In November and December, American democracy demonstrated resilience and strength. In the midterms, almost all the election-denying candidates for U.S. Senator, governor, secretary of state and attorney general in battleground states lost their races. Congress passed — and President Biden signed — a reform of the Electoral Count Act of 1887, which clarifies that the vice president’s role is ceremonial and raised the threshold for objecting to a state’s slate of electors from one member in the House and Senate to 20 percent of the members in each chamber. Drawing primarily on testimony from conservative Republicans, the final report of the Jan. 6 committee made a compelling case that Donald Trump orchestrated attempts to overturn the results of the 2020 presidential election, which Chris Krebs, his own director of cybersecurity and infrastructure security, deemed “the most secure in American history.”
Less well known, but no less important, three judges in Arizona — all of them appointed by Republican governors — made short shrift of suits filed by high-profile election deniers.
Appearing before Maricopa County Superior Court Judge Melissa Julian, lawyers for Mark Finchem, Republican candidate for secretary of state, made a slew of allegations: He cited problems with tabulator machines and “weak and unsatisfying” alternatives offered to same-day voters, which resulted in 80,000 missing votes in Maricopa and Pima counties, and he blasted Katie Hobbs, the current secretary of state and Democratic candidate for governor, for refusing to recuse herself from “an election she hoped to benefit from — a staggering appearance of impropriety and display of unethical behavior.” Finchem, who lost his race by more than 100,000 votes, demanded a new election.
“It is not misconduct for the secretary of state to communicate with other bodies to ensure the canvas and certification are completed,” Judge Julian declared. She then concluded that Finchem’s claims “are not well-pled facts; they are legal conclusions masquerading as facts.” Judge Julian dismissed the case “with prejudice,” which prohibits the plaintiffs from making the same claims to another court.
Abe Hamadeh, the Republican candidate for Arizona attorney general, who is trailing Kris Mayes, his Democratic opponent, by 511 votes, did not allege fraud in his suit; instead, he claimed that mistakes by election officials led to a miscount of votes. And so, Mohave County Superior Court Judge Lee Jantzen allowed the parties to examine a sample of 2,300 ballots. The examination, Hamadeh’s attorney subsequently acknowledged, did not change the outcome.
“What on earth are we doing here?” asked Dan Barr, a lawyer representing Mayes. “People can’t file complaints with no facts.” In 37 years of practicing law, Barr noted, he had “never been involved in such a gigantic waste of time.” Judge Jantzen agreed: “You haven’t proven your case,” he declared, as he dismissed the lawsuit. Barr indicated that he would ask the court to impose sanctions on Hamadeh’s counsel. On Dec. 29, a recount confirmed that Mayes had defeated Hamadeh by 280 votes.
In mid-December, Maricopa County Superior Court Judge Peter Thompson dismissed 8 of 10 counts in the election lawsuit of Kari Lake, the Republican candidate for governor (who trailed Katie Hobbs by 17,000 votes), including allegations that mail-in ballots are unconstitutional, that Maricopa County invalidly certified results, and that Hobbs violated the First Amendment (and cost Lake votes) by flagging her posts for possible removal by Twitter. Lake also asserted she was entitled to be declared the winner.
Judge Thompson allowed two claims to go forward: Problems resulting from insufficient heat settings for printers and “shrink to fit” settings at various locations, Lake maintained, disenfranchised 15,000 – 30,000 voters, and a ballot contractor broke “the chain of custody” and allowed family members to add ballots to the vote totals, she claimed.
Following a two-day proceeding, during which none of Lake’s witnesses professed personal knowledge of intent to defraud, and one of them testified that people whose ballots were initially rejected by the printer could and did subsequently cast votes, Judge Jackson rejected Lake’s suit. “This Court’s duty is not solely to incline an ear to public outcry,” he said. “The Court cannot accept speculation or conjecture in place of clear and convincing evidence.” Maricopa County officials have indicated that they, too, will seek sanctions against Lake’s lawyers.
One of Katie Hobbs’ lawyers stated what should be an obvious conclusion: Kari Lake lost “not because of a printer error, not because of missing paperwork, not because the election was rigged against her… but because she received fewer votes than Katie Hobbs.”
And so, on New Year’s Day, 2023, Americans have some reason to hope that the threats to our democracy are subsiding — but only if we also recognize that “eternal vigilance is the price of liberty.”
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”