Mark Williams (copy)

Mark Williams, seen here during a candidate interview in September 2018.

The Arizona Court of Appeals this week upheld a lower court’s decision to dismiss a lawsuit filed by former judge candidate Mark Williams, who alleged that he lost the Santa Cruz County Superior Court election last year because his opponent’s name was listed first on more ballots than his.

In addition, the appellate court found that Williams’ appeal was “frivolous,” and ordered him to pay the legal fees of Judge Thomas Fink, whom Williams named in the suit he filed shortly after Fink defeated him by a margin of 61.5 percent to 38.2 percent in the November 2018 election.

Williams claimed that because 8,679 voters saw Fink’s name listed first on their ballots compared to the 4,989 who saw Williams’ name first – a 3,690-voter discrepancy – it affected the outcome of the election.

However, the appellate court noted in its decision filed July 22 that Fink received the most votes in all 24 county precincts, even those where Williams’ name was listed first.

“(B)ecause Fink won by a margin of 59 percent to 41 percent in precincts where Williams’ name was first, and 63 percent to 37 percent in the precincts where Fink’s name was first, deducting 3,690 votes proportionally would not change the election outcome,” it said.

The appeals court also agreed with the lower court’s ruling that Williams cited a statute that does not apply to the specifics of his case as the basis for his appeal. And it agreed with Fink that Williams erred by only listing Fink as a party to the suit and not the county, even though his statement of election appeal requested that the election be invalidated, a special election be held at the county’s expense and the county pay for Williams’ campaign costs.

In his initial response to Williams’ suit, Fink argued that Williams knew of the methodology the county used to print its ballots well ahead of the voting, and could have brought up any concerns well ahead of time. The appeals court’s decision expressed a similar sentiment.

“Williams’ challenge to how the ballots were printed should have been – and could have been – addressed before the vote,” it said. “Because he failed to address the county’s method of alternating the candidates’ names on the ballots prior to the election, he cannot, after the election, question the county’s procedure.”

In support of the decision to find Williams’ appeal frivolous and grant Fink his legal fees, the court wrote:

“Even assuming portions of Williams’ arguments had merit, he never provided a plausible argument that any irregularities affected the outcome of the election. Indeed, the data – which demonstrated that he lost by a substantial margin even in those precincts where his name appeared first – unambiguously demonstrated the contrary.”

Despite the ultimately lopsided outcome, the Williams-Fink election was especially contentious, with Williams at one point calling the Sheriff’s Office to suggest that Fink and/or his supporters had stolen or damaged some of his campaign signs. A few weeks later, dozens of Fink’s signs were sliced apart during an overnight vandalism spree in Nogales and Rio Rico.

Then on Nov. 21, 2018, Williams sued to invalidate the election. A Pima County judge threw out the complaint following a hearing on Dec. 6, 2018, but Williams appealed the decision.

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