Arizona appeals court shoots down state Senate effort to keep 2020 election audit records secret

By Howard Fischer/Capitol Media Services
Published: Friday, January 21, 2022 - 4:17pm
Updated: Saturday, January 22, 2022 - 7:57am

The state Court of Appeals has slapped down efforts by the state Senate to withhold about 1,100 records related to the audit of the 2020 election.

In a 14-page ruling Friday, the three-judge panel turned away arguments that the documents are protected by "legislative privilege." They said there is no evidence that the audit, ordered by Senate President Karen Fann, was in any way related to the official business of state lawmakers.

More to the point, the judges rejected the contention by Kory Langhofer who represents the Senate that release of the documents would open up to public scrutiny the discussions that lawmakers had about the audit. He had argued disclosure would undermine what he said is a constitutional recognition that legislators are entitled to have private conversations and communications because that is part of their job.

In Friday's order, the court ordered the Senate to "immediately disclose" all the records that it sought to shield.

But appellate Judge Michael Brown, writing for the unanimous three-judge panel, did offer an option.

He said to the extent the Senate believes that release of certain documents would directly threaten the legislative process it can instead give them to Maricopa County Superior Court Judge Michael Kemp. And it will be up to him, after reviewing them, to decided whether they must be disclosed.

There was no immediate response from Fann.

Hanging in the balance are emails, texts and other documents possessed not only by the Senate itself but also those in the possession of Cyber Ninjas, the private firm Fann retained to conduct the review of the 2020 election in the state's largest county.

That review came about after official results — certified by state officials, including Gov. Doug Ducey — showed that Democrat Joe Biden outpolled incumbent Republican Donald Trump by 10,457. And that was fueled in large part by Biden beating Trump in Maricopa County by 45,109.

There were charges of irregularities, all unproven, including that the Dominion Voting System hardware and software used was either programmed or hacked in a way to move Trump votes into the Biden column.

Fann said at the time she ordered the audit to respond to those concerns.

As it turned out, Cyber Ninjas reported that its own hand count of Maricopa ballots confirmed Biden's win — and by a slightly larger margin than the official count.

All that resulted in requests by American Oversight, a nonpartisan watchdog group, of documents related to the audit.

The Senate surrendered some. But it claimed a right to withhold various documents, including all the communications involving Fann, Sen. Warren Petersen who chairs the Judiciary Committee, the liaisons Fann chose to interact with Cyber Ninjas and even communications with that company and its own subvendors.

When a trial judge rebuffed the claim of privilege, the Senate appealed.

Brown said Arizona law requires public officers to maintain all records to reflect their official activities and those supported with public funds. And he said that the fact is that the items sought clearly fit within the definition of "public records."

The judge acknowledged there is a right of "legislative privilege." But Brown said it is more limited than the Senate believes.

"We reject the Senate's apparent contention that the privilege blocks the disclosure under the public records law of any record that bears any connection to a legislative function," he wrote. And Brown said that privilege also has to be examined in light of the "strong presumption" of disclosure in the public records law.

Langhofer argued that legislative privilege is automatic in every investigation that the Senate conducts. And he said legislators issued subpoenas related to the audit "with an eye to introducing possible reform proposals" in election laws.

Brown said that argument held no water.

"Nothing in the record shows that the prime purpose of the audit was to identify changes required to Arizona's voting laws," he said. In fact, Brown noted, the legislature wasn't even in session during the process.

"The audit's primary objective was to verify that election procedures were sufficiently observed," the judge said. And Brown noted that the "statement of work" outlining what was to be done by Cyber Ninjas as to "validate every area of the voting process to ensure the integrity of the vote."

In fact, the judge suggested, the audit looks much more like an administrative action than anything related to crafting state laws.

"The audit's state purpose reflects no promise to propose legislation in the future," Brown said. "And while the audit might have revealed areas in Arizona's election process that could be the subject of new legislation, the connection between the audit and any future legislation is too tenuous to conclude that the audit could reasonably qualify as a legitimate legislative act."

Brown said all that is backed up by the September public hearing where the results of the report were released.

"No sworn or questioned witnesses were at the hearing, nor did any debate or deliberating occur," he said. "In fact, the only legislators that were present were Sens. Fann and Petersen."

Nor were the appellate judges swayed by arguments that the audit was a "fact-finding investigation in furtherance of potential future lawmakers projects."

Brown said lawmakers do, in fact, have the power to conduct investigations aimed at determining if changes are needed in state law.

"But the mere fact that the legislature conducted an investigation does not mean it is necessarily protected by the legislative privilege," he said.

Politics