A judge has rejected the Republican-controlled Arizona Senate’s contention that it can withhold a raft of communications between its leaders and private contractors they hired to conduct an unprecedented review of the 2020 election results in the state’s most populous county.
The ruling released Thursday evening is the latest in a series of losses for the Senate stemming from its efforts to keep secret records showing how the review was conducted. A watchdog group called American Oversight had sued to compel their release and repeatedly won. The Arizona Republic newspaper has a separate lawsuit seeking records from the election review.
The Senate has already released tens of thousands of records after court rulings in the American Oversight case found they were covered by the state's public records law. It was trying to shield more than 1,000 other texts and emails.
American Oversight said it is fighting for the public's right to know how the partisan audit was funded and how Cyber Ninjas and other private contractors hired by the Senate conducted the review.
Maricopa County Superior Court Judge Michael Kemp’s ruling said the Senate’s position that the records were covered by legislative privilege was flat wrong. He said that privilege is intended to protect debate about pending legislation and in this case there is no proposed legislation.
And he said the Senate waived any privilege when Senate President Karen Fann and other top Republicans made public statements about the “audit.” He also noted that Fann and GOP Sen. Warren Peterson presided over an hours-long hearing last month that “was much more akin to a press conference.” At that hearing, the Senate's contractors presented results of the review that showed President Joe Biden did in fact win Maricopa County while raising questions about procedures.
“Senate Defendants cannot publicly release numerous public statements about the audit, release a comprehensive report about the audit, and then refuse to disclose documents and communications that are central and integral to the findings and conclusions of that report,” Kemp wrote.
Kemp said that he would allow the Senate to advance only narrow exemptions based on confidentiality, privacy or the best interests of the state "if those interests outweigh the public’s right to access those records.”
“From the beginning, the Senate has promised transparency while fighting to block any public scrutiny of its so-called audit process,” Austin Evers American Oversight's executive director, said in a statement. "The time for full transparency is now. We look forward to further rulings from the court.”
The ruling could be appealed to a higher court. Fann said Friday that she disagreed with the judge's ruling and would meet with the Senate's lawyers to decide what to do now. She said there are legitimate issues of legislative privilege at stake.
“We understand the transparency issue,” Fann said. “But we also believe that he has gotten way over that line."
Kemp set a hearing for early in November to review the progress of the Senate's records release.
The judge said the main question for the public is the basis for the conclusions contained in the report, many of which have been questioned by Maricopa County officials. He said an audit of the results of a presidential and U.S. Senate election “goes to the heart of our democracy” and the public has the right to compare the final report to the underlying documents.
“The public has a right to know the basis for these conclusions and findings and to challenge and scrutinize those findings,” Kemp wrote. “The public has a right to know how the audit was done, who paid for it and how much was paid. The public also has a right to know the identity of any political organizations who financed the audit.”
Last week, another Maricopa County Superior Court judge ordered the Senate to turn over other records it argued were privileged so he could review them in private. The Arizona Republic had good reason to believe that legislative privilege does not apply to at least some of the records, Judge John Hannah wrote in a 13-page ruling.
The Senate launched the review after former President Donald Trump and his backers brought unsubstantiated allegations that he lost in Arizona and other battleground states because of fraud or other election malfeasance.
But the review ended without producing proof to support Trump’s false claims of a stolen election. A hand recount of 2.1 million ballots found that Biden won Maricopa County by 360 more votes than the official results certified last year.
Fann and Senate Republicans plan to advance legislation next year that addresses what they contend are problems with the state's election system.
The partisan review of the Arizona results, which were certified by Republican Gov. Doug Ducey in an election he defended as free and fair, has raised concerns about its effect on public trust in elections. A U.S. House committee took testimony last week from GOP Maricopa County officials, one of whom called the audit “the biggest threat to democracy in my lifetime.”