Attorneys for Arizona’s most prominent election deniers have been dealt tens of thousands of dollars in sanctions – monetary punishments – for flouting facts. Michigan lawyers got hit with some for filing a baseless lawsuit. Colorado attorneys relied on inflammatory language instead of investigating, resulting in sanctions.
In courtrooms across the country, lawyers who have brought cases alleging election fraud since the 2020 election without evidence or based on lies have received financial sanctions, one way the courts and democracy-defending attorneys hope to clamp down on frivolous lawsuits from those who won’t accept election losses.
The tactic is one way defendants, under attack from broad and baseless claims of widespread fraud, have sought to hold people accountable for spreading such claims, which have become increasingly common since former president Donald Trump lost in 2020. The sanctions join other forms of accountability, like defamation cases and criminal charges. Some attorneys have even faced disbarment or investigations by their state’s bar organization because of their claims in election-fraud lawsuits.
“You can’t lie brazenly to the courts,” said Wendy Weiser, who directs the democracy program at New York University’s Brennan Center for Justice.
Weiser said the wave of bad-faith lawsuits required a response from the judicial system to let attorneys and their clients know that “the law can’t be used just as a political tool”.
A court sanction – typically an award of coverage of attorneys’ fees to the government entity that defended against the lawsuit – can send a message not just to the attorneys and political actors bringing a case, but to those who would consider filing similar lawsuits in the future.
In most instances, the sanctions are against the attorneys who bring the cases, not their clients, because attorneys are bound by ethical rules that should prevent them from making false statements. The sanctions also show the courts’ role in accountability for anti-democratic actions, as standard-bearers of the law and the legal profession.
You can’t lie brazenly to the courts
“Part of the attack on democracy is the attack on functioning government,” said Jena Griswold, Colorado’s secretary of state and the chair of the Democratic association of secretaries of state. “It ties us up into nonsensical, conspiracy-laden lawsuits. It’s an affront to the justice system. And I do think that these people should be held accountable.”
As the 2024 election approaches, those seeking sanctions hope that the effort will stave off the worst election lawsuits, likely because politicians making wild claims won’t be able to find a decent attorney.
But the list of sanctions has grown since 2020, as more secretaries of state, attorneys general and local elections offices push back against lawsuits that have been costly and time-consuming to respond to.
A judge in Michigan gave Republican leaders, including the state’s GOP chair Kristina Karamo, and their attorneys nearly $60,000 in sanctions over an election lawsuit that “merely threw out the allegation of ‘corruption in Detroit’ as the reason for disregarding the Michigan Constitution in this state’s largest city”, the judge wrote.
Two attorneys who brought a sprawling lawsuit in 2020 in Colorado against a plethora of companies and politicians, including Facebook, Dominion Voting Systems and elected officials in several states, saw sanctions after a federal judge said the case suffered from a “woeful lack of investigation into the law” and made repeated “highly inflammatory and damaging allegations that could have put individuals’ safety in danger”. The judge said the lawsuit was “the height of recklessness”.
In Arizona, the state’s most prominent election deniers have been met with sanctions in the form of attorneys’ fees multiple times. Kari Lake, the failed GOP gubernatorial candidate who’s now running for US Senate, has seen sanctions in a case contesting her loss and in another attacking vote-tabulation machines. Mark Finchem, who lost his race for secretary of state, has brought cases that have gotten court sanctions, which he has said put a “cold, wet blanket” on opposing views.
When seeking sanctions in a case brought by losing attorney general candidate Abe Hamadeh, the Arizona secretary of state’s office explained that the courts “must hold accountable those who materially misrepresent the facts in order to gain some kind of advantage – here, the ultimate goal being to usurp an elected office”.
“Deliberately peddling misinformation to this Court demonstrates a profound disrespect for our democratic institutions,” the office’s attorneys wrote. “If people are truly suspicious of our election processes, doubt our election officials, or question the efficacy of our democracy, it is because misinformation continues to circulate unchecked.”
In one Arizona case, it was already clear other attorneys had passed on taking the lawsuit, a harbinger of what proponents of sanctions hope will continue to occur when plaintiffs seek representation for wild claims.
The attorney sanctioned in that case had very little experience in election law and said in court that he took the case after more experienced lawyers passed on it, admitting he was at less risk of disbarment because he would retire soon, which the judge issuing sanctions called a “conscious decision to pursue the matter despite appreciating that the contest had no legal merit”.
Weiser, of the Brennan Center, said the potential for sanctions and professional repercussions for attorneys is decreasing the number of lawyers, especially well-qualified ones, who are willing to take on these cases.
“Do I think that we are out of the woods? No,” she said. “Going forward, people who might have been tempted are going to really think twice now that the personal consequences to them and to their firms are much more clear and stark.”
Griswold, the Colorado secretary of state, wants to see more requests for sanctions filed to meet the mountain of frivolous lawsuits elections officials have faced since 2020.
“We have to strongly disincentivize bad acting,” she said.