PHOENIX (AP) – The Arizona Supreme Court on Tuesday rejected an effort by the State Senate to keep records of its ongoing review of the 2020 Maricopa County election that are in the possession of contractors charged of the recount.
The High Court dismissed the appeal without comment after an appeals court and a trial court both ruled that the documents were public documents that should be disclosed. The court also overturned the stay of the appeal court decision it had put in place on August 24 so it could review the case and decide whether or not to accept the appeal.
The Arizona Court of Appeals ruled that documents requested by watchdog group American Oversight detailing how the recount and audit are conducted are public and must be turned over.
Republicans who control the Senate have tried for months to keep the way their contractors conduct the recount a secret. They argued that because the records are kept by Senate contractors, they were not subject to the Public Records Act and that statutory immunity applies. But the appeals court, in its August 19 decision, rejected this argument.
The court said the prime contractor, Florida company Cyber Ninjas, was subject to records law because it performed a basic government function that the Senate had contracted out.
“Allowing the legislature to disregard the clear mandate of the (Public Archives Act) would undermine the integrity of the legislative process and discourage transparency, which contradicts both the objective of the doctrine of the ‘immunity and (law),’ Acting Presiding Judge Maria Elena Cruz writes for the three-judge panel.
“The requested recordings are no less public recordings simply because they are in the possession of a third party, Cyber Ninjas,” Cruz wrote later in the decision.
Cyber Ninjas spokesperson Rod Thomson did not immediately respond to a request for comment, nor did Senate spokesperson Mike Philipsen.
It is not known when the files will actually be released. A status conference hearing is scheduled for Thursday before the trial court judge who made the initial order.
The appeals court ruling came in a case filed by American Oversight which fights for transparency in the election recount and upheld the ruling by a Maricopa County Superior Court judge. The judge also ordered the Senate to turn over the audit files he held, and they were released on August 31.
“Arizona residents can expect much needed transparency, even though it may reveal blatant attacks on democracy itself,” Austin Evers, executive director of American Oversight, said in a statement.
The unprecedented partisan count and scrutiny of election results in the state’s most populous county was sparked by the loss of former President Donald Trump in the state and his unproven claim that he lost in Arizona and other battlefield states due to fraud.
Senate Republicans have issued subpoenas in Maricopa County for all 2020 ballots, the machines that counted them, and other data in the state’s most populous county.
The documents were handed over to contractors with little or no electoral experience for what Senate Speaker Karen Fann calls a “forensic audit”. Election experts say the 2020 elections were secure and well organized, and contractors are using bizarre and unreliable procedures. Maricopa County refused further participation.
The results of the audit and manual recount should be submitted to the Senate at all times. But there have been repeated delays. The Senate then plans to consider what should be a three-volume report before it goes public.
The Supreme Court also on Tuesday dismissed an appeal in another public record case concerning the audit of the Senate elections. In this case, Cyber Ninjas and the Senate were prosecuted for failing to publish the files of the company that owns the Arizona Republic newspaper. Cyber Ninjas wanted the case transferred to another trial judge, but under pandemic rules issued by Chief Justice Robert Brutinel, the automatic right to request a different judge was suspended.
Cyber Ninjas argued that denying him the opportunity to seek a new judge had unduly deprived him of a “valuable substantive right”. The high court without comment declined to consider challenging its own order, although two of the seven judges heard the case.
Associated Press writer Jonathan J. Cooper contributed to this report.