Trial over access to Arizona early ballot envelopes by Kari Lake goes to judge

By Howard Fischer/Capitol Media Services, Associated Press
Published: Monday, September 25, 2023 - 4:35pm
Updated: Tuesday, September 26, 2023 - 6:35am

Kari Lake
Gage Skidmore/CC BY 2.0
Kari Lake speaking with attendees at the 2023 Young Women's Leadership Summit hosted by Turning Point USA in Grapevine, Texas, in June 2023.

The trial in a lawsuit brought by Kari Lake, the defeated Arizona Republican nominee for governor, to get access to 1.3 million voters' signed ballot envelopes is now in the hands of a judge after wrapping up midday Monday.

Maricopa County Superior Court Judge John Hannah said he would issue a ruling as soon as possible after closing arguments in the two-day bench trial.

Lake was not in attendance after appearing Thursday.

Maricopa County election officials argue state law mandates the signatures on the envelopes remain confidential.

Lake's lawyer counters she has a right to look into how the county runs its election operations and that people's signatures are public in other places, such as property deeds.

This is Lake's third trial related to her election loss. Lake previously lost two trials that challenged her competitor Democratic Gov. Katie Hobbs' win by more than 17,000 votes. In the second trial, a judge rejected a misconduct claim Lake made about ballot signature verification efforts in Maricopa County, home to Phoenix and where more than 60% of the state’s voters live.

The former TV anchor’s latest case doesn’t challenge her defeat and instead is a public records lawsuit that asks to review all early ballot envelopes with voter signatures in Maricopa County, where officials had denied her request for those documents.

In Arizona, the envelopes for early voting ballots serve as affidavits in which voters declare, under penalty of perjury, that they are registered to vote in the county, haven’t already voted and will not vote again in that election.

Breakdown of arguments in the case

Joseph La Rue does not dispute that Arizona law presumes that all records in the custody of government agencies are presumed to be public.

But he said a section of the state Election Code spells out that voter registration records "shall not be accessible or reproduced by any person other than the voter.'' And that, he told Maricopa County Superior Court Judge John Hannah, should end the matter as that overrides laws that presumption of public disclosure.

La Rue did not dispute that a judge in another, unrelated case, has ruled that the signatures on the ballot envelopes do not become a part of the voter's registration record that are confidential. He urged Hannah, however, to ignore that other ruling as irrelevant to this case.

But if Hannah isn't buying that argument, La Rue has a fallback.

He said even assuming the records are public -- which he does not dispute -- and even if the judge does not accept his claim they are not confidential under the Election Code, Arizona law allows records to be withheld if their release is "not in the best interests of the public.'' And La Rue got several witnesses to testify about their own fears of what would happen if their signatures on their ballot envelopes were released to anyone who asks for them.

In Lake's case, she has made it clear she wants the signatures to buttress her claims in her direct challenge to her loss to Democrat Katie Hobbs that early ballots were counted where the signatures did not match.

With those early ballots having trended to Hobbs, Lake contends there were enough of those bad signature matches to overturn her official 17,117-vote loss in November. Granting her request would let her have someone review all 1.3 million of them in Maricopa County.

That question of whether Hannah believes there are legitimate fears that allow him to shut down Lake's request is not simple.

At Monday's hearing, Bonnie Eckard testified that two people came to her door in August 2021 to ask her about the 2020 election, the one that Donald Trump contends he was cheated out of, a position supported by Lake.

"They immediately began to pepper me with questions that they seemed to already have the answer to,'' she said, including if certain people lived there, did they vote Democratic, did they vote by mail, did anyone else vote from that house, and whether they received extra ballots. Eckard said about the only answer she got when she asked who they were was "something about election integrity.''

She said the questioners were "extremely aggressive with me,'' at one point even telling her "about dead people voting'' and spouting "unproved conspiracy theories.''

La Rue said Eckard and others said if they fear their signatures on ballot envelopes become public it will lead to more harassment. And that, he said, will result in some people giving up the right to vote by mail or giving up the right to vote at all.

But Bryan Blehm pointed out to Eckard that her signature -- and that of other voters -- already is available elsewhere, and publicly, on everything from property deeds filed with the County Recorder's Office to signatures on petitions to nominate candidates or put a measure on the ballot. And he got Eckard to admit that the public availability of those signatures would not preclude her from signing petitions or buying a new home.

Hannah, however, said the availability of signatures elsewhere is likely irrelevant to the narrower question before him of whether these particular signatures on ballot envelopes are public records.

La Rue said it isn't just about signatures. He pointed out those ballot envelopes Lake wants usually contain the phone numbers.

While not required, voters are asked to provide them if county election officials have questions about what might be a mismatched signature, or even in cases where someone forgets to sign. It provides a quick method of contacting the voter.

He told Hannah that if voters balk at providing that number, it could result in some people's ballots never getting counted.

That's because an unsigned ballot envelope has to be "cured'' by 7 p.m. on Election Day. Mismatched signatures get a bit more time: five business days after the election.

Maricopa County Recorder Stephen Richer has testified he doesn't have the staff to "cure'' hundreds of thousands of ballots by those deadlines.

And there's something else on those early ballot envelopes: each voter's address.

"We have a track record of people going canvassing, door to door, to ask people about their early ballot, and who they voted for and whether or not it was their signature,'' La Rue said.

"That creates a risk that voters will be harassed,'' he continued. "And this could ultimately disenfranchise voters because voters become fearful that if we vote, we may get accosted about it.''

Blehm told Hannah there's nothing inherently wrong with people canvassing neighborhoods about elections. The judge, however, had questions, not the least of which relates to the fact that he said canvassing usually occurs before an election.

"What do I do about what these witnesses said,'' Hannah asked Blehm. "Should I not believe them when they say that they were frightened and offended that people came around after the election ... questioning them about their votes?''

"We have a 200-plus-year history of doing this type of activity, canvassing, going and talking to voters, going door to door,'' Lake's attorney responded. Hannah, however, said that is usually pre-election activity.

The judge also appeared to be unimpressed with Blehm's argument that voter signatures are available elsewhere, like on publicly recorded documents and petitions. He said this case is being argued under an entirely different provision of the law.

Hannah also pointed to a 1998 ruling in a case where a Phoenix TV station sought the phone numbers of teachers in the Scottsdale Unified School District as part of an investigation into whether the district was doing proper background checks to see if teachers were sex offenders.

In that case, the Arizona Supreme Court acknowledged that the phone numbers might be available elsewhere. But the justices said that was irrelevant and that, publicly available or not, teachers have a privacy interest in their phone numbers and the district was not obligated to provide information that the teachers had provided to it.

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