framework

need not be different in every respect. The fact that

the proposed “alternative” framework includes votes

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cast on paper ballots—just like the current practice—

does not suggest, let alone assert, that paper ballots

are not already used.

Next, the district court took aim at Paragraphs

58 to 60 of the complaint because they described

Arizona’s move from an “auditable paper-based

system” to a “computer- based system.” Lake, 643 F.

Supp. 3d at 998. The complaint alleged that “[b]illions

of federal dollars were spent to move states, including

Arizona, from paper-based voting systems to

electronic, computer-based systems.” Am. Compl. ¶

57. The district court deemed these allegations false

because they “more than impl[y] a transition away

from paper ballots.” Lake, 643 F. Supp. 3d at 999. To

justify this, the district court cited the Election

Assistance Commission’s definition of a “paper-based

voting system” as one that “records votes, counts

votes, and tabulates the vote count, using one or more

ballot cards or paper ballots.” Id. But the district court

ignored crucial context. Just one paragraph earlier,

the complaint stated that “Arizona intends to rely on

electronic voting systems to record some votes and to

tabulate all votes cast in the State of Arizona in the

2022 Midterm Election[.]” Am. Compl. ¶ 57; see also

id. ¶ 68 (“[M]any Arizonans will cast their votes on

Dominion [ballot marking devices], while nearly all

Arizonans will have their votes tabulated with

Dominion machines.”). Earlier, the complaint

explained why some voters must vote by electronic

means: “[v]oters who may have hearing or visual

impairments may cast their votes with the aid of

electronic ballot marking devices[.]” Id. ¶ 16. So the

complaint expressly recognized that Arizona uses

electronic voting systems to record only “some” votes

(i.e., those with disabilities). The direct implication is

that the rest of votes are cast in another way (i.e., on

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paper ballots). But the main thrust of the complaint

was not about how votes are cast but how they are

counted. It alleged—correctly and uncontested—that

“all” votes in Arizona are tabulated by “electronic

voting systems.”

Indeed, the complaint explicitly stated that

“[e]very county in Arizona intends to tabulate votes

cast . . . through optical scanners[.]” Am. Compl. ¶ 14.

As the name implies, “optical scanners” scan paper

ballots. The complaint then directly challenged the

use of optical scanners, arguing that “[e]very county

in Arizona . . . can simply and securely count votes cast

on paper ballots without using centralized machinecounting or computerized optical scanners.” Id. ¶

154 (emphasis added). This makes clear the

complaint’s focus was on opposing the use of optical

scanners—not disputing the existence of paper

ballots. Since optical scanners necessarily require

paper ballots, any confusion on this point was entirely

of the district court’s own making. For these same

reasons, we should disregard the district court’s

finding that the use of the terms “computerized

voting,” and “electronic voting systems” must be

construed to mean the lack of paper ballots. See Lake,

643 F. Supp. 3d at 999, 1001.

Rather than giving Lake and Finchem the

benefit of the doubt, the district court took parts of the

complaint out of context and construed them in the

most unfavorable light. That isn’t what Rule 11 is

meant for. We should’ve reversed the sanctions order

based on the paper-ballot allegations alone.

B. Allegations about Testing of Arizona’s

Election Equipment

Next, the district court found sanctionable the

complaint’s allegations that Arizona’s tabulation

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machines are not subject to “objective evaluation” or

“neutral, expert analysis.” Lake, 643 F. Supp. 3d at

1002 (quoting Paragraphs 20 and 57 of the complaint).

The district court found these allegations false

because the defendant in the case—the Arizona

Secretary of State—had tested the equipment and

because a company accredited by a federal election

commission had also conducted testing. Id. at 1002–

03.

First, whether the defendant tested the

equipment does little to disprove these allegations.

The whole point of the complaint was to request

“objective” and “neutral” testing— not simply relying

on the defendant’s assurances. Rule 11 doesn’t

require one side to take the opposing side’s word at

face value.

Second, the complaint challenges whether the

testing was sufficiently “objective” and “neutral.”

These are contested matters of judgment—not easily

reduced to binary determinations of truth or falsity.

To support their view, Lake and Finchem cited the

allegations that the company that manufactures

Arizona’s optical scanners “has refused to disclose its

software and other parts of its electronic voting

system in order to subject it to neutral expert

evaluation.” Am. Compl. ¶ 69. The district court did

not find that allegation false. Instead, it simply found

the evidence that Maricopa County had its equipment

tested by an accredited laboratory more compelling.

But this isn’t the Rule 11 standard. Rule 11

doesn’t require a complaint to be completely

uncontradicted; it merely requires that allegations

“have” or “will likely have evidentiary support.” Fed.

R. Civ. P. 11(b)(3). The complaint cleared that low

threshold here.

A-18

C. Claims Based on Speculation and Conjecture

The district court also found Parker and Olsen’s

conduct sanctionable because it ruled that Lake and

Finchem “lacked an adequate factual or legal basis to

support the wide- ranging constitutional claims they

raised or the extraordinary relief they requested.”

Lake, 643 F. Supp. 3d at 1008. It’s true that we

ultimately found Lake and Finchem’s claimed injuries

too speculative to satisfy Article III standing. See

Lake, 83 F.4th at 1201.

But “the pleader need not be correct in his view

of the law.” Zaldivar v. City of Los Angeles, 780 F.2d

823, 830 (9th Cir. 1986) abrogated on other grounds by

Cooter & Gell, 496 U.S. 384. Rule 11 sanctions don’t

apply when the “pleader” has “a ‘good faith argument’

for his or her view of what the law is, or should be.” Id.

at 831. Dismissing a complaint for lack of Article III

standing “is not dispositive of the issue of sanctions.”

Id. at 830. Instead, to warrant sanctions, the filing

must be “both baseless and made without a

reasonable and competent inquiry.” Strom, 641 F.3d

at 1059 (simplified). “[T]o constitute a frivolous legal

position for purposes of Rule 11 sanction, it must be

clear under existing precedents that there is no

chance of success and no reasonable argument to

extend, modify or reverse the law as it stands.” Id.

(simplified). So when “a suit rais[es] a novel issue of

law as to which there is no caselaw to the contrary,”

Rule 11 sanctions are inappropriate—even if the suit

is eventually dismissed. Id.

While this court agreed with the district court

that Lake and Finchem lacked standing, we never said

that they lacked a “good faith argument” for standing

or that their position was contrary to directly

controlling caselaw. See Lake, 83 F.4th at 1201. And

A-19

this court never opined on the merits of their claims.

We should reverse this finding of sanctionable

conduct.

D. Failure to Conduct a Reasonable PreFiling Inquiry

The district court also found sanctionable

Parker and Olsen’s failure to conduct a reasonable

pre-filing inquiry. Because the complaint did not

present clearly false statements or blatantly frivolous

arguments, this finding was an abuse of discretion.

But more troubling is the district court’s

decision to impose a heightened pre-filing inquiry

requirement on Parker and Olsen because of the

nature of the complaint and the clients they

represented. Because Parker and Olsen represented

candidates for secretary of state and governor and

they requested relief related to state elections, the

district court held that the attorneys were “required”

to conduct a “significant pre-filing inquiry.” Lake, 643

F. Supp. 3d at 1009. Rather than applying the proper

Rule 11 factors, the district court placed added

burdens on these attorneys based on its “concern” for

the “dangers posed by making wide- ranging

allegations of vote manipulation in the current

volatile political atmosphere.” Id. But while Rule 11’s

pre- filing inquiry requirement depends on the

circumstances of the case, including on “an

assessment of the type of claim,” Townsend, 929 F.2d

at 1364, we have never held that certain subject

matters automatically trigger a more stringent prefiling inquiry requirement.

Indeed, this selective targeting of certain

claims falls precisely into the concerns we raised in

Townsend.

A-20

Were vigorous advocacy to be chilled by the

excessive use of sanctions, wrongs would go

uncompensated. Attorneys, because of fear of

sanctions, might turn down cases on behalf of

individuals seeking to have the courts

recognize new rights. They might also refuse to

represent persons whose rights have been

violated but whose claims are not likely to

produce large damage awards. This is because

attorneys would have to figure into their costs

of doing business the risk of unjustified awards

of sanctions.

Townsend, 929 F.2d at 1363–64. We should have

reversed the sanctions order based on the district

court’s erroneous interpretation of Rule 11.

II. 28 U.S.C. § 1927 Sanctions

The district court also sanctioned Parker and

Olsen under § 1927 for filing a motion for a

preliminary injunction. Under § 1927, an attorney

may be sanctioned for “multipl[ying] the proceedings

in any case unreasonably and vexatiously[.]” 28 U.S.C.

§ 1927. Like Rule 11, sanctions under § 1927 are

“extraordinary” and must be “exercised with extreme

caution.” In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d

431, 437 (9th Cir. 1996) (simplified). Section 1927

requires a finding of “subjective bad faith,” meaning

the attorney must have “knowingly or recklessly

raise[d] a frivolous argument[.]” Id. at 436

(simplified).

At base, the district court found that Parker

and Olsen acted recklessly because they (1) waited

seven weeks after filing the complaint to seek a

preliminary injunction, and (2) filed the motion fewer

than four months before an election. But neither of

A-21

those timing factors supports a finding of

recklessness. Notwithstanding Purcell, parties will

sometimes seek election-related relief within months

of an election—and still prevail. See, e.g., Republican

Nat’l Comm. v. Mi Familia Vota, 145 S. Ct. 108 (2024)

(granting in part motion to stay district court’s

injunction); see also Mi Familia Vota v. Petersen, 111

F.4th 976 (9th Cir. 2024) (vacating motion panel’s stay

of district court’s injunction). Even if the district court

concluded that injunctive relief was inappropriate

before the 2022 elections, it could have still considered

an injunction applicable to future elections.

And the district court made no finding that the

attorneys here subjectively filed the motion for a

preliminary injunction seven weeks after the

complaint recklessly or with vexatious intent. In a

footnote, the district court speculated that Lake and

Finchem’s failure to seek “emergency relief” in the

Ninth Circuit after the 2022 election—despite filing a

Notice of Appeal—“raises questions about the good

faith basis for their request for immediate relief[.]”

Lake, 643 F. Supp. 3d at 1011 n.11. But the district

court ignored that an emergency appeal to our court is

reviewed deferentially— far from de novo. See Int’l

Franchise Ass’n, Inc. v. City of Seattle, 803 F.3d 389,

399 (9th Cir. 2015) (“The court does not review the

underlying merits of the case, but rather whether the

district court relied on an erroneous legal premise

or abused its discretion in denying [a party’s] motion

for preliminary injunctive relief.”). These different

considerations counsel against presuming too much

from the mere fact of failing to seek an emergency

appeal.

Because the court also abused its discretion in

ordering sanctions under § 1927, we should reverse

the entire sanctions order.

A-22

III.

“Send[ing] a Message”

It must also be said that the district court

improperly imposed sanctions to “send a message.”

Lake, 643 F. Supp. 3d at 1013. The district court

declared that it “will not condone litigants ignoring the

steps that Arizona has already taken toward [ensuring

that its elections are secure and reliable] and

furthering false narratives that baselessly undermine

public trust at a time of increasing disinformation

about, and distrust in, the democratic process.” Id. It

added that imposing sanctions on Parker and Olsen

would “send a message to those who might file

similarly baseless suits in the future.” Id. The district

court thus openly proclaimed its desire to chill certain

litigation—any legal challenges to the State’s election

procedures.

This violates both the text and purpose of Rule

11. Nothing in its text authorizes judges to make an

example of litigants to reassure the public. Its

purpose is “to deter baseless filings,” Cooter & Gell,

496 U.S. at 393, not to repair the “public trust.” Nor

does Rule 11 permit monetary sanctions to serve as a

message to the public at large. That’s why the

Supreme Court has cautioned that any sanctions fees

awarded must have a “causal link” to a litigant’s

misbehavior. Goodyear Tire & Rubber Co. v. Haeger,

581 U.S. 101, 108 (2017) (“[A] court, when using its

inherent sanctioning authority (and civil procedures),

[needs] to establish a causal link—between the

litigant’s misbehavior and legal fees paid by the

opposing party.”). Sanctioning attorneys to broadcast

a district judge’s displeasure with certain positions on

a politically charged issue offends the “extreme

caution” required under Rule 11. See Operating

Eng’rs Pension Tr., 859 F.2d at 1345. While the

A-23

district court no doubt had good intentions, it was

inappropriate to use Parker and Olsen as a vehicle to

communicate its views.

The Arizona Supreme Court—no stranger to

hard-fought election challenges—recognized the

dangers of imposing sanctions to send political

messages as the district court did here. It wisely

cautioned,

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.

Ariz. Republican Party v. Richer, 547 P.3d 356, 369

(Ariz. 2024). The Arizona Supreme Court then

warned:

“[R]aising questions” by petitioning our courts

to clarify the meaning and application of our

laws and noting the potential consequences of

the failure to do so—particularly in the

context of our elections— is never a threat to

the rule of law, even if the claims are charitably

characterized as “long shots.” . . . During times

of social and political contention and strife, we

must be mindful that our courts provide a

means of resolving such conflicts when issues

are legitimately presented. By sanctioning

parties and their lawyers for bringing

debatable, long-shot complaints, courts risk

chilling legal advocacy and citizens raising

A-24

“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.

Id.

I couldn’t have said it any better. I respectfully

dissent.

A-25

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-16022

KARI LAKE and MARK FINCHEM,

and

Plaintiffs,

ANDREW D. PARKER; et al.,

v.

Appellants,

BILL GATES, as a member of the

Maricopa County Board of Supervisors; et al.,

and

Defendants - Appellees,

ADRIAN FONTES,

Arizona Secretary of State; et al.,

Defendants.

D.C. No. 2:22-cv-00677-JJT

U.S. District Court for Arizona, Phoenix

MANDATE

The judgment of this Court, entered March 14,

2025, takes effect this date. This constitutes the

formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

A-26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-22-00677-PHX-JJT

Kari Lake, et al.,

Plaintiffs,

v.

ORDER

Katie Hobbs, et al.,

Defendants.

At issue are the following motions:

1) Defendants Bill Gates, Clint Hickman, Jack

Sellers, Thomas Galvin, and Steve Gallardo's

(hereinafter referred to collectively as “Maricopa

County Defendants”) Motion to Dismiss (Doc. 27),

joined by Sharon Bronson, Steve Christy, Adelita

Grijalva, Matt Heinx, and Rex Scott (hereinafter

referred to collectively as “Pima County

Defendants”) (Doc. 31) and Arizona Secretary of

State, Katie Hobbs (“the Secretary”) (Doc. 45), to

which Plaintiffs Kari Lake and Mark Finchem

responded (Doc. 56), and the Maricopa County

Defendants replied (Doc. 61);

2) The Maricopa County Defendants’ Motion for

Judicial Notice of Exhibits 1 through 17 (Doc. 29),

joined by the Pima County Defendants (Doc. 31), to

which Plaintiffs responded (Doc. 55);

3) The Secretary's Motion to Dismiss (Doc. 45), to

which Plaintiffs responded (Doc. 58), and the

Secretary replied (Doc. 62);

4) Plaintiffs’ Motion for Preliminary Injunction (Doc.

50), to which the Maricopa County Defendants and

A-27

the Secretary responded (Docs. 57, 59,

respectively), joined by the Pima County

Defendants (Doc. 60), and Plaintiffs replied (Docs.

64, 63, respectively);

5) The Secretary's Motion to Strike and Motion in

Limine (Doc. 74), joined by the Maricopa County

Defendants (Doc. 75), to which Plaintiffs

responded (Doc. 91); and

6) Plaintiffs’ Expedited Request for Permission to

Supplement Record (Doc. 93), to which Defendant

Maricopa County responded (Doc. 95), joined by

the Secretary (Doc. 96).

On July 21, 2022, the Court heard the parties’

arguments on Defendants’ Motions to Dismiss and

Plaintiffs’ Motion for Preliminary Injunction. (See Doc.

79; Doc. 98, Tr.) For the reasons set forth below, the

Court grants Defendants’ Motions to Dismiss, and

therefore does not reach Plaintiffs’ Motion for

Preliminary Injunction.1 The Court also denies

To obtain a preliminary injunction, a plaintiff must show that

“(1) [it] is likely to succeed on the merits, (2) [it] is likely to suffer

irreparable harm in the absence of preliminary relief, (3) the

balance of equities tips in [its] favor, and (4) an injunction is in

the public interest.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th

Cir. 2015) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). Plaintiffs cannot

meet any of the factors. Further, even if Plaintiffs could satisfy

the first, second, and third Winter factors, which they cannot,

their Motion for Preliminary Injunction would undoubtedly fail

on the fourth factor—such an injunction is not in the public

interest. Not only do Plaintiffs fail to produce any evidence that a

full hand count would be more accurate, but a hand count would

also require Maricopa County to hire 25,000 temporary staff and

find two million square feet of space. (Tr. 196:6-198:8.) Further,

there is no question that the results of the election would be

delayed. (Tr. 198:9-21; 199:22-201:14.) In fact, with the County's

current employees it would be “an impossibility” to have the

1

A-28

Plaintiffs’ Expedited Request for Permission to

Supplement Record.

I.

BACKGROUND

A. Plaintiffs’ Allegations

Plaintiffs allege that the United States’

transition to electronic systems and computer

technology for voting has “created unjustified new

risks of hacking, election tampering, and electronic

voting fraud.” (Doc. 3, First Amended Complaint

(“FAC”) ¶ 71.) According to Plaintiffs, electronic ballot

marking devices certified by Arizona are “potentially

insecure, lack adequate audit capacity, fail to meet

minimum statutory requirements, and deprive voters

of the right to have their votes counted and reported in

an accurate, auditable, legal, and transparent

process.” (FAC ¶ 23.) It follows, Plaintiffs say, that the

use of these devices in the upcoming 2022 midterm

election, “without objective validation, violates the

voting rights of every Arizonan.” (FAC ¶ 23.)

Plaintiffs assert that the electronic voting

systems used in Arizona counties are “rife” with

cybersecurity vulnerabilities and provide a means for

unauthorized persons to manipulate the reported vote

counts in an election and potentially change the

winner. (FAC ¶¶ 12, 139.) Some of the vulnerabilities

Plaintiffs identify include: operating systems and

antivirus software that lack necessary updates; open

ports on the election management server, which allow

for possible remote access; shared accounts and

ballots counted in order to perform the canvass by the 20th day

after the election, as required by law. (Tr. 194:16-23.) Thus, the

injunctive relief Plaintiffs seek is not in the public interest.

A-29

common passwords; unauthorized user internet or

cellular access through election servers and devices;

and secret content not subject to objective and public

analysis. (FAC ¶ 12.)

Plaintiffs contend that credible allegations of

electronic voting machine glitches that materially

impacted specific races began to emerge in 2002. (FAC

¶ 73.) Plaintiffs cite cyber experts and computer

scientists who claim that they have created programs

and software that can change votes without detection.

(FAC ¶¶ 74-75.) Plaintiffs also note that electronic

voting machine manufacturers “source and assemble

their components in hostile nations,” specifically

naming China, Taiwan, and the Philippines. (FAC ¶¶

90-92.)

According to Plaintiffs, both Republican and

Democratic lawmakers have been aware of the

problems with electronic voting systems for years but

have failed to act. (FAC ¶¶ 93-107.) Further, Plaintiffs

claim that electronic voting machine companies have

not been transparent about their systems, specifically

noting that the Department of Homeland Security's

Cybersecurity and Infrastructure Agency (“CISA”)

revealed that “malicious hackers had compromised

and exploited SolarWinds Orion network management

software products.” (FAC ¶¶ 108-112) (citing CISA,

CISA Issues Emergency Directive to Mitigate the

Compromise

of

SolarWinds

Orion

Network

Management

Products

(Dec.

13,

2020)

(https://www.cisa.gov/news/2020/12/13/cisa-issuesemergency-directive-mitigate-compromise-solarwinds

-orion-network).) Plaintiffs claim that open-source

technology would mitigate some of these problems and

promote both security and transparency, but

A-30

Defendants have failed to institute such technologies.

(FAC ¶¶ 117-118.) Instead, according to Plaintiffs, the

lack of transparency has created a “black box” system

of voting that lacks credibility and integrity. (FAC ¶

124.)

Plaintiffs also allege that they have found

evidence of illegal vote manipulation during the 2020

general election. (FAC ¶ 125.) Plaintiffs cite a report

compiled by the Cyber Ninjas, which they claim found

that: (1) “None of the various systems related to

elections had numbers that would balance and agree

with each other. In some cases, these differences were

significant”; (2) “Files were missing from the Election

Management System (EMS) Server”; (3) “Logs

appeared to be intentionally rolled over, and all the

data in the database related to the 2020 General

Election had been fully cleared”; (4) “Software and

patch protocols were not followed”; and (5) basic cyber

security best practices and guidelines from the CISA

were not followed. Maricopa County Forensic Election

Audit, Volume I at 1-3 (Sept. 24, 2021),

(https://c692f527-da75-4c86-b5d1-8b3d5d4d5b43.

filesusr.com/ugd/2f3470_a91b5cd3655445b498f9acc63

db35afd.pdf).2

Next, Plaintiffs contend that Arizona's voting

systems do not meet state or federal standards. (FAC

2

Plaintiffs fail to mention that the report also states:

[T]here were no substantial differences between the hand count

of the ballots provided and the official election canvass results

for Maricopa County. This is an important finding because the

paper ballots are the best evidence of voter intent and there is

no reliable evidence that the paper ballots were altered to any

material degree.

Maricopa County Forensic Election Audit, Volume I at 1-3.

A-31

¶ 135 (citing 2002 Voting Systems Standards (“VSS”);

A.R.S. § 16-442(B)).) The Secretary has statutory

duties to test, certify, and qualify the software used on

county election systems, and Plaintiffs allege she

certified Dominion's DVS 5.5-B voting system despite

the fact that it includes Dominion ImageCast Precent2

(“ICP2”), a component program, which does not meet

2002 VSS standards or Arizona's statutory

requirements. (FAC ¶ 137.) By seeking to use the DVS

5.5-B system, Plaintiffs assert that the Secretary

intends to facilitate violations of Arizona and federal

law, and that such a system cannot ensure that

elections are “free and equal” as required by Article 2,

Section 21 of the Arizona Constitution. (FAC ¶¶ 142143.)

Plaintiffs also claim that Arizona's post-election

audit process is insufficient to remediate the security

problems inherent in the use of electronic voting

machines, because they can be defeated by

sophisticated manipulation of the voting machines.

(FAC ¶¶ 144-145.) According to Plaintiffs, the only

way to overcome the security issues they identify is for

the Court to Order that the upcoming midterm

election must be conducted by paper ballot. (FAC ¶

153.) Plaintiffs summarize the procedures they ask the

Court to implement as follows:

• Ballots are cast by voters filling out paper ballots,

by hand. The ballots are then placed in a sealed

ballot box. Each ballot bears a discrete, unique

identification number, which is made known by

election officials only to the voter, so that the voter

can later verify whether his or her ballot was

counted properly. All ballots will be printed on

specialized paper to confirm their authenticity.

A-32

• Th[r]ough a uniform chain of custody, ballot boxes

are conveyed to a precinct level counting location

while still sealed.

• With party representatives, ballot boxes are

unsealed, one at a time, and ballots are removed

and counted in batches of 100, then returned to the

ballot box. When all ballots in a ballot box have

been counted, the box is resealed, with a copy of the

batch tally sheets left inside the box, and the batch

tally sheets carried to the tally center with a

uniform chain of custody.

• Ballots are counted, one at a time, by three

independent counters, who each produce a tally

sheet that is compared to the other tally sheets at

the completion of each batch.

• At the tally center, two independent talliers add

the counts from the batch sheets, and their results

are compared to ensure accuracy.

• Vote counting from paper ballots is conducted in

full view of multiple, recording, streaming cameras

that ensure a) no ballot is ever touched or

accessible to anyone off-camera or removed from

view between acceptance of a cast ballot and

completion of counting, b) all ballots, while being

counted are in full view of a camera and are

readable on the video, and c) batch tally sheets and

precinct tally sheets are in full view of a camera

while being filled out and are readable on the

video.

• Each cast ballot, from the time of receipt by a

sworn official from a verified, eligible elector,

remains on video through the completion of

precinct counting and reporting.

• The video be live-streamed for public access and

archived for use as an auditable record, with public

access to replay a copy of that auditable record.

A-33

• Anonymity will be maintained however, any

elector will be able to identify their own ballot by

the discrete, serial ballot number known only to

themselves, and to see that their own ballot is

accurately counted.

(FAC ¶ 153.) Plaintiffs maintain that the Cyber

Ninjas’ hand count “offers Defendant Hobbs a proof-ofconcept and a superior alternative to relying on

corruptible voting systems,” and that voting

jurisdictions outside the U.S., including France and

Taiwan, have shown that “hand-count voting can

deliver swift, secure, and accurate election results.”3

(FAC ¶ 155.)

B. Elections in Arizona

Before discussing the legal merits of Plaintiffs’

claims, the Court provides a brief overview of Arizona's

current practices surrounding elections. Arizona

authorized the use of electronic voting systems in 1966

and has been using them to tabulate votes for decades.

H.B. 204, 27th Leg., 2d. Reg. Sess. (Ariz. 1966).

Before a single vote is cast, Arizona's election

equipment

undergoes

thorough

testing

by

independent, neutral experts. Electronic voting

When asked how long the Cyber Ninjas’ hand count took to

complete, Douglas Logan, one of Plaintiffs’ witnesses, testified

that “there was more than just hand counting, but we started

hand counting in the middle of April and we finished with the

delivery of the report ... September 22.” (Tr. 79:1-9.) “[T]he

majority of [the hand count] was done in about two and a half or

three months, but there was a lot of quality control work we did

to make sure those numbers were accurate.” (Tr. 73:21-24.)

During the hand count, roughly 2,000 individuals worked to hand

count only two races. (Tr. 72:12-22.)

3

A-34

equipment must be tested by both the Secretary's

Certification Committee and an Election Assistance

Commission (“EAC”)4 accredited testing laboratory

before it may be used in an Arizona election. A.R.S. §

16-442(A), (B). Before the 2020 election, for example,

Maricopa County's Dominion Voting Systems

Democracy Suite 5.5-B equipment underwent testing

by Pro V&V, an EAC-accredited testing laboratory,

and received a Certificate of Conformance from the

EAC. (Doc. 29, Exs. 2, 3, 45.) In October 2019, the

Arizona Secretary of State's Equipment Certification

Committee also conducted a demonstration of the

equipment in a public meeting, which the equipment

also passed. (Doc. 29, Ex. 5.)

In addition to the equipment certification

process, Arizona's vote tabulation results are subject

The EAC was established by the Help America Vote Act of 2002,

which charged the Commission with providing “for the testing,

certification, decertification, and recertification of voting system

hardware and software by accredited laboratories.” 52 U.S.C. §

20971(a)(1).

5

The County Defendants filed a Motion for Judicial Notice of

Exhibits 1-17 to their Motion to Dismiss. (Doc. 29.) The Court

grants the Motion only as to the government documents

referenced in this Order. The remainder of the Motion is denied.

The Court also acknowledges that in their memorandum in

opposition to Defendants’ Motion, Plaintiffs argue that judicial

notice is inappropriate where Defendants seek to use government

documents “willy-nilly to ‘prove’ disputed facts.” (Doc. 55 at 1.)

The Court disagrees with Plaintiffs’ argument. The facts

contained in the documents cited by the Court in this Order are

not subject to reasonable dispute. Fed. R. Evid. 201(b)(2). For the

same reasons, the Court takes judicial notice of the portions of

government websites cited by both parties. Further, the Court

notes that it only refers to these facts for the purpose of providing

background for its later analysis, not to establish the truth of any

disputed fact.

4

A-35

to four independent audits—two audits occur before

the election, and two audits after. The first of these

audits is a logic and accuracy test, which is performed

by the Arizona Secretary of State on a sample of the

tabulation equipment. A.R.S. § 16-449(A), (B). As Scott

Jarrett (“Mr. Jarrett”), Maricopa County's Director of

Elections, explained during the July 21, 2022 hearing,

even before the Secretary of State performs her logic

and accuracy testing, the County tests the equipment.6

During Maricopa County's logic and accuracy tests for

the 2020 general election, over 8,100 ballots were

tested to ensure that every candidate, every rotational

position, and every ballot style would be counted

accurately. (Tr. 188:12-16.) The Secretary's logic and

accuracy tests are blind to the County, and are

observed by representatives from the political parties,

who sign off on the results. (Tr. 188:19-189:4.) On

October 6, 2020, prior to the 2020 election, the

Secretary of State performed the logic and accuracy

testing on Maricopa County's tabulation equipment,

and the ballots were tabulated with 100% accuracy.

(Doc. 29, Ex. 9; see also Maricopa Cnty., Maricopa

County Election Facts | Voting Equipment & Accuracy

(last accessed Aug. 17, 2022), https://www.maricopa.

gov/5539/Voting-Equipment-Facts

(hereinafter

“Maricopa Cnty. Election Facts”).) The second

required audit also takes place before election day. For

the second audit, Arizona counties must perform a

Mr. Jarrett also explained that Maricopa County performs a

“hash code verification” prior to the Secretary's logic and accuracy

testing. (Tr. 187:15-24.) As the Court understands it, a unique

hash code value provides a digital representation of every piece of

equipment and software that should be installed on the Election

Management System, and the County does a one-for-one check to

ensure that no erroneous or malicious software or hardware has

been added to the equipment.

6

A-36

logic and accuracy test on all of their tabulation

equipment. 2019 Elections Procedures Manual (“2019

EPM”) at 86. In 2020, the second Maricopa County

audit also took place on October 6, and the tabulators

counted the ballots with 100% accuracy. (Maricopa

Cnty. Election Facts.)

When the time to vote arrives, every Arizona

voter casts a ballot by hand, on paper. This is the law.

See A.R.S. §§ 16-462 (primary election ballots “shall be

printed”), 16-468(2) (“Ballots shall be printed in plain

clear type in black ink, and for a general election, on

clear white materials”), 16-502 (general election

ballots “shall be printed with black ink on white

paper”). Arizona's statutes carve out one exception to

this rule—voters with disabilities may vote on

“accessible voting devices” (sometimes referred to as

“ballot marking devices,” or “BMDs”), but these

devices still must produce a paper ballot or voter

verifiable paper audit trail, which the voter can review

to confirm that the machine correctly marked his or

her choices, and which can be used in the event of an

audit.7 A.R.S. §§ 16-442.01; § 16-446(B)(7); 2019 EPM

at 80. As Mr. Jarrett explained, the accessible voting

devices are not connected to the internet, and the ports

on the devices are locked and have affixed tamper

In Curling v. Raffensperger, the plaintiffs’ expert, Professor J.

Alex Halderman, noted in his report that “Georgia can eliminate

or greatly mitigate [the risks of electronic ballot marking devices

(“BMDs”)] by adopting the same approach to voting that is

practiced in most of the country: using hand-marked paper ballots

and reserving BMDs for voters who need or request them.”

(Halderman Dec. 33, Doc. 1304-3, Curling v. Raffensperger, No.

1:17-CV-2989-AT (N.D. Ga. Feb. 3. 2022) (emphasis added)). This

is already Arizona's practice.

7

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evident seals.8 (Tr. 177:5-20.) There has never been an

instance where one of the seals was removed or broken

during voting. (Tr. 178:4-9.) The Secretary also

certifies the accessible voting systems for each county.

See Ariz. Sec'y of State, Voting Equipment (last

accessed

Aug.

17,

2022),

https://azsos.gov/

elections/voting-election/voting-equipment. In the

2020 general election, 2,089,563 ballots were cast in

Maricopa County, and only 453 of those were cast

using an accessible voting device. (Tr. 174:24-175:4.)

Following the election, the third required

audit—a hand count—takes place.9 A.R.S. § 16-602(B).

Representatives of the political parties, under the

oversight of the Elections Department, randomly

select two percent of the polling locations, as well as

one percent of the early ballots cast or five thousand

early ballots, whichever is less, and count all the

ballots by hand. A.R.S. §§ 16-602(B), (F); EPM at 215.

Mr. Jarrett testified that serialized port blockers with

customized keys are also used on Maricopa County's vote

tabulation equipment. (Tr. 178:19-179:7.) The equipment is also

enclosed in security containers, which prevent access to all ports,

even those that may have a mouse or a keyboard plugged in. (Tr.

179:8-15.) The keys to the security containers are locked in a

secure server room, to which only three people have access, and

upon entering the secure server room, those three individuals

must keep a log of their reasons for doing so. (Tr. at 179:15-20.)

9

This audit can only be performed if the county chairs of each

political party designate and provide election board members to

conduct the hand count. (Doc. 27 at 5, fn. 4; A.R.S. § 16-602(B)(7).)

One or more of the political party chairs in Apache, Gila, Graham,

La Paz, and Yuma did not designate election board members for

the 2020 general election, so hand count audits were not

performed in those counties. (Doc. 27 at 5, fn. 4; see also Ariz.

Sec'y of State, Summary of Hand Count Audits - 2020 General

Election (Nov. 17, 2020), https://azsos.gov/2020-general-electionhand-count-results.)

8

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Maricopa County's hand count audit of the 2020

general election was conducted from November 4

through 9, 2020, and showed that the tabulators had

counted the ballots with 100% accuracy. (Doc. 29, Ex.

10.)

The fourth required audit is the post-election

logic and accuracy testing performed by the counties.

Each county performs its own post-election logic and

accuracy testing. EPM at 235. This process uses the

same test ballots as the counties’ pre-election logic and

accuracy testing, and should generate the same

results, verifying that no changes were made to the

tabulators’ software between the two tests. EPM at

235. Maricopa County's post-election logic and

accuracy testing took place on November 18, 2020, and

showed that the tabulators counted the votes with

100% accuracy. (Doc. 29, Ex. 11; see also Maricopa

Cnty., Media Advisory: Post Election Logic and

Accuracy Test on Nov. 18 (Nov. 17, 2020)

https://content.govdelivery.com/accounts/AZMARIC/b

ulletins/2acffff; Maricopa Cnty., Board of Supervisors

Certifies Maricopa County Election Results (Nov. 20,

2020)

https://content.govdelivery.com/accounts/

AZMARIC/bulletins/2ada05e.)

In February 2021, Pro V&V and SLI

Compliance, another EAC-accredited laboratory,

conducted audits of Maricopa County's tabulation

equipment. (Doc. 27, Ex. 6.) The two auditors reached

the same conclusions: (1) all systems and equipment

were using software and equipment certified by the

EAC and Arizona Secretary of State; (2) no malicious

hardware or software discrepancies were detected; (3)

the system was determined to be a “closed network”

and no internet connections were identified; and (4)

A-39

logic and accuracy testing resulted in accurate

numbers.10

C. Procedural History

Plaintiffs brought this action under 42 U.S.C. §

1983 and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441,

52 L.Ed. 714 (1908) and its progeny to challenge

government officers’ “ongoing violation of federal law

and [to] seek[ ] prospective relief” under the equity

jurisdiction conferred on federal district courts by the

Judiciary Act of 1789. (FAC ¶ 48.) Specifically,

Plaintiffs allege that the Secretary has violated A.R.S.

§§ 16-452 (A), (B), and (D); 16-446 (B); 16-445(D); and

§ 16-442(B).11 (FAC ¶¶ 156-161.) They also allege that

the County Defendants have violated A.R.S. §§ 1125112 and 16-452 (A). (FAC ¶¶ 162-165.) Plaintiffs

further allege that all Defendants have violated the

Due Process Clause of the Fourteenth Amendment of

the U.S. Constitution and Article 2, Section 4 of the

Arizona Constitution; the Equal Protection Clause of

the Fourteenth Amendment; and the fundamental

right to vote as protected by the U.S. Constitution. (See

generally FAC.) They seek declaratory and injunctive

relief against all Defendants pursuant to 42 U.S.C. §

Logic and accuracy testing was outside SLI Compliance's scope

of work, so was performed only by Pro V&V. (Doc. 29, Ex. 6 at 1.)

11

During the July 21, 2022 hearing, Plaintiffs took the position

that the FAC does not present claims that are based in state law,

and they “are not alleging [Defendants’ actions] violate[ ] state

statute[s].” (Tr. 224:12-225:3.) However, paragraphs 177, 184,

190, 196, and 207 are clear: in bringing their claims under federal

law, “Plaintiffs incorporate and reallege all paragraphs in this

Complaint.” This includes paragraphs 156-161, where Plaintiffs

allege the Secretary acted in violation of Arizona state law.

12

Plaintiffs are no longer pursuing their A.R.S. § 11-251 claim.

(Doc. 27 at 19.)

10

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1983, as well as a declaratory judgment pursuant to 28

U.S.C. § 2201. (FAC ¶¶ 196-199, 207-211.)

The County Defendants filed a Motion to

Dismiss Plaintiffs’ claims under Federal Rule of Civil

Procedure 12(b)(6), arguing that (1) Plaintiffs’ claims

are untimely; (2) Plaintiffs fail to allege sufficient

factual allegations; and (3) Plaintiffs fail to allege a

cognizable legal theory. (See generally Doc. 27.) The

Secretary joined in the County Defendants’

arguments, and also filed her own Motion to Dismiss

under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), arguing that (1) Plaintiffs lack standing; (2)

the Eleventh Amendment bars Plaintiffs’ claims; and

(3) Plaintiffs fail to state a cognizable constitutional

claim. (See generally Doc. 45.)

On July 21, 2022, the Court heard the parties’

arguments on Plaintiff's Motion for Preliminary

Injunction and Defendants’ Motions to Dismiss. In this

Order, the Court addresses only the Defendants’

arguments concerning standing, the Eleventh

Amendment, and portions of Defendants’ arguments

that pertain to the timing of Plaintiffs’ suit, because it

finds that each of these arguments is dispositive on its

own.

II.

LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

“A motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1) may attack either the

allegations of the complaint as insufficient to confer

upon the court subject matter jurisdiction, or the

existence of subject matter jurisdiction in fact.”

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Renteria v. United States, 452 F. Supp. 2d 910, 919 (D.

Ariz. 2006) (citing Thornhill Publ'g Co. v. Gen. Tel. &

Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). “Where

the jurisdictional issue is separable from the merits of

the case, the [court] may consider the evidence

presented with respect to the jurisdictional issue and

rule on that issue, resolving factual disputes if

necessary.” Thornhill, 594 F.2d at 733; see also Autery

v. United States, 424 F.3d 944, 956 (9th Cir. 2005)

(“With a 12(b)(1) motion, a court may weigh the

evidence to determine whether it has jurisdiction.”).

The burden of proof is on the party asserting

jurisdiction to show that the court has subject matter

jurisdiction. See Indus. Tectonics, Inc. v. Aero Alloy,

912 F.2d 1090, 1092 (9th Cir. 1990).

B. Article III Standing

Article III Courts are limited to deciding “cases”

and “controversies.” U.S. Const. art. III, § 2. “Article

III of the Constitution requires that one have “the core

component of standing.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992). To have standing under Article III, a plaintiff

must show: (1) an injury in fact that is (a) concrete and

particularized and (b) actual or imminent; (2) the

injury is fairly traceable to the challenged action of the

defendant; (3) it is likely, not merely speculative, that

the injury will be redressed by decision in the

plaintiff's favor. Maya v. Centex Corp., 658 F.3d 1060,

1067 (9th Cir. 2011). A complaint that fails to allege

facts sufficient to establish standing requires

dismissal for lack of subject-matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). See, e.g.,

Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d

1115, 1123 (9th Cir. 2010).

A-42

C. The Eleventh Amendment

The Eleventh Amendment prevents a state from

being sued in federal court without its consent. Seven

Up Pete Venture v. Schweitzer, 523 F.3d 948, 952 (9th

Cir. 2008). When the state is “the real, substantial

party in interest,” Eleventh Amendment immunity

extends to “suit[s] against state officials.” Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101,

104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quotations

omitted). Ex parte Young provides an exception to

Eleventh Amendment immunity, but it applies only to

“claims seeking prospective injunctive relief against

state officials to remedy a state's ongoing violation of

federal law.” Ariz. Students’ Ass'n v. Ariz. Bd. of

Regents, 824 F.3d 858, 865 (9th Cir. 2016) (citing Ex

parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714

(1908)).

D. The Purcell Doctrine

The Purcell doctrine directs federal appellate

courts “to weigh, in addition to the harms attendant

upon issuance or nonissuance of an injunction,

considerations specific to election cases and its own

institutional procedures.” Purcell v. Gonzalez, 549 U.S.

1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006). The Supreme

Court “has repeatedly emphasized that lower federal

courts should ordinarily not alter the election rules on

the eve of an election.” Republican Nat'l Comm. v.

Democratic Nat'l Comm., ––– U.S. ––––, 140 S. Ct.

1205, 1207, 206 L.Ed.2d 452 (2020) (collecting cases);

Short v. Brown, 893 F.3d 671, 676 (9th Cir. 2018)

(“[T]he Supreme Court has warned us many times to

tread carefully where preliminary relief would disrupt

a state voting system on the eve of an election.”); see

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also New Georgia Project v. Raffensperger, 976 F.3d

1278, 1283 (11th Cir. 2020) (“And we are not on the eve

of the election—we are in the middle of it, with

absentee ballots already printed and mailed.”).

III.

ANALYSIS

A. Plaintiffs Lack Article III Standing

To establish an injury in fact, the first element

of standing, “a plaintiff must show that he or she

suffered an invasion of a legally protected interest that

is concrete and particularized and actual or imminent,

not conjectural or hypothetical.” Spokeo, Inc. v. Robins,

578 U.S. 330, 339, 136 S.Ct. 1540, 194 L.Ed.2d 635

(2016) (quotations omitted). A “concrete” and

“particularized” injury must be “real,” not “abstract,”

id., and “must affect the plaintiff in a personal and

individual way.” Raines v. Byrd, 521 U.S. 811, 819, 117

S.Ct. 2312, 138 L.Ed.2d 849 (1997) (quotation

omitted). And to be “actual or imminent,” a threatened

injury must be “certainly impending”—“allegations of

possible future injury are not sufficient.” Clapper v.

Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138,

185 L.Ed.2d 264 (2013) (cleaned up).

The Secretary argues that Plaintiffs cannot

establish an injury in fact for two reasons. First, the

Secretary argues that Plaintiffs’ claimed injuries are

too speculative to establish standing. (Doc. 45 at 5.)

According to the Secretary, the bulk of Plaintiff's

allegations are vague, and have to do with electronic

voting systems generally. (Doc. 45 at 6.) She also notes

that all of Plaintiffs’ examples of “issues” with election

equipment involve other jurisdictions, not Arizona.

(Doc. 45 at 6; see also FAC ¶¶ 4, 23, 29, 32 61, 73-80,

A-44

81-89, 90-92, 93-102, 103-106, 107, 108-116, 125-131,

133-134, 181, 199.) The Secretary cites Shelby Cnty.

Advocs. for Valid Elections v. Hargett to support her

position. 2019 WL 4394754 (W.D. Tenn. Sept. 13,

2019), aff'd Shelby Advocs. for Valid Elections v.

Hargett, 947 F.3d 977 (6th Cir. 2020). There, the

district court found that the plaintiffs’ allegations that

their county's electronic voting equipment was

“vulnerable to undetectable hacking and malicious

manipulation” were “based only on speculation,

conjecture and [the plaintiffs’] seemingly sincere

desire for their ‘own value preferences’ in having

voting machines with a paper trail.” Id. at *2, 7. The

district court held that the plaintiffs had failed to

allege facts to show that “Shelby County's voting

system is more likely to miscount votes than any other

system used in Tennessee,” and the allegations in their

complaint were therefore too conjectural to survive. Id.

at 10.

Plaintiffs argue that “[a]n allegation of future

injury may suffice if ... there is a substantial risk that

the harm will occur.” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189

L.Ed.2d 246 (2014) (quotation omitted). They point to

their Complaint for support, contending that it “pleads

detailed allegations showing that existing safety

procedures and certifications can be defeated and that

manipulation of votes can be performed without

leaving any record of the changes.” (Doc. 58 at 4; FAC

¶¶ 31, 75, 98, 128, 138-40, 145-46.) Plaintiffs also cite

Curling v. Kemp, where the U.S. District Court for the

Northern District of Georgia held that the plaintiffs

had standing where they “plausibly allege[d] a threat

of a future hacking event that would jeopardize their

votes and the voting system at large.” Curling v. Kemp,

A-45

334 F. Supp. 3d 1303, 1316 (N.D. Ga. 2018).

Ultimately, even upon drawing all reasonable

inferences in Plaintiffs’ favor, the Court finds that

their claimed injuries are indeed too speculative to

establish an injury in fact, and therefore standing.

This case is nothing like Curling v. Kemp. There, the

plaintiffs alleged that specific voting machines used in

Georgia had actually been accessed or hacked multiple

times, and despite being notified about the problem

repeatedly, Georgia officials failed to take action.

Curling v. Kemp, 334 F. Supp. 3d at 1314-1317. Here,

as the Secretary points out, a long chain of

hypothetical contingencies must take place for any

harm to occur—(1) the specific voting equipment used

in Arizona must have “security failures” that allow a

malicious actor to manipulate vote totals; (2) such an

actor must actually manipulate an election; (3)

Arizona's specific procedural safeguards must fail to

detect the manipulation; and (4) the manipulation

must change the outcome of the election. (See Doc. 62

at 2-3.) Plaintiffs fail to plausibly show that Arizona's

voting equipment even has such security failures.13

And even if the allegations in Plaintiff's complaint

were plausible, their alleged injury is not “certainly

impending” as required by Clapper. 568 U.S. at 409,

133 S.Ct. 1138.14

Defendants have taken numerous steps to ensure such security

failures do not exist or occur in Arizona or Maricopa County. As

the Court chronicled in painstaking detail in Section I.B, every

vote cast can be tied to a paper ballot (see A.R.S. §§ 16-442.01; §

16-446(B)(7); 2019 EPM at 80), voting devices are not connected

to the Internet (see Doc. 29, Ex. 6) any ports are blocked with

tamper evident seals (see Tr. 177:5-20), and access to voting

equipment is limited (see Tr. at 179:15-20).

14

As set forth in Section I.B, Defendants have extensive postelection audit procedures in place to detect and reconcile any

13

A-46

Second, the Secretary argues that Plaintiffs

cannot establish an injury in fact because they fail to

show that their alleged injury is particularized. (Doc.

45 at 8.) The Secretary again cites Shelby Cnty.

Advocs. for Valid Elections to assert that Plaintiffs’

claims represent a “general dissatisfaction with the

voting system and processes” used in Arizona. 2019

WL 4394754, at *9. While it is well-established that a

generalized “interest in seeing that the law is obeyed”

is neither concrete nor particularized, Plaintiffs allege,

and the Secretary does not consider, whether

Plaintiffs’ status as candidates may confer standing.

See, e.g., Pierce v. Ducey, 965 F.3d 1085, 1089 (9th Cir.

2020).

During the July 21 hearing, Plaintiffs argued

“[a]nytime ... the playing field in an election is tilted in

any way, standing is -- exists for the candidates.” (Tr.

244:8-9.) It is true that, as candidates, Plaintiffs “have

a cognizable interest in ensuring that the final vote

tally accurately reflects the legally valid votes cast. An

inaccurate vote tally is a concrete and particularized

injury to candidates.” Carson v. Simon, 978 F.3d 1051,

1058 (8th Cir. 2020) (footnote omitted); Trump v. Wis.

Elections Comm'n, 983 F.3d 919, 924 (7th Cir. 2020).

However, while Plaintiffs’ status as candidates does

make the argument that their alleged injuries are

particularized more compelling, it is not sufficient to

establish standing. Simply put, Plaintiffs have not

alleged facts to show that it is plausible that the field

is “tilted” here. See Stein v. Cortés, 223 F. Supp. 3d

423, 432-33 (E.D. Pa. 2016) (finding no standing where

the plaintiff, an unsuccessful candidate, alleged that

Pennsylvania's DRE electronic voting machines may

problems with tabulation machine counts if an intrusion did

occur.

A-47

be susceptible to hacking).

For the foregoing reasons, this Court joins many

others that have held that speculative allegations that

voting machines may be hackable are insufficient to

establish an injury in fact under Article III. See Stein,

223 F. Supp. 3d at 432-33; Samuel v. Virgin Islands

Joint Bd. of Elections, 2013 WL 842946, at *5 (D.V.I.

Mar. 7, 2013) (finding no standing on the grounds that

the plaintiffs’ “conjectural” allegations “that the

election process ‘may have been’ left open to

compromise” by using certain voting machines were

“amorphous due process claims, without requisite

concreteness”); Schulz v. Kellner, 2011 WL 2669456, at

*7 (N.D.N.Y. July 7, 2011) (allegations that “votes will

allegedly not be counted accurately” because of

“machine error and human fraud resulting from

Defendants’ voting procedures” were “merely

conjectural and hypothetical” and insufficient to

establish standing); Landes v. Tartaglione, 2004 WL

2415074, at *3 (E.D. Pa. Oct. 28, 2004), aff'd, 153 F.

App'x 131 (3d Cir. 2005) (finding no standing because

the plaintiff's claim “that voting machines are

vulnerable to manipulation or technical failure” was

“conjectural or hypothetical”).

B. The Eleventh Amendment Bars Plaintiffs’

Claims

Even if Plaintiffs had standing, dismissal of

their claims is warranted under the Eleventh

Amendment. As mentioned supra, Plaintiffs bring this

action under 42 U.S.C. § 1983 and Ex parte Young to

challenge government officers’ “ongoing violation of

federal law.” (FAC ¶ 48 (citing 209 U.S. 123, 28 S.Ct.

441, 52 L.Ed. 714 (1908)).) However, as the Secretary

A-48

points out, Ex parte Young cannot apply here, because,

despite Plaintiffs’ claims that their constitutional

rights have been violated, Plaintiffs do not plausibly

allege a violation of federal law. (Doc. 45 at 9.) To

support this argument, the Secretary cites a multitude

of cases. For example, in Weber v. Shelley, the Ninth

Circuit held that “[n]othing in the Constitution”

forbade the use of touchscreen voting systems as an

alternative to paper ballots, noting that it is “the job of

democratically-elected representatives to weigh the

pros and cons of various balloting systems.” 347 F.3d

1101, 1107 (9th Cir. 2003). Other federal courts have

reached similar conclusions. In Pettengill v. Putnam

County R-1 Sch. Dist., the Eighth Circuit

unequivocally stated that there is no constitutional

basis for federal courts to oversee the administrative

details of local elections. 472 F.2d 121, 122 (8th Cir.

1973) (“[The] complaint asks the federal court to

oversee the administrative details of a local election.

We find no constitutional basis for doing so.”). The

Fourth Circuit has also held that “[a] state may employ

diverse methods of voting, and the methods by which

a voter casts his vote may vary throughout the state.”

Hendon v. N.C. State Bd. of Elections, 710 F.2d 177,

181 (4th Cir. 1983.) Furthermore, in a case similar to

the one presently before the Court, the Southern

District of New York held that the use of voting

machines is “for the elected representatives of the

people to decide[.] There is no constitutional right to

any particular method of registering and counting

votes.” Green Party of N.Y. v. Weiner, 216 F. Supp. 2d

176, 190-91 (S.D.N.Y. 2002).15

In any event, insofar as Plaintiffs argue a constitutional

violation grounded in Arizona's failure to require voting by paper

ballots, their allegations are flatly wrong. The Court finds for

purposes of determining jurisdiction, that as set forth supra,

15

A-49

Plaintiffs counter that the Secretary's Eleventh

Amendment argument is erroneous, because she

argues the Plaintiff's claims fail on the merits and

ignores their constitutional arguments. (Doc. 58 at 9.)

According to Plaintiffs, “[t]o be constitutional, election

regulations must produce a reliable count of the legal

votes. Plaintiffs’ ... allege that Arizona's equipment

and system do not.” (Doc. 58 at 9-10.) Thus, according

to Plaintiffs, they allege a violation of federal law.

Plaintiffs also attempt to distinguish Weber, which the

Secretary cites, because the court there reviewed a

grant of summary judgment. 347 F.3d at 1105. The

Court finds this line of argument unpersuasive.

The Eleventh Amendment bars Plaintiffs’

claims. Because the Constitution charges states with

administering elections, Plaintiffs’ claims can only

stem from an argument that Defendants are violating

state law by using what Plaintiffs allege are insecure

or inaccurate voting systems. Plaintiffs argued at the

hearing in this matter that their claims do not depend

on any application of Arizona state law, and the Court

need not determine whether Defendants’ procedures

comply with state law to grant Plaintiffs relief, but as

set forth above, they are incorrect. Indeed, Arizona

state laws set forth detailed requirements concerning

how ballots are counted and how voting systems are

used. See A.R.S. §§ 16-400 and 16-411 et seq. Absent a

constitutional right to a particular method of voting,

Plaintiffs’ claims that Arizona's voting systems are

99.98% of voters in Arizona cast their votes by marking and

submitting paper ballots in the 2020 election, and the remaining

0.02%—representing mostly sight impaired voters—cast their

ballots on system-generated paper ballots which could be verified

before casting to ensure they reflected those voters’ choices.

A-50

flawed can only arise under state law16, and such

claims are barred. Courts have repeatedly rejected

alleged federal constitutional claims that rely on a

determination that state officials have not complied

with state law. See S&M Brands, Inc. v. Georgia ex rel.

Carr, 925 F.3d 1198, 1204-05 (11th Cir. 2019); see also

Bowyer v. Ducey, 506 F.Supp.3d 699, 716 (D. Ariz.

2020) (“where the claims are state law claims, masked

as federal law claims” Eleventh Amendment immunity

applies). Moreover, the Court fails to see how

Plaintiffs’ requested relief would not violate the

“principles of federalism that underlie the Eleventh

Amendment.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79

L.Ed.2d 67 (1984). If the Court were to enjoin

Defendants from using electronic voting systems,

retain jurisdiction to ensure compliance, and require

Defendants to conduct elections according to Plaintiffs’

preferences, the Court wound unavoidably become

impermissibly “entangled, as [an] overseer[ ] and

micromanager[ ], in the minutiae of state election

processes.” Ohio Democratic Party v. Husted, 834 F.3d

620, 622 (6th Cir. 2016).

C. Plaintiffs’ Suit is Untimely

Finally, even if the Court could properly retain

jurisdiction over Plaintiff's claims, it could not grant

the injunctive relief Plaintiffs request. The 2022

Midterm Elections are set to take place on November

8. In the meantime, Plaintiffs request a complete

overhaul of Arizona's election procedures.

In fact, Plaintiffs’ First Amended Complaint repeatedly so

alleged (FAC ¶¶ 156-161), directly contradicting the position

Plaintiffs now take in an attempt to overcome the Eleventh

Amendment bar Defendants have raised.

16

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In advancing their Purcell argument, the

County Defendants emphasize the strain on elections

officials that would be prompted by such a late change

to elections procedures. (Doc. 27 at 9.) During the July

21 hearing, Mr. Jarrett testified that Maricopa County

“could not” switch to precinct-based polling locations,

as Plaintiffs request, before the November election.

(Tr. 198:14-21.) Mr. Jarrett also testified that

thousands more workers would be needed for a full

hand count, and Maricopa County already struggles to

retain enough poll workers. (Tr. 198:2-8, 199:22200:5.) For example, for the August primary, Maricopa

County had to increase its wages from $14 to $19 per

hour, and still fell “woefully short” of the number of

workers it needed for the primary. (Tr. 198:2-6.)

The County Defendants also cite a number of

cases from this election cycle where federal courts

have invoked Purcell to deny requests for injunctive

relief. The Court finds League of Women Voters of Fla.,

Inc. v. Fla. Sec'y of State instructive. 32 F.4th 1363,

1371 (11th Cir. 2022). In that case, the district court

granted an injunction when voting was set to begin in

less than four months, but the Eleventh Circuit stayed

the district court's injunction pending appeal. Id. The

Eleventh Circuit based its reasoning on Justice

Kavanaugh's concurrence in Merrill v. Milligan, –––

U.S. ––––, 142 S. Ct. 879, 880, ––– L.Ed.2d ––––

(2022), holding that under Purcell, the standard a

plaintiff must meet to obtain “injunctive relief that will

upset a state's interest in running its elections without

judicial interference” is heightened. Id. at 1372. This

means that the plaintiff “must demonstrate, among

other things, that its position on the merits is ‘entirely

clearcut’ ” in order for a district court to grant

injunctive relief. Id. Here, Plaintiffs filed their Motion

A-52

for Preliminary Injunction on June 15, 2022 (Doc. 50),

and on July 21, 2022, soon after the motion was fully

briefed the Court held a hearing. At the time of the

hearing, the November election was already less than

four months away. Further, as the Court has

suggested throughout this Order, Plaintiffs’ position is

a far cry from “entirely clearcut.”

Plaintiffs argue that Purcell does not apply on

these facts, because it stands for the “principle that a

federal court should not cause confusion among voters

by enjoining state election laws immediately before an

election.” (Doc. 56 at 8 (citing 549 U.S. at 4-5, 127 S.Ct.

5).) Here, according to Plaintiffs, the election was not

imminent when they brought this action. See, e.g.,

Ariz. Democratic Party v. Hobbs, 976 F.3d 1081, 108687 (9th Cir. 2020). Plaintiffs also argue that here,

voters will be “entirely unaffected” by the injunctive

relief they seek, because the relief “applies only after a

ballot is submitted.” Self Advocacy Sol. N.D. v. Jaeger,

464 F. Supp. 3d 1039, 1055 (D.N.D. 2020) (internal

quotations omitted). Instead, Plaintiffs assert, Purcell

weighs in favor of granting injunctive relief, because

they seek to “vindicate” Purcell’s concern for the

“integrity of our electoral processes.” (Doc. 56 at 10

(citing 549 U.S. at 4, 127 S.Ct. 5).)

The Court finds Plaintiffs’ reading of Purcell

unconvincing. In applying Purcell, Courts have made

clear that it stands for more than just the proposition

that federal courts should avoid changes in law that

may cause voter confusion. The County Defendants

are correct to assert that courts applying Purcell also

“caution federal courts to refrain from enjoining

election law too close in time to an election if the

changes will create administrative burdens for

A-53

election officials.” (Doc. 61 at 5.) See Ariz. Democratic

Party, 976 F.3d at 1086 (“And, as we rapidly approach

the election, the public interest is well served by

preserving Arizona's existing election laws, rather

than by sending the State scrambling to implement

and to administer a new procedure for curing unsigned

ballots at the eleventh hour.”) The injunctive relief

Plaintiffs seek would not just be challenging for

Arizona's election officials to implement; it likely

would be impossible under the extant time

constraints.

IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ First

Amended Complaint is dismissed in its entirety. While

the Court agrees with Plaintiffs that the right to vote

is precious, and should be protected, Plaintiffs lack

standing because they have articulated only

conjectural allegations of potential injuries that are in

any event barred by the Eleventh Amendment, and

seek relief that the Court cannot grant under the

Purcell principle.

IT IS THEREFORE ORDERED granting

Defendants’ Motions to Dismiss (Docs. 27, 45), and

granting in part the County Defendants’ Motion for

Judicial Notice (Doc. 29).

IT IS FURTHER ORDERED denying as moot

Plaintiffs’ Motion for Preliminary Injunction (Doc. 50)

and Defendants’ Motion to Strike (Doc. 74).

IT IS FURTHER ORDERED denying Plaintiffs’

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Expedited Motion to Supplement Record (Doc. 93).17

IT IS FURTHER ORDERED directing the Clerk of

Court to enter judgment accordingly and close this

case.

Signed August 26, 2022

s/

John J. Tuchi

United States District Judge

In their Expedited Motion (Doc. 93), Plaintiffs request to

supplement the record with evidence they argue would either

undermine or impeach the testimony of Mr. Jarrett as to the

security of Maricopa County's electronic ballot counting

equipment. The request is extraordinarily and inexcusably

untimely, and in any event does not remedy the speculative

nature of Plaintiffs’ claims. Plaintiffs initiated this action

according to their preference. The Court set the hearing by an

Order issued well in advance, and Plaintiffs had ample time to

prepare their evidence. At the hearing, Mr. Jarrett's testimony

was consistent with, if not identical to, his prior appearance

before the Arizona Senate and his other statements detailing

Maricopa County's election system security and verification

procedures, so Plaintiffs had ample notice of what he was going

to say at the hearing here. Nonetheless, Plaintiffs waited nearly

two weeks after the hearing to ask to submit another declaration,

in what appears to be an effort to get the last word and cast doubt

on Mr. Jarrett's testimony at a point when the County could no

longer respond. The Court will not allow such potential

gamesmanship; nor will it, in the alternative, allow the

submission and then a response from Defendants. Such a step

would breed satellite litigation and deprive the Court of the

ability to evaluate witnesses and their credibility live at hearing.

17

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-22-00677-PHX-JJT

Kari Lake, et al.,

Plaintiffs,

v.

ORDER

Katie Hobbs, et al.,

Defendants.

At issue is the Federal Rule of Civil Procedure

11 and 28 U.S.C. § 1927 Motion for Sanctions (Doc. 97,

“Mot.”) filed by Defendants Bill Gates, Clint Hickman,

Jack Sellers, Thomas Galvin, and Steve Gallardo in

their official capacities as members of the Maricopa

County Board of Supervisors (hereinafter referred to

collectively as “Maricopa County Defendants”), to

which Plaintiffs Kari Lake and Mark Finchem filed a

Response (Doc. 99, “Resp.”), and the Maricopa County

Defendants filed a Reply (Doc. 102, “Reply”). The

Court finds this matter appropriate for disposition

without oral argument. LRCiv 7.2(f). For the reasons

set forth below, the Court grants the Maricopa County

Defendants’ motion.

I.

BACKGROUND

In this case, Plaintiffs challenged the

procedures for administering elections in Arizona and

sought an injunction compelling Defendants—election

officials at the state and county levels—to follow

alternative procedures for collecting, storing,

counting, and tabulating votes in the 2022 midterm

election. (Doc. 3, Plaintiffs’ first Amended Complaint

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(“FAC”) ¶¶ 1, 153.) These alternative procedures

included requiring voters to cast their votes on paper

ballots and ordering election administrators to count

every ballot cast by hand. (Id. ¶ 153.) On August 26,

2022, the Court granted motions to dismiss filed by

Defendants and dismissed Plaintiffs’ FAC in its

entirety. (Doc. 100, “Dismissal Order.”) The 2022

midterm election took place on November 8, 2022.

The Court’s Dismissal Order described in detail

the allegations Plaintiffs raised in their FAC, as well

as the current procedures used to administer elections

in Arizona. (Dismissal Order at 2–11.) Here, the Court

will presume the reader’s familiarity with its

Dismissal Order and provide a more truncated

description of Plaintiffs’ allegations, the pertinent

procedural history of the case, and the parties’

positions on remaining issues.

Broadly, Plaintiffs alleged that the electronic

voting machines certified for use in Arizona, including

optical scanners and ballot marking devices (“BMDs”),

are “potentially unsecure, lack adequate audit

capacity, fail to meet minimum statutory

requirements, and deprive voters of the right to have

their votes counted and reported in an accurate,

auditable, legal, and transparent process.” (FAC ¶ 23.)

Plaintiffs alleged that the machines are “rife” with

cybersecurity

vulnerabilities

and

allow

for

unauthorized persons to manipulate the reported vote

counts in an election and potentially change the

winner. (See, e.g., id. ¶¶ 12-13, 73–75, 77, 81–82, 108–

12, 125–34, 139.) Plaintiffs claimed that Arizona’s

audit regime is insufficient to negate these

vulnerabilities and that the only way to overcome the

security issues they identify is “for the Court to Order,

an election conducted by paper ballot, as an

alternative to the current framework.” (Id. ¶¶ 144–53.)

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Plaintiffs requested that the Court implement certain

procedures, including the use of paper ballots and a

live-streamed hand-count of all ballots cast. (Id. ¶

153.) Plaintiffs maintained that the Cyber Ninjas’

hand count of two contests in the 2020 general election

in Maricopa County offers “a proof-of-concept and a

superior alternative to relying on corruptible

electronic voting systems.” (Id. ¶ 155.)

In a letter dated May 20, 2022, counsel for the

Maricopa County Defendants notified Plaintiffs’

counsel that this lawsuit was frivolous. (Doc. 97-1.)

Counsel advised that unless Plaintiffs voluntarily

dismissed their suit, counsel intended to file a motion

to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) and a motion for sanctions pursuant to Rule

11. (Id.) The Maricopa County Defendants filed a

Motion to Dismiss Plaintiffs’ FAC on June 7, 2022

(Doc. 27). Defendant Arizona Secretary of State Katie

Hobbs (“the Secretary”) joined the Maricopa County

Defendants’ motion and filed her own Motion to

Dismiss on June 8, 2022 (Doc. 45).

On June 8, 2022, nearly seven weeks after filing

their initial Complaint (Doc. 1), Plaintiffs lodged a

Motion for Preliminary Injunction (Doc. 50, “MPI”),

which the Court ordered filed on June 15, 2022 (Doc.

49). In their MPI, Plaintiffs requested that the Court

“enter a preliminary injunction barring Defendants

from using computerized equipment to administer the

collection, storage, counting, and tabulation of votes in

any election until such time that the propriety of a

permanent injunction is determined.” (MPI at 2.)

Plaintiffs filed multiple declarations and exhibits in

support of their MPI (Docs. 33–44).

On July 21, 2022, the Court held a hearing at

which the parties presented witness testimony and the

Court heard argument on Plaintiffs’ MPI and

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Defendants’ Motions to Dismiss. (Doc. 98, Transcript

of Proceedings (“Tr.”).) On August 26, 2022, the Court

granted Defendants’ Motions to Dismiss, denied as

moot Plaintiffs’ MPI, and dismissed Plaintiffs’ FAC in

its entirety. (Dismissal Order at 13–21.)

The Maricopa County Defendants now move for

sanctions against Plaintiffs and their counsel under

Rule 11 and 28 U.S.C § 1927. Broadly, Defendants

argue that Plaintiffs and their counsel made numerous

false allegations about Arizona elections in their FAC

and MPI, that Plaintiffs’ claims are frivolous, and that

they pursued this case for the improper purpose of

undermining confidence in elections and furthering

their political campaigns. (Mot. at 1–5, 7–12.)

Plaintiffs oppose Defendants’ motion and argue that

sanctions cannot be imposed because their claims are

meritorious and their factual contentions are wellfounded. (Resp. at 1–17.)

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 11

Rule 11(b) provides, in relevant part:

By presenting to the court a pleading, written

motion, or other paper—whether by signing,

filing, submitting, or later advocating it—an

attorney or unrepresented party certifies that

to the best of the person's knowledge,

information, and belief, formed after an inquiry

reasonable under the circumstances:

(1) it is not being presented for any improper

purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of

litigation;

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(2) the claims, defenses, and other legal

contentions are warranted by existing law or

by a nonfrivolous argument for extending,

modifying, or reversing existing law or for

establishing new law; [and]

(3) the factual contentions have evidentiary

support or, if specifically so identified, will

likely have evidentiary support after a

reasonable

opportunity

for

further

investigation or discovery.

Rule 11(c)(1) provides: “If, after notice and a

reasonable opportunity to respond, the court

determines that Rule 11(b) has been violated, the court

may impose an appropriate sanction on any attorney,

law firm, or party that violated the rule or is

responsible for the violation.” However, “[t]he court

must not impose a monetary sanction ... against a

represented party for violating Rule 11(b)(2).” Fed. R.

Civ. P. 11(c)(5)(A).

Applying Rule 11 “requires sensitivity to two

competing considerations.” United Nat'l Ins. Co. v.

R&D Latex Corp., 242 F.3d 1102, 1115 (9th Cir. 2001).

“On the one hand, ... on occasion attorneys engage in

litigation tactics so vexatious as to be unjustifiable

even within the broad bounds of our adversarial

system, and ... neither the other parties nor the courts

should have to abide such behavior or waste time and

money coping with it.” Id. Thus, “the central purpose

of Rule 11 is to deter baseless filings.” Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447,

110 L.Ed.2d 359 (1990). “On the other hand, ... our

system of litigation is an adversary one, and ...

presenting the facts and law as favorably as fairly

possible in favor of one's client is the nub of the

lawyer's task.” United Nat'l Ins. Co., 242 F.3d at 1115.

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Sanctions therefore should be imposed “only in the

most egregious situations, lest lawyers be deterred

from vigorous representation of their clients.” Id.

(citation omitted).

Where “a complaint is the primary focus of a

Rule 11 proceeding, a district court must conduct a

two-prong inquiry to determine (1) whether the

complaint is legally or factually baseless from an

objective perspective, and (2) if the attorney has

conducted a reasonable and competent inquiry before

signing and filing it.” Holgate v. Baldwin, 425 F.3d

671, 676 (9th Cir. 2005) (quoting Christian v. Mattel,

Inc., 286 F.3d 1118, 1127 (9th Cir. 2002)). The

complaint need not be wholly baseless to be

sanctionable: A partially supported, partially

unsupported filing may still be sanctionable. See

Townsend v. Holman Consulting Corp., 929 F.2d 1358,

1362–65 (9th Cir. 1990) (“The relation of the allegedly

frivolous claim to the pleading as a whole is thus a

relevant factor, but the mere existence of one nonfrivolous claim is not dispositive....”). Nor does a

subjective good faith belief provide safe harbor. Rule

11’s objective standard eliminates the “empty-head

pure-heart” justification for frivolous arguments.

Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994).

In assessing the pre-filing inquiry required

under Rule 11, the court's task is to determine

“whether an attorney, after conducting an objectively

reasonable inquiry into the facts and law, would have

found the complaint to be well-founded.” Holgate, 425

F.3d at 677 (citation omitted). The court must consider

“all the circumstances of a case,” Cooter, 496 U.S. at

401, 110 S.Ct. 2447, focusing on the information

available when the paper is filed. See Golden Eagle

Dist. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538

(9th Cir. 1986). Courts consider factors including time

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constraints and deadlines, the complexity of the

subject matter and the party's familiarity with it, and

the ease of access to the requisite information. See CQ

Int'l Co. v. Rochem Int'l, Inc., USA, 659 F.3d 53, 63

(1st Cir. 2011); Garr v. U.S. Healthcare, Inc., 22 F.3d

1274, 1279 (3d Cir. 1994); Townsend, 929 F.2d at 1364.

B. 28 U.S.C. § 1927

Section 1927 provides: “Any attorney ... who so

multiplies the proceedings in any case unreasonably

and vexatiously may be required by the court to satisfy

personally the excess costs, expenses, and attorneys’

fees reasonably incurred because of such conduct.” In

other words, the statute “authorizes the imposition of

sanctions against any lawyer who wrongfully

proliferates litigation proceedings once a case has

commenced.” Pac. Harbor Capital, Inc. v. Carnival Air

Lines, Inc., 210 F.3d 1112, 1117 (9th Cir. 2000).

“Sanctions pursuant to section 1927 must be

supported by a finding of subjective bad faith.”

Blixseth v. Yellowstone Mtn. Club, LLC, 796 F.3d 1004,

1008 (9th Cir. 2015) (quoting New Alaska Dev. Corp. v.

Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989)). “Bad

faith is present when an attorney knowingly or

recklessly raises a frivolous argument or argues a

meritorious claim for the purpose of harassing an

opponent.” Id. at 1007; see also Fink v. Gomez, 239

F.3d 989, 993 (9th Cir. 2001) (“[R]ecklessness suffices

for section 1927.”). Sanctions based on recklessness

must be accompanied by a finding that the

objectionable conduct is frivolous or was intended to

harass. In re Keegan Mgmt. Co., Secs. Litig., 78 F.3d

431, 436 (9th Cir. 1996). Section 1927, like Rule 11, is

an extraordinary remedy that courts should exercise

A-62

with caution. Id. at 437.1

III. ANALYSIS

A. Rule 11

The Maricopa County Defendants argue that

Rule 11 sanctions are warranted against Plaintiffs and

their counsel because they made false allegations in

violation of Rule 11(b)(3), asserted untenable and

unsupported claims for relief in violation of Rules

11(b)(2) and 11(b)(3), and brought this case for an

improper purpose in violation of Rule 11(b)(1). (Mot. at

1, 7–11.) The Court assesses these arguments in turn.

For the purposes of its analysis in this section, the

Court uses the term “Plaintiffs” generally, without yet

deciding whether Plaintiffs or their counsel, or both,

are responsible for any violations of Rule 11.

1.

Allegations Regarding the Use of Paper

Ballots

The Maricopa County Defendants argue that

Plaintiffs made false allegations and representations

that Arizona voters do not vote by hand on paper

ballots. (Mot. at 1, 2–4, 8.)2 This is an important issue,

In addition to its authority under Rule 11 and 28 U.S.C. § 1927,

the Court possesses inherent authority to sanction conduct

“which abuses the judicial process.” Chambers v. NASCO, Inc.,

501 U.S. 32, 44–45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). The

Maricopa County Defendants have not invoked the Court's

inherent authority, which the Court finds unnecessary to raise

sua sponte in light of its rulings under Rule 11 and Section 1927.

2

Plaintiffs fault the Maricopa County Defendants for failing to

cite to the allegations that the Defendants contend to be false.

(Resp. at 7, 9, 10, 14–15.) While it is true that the Maricopa

County Defendants do not provide such citations in the “Legal

1

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which the Court discussed in detail in its Dismissal

Order:

When the time to vote arrives, every Arizona

voter casts a ballot by hand, on paper. This is the

law. See A.R.S. §§ 16-462 (primary election

ballots “shall be printed”), 16-468(2) (“Ballots

shall be printed in plain clear type in black ink,

and for a general election, on clear white

materials”), 16-502 (general election ballots

“shall be printed with black ink on white paper”).

Arizona's statutes carve out one exception to this

rule—voters with disabilities may vote on

“accessible voting devices” (sometimes referred

to as “ballot marking devices,” or “BMDs”), but

these devices still must produce a paper ballot or

voter verifiable paper audit trail, which the voter

can review to confirm that the machine correctly

marked his or her choices, and which can be used

in the event of an audit. 7 A.R.S. §§ 16-442.01; §

16-446(B)(7); 2019 [Elections Procedures

Manual] at 80 .... In the 2020 general election,

2,089,563 ballots were cast in Maricopa County,

and only 453 of those were cast using an

accessible voting device. (Tr. 174:24–175:4.)

(Dismissal Order at 8–9.) In short, it cannot be

disputed that Arizona already requires and uses paper

ballots. Allegations to the contrary are simply false.

Argument” section of their Motion, they provide citations to the

FAC and MPI in a preceding section titled “Plaintiffs’ false

allegations and misleading ‘evidence.’ ” (Mot. at 2–5.) Plaintiffs

responded in detail to these citations in their Response. (Resp. at

7–15.) Thus, the Motion sufficiently “describe[d] the specific

conduct that allegedly violates Rule 11(b)” such that Plaintiffs

had and were afforded sufficient “notice and a reasonable

opportunity to respond.” See Fed. R. Civ. P. 11(c)(1), (2).

A-64

Plaintiffs argue that they never alleged that

Arizona does not use paper ballots. (Resp. at 7–9.) In

fact, they contend that the FAC either “presumes that

Arizona uses paper ballots” (id. at 8), or “implicitly

acknowledges that Arizona uses paper ballots.” (Id. at

9.) And they urge the issue is immaterial in any event

because the use of paper ballots has no effect on the

substance of their claims, which they say focus on

“prohibition of the counting and tabulation of ballots

using ‘centralized machine-counting or computerized

optical scanners.’ ” (Id. at 8–9, citing FAC ¶¶ 14–15,

57, 67–68, 154, 167, 170, 174.)

These statements are wrong. The FAC did not

presume that Arizona uses paper ballots and, in fact,

alleged and implied the contrary. This is clear from the

outset. Paragraph 7 of the FAC summarizes the case:

Through this Action, Plaintiffs seek an Order

that Defendants collect and count votes through

a constitutionally acceptable process, which

relies on tried and true precepts that mandates

[sic] integrity and transparency. This includes

votes cast by hand on verifiable paper ballots

that maintains voter anonymity; votes counted

by human beings, not by machines; and votes

counted with transparency, and in a fashion

observable to the public.

(FAC ¶ 7 (emphasis added).) Paragraph 153 is more

explicit, stating that “Plaintiffs seek for the Court to

Order, an election conducted by paper ballot, as an

alternative to the current framework.” (Id. ¶ 153.) An

“alternative” framework is necessarily one not

currently used.

Plaintiffs argue that “none of these paragraphs

say that Arizona does not use paper ballots.” (Resp. at

7–8.) That is true only in the most facile sense. A more

A-65

reasonable reading of these paragraphs—the only

reasonable reading—is that Plaintiffs requested that

the Court order Arizona to do something that they

contend it is not currently doing: to use paper ballots.

Moreover, even if Plaintiffs’ characterization of these

paragraphs were correct, it would only serve to

establish that a central component of Plaintiffs’

request for injunctive relief—requiring Arizona to use

paper ballots—was entirely frivolous because

Defendants are already doing what Plaintiffs want

them to do.

There is more. Paragraphs 58 to 60 of the FAC

raise concerns regarding Arizona's purported move

from an “auditable paper-based system” to a

“computer-based system”:

58. Prior to 2002, most states, including

Arizona,

conducted

their

elections

overwhelmingly using relatively secure,

reliable, and auditable paper-based systems.

59. After the recount of the 2000 presidential

election in Florida and the ensuing Bush v.

Gore decision, Congress passed the Help

America Vote Act in 2002. In so doing,

Congress opened the proverbial spigot. Billions

of federal dollars were spent to move states,

including Arizona, from paper-based voting

systems to electronic, computer-based systems.

60. Since 2002, elections throughout the

United States have increasingly and largely

been conducted using a handful of computerbased election management systems. These

systems are created, maintained, and

administered by a small number of companies

having little to no transparency to the public,

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producing results that are far more difficult to

audit than paper-based systems, and lack any

meaningful federal standards or security

requirements beyond what individual states

may choose to certify. Leaders of both major

parties have expressed concern about this lack

of transparency, analysis and accountability.

(FAC ¶¶ 58–60.) Plaintiffs argue that “in the context

of the full Complaint, the[se] allegation[s] refer[ ] to

the systems used to count and tabulate votes.” (Resp.

at 8.) Not so. The section that follows these

introductory

paragraphs

includes

numerous

allegations about the vulnerabilities of machines by

which voters cast ballots, including direct-recording

electronic voting machines (“DREs”) and ballot

marking devices (“BMDs”), not only those which count

and tabulate votes. (See, e.g., FAC ¶¶ 68, 77, 78, 84,

102, 104, 139.)

More fundamentally, a move from an

“auditable paper-based voting system” to an

“electronic, computer-based system” more than

implies a transition away from paper ballots. Put

differently, a system that uses paper ballots for

recording votes and electronic machines for tabulating

them remains a “paper-based voting system.” See U.S.

Election Assistance Commission Glossary of Terms

Database, https://www.eac.gov/glossary/p (defining

“Paper-Based Voting System” as a “voting system that

records votes, counts votes, and tabulates the vote

count, using one or more ballot cards or paper ballots”).

Evidence submitted by Plaintiffs describes Dominion's

DVS 5.5-B voting system, which is used in Maricopa

County and features prominently in Plaintiffs’

allegations, as a “paper-based optical scan voting

system with a hybrid paper/DRE option.” (Doc. 42-1,

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Decl. of Andrew D. Parker, Ex. C at 1.) Thus, contrary

to Plaintiffs’ allegations, Arizona's voting system

remains paper based. If it were otherwise, the Cyber

Ninjas would not have been able to conduct the audit

of paper ballots Plaintiffs allege to be a “proof-ofconcept” for a full hand count. (FAC ¶¶ 70, 155.)

The section of the FAC titled “Imminent Injury”

also contains allegations that Arizona voters,

including Plaintiffs, cast their ballots by electronic

voting machines. Paragraph 168 alleges that “Plaintiff

Lake intends to vote in the Midterm Election in

Arizona. To do so, she will be required to cast her vote,

and have her vote counted, through electronic voting

systems.” (FAC ¶ 168.) Paragraph 171 makes the same

allegation as to Plaintiff Finchem. (Id. ¶ 171.) These

assertions are wrong: Plaintiffs are not required under

Arizona's current procedures to “cast [their] vote[s]”

“through electronic voting systems.”3 Indeed,

Defendants have submitted evidence indicating

Plaintiffs themselves have voted on paper ballots for

nearly twenty years. (Doc. 29-16, Lake and Finchem

Voter Files.)4

The Maricopa County Defendants did not cite Paragraphs 168

and 171 in their Motion. (See Mot. at 2–4, 8.) Thus, there is at the

least the possibility of an issue whether Plaintiffs were given

sufficient notice that these paragraphs were potentially

sanctionable. Out of an abundance of caution, the Court refrains

from considering these paragraphs to be sanctionable as false

allegations regarding Arizona's use of paper ballots. However, the

Court considers them for the purposes of evaluating the

arguments Plaintiffs make in their Response generally

characterizing the FAC's allegations.

4

On June 7, 2022, the Maricopa County Defendants filed a

Motion for Judicial Notice (Doc. 29), in which they requested the

Court to take judicial notice of certain government documents.

(Docs. 29-2–29-18.) In its Dismissal Order, the Court granted the

Motion—which Plaintiffs partially opposed—only as to the

government documents referenced in that Order. (Dismissal

3

A-68

Plaintiffs are wrong that the FAC presumes

that Arizona uses paper ballots because the FAC

attacks Arizona's use of optical scanners. (Resp. at 8,

9.) In fact, the FAC also attacks the use of “electronic

voting machines” and “electronic voting systems,”

which are conspicuously broader terms than “optical

scanners.” (See, e.g., FAC ¶¶ 1, 2, 4, 5, 10, 17, 24–28,

30–34, 57–61, 69, 72, 74, 76, 84, 89, 90, 92, 102, 117,

125, 144, 152.) Plaintiffs’ expert, Douglas Logan,

testified that these terms broadly “refer to any

computerized devices or equipment utilized to cast,

print, count, tabulate, process, and/or store ballot

images and/or election results.” (Doc. 39, Decl. of

Douglas Logan ¶ 15.) Using these broader terms

allowed Plaintiffs to misleadingly analogize the

machines used in Arizona to those used in other

jurisdictions, including machines at issue in the

Curling v. Raffensperger case in the Northern District

of Georgia. (See, e.g., FAC ¶¶ 4, 81–84, 139, 146.) The

FAC cited to the Curling court's assessment that

electronic voting machines were vulnerable to

manipulation or interference, quoting the court's

warning that “this is not a question of ‘might this

actually ever happen?’—but ‘when it will happen.’ ”

(Id. ¶ 84.) However, as the Court previously noted, the

Curling case is nothing like this one, in part because

Arizona, unlike Georgia, uses paper ballots. (See

Dismissal Order at 8 n.7, 14–15.) Indeed, in the

passage Plaintiffs quoted in the FAC, the Curling

court was describing risks posed to BMDs—not optical

scanners—and gave the quoted warning in the context

of denying a request to replace Georgia's mandatory

BMD system with “a statewide hand-marked paper

Order at 7 n.5.) The Court now reconsiders and grants the Motion

as to the additional government documents referenced in this

Order.

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ballot system”—the kind of system that Arizona

already uses. See 493 F. Supp. 3d 1264, 1341–42 (N.D.

Ga. 2020).

Similarly, the FAC cited to testimony before the

Senate Rules and Administration Committee by Dara

Lindenbaum, then the nominee for Federal Elections

Commissioner, about allegations that “voting

machines were used to illegally switch votes from one

candidate to another during the 2018 election in

Georgia.” (FAC ¶ 102 & n.21.) However, in the video

testimony linked in the FAC, Ms. Lindenbaum

testified that these allegations concerned “DRE

machines with no paper trail.” See Forbes Breaking

News, “ ‘I'm a Little Bit Puzzled By That Answer’: Cruz

Grills FEC Nominee On Stacey Abrams’ Concession,”

YouTube (Apr. 7, 2022), https://www.youtube.

com/watch?v=wCPLL_D_spc, at 2:47–3:37. As noted,

unlike the systems at issue in Georgia, Arizona's

machines produce a voter-verifiable paper audit trail

even as to those few votes cast electronically.

Thus, Plaintiffs’ argument that the FAC merely

“attacks Arizona's use of optical scanners to count

votes” (Resp. at 8) is incorrect. Not only did the FAC

use the broader terms “electronic voting machines”

and “electronic voting systems” in misleadingly

analogizing to machines used in other jurisdictions; it

specifically attacked the use of both “optical scanners

and ballot marking devices.” (FAC ¶ 23.) But the

overwhelming majority of Arizona voters—99.98% of

voters in the 2020 general elections in Maricopa

County, for example—do not use BMDs to cast their

votes. (Tr. 174:24–175:7.) The FAC variously alleged

that “some” (FAC ¶¶ 16, 57) or “many” Arizona voters

cast their votes use BMDs. (Id. ¶¶ 68, 167.) While it is

true, as Plaintiffs note (Resp. at 8), that these

allegations may be reasonably read to imply that other

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Arizona voters use paper ballots, they did not cure the

FAC's other allegations and overarching implication

that Arizona does not have an auditable, paper-ballot

based voting system.

The Maricopa County Defendants contend that

Plaintiffs continued to make false representations

about the use of paper ballots in their MPI. (Mot. at 3–

4, citing MPI at 2; see also Mot. at 8.)5 An introductory

paragraph of the MPI reads:

Experience has now shown the move to

computerized voting in Arizona was a mistake—

an unnecessary, unsecure change that opened

election

results

to

manipulation

by

unauthorized persons. This is not a partisan

issue. Experts across the political spectrum have

long sounded the alarm about the inherent

insecurity and lack of transparency in

computerized voting systems such as those used

in Arizona. It is time to reverse this mistake.

The right to vote is constitutionally guaranteed.

Computerized voting systems leave an open door

for votes to be changed, deleted, or fabricated in

violation of constitutional requirements. A

return to the tried-and-true paper ballots of the

In their Response, Plaintiffs do not specifically address the

Maricopa County Defendants’ arguments about these allegedly

false statements in the MPI. (See Resp. at 7–9.) As noted in

Footnote 2, supra, Plaintiffs fault the Maricopa County

Defendants for failing to cite to their allegedly false statements.

(Id. at 7, 9, 10, 12, 14–15.) But the Maricopa County Defendants

provided citations to the allegedly false statements in the MPI in

the section of their Motion titled “Plaintiffs’ false allegations and

misleading ‘evidence.’ ” (Mot. at 2–4, citing MPI at 2.) The Court

therefore considers whether the cited statements in the MPI are

sanctionable, notwithstanding Plaintiffs’ failure to address them

in their Response.

5

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past—and of the present, in countries like

France, Taiwan, and Israel—is necessary.

(MPI at 2 (emphasis added).) In their Response,

Plaintiffs argue that their use of the term

“computerized voting” is accurate because “[Arizona's]

is a computerized voting system, notwithstanding the

role that paper ballots play in it, because the outcomes

of the election contests are determined by what

computers do with the paper ballots.” (Resp. at 14

(emphasis in original).) Even viewing the term

“computerized voting” in isolation, the Court is not

persuaded. In any event, the MPI does not use the

term in isolation. The preceding paragraph contrasts

“electronic, computerized voting systems” with the

prior practice by which “American voters recorded

their votes by hand on paper ballots that were counted

by human beings.” (MPI at 1.) Moreover, the MPI

directly states that a “return to ... tried-and-true paper

ballots ... is necessary” (id. at 2), clearly implying that

Arizona does not currently use paper ballots. If it did,

then this statement would be meaningless and

therefore a central component of Plaintiffs’ request for

injunctive relief would be frivolous.

Finally, Plaintiffs argue that any allegations or

implications that Arizona does not use paper ballots

are not sanctionable because the use of paper ballots

is immaterial to their claims. (Resp. at 8–9.) Plaintiffs

cite, for example, to the Second Circuit's opinion in

Kiobel v. Millson for the proposition that “even

literally false minor overstatement error ‘does not

violate Rule 11’ where ‘pleading as a whole remains

well grounded in fact.’ ” (Id. at 8, citing 592 F.3d 78, 83

(2d Cir. 2010) (quotation omitted).) But the Ninth

Circuit long ago expressly rejected the “pleading-as-awhole” rule. See Townsend, 929 F.2d at 1362–65

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(overruling Murphy v. Bus. Cards Tomorrow, Inc., 854

F.2d 1202, 1205 (9th Cir. 1988)).

Instead, the Ninth Circuit instructs that courts

may consider the relation of the unsupported portion

of the complaint to the pleading as a whole. See

Townsend, 929 F.2d at 1363–65. Here, Plaintiffs’

misrepresentations about Arizona's use of paper

ballots played a central role in the purported basis for

Plaintiffs’ claims. By alleging and implying that

Arizona does not currently have an auditable paperballot system, Plaintiffs set up a strawman,

constructed in substantial part based on the Curling

case and concerns about voting machines in other

jurisdictions. But the strawman was just that. Arizona

already follows the course to “eliminate or greatly

mitigate” the risks of manipulation and interference

that Prof. Halderman recommended in the Curling

litigation: It uses paper ballots and reserves BMDs for

the small number of voters who need or request them.

(See Dismissal Order at 8–9 & n.7, quoting Halderman

Dec. 33, Doc. 1304-3, Curling v. Raffensperger, No.

1:17-CV-2989-AT (N.D. Ga. Feb. 3, 2022).) And again,

even those BMD-assisted voters produce a paper ballot

or voter-verifiable paper audit trail. (Id.)6

On the day of the 2022 midterm election, Maricopa County

officials stated that equipment problems affected at least 30% of

the County's voting centers. Robert Anglen et al., “It all turns on

Maricopa County: Takeaways from a day of glitches, conspiracies

and a lawsuit,” The Arizona Republic (Nov. 9, 2022),

https://www.azcentral.com/story/news/politics/elections/2022/11/

09/maricopa-county-election-glitches-conspiracies-and-lawsuit/

8312190001/. In a video, Defendant Gates, Chairman of the

Maricopa County Board of Supervisors, stated that the County

would proceed to tabulate at the County's Ballot Tabulation

Center the ballots that the tabulators at the voting centers were

unable to read. Id. According to press reports, officials with the

U.S. Cybersecurity and Infrastructure Security Agency (“CISA”)

6

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2.

Allegations Regarding Testing of Arizona's

Election Equipment

The Maricopa County Defendants argue that

the FAC made false allegations that Arizona's

tabulation machines are not independently tested by

experts. (Mot. at 2–3, citing FAC ¶¶ 20, 57, 69; see also

Mot. at 8.) Plaintiffs respond that none of the cited

paragraphs in the FAC say that Arizona does not test

its tabulation machines. (Resp. at 9–10.) But they

nonetheless further question whether such testing

took place, contending that “[a] statutory requirement

of testing does not prove that testing actually

occurred.” (Id.) Finally, they dispute that the testing

and certification procedures used in Arizona

“constitute neutral, expert analysis,” and therefore

argue that the FAC's allegations merely reflect a

reasonable difference of opinion between the parties

that is not sanctionable under Rule 11. (Id.)

Of the three paragraphs cited by Defendants on

this point, the Court agrees with Plaintiffs that

Paragraph 69 is not sanctionable because it arguably

refers to Dominion's purported failure to subject its

machines to testing, rather than Arizona's failure to

test its machines. The other two are not so ambiguous,

however. Paragraph 20 alleges that the Secretary's

“certification of the Dominion Democracy Suite 5.5b

voting system, as well as its component parts, was

said that CISA saw no specific or credible threat to disrupt

election infrastructure or election day operations, that the issue

in Maricopa County appeared to be a fairly routine technical

glitch, and that Arizona's use of paper ballots would provide

opportunities to verify—and audit—the votes if necessary. Id.

The Court's observation regarding these day-of-vote issues would

seem to underscore the significance of Arizona's use of auditable

paper ballots. However, this observation plays no part in the

Court's decisions herein.

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improper, absent objective evaluation.” (FAC ¶ 20

(emphasis added).) Paragraph 57 alleges that “Arizona

intends to rely on electronic voting systems to record

some votes and to tabulate all votes cast in the State

of Arizona in the 2022 Midterm Election, without

disclosing the systems and subjecting them to neutral,

expert analysis.” (Id. ¶ 57 (first emphasis in original

and second emphasis added).) These are allegations

that Arizona's electronic voting systems have not been

subjected to objective evaluation or neutral, expert

analysis. And they are wrong. As the Court previously

discussed, Arizona's equipment undergoes thorough

testing by independent, neutral experts with the

Secretary of State's Certification Committee and a

testing laboratory accredited by the Election

Assistance Commission (“EAC”).7 (See Dismissal

Order at 6–7 and documents cited therein.) For

example, Maricopa County's equipment was tested by

Pro V&V, an EAC-accredited testing laboratory, and

tested—in public—by the Secretary of State's

Equipment Certification Committee. (See id.) This is

in addition to the County's testing of its equipment and

the audits of vote-tabulation results. (See id. at 7–10

& n.6.)8

In their Response, Plaintiffs criticize the

process by which Arizona's equipment is tested and

argue that the parties may reasonably dispute

The EAC is an independent federal agency that was established

by the Help America Vote Act of 2022 and is charged with

providing for “the testing, certification, decertification, and

recertification of voting system hardware and software by

accredited laboratories.” 52 U.S.C. § 20971(a)(1).

8

As to whether testing in fact occurred, Plaintiffs’ expert, Douglas

Logan, testified he was aware that Arizona's system was EAC

certified and subjected to logic and accuracy testing, though he

criticized the sufficiency and reliability of those processes. (Tr.

62:11–65:13.)

7

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whether the process constitutes “objective evaluation”

or “neutral, expert analysis.” (Resp. at 10.) At bottom,

however, Plaintiffs’ concerns are about the sufficiency

and reliability of Arizona's testing process. But the

FAC does not merely allege that testing of Arizona's

equipment is insufficient or unreliable; it alleges that

the equipment has not been subjected to objective

evaluation or neutral, expert analysis, which is not

true. Plaintiffs and their experts may be entitled to

opine about the sufficiency of the testing that

Arizona's machines undergo, but they are not entitled

to allege that no such testing takes place.

3.

Allegations Regarding the Lack of VoteVerifying Audits

The Maricopa County Defendants argue that

Plaintiffs’ FAC falsely alleged that Arizona's

tabulation results are not subject to vote-verifying

audits. (Mot. at 2–3, citing FAC ¶¶ 23, 72, 144–52; see

also Mot. at 8.) Plaintiffs respond that Defendants

mischaracterize the FAC. (Resp. at 10–12.) They argue

that the FAC does not allege that Arizona does not

conduct audits; it contests the sufficiency of the audits.

(Id.)

While this issue presents a closer call, the

Court agrees with Plaintiffs that the FAC did not

directly allege that Arizona's tabulation results are not

audited. Paragraphs 23 and 72 allege that Arizona's

voting machines cannot deliver accurate results, and

therefore comport with constitutional and statutory

requirements, “without objective evaluation,” in part

because the machines “lack adequate audit capacity.”

(FAC ¶¶ 23, 72.) On their own, these paragraphs may

be reasonably read as an assertion that Arizona's

tabulation results are not objectively evaluated,

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which, as discussed, is not true. However, Paragraphs

144 to 152 subsequently allege that Arizona's existing

audit regime is insufficient, necessarily implying that

such a regime exists. (Id. ¶¶ 144–52.)

4. Allegations Regarding the Cyber Ninjas’

Hand Count in Maricopa County

Defendants label as untrue the FAC's

“allegation that ‘[t]he recent hand count in Maricopa

County, the second largest voting jurisdiction in the

United States, offers Defendant Hobbs a proof-ofconcept and a superior alternative to relying on

corruptible electronic voting systems.’” (Mot. at 3,

quoting FAC ¶ 155; see also Mot. at 8.) Plaintiffs

counter that whether the Cyber Ninjas’ hand count

can be characterized as a “proof-of-concept and a

superior alternative” is a matter of judgment. (Resp.

at 12–13.) They argue that the word “superior” should

be interpreted as a measure of “transparency” rather

than “speed or cost,” and that the Cyber Ninjas

“showed a hand count can be done; it does not show the

optimized method of doing it.” (Id.)

Setting aside issues concerning the reliability

of the Cyber Ninjas’ audit, it strains credulity to

characterize the hand count as a proof-of-concept that

a full hand count is “feasible”—let alone a “superior

alternative.” Arizona law requires that county boards

of supervisors canvass general elections within twenty

days after the election. A.R.S. § 16-642(A). Mr. Logan

testified that in the Cyber Ninjas’ hand count, it took

roughly 2,000 people more than two-and-a-half

months to hand count only two (out of several dozen)

contests on each ballot in only one of Arizona's fifteen

counties. (Tr. 71:20–74:4.) Scott Jarrett, the codirector of the Maricopa County Elections

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Department, estimated that a full hand count for the

2022 midterm election in Maricopa County alone

would require hiring 25,000 temporary workers and

finding two million square feet of space. (Tr. 196:6–

198:8.) He testified that with the County's current

employees, “it would be an impossibility” to have the

ballots counted to perform the canvass by the

twentieth day after the election, as required by law.

(Tr. 194:16–23.) In short, Plaintiffs’ characterizations

of the Cyber Ninjas’ hand count would be wholly

unpersuasive to any objective reader with an

understanding of the underlying facts. Nonetheless,

the Court will treat Plaintiffs’ incredible arguments on

this point as such, rather than as false assertions of

fact.

Defendants further assert that Plaintiffs made

factual misstatements regarding Cyber Ninjas’

findings that have been debunked. (Mot. at 3, citing

FAC ¶¶ 70, 132, 164; see also Mot. at 8.) But the cited

portions of the FAC quote and summarize the Cyber

Ninjas’ report and therefore do not constitute

Plaintiffs’ direct allegations, at least not in a manner

the Court finds sanctionable. The Court notes,

however, that Plaintiffs cherry-picked among the

Cyber Ninjas’ findings and ignored those that

undermine their claims. They conspicuously failed to

mention that the Cyber Ninjas’ report states that

“there were no substantial differences between the

hand count of the ballots provided and the official

election canvass results for Maricopa County. This is

an important finding because the paper ballots are the

best evidence of voter intent and there is no reliable

evidence that the paper ballots were altered to any

material degree.” Maricopa County Forensic Election

Audit, Volume I at 1 (Sept. 24, 2021),

https://www.azsenaterepublicans.com/_files/ugd/2f34

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70_a91b5cd3655445b498f9acc63db35afd.pdf.

5.

Allegations

Regarding

the

Connectivity

of

Maricopa

Elections Systems

Internet

County's

Defendants argue that “the entire FAC is

premised on the erroneous theory that machine

counting of ballots is unreliable because the machines

used are ‘potentially susceptible to malicious

manipulation that can cause incorrect counting of

votes’ and these alleged vulnerabilities stem from the

possibility that the machines ‘can be connected to the

internet.’ ” (Mot. at 5, quoting FAC ¶¶ 26, 33; see also

Mot. at 5, citing FAC ¶¶ 70, 132, 164; see also Mot. at

8.) Plaintiffs respond that their allegations about the

internet connectivity of Maricopa County's systems

are well-founded. (Resp. at 14.)

To support their argument, Plaintiffs cite to the

testimony of their expert, Benjamin Cotton, who

analyzed election systems provided by Maricopa

County during the Cyber Ninjas’ audit. (Resp. at 14,

citing Tr. 27:2–29:13.) In the cited portion of his

testimony, Mr. Cotton testified that he saw “actual

evidence of remote log-ins into [Maricopa County's

election management server].” (Tr. 27:2–7.) When

asked “whether those were permissible or security

breach,” he responded: “The attributable log-ins—

because I did see some anonymous log-ins that I could

not trace back to an event. The ones that I saw came

from the local EMS subnet, if you will, the IP address

that—for the voting system.” (Tr. 27:8–13.) Mr.

Cotton's testimony is somewhat unclear, but to the

extent it refers to the findings in the Cyber Ninjas’

report that an “anonymous user” accessed Maricopa

County's EMS server, the County asserted that those

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findings are false because “[t]hese logged actions are

simply part of the EMS server protocols and standard

Microsoft functions.” (Doc. 29-14, Correcting the

Record at 34–35.) Mr. Cotton further testified that

“each of the Dell computers that were within that

system did have wifi cards and that those wifi cards

had been registered as a network on the computing

devices.” (Tr. 27:18–28:11.) When asked if he was

describing a “hotspot” and whether “[i]f someone

gained access, they could utilize the hotspot to gain

access,” Mr. Cotton responded: “Sure, yeah. That

would give access to the Internet.” (Tr. 28:12–17.) He

proceeded to give examples of breaches through other

air-gapped systems not used by Maricopa County. (Tr.

29:16–28:6.)

In March 2022, the Special Master designated

by the Arizona State Senate and Maricopa County to

examine the County's election network and equipment

reported finding “NO evidence that the routers,

managed switches, or electronic devices [in Maricopa

County's Ballot Tabulation Center] connected to the

public Internet.” (Doc. 37, Decl. of Benjamin R. Cotton,

Ex. H, Answers to Senate Questions Regarding

Maricopa County Election Network (Mar. 23, 2022) at

10.) The Special Master stated that Maricopa County

uses an air-gapped system that “provides the

necessary isolation from the public Internet, and in

fact is in a self-contained environment” with “no wired

or wireless connections in or out of the Ballot

Tabulation Center,” and “[a]s such, the election

network and election devices cannot connect to the

public Internet.” (Id. at 10–11.) The Special Master's

findings are consistent with what the County has long

maintained (see, e.g., Doc. 29-14, Correcting the Record

at 36–44), and what previous audits have likewise

concluded. (See, e.g., Doc. 29-8, SLI Compliance,

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Forensic Audit Report: Dominion Voting Systems,

Democracy Suite 5.5B at 14–16 (Feb. 23, 2021).)

Although Plaintiffs’ claims that Maricopa

County's systems can be or have been connected to the

internet are in direct contradiction to the County

Defendants’ evidence and the Special Master's

findings, the Court will treat them as unpersuasive

arguments rather than as false assertions of fact,

allowing Plaintiffs the benefit of the doubt. However,

the Court notes that to rely on the Cyber Ninjas’

findings on this issue, without mentioning in the FAC

that the Special Master contradicted those findings, is

misleading. Litigants are entitled to raise disputed

issues, but they may not misrepresent or withhold

material facts that refute their allegations. See

Burroughs, 801 F.2d at 1539 (finding “no quarrel” with

the district court's admonition that the “omission of

critical facts” may be sanctionable under Rule 11).

Nonetheless, the Court does not deem this issue

sanctionable here.

6.

Unsupported Claims Based on Speculation

and Conjecture

The Maricopa County Defendants argue that

Plaintiffs violated Rules 11(b)(2) and (b)(3) by

pursuing untenable and unsupported claims based on

conjecture and speculation—claims that are, in a

word, frivolous. (Mot. at 2, 8–9.) They point to

Plaintiffs’ reliance on “testimony and allegations that

are entirely unrelated to elections in Arizona” (id. at 4,

citing FAC ¶¶ 73–89, 125–31, 133, 134); Plaintiffs’

allegations concerning alleged foreign manufacture of

election machines that fail to identify specific

machines or parts (id., citing FAC ¶¶ 90–92); and

Plaintiffs’ tangential discussion of “open source”

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technology. (Id., citing FAC ¶¶ 108–24.) Defendants

further cite to their Response to Plaintiffs’ MPI (Doc.

57), in which they discussed Plaintiffs’ reliance on the

distinguishable Curling case (id. at 3–4); Plaintiffs’

use of out-of-context quotations and testimony in other

proceedings (id. at 4–5); and Plaintiffs’ reliance on a

recent statement from the U.S. Cybersecurity and

Infrastructure

Agency

(“CISA”)

concerning

vulnerabilities in a version of Dominion's DVS 5.5

voting system that Arizona does not currently use. (Id.

at 5.) What Plaintiffs failed to allege, Defendants

argue, is that Arizona's ballot tabulation equipment

has ever been hacked or manipulated or improperly

counted votes—“because no such evidence exists.”

(Mot. at 8.)

Plaintiffs counter that their claims are wellfounded and meritorious. (Resp. at 1-2.) They argue

that the summary allegations in the FAC about the

vulnerabilities of Arizona's voting machines are

supported by detailed allegations which are, in turn,

supported by the evidentiary record on Plaintiffs’ MPI.

(Id. at 1–4.) Plaintiffs discuss some of this evidence in

their Response, including a declaration by Professor

Walter Daugherity (Doc. 38) discussing his analysis of

cast vote records from the 2020 general election in

Maricopa and Pima Counties. (Id. at 3–6.) More

fundamentally, Plaintiffs argue that

even if no past manipulation of Arizona ballots

had not been shown [sic], an absence of

undisputed evidence that a particular harm has

happened before in a particular location does not

prove that the harm cannot happen in the future,

particularly where similar events have happened

elsewhere.... ‘It hasn't happened here yet’ does

not prove ‘it can't happen here.’ It is not

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sanctionable to bring an action seeking to

prevent a foreseeable and likely harm that has

not yet happened here.

(Resp. at 5 (emphasis in original).) Because they put

forth evidence from which “[i]t is reasonable to infer ...

that an electronic intrusion designed to take

advantage of the vulnerabilities in Maricopa's

electronic system and manipulate votes is likely to

occur in the future,” Plaintiffs assert their claims “are

meritorious, not sanctionable.” (Id. at 5–6.)

An in-depth discussion of Plaintiffs’ allegations

and supporting evidence is unnecessary here for the

purposes of evaluating whether their claims rest on an

adequate legal and factual basis. Whatever weight one

assigns to Plaintiffs’ evidence, an essential flaw

remains in their overarching theory of the case. Simply

put, there are yawning gaps between the factual

assertions made, the harm claimed, and the ultimate

relief requested.

Plaintiffs never put forth sufficient allegations

about Arizona's election systems—let alone sufficient

evidence to support any such allegations—to

demonstrate a likelihood that Arizonans’ votes would

be incorrectly counted in the 2022 midterm election

due to manipulation. The Court reached this

conclusion in its Dismissal Order, where it ruled that

Plaintiffs’ claimed injuries were too speculative to

meet the injury-in-fact requirement for standing

under Article III. (Dismissal Order at 13–16.) See

Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133

S.Ct. 1138, 185 L.Ed.2d 264 (2013) (holding that a

threatened injury must be “actual or imminent” and

“certainly impending” to confer Article III standing

and that “allegations of possible future injury are not

sufficient”) (citations omitted). The Court explained:

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[A] long chain of hypothetical contingencies

must take place for any harm to occur—(1) the

specific voting equipment in Arizona must have

“security failures” that allow a malicious actor

to manipulate vote totals; (2) such an actor must

actually manipulate an election; (3) Arizona's

specific procedural safeguards must fail to

detect the manipulation; and (4) the

manipulation must change the outcome of the

election. (See Doc. 62 at 2–3.) Plaintiffs fail to

plausibly show that Arizona's voting equipment

even has such security failures. And even if the

allegations in Plaintiff's complaint were

plausible, their alleged injury is not “certainly

impending” as required by Clapper, 568 U.S. at

409, 133 S.Ct. 1138.

(Dismissal Order at 14–15 (footnotes omitted).) The

Court noted the numerous steps that Defendants have

taken to ensure that the alleged security failures do

not exist or occur, including extensive post-election

audit procedures. (Id. at 15 nn.13, 14.)

At bottom, Plaintiffs’ allegations raised

questions about whether Arizona's voting machines

are

“potentially

susceptible

to

malicious

manipulation” (FAC ¶ 33), or “potentially unsecure”

(id. ¶ 23), or have vulnerabilities that “at the very

least, call into question” the results they produce (id.

¶ 69), but they went no further. A central theory of the

FAC is that Arizona's voting machines cannot legally

be used “unless and until the electronic voting system

is made open to the public and subjected to scientific

analysis by objective experts to determine whether it is

secure from manipulation or intrusion.” (FAC ¶ 1

(emphasis added); see also, e.g., id. ¶¶ 6, 20, 23, 72.)

This is speculative on its face. And in any event,

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Plaintiffs are not constitutionally entitled to their

preferred voting methods. See, e.g., Weber v. Shelley,

347 F.3d 1101, 1106–07 (9th Cir. 2003). They had the

burden to plausibly allege that Arizona's use of

electronic voting systems would violate their

constitutional rights or federal law. They failed to do

so. Indeed, they appeared to assume the very thing

they had the burden to allege and ultimately prove,

alleging that Defendants have “subject[ed] voters to

cast votes on an illegal and unreliable system—a

system that must be presumed to be compromised and

incapable of producing verifiable results.” (Id. ¶ 181

(emphasis added).) But Plaintiffs never established

any adequate factual or legal basis to support such a

presumption.

Plaintiffs sought to fill the gap between their

assertions about Arizona's voting equipment and their

speculative conclusions about its vulnerability with

allegations that were false and misleading, as the

Court discussed above. The Court further agrees with

the Maricopa County Defendants that Plaintiffs also

sought to fill this gap with assertions regarding

elections in other jurisdictions that provided little if

any support for their claims and served only to muddy

the waters. For example, as discussed above, Plaintiffs

heavily relied on the Curling case in Georgia (see, e.g.,

FAC ¶¶ 4, 81–84, 139, 146), despite the fact that

Arizona, unlike Georgia, uses hand-marked paper

ballots. In testimony before the Senate Select

Committee on Intelligence—a transcript of which

Plaintiffs included as an exhibit—Professor

Halderman responded to a question about

recommended actions for safeguarding elections by

stating “[t]he most important things are to make sure

we have votes recorded on paper, paper ballots, which

just cannot be changed in a cyber attack ....” (Doc. 43,

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Russian Interference in the 2016 U.S. Elections at 91,

S. Hrg. 115–92 (June 21, 2017).) Arizona has that, and

has had it all along.

As the Maricopa County Defendants note,

Plaintiffs raised other tangential allegations that

provided little if any support for their claims, including

vague allegations about foreign manufacture of

election machines (FAC ¶¶ 90–92); digressions about

“open source” technology (id. ¶¶ 117–23); and

discussions of Dominion's DVS 5.5-A BMDs (id. ¶¶

103–05) and CISA's report about potential

vulnerabilities of these devices (MPI at 5 & n.2)—

which again are the prior versions of the since-updated

devices Maricopa County uses. (Doc. 57-1, First Decl.

of Scott Jarrett ¶¶ 27–30.) Nor did the evidence

Plaintiffs point to in their Response bring their claims

out of the realm of speculation. Even if this evidence

were sufficient to identify vulnerabilities—which the

Court does not decide—it is insufficient to establish a

likelihood that Arizonans’ votes will not be correctly

counted due to manipulation of electronic voting

machines.

The relief that Plaintiffs sought in this case was

remarkable. Mere months away from the 2022

midterm election, Plaintiffs requested, among other

relief, an Order “declaring it unconstitutional for any

public election to be conducted using any model of

electronic voting system to cast or tabulate votes”; an

injunction prohibiting Defendants from utilizing any

of their electronic voting systems; and an Order that

all Arizona ballots be cast on paper, by hand, and that

every vote be counted, by hand, according to specific

procedures outlined by Plaintiffs. (FAC at 49-50; see

also id. ¶ 153.) Setting aside that the overwhelming

majority of Arizona voters already cast paper ballots,

the relief that Plaintiffs requested in this case would

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have called for a massive, perhaps unprecedented

federal judicial intervention to overhaul Arizona's

elections procedures shortly before the election.

Plaintiffs bore a substantial burden to demonstrate

that such an intervention was constitutionally

required and in the public interest. Yet they never had

a factual basis or legal theory that came anywhere

close to meeting that burden. Underscoring just how

far short of that heavy burden they fell, Plaintiffs

failed to show that their preferred full hand count

would be feasible or more accurate than Arizona's

current procedures, as the Court previously discussed

in denying Plaintiffs’ MPI. (See Dismissal Order at 2

n.1.)

In sum, Plaintiffs lacked an adequate factual or

legal basis to support the wide-ranging constitutional

claims they raised or the extraordinary relief they

requested. Plaintiffs filled the gaps between their

factual assertions, claimed injuries, and requested

relief with false, misleading, and speculative

allegations. At its core, Plaintiffs’ FAC presented mere

conjectural claims of potential injuries. Rule 11

requires more. “While there are many arenas—

including print, television, and social media—where

protestations, conjecture, and speculation may be

advanced, such expressions are neither permitted nor

welcomed in a court of law.” King v. Whitmer, 556 F.

Supp. 3d 680, 689 (E.D. Mich. 2021).

7. Failure to Conduct a Reasonable Pre-Filing

Inquiry

Plaintiffs had plenty of time in which to

thoroughly investigate the factual and legal basis for

their claims. The statutory scheme that Plaintiffs

sought to challenge in this case has authorized

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Arizona's counties to use vote-tabulation machines

since at least 1966. (See Doc. 29-15, 1966 Ariz. Sess.

Laws 178–87.) The Secretary certified the Dominion

DVS 5.5-B electronic voting systems that Plaintiffs

sought to invalidate in November 2019. (Doc. 29-6,

Certification Letter (Nov. 5, 2019).) Further, while the

subject matter of this case is not simple, counsel for

Plaintiffs have been involved in litigation concerning

voting procedures before, including litigation involving

unsupported claims about electronic voting machines.

See US Dominion, Inc. v. MyPillow, Inc., No. CV-210445 (CJN), 2022 WL 1597420, at *14 & n.11 (D.D.C.

May 19, 2022) (ordering sanctions against Michael

Lindell and his earlier counsel, whom counsel for

Plaintiffs later replaced, for filing groundless and

frivolous claims). As for Plaintiffs themselves, Mr.

Finchem is a candidate for the state's chief election

officer and Ms. Lake is a candidate for its top executive

office.9 Both have apparently voted on paper ballots for

nearly twenty years. (Doc. 29–15, Lake and Finchem

Voter Files.)

The circumstances of this case not only allowed

for, but required, a significant pre-filing inquiry. As

noted, Plaintiffs’ requested relief called for a massive,

late-breaking, and perhaps unprecedented federal

judicial intervention in Arizona's elections. And

although Plaintiffs asserted that this case was “not

about undoing the 2020 presidential election” (FAC ¶

8), the Court cannot ignore the dangers posed by

making wide-ranging allegations of vote manipulation

in the current volatile political atmosphere. Indeed,

the Maricopa County Defendants raise troubling

allegations about “the County's witnesses and counsel

At the time the Court issued this Order, the results of the 2022

midterm election have not yet been certified; thus the Court

deems all persons running still to be candidates.

9

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being confronted upon exiting the courtroom by

someone who had watched the proceedings, who called

them ‘liars’ and ‘traitors.’ ” (Reply at 8.) As the court

warned in King v. Whitmer, unfounded claims about

election-related misconduct “spread the narrative that

our election processes are rigged and our democratic

institutions cannot be trusted. Notably, many people

have latched on to this narrative, citing as proof

counsel's submissions in this case.” King, 556 F. Supp.

3d at 732. The Court shares this concern.

Plaintiffs evidently failed to conduct the factual

and legal pre-filing inquiry that the circumstances of

this case reasonably permitted and required. The

Court need not conduct a further evidentiary inquiry

to make this finding. As discussed herein, any

objectively reasonable investigation of this case would

have led to publicly available and widely circulated

information contradicting Plaintiffs’ allegations and

undercutting their claims. Thus, Plaintiffs either

failed to conduct the reasonable factual and legal

inquiry required under Rule 11, or they conducted

such an inquiry and filed this lawsuit anyway. Either

way, no reasonable attorney, “after conducting an

objectively reasonable inquiry into the facts and law,

would have found the complaint to be well-founded.”

Holgate, 425 F.3d at 677 (citation omitted).

8. Improper Purpose

Finally, the Maricopa County Defendants argue

that Plaintiffs and their counsel brought this lawsuit

“for the improper purpose of undermining confidence

in elections and to further their political campaigns.”

(Mot. at 9–10.) Defendants argue that even though

Arizona has long used electronic voting machines,

Plaintiffs waited to challenge Arizona's use of these

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systems until it was “politically profitable” because

“they were running for statewide political office, [and]

a significant portion of their likely voters had become

erroneously convinced that the 2020 election was

‘stolen.’ ” (Id. at 9.) Defendants point to statements by

Plaintiff Finchem regarding his intention not to

concede his election contest and to require a hand

count of all ballots “if there's the slightest hint of any

impropriety”—statements with which Plaintiff Lake

apparently agreed. (Id., citing Mary Jo Pitzl, “Setting

up another conflict with Trump, Ducey endorses Beau

Lane for Arizona secretary of state,” The Arizona

Republic (July 13, 2022), https://www.azcentral.com/

story/news/politics/arizona/2022/07/13/arizona-govdoug-ducey-endorses-beau-lane-secretary-state/10053

166002/.)

Plaintiffs respond that the evidence of improper

purpose cited by the Maricopa County Defendants

merely shows that “Plaintiffs only recently became

aware of the full extent of the problems with electronic

election equipment,” “genuinely believe hand counting

is the only reliable means of counting votes,”10 and

In an election-night address posted to her Twitter account,

Plaintiff Lake criticized the “incompetency” of Arizona's elections

officials in light of the length of time it takes to count and verify

votes, stating: “We the people deserve to know, on election night,

the winner and the loser. And we will bring that kind of election

back to Arizona, I assure you of that.” Kari Lake (@KariLake),

Twitter (Nov. 8, 2022, 10:40 p.m.), https://twitter.com/KariLake/

status/1590217668849647616, at 4:15–55. Given how long it

takes to hand count ballots—according to Plaintiffs’ own expert

(Tr. 71:20–74:4), among others—it is difficult, if not impossible,

to square Plaintiff Lake's election-night statements with her

position in this litigation that a full hand count should be

required. At a minimum, her statements are inconsistent with a

“genuine belief” that hand counts are the only reliable means of

counting votes. While the Court finds this inconsistency

troubling, it concludes the Twitter post should not form any part

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“will not concede defeat in their election contests

without pursuing their rights to contest any

impropriety.” (Resp. at 6.) Plaintiffs further argue that

their claims are not frivolous and thus not

sanctionable. (Id.)

While it is a very close call, the Court finds the

record as it stands insufficient to compel a finding as

to whether Plaintiffs brought this lawsuit for an

improper purpose. The Court is not inclined to further

develop the record on this issue, particularly in light of

its findings regarding other violations of Rules 11(b)(2)

and 11(b)(3), as discussed above. Rule 11 confers

discretion, see Perez v. Posse Comitatus, 373 F.3d 321,

325–26 (2d Cir. 2004), and it counsels restraint. See

Keegan, 78 F.3d at 437. The deterrent goal of Rule 11

can be furthered in this case without conducting

further inquiry into the circumstances under which

this lawsuit was filed.

It should be clear, however, that the Court does

not find that Plaintiffs have acted appropriately in this

litigation. The Court shares the concerns expressed by

other federal courts about misuse of the judicial

system to baselessly cast doubt on the electoral process

in a manner that is conspicuously consistent with the

plaintiffs’ political ends. See O'Rourke v. Dominion

Voting Systems, Inc., 552 F. Supp. 3d 1168, 1176 (D.

Colo. 2021) (“While Plaintiffs’ counsel insist that the

lawsuit was not intended to challenge the election or

reverse the results, the effect of the allegations and

relief sought would be to sow doubt over the legitimacy

of the [subsequent] presidency and the mechanisms of

American democracy (the actual systems of voting) in

numerous states.”); King, 556 F. Supp. 3d at 689

(“[T]his case was never about fraud—it was about

of its decision, as the post is outside the record of the case.

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undermining the People's faith in our democracy and

debasing the judicial process to do so.”); Trump v.

Clinton, 640 F. Supp. 3d 1321, 1329–33 (S.D. Fla. Nov.

10, 2022) (“The rule of law is undermined by ... efforts

to advance a political narrative through lawsuits

without factual basis or any cognizable legal theory.”).

B. 28 U.S.C. § 1927

The Maricopa County Defendants also argue

that sanctions against Plaintiffs’ counsel are

independently warranted under 28 U.S.C. § 1927.

(Mot. at 10–11.) They argue that Plaintiffs’ counsel

violated Section 1927 by making numerous false

allegations and misrepresentations, pursuing baseless

claims, and moving for preliminary injunctive relief

even after counsel for Defendants alerted them that

Plaintiffs’ claims were time-barred and utterly lacking

in support. (Id.) Defendants contend that the

“inexplicable years-long delay in seeking injunctive

relief” is further evidence that Plaintiffs’ counsel have

acted improperly. (Mot. at 11.)

Plaintiffs argue that Defendants’ arguments

fail because they do not show “that any proceeding was

‘unreasonably’ or ‘vexatiously’ multiplied,” or provide

evidence of subjective bad faith. (Resp. at 16–17.) With

respect to delay, Plaintiffs draw comparisons to Brown

v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98

L.Ed. 873 (1954), and note that “[a] defendant's

unconstitutional conduct is not immunized against

legal challenge merely because a certain amount of

time passes before a plaintiff decides to challenge it.”

(Id.)

The Court has already concluded that

Plaintiffs’ claims are frivolous in that they are “both

baseless and made without a reasonable and

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competent inquiry.” Townsend, 929 F.2d at 1362. It

further agrees with Defendants that under the

circumstances, it was objectively unreasonable and

vexatious for Plaintiffs’ counsel to initiate additional,

time- and resource-intensive preliminary injunction

proceedings based on frivolous claims and to continue

making false and misleading representations about

Arizona elections. The remaining question under

Section 1927 is whether Plaintiffs’ counsel acted

recklessly or in bad faith. See Blixseth, 796 F.3d at

1008. The Court concludes they did.

Plaintiffs’ counsel waited nearly seven weeks

after filing this case to move for a preliminary

injunction, despite alleging imminent and irreparable

injury in their original Complaint. (See Compl. ¶¶

156–66.) By the time of the MPI hearing on July 21,

2022, the midterm election was fewer than four

months away. As noted, the relief Plaintiffs requested

was remarkable and perhaps unprecedented. And as

the Maricopa County Defendants note, the timing of

Plaintiffs’ MPI resulted in “wasting the time of election

employees on the eve of the August 2022 primary

election and forcing the unnecessary expenditure of

taxpayer resources.” (Mot. at 11.) Further, Plaintiffs’

counsel filed the MPI soon after counsel for the

Maricopa County Defendants notified them as to the

frivolousness of Plaintiffs’ claims and the applicable

bars to relief, including the Purcell doctrine.

Plaintiffs should have heeded the warning. In

dismissing Plaintiffs’ claims, the Court applied the

Purcell doctrine, among others, and found that the

relief Plaintiffs sought “would not just be challenging

for Arizona's election officials to implement; it likely

would be impossible under the extant time

constraints.” (Dismissal Order at 20.) Doctrinally and

practically, the Purcell doctrine encapsulates a central

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problem of Plaintiffs’ MPI:

[T]he principle ... reflects a bedrock tenet of

election law: When an election is close at hand,

the rules of the road must be clear and settled.

Late judicial tinkering with election laws can

lead to disruption and to unanticipated and

unfair consequences for candidates, political

parties, and voters, among others. It is one thing

for a State on its own to toy with its election laws

close to a State's elections. But it is quite

another thing for a federal court to swoop in and

re-do a State's election laws in the period close

to an election.

Merrill v. Milligan, ––– U.S. ––––, 142 S. Ct. 879, 880–

81, ––– L.Ed.2d –––– (2022) (Kavanaugh, J.,

c

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