Federal appeals court split on attorney sanctions in Arizona ballot case

In a week when President Donald Trump called for replacing voting machines with paper ballots, a federal appeals court let stand $122,200 in sanctions against two lawyers who suggested the same thing.

The 2026 midterms loom and how Americans cast ballots remains a charged topic. An impassioned dissent to Thursday's order by conservatives on the 9th U.S. Circuit Court of Appeals blasted what they termed a judicial effort to discourage similar litigants in election-based lawsuits. The dissenters, outvoted, contended that the sanctions went too far, and that the dismissal of the case should have been subject to another look via en banc review.

"The law has no lack of tools short of sanctions to deal with speculative claims, adventurous legal theories, and imprecisely drafted complaints," wrote Circuit Judge Lawrence J.C. VanDyke for the dissenters.

Trump said on Monday he will "lead a movement" to get rid of mail-in ballots and voting machines in the U.S. 

His comments echoed claims in the appeal at issue on Thursday. It was filed by Trump supporters Kari Lake and Mark Finchem, who alleged that Arizona's electronic voting system insufficiently protected the rights of voters. They called for its replacement by hand-counted paper ballots. Lake et al. v. Gates et al., 2:22-cv-00677 (D. Ariz., filed April 22, 2022). The defendants are Arizona government officials.

In March, a divided circuit panel affirmed a trial judge's dismissal of Lake and Finchem's complaint and OK'd the sanctions against their lawyers for filing baseless allegations about the machines' reliability. On Thursday the circuit announced that it had voted not to rehear the case en banc. Six judges protested, most of them Trump appointees. VanDyke, writing for the dissenters, acknowledged that the legal claims about Arizona's voting system were improbable assertions "that might charitably be characterized as aggressive."

Even so, he added, "It was a Hail Mary legal theory, especially as to standing. But we encounter Hail Mary legal theories regularly in our court in a variety of contexts, and while they almost always lose, they don't get sanctioned just because they are longshots."

VanDyke took aim at the trial court and the circuit panel majority's announced wish to "send a message" to deter future litigants with similar claims. "Cudgeling attorneys into abandoning unpopular claims and clients is not what sanctions are for," he wrote. Lake et al. v. Gates et al., 23-16022 (9th Cir., order filed Aug. 21, 2025).

He added: "We should have taken this case en banc to rectify these abuses and make clear that Article III judges are to adjudicate cases without fear or favor, remaining scrupulously neutral toward all litigants--especially in politically charged cases where the public is watching."

Also dissenting from the denial of en banc rehearing: Judges Consuelo M. Callahan, Ryan D. Nelson, Daniel P. Collins, Kenneth Kiyul Lee and Patrick J. Bumatay.

Lake is a former TV news anchor who has run unsuccessfully in Arizona for governor and U.S. senator. She currently holds a post as special advisor to Trump's U.S. Agency for Global Media. She did not immediately return a message to the agency seeking comment.

Finchem is an Arizona state senator and member of the Oath Keepers militia group. He did not immediately return a message seeking comment.

The lawyers subject to the sanctions are Andrew D. Parker of Parker Daniels Kibort LLC and Kurt B. Olsen of Olsen Law PC.

Parker did not return a message seeking comment on Thursday. After the Arizona state bar dismissed an ethics complaint over the matter last year, Parker said, "This entirely vindicates the work that we did. This complaint should not have been brought." Olsen did not return a message seeking comment.

A lead attorney for the Arizona government defendants, Emily M. Craiger of The Burgess Law Group LLC, declined to comment.

The three-judge panel, in a 2-1 opinion by Judge Ronald M. Gould, ruled that the complaint filed by Parker and Olsen "made false, misleading and unsupported factual assertions" and that the attorneys did not undertake a reasonable pre-filing inquiry. The panel affirmed John Joseph Tuchi of Phoenix, Ariz., the district judge who dismissed the complaint, found the attorneys acted in bad faith and imposed sanctions.

Bumatay, a member of the panel, dissented. "While the complaint may not have been drafted with perfect precision and Parker and Olsen might have played hardball with Arizona's attorneys," he wrote, "nothing they did was deceptive, intentionally false, or beyond the bounds of zealous advocacy."

In a separate ruling in the case last March, the circuit reversed $12,220 in sanctions against attorney and law professor Alan M. Dershowitz on the basis that there was no clear precedent for sanctioning attorneys who, like Dershowitz, hold "of counsel" status.