Santa Cruz County officials are asking a judge to rule whether a watchdog group which advocates for election transparency can be provided copies of certain records from this month’s primary election.
Tucson-based AUDIT USA made a public records request in advance of the Aug. 2 primary, putting Santa Cruz County officials on notice that the group wanted copies of six records once the election results were canvassed by the county board.
Arizona’s public records law is written in favor of transparency and access, according to John Brakey, AUDIT USA’s director and co-founder, who estimates he requested more than 100 public records in connection with elections across Arizona.
On Aug. 11, Santa Cruz County released two of the six records, noting that a third record did not exist. Another of the requested records -for copies of the images taken by the elections department of each ballot- would not be released based on state law, an attorney for Santa Cruz County wrote to AUDIT USA’s attorney.
The county’s attorney also advised that the remaining two public records, the Cast Vote Records (CVR) and the Cast Vote Record Database, were expected to be released Aug. 18.
A Cast Vote Record is exactly that – a record of every vote cast on a specific ballot. It does not identify which voter that ballot belongs to but does include the polling place where the ballot was received, the voter’s party, the voter’s precinct, and the ballot style. A county’s CVR database is a compilation of all the CVRs for a specific election.
But Santa Cruz County did not release the CVR or CVR Database to AUDIT USA on Aug. 18. Instead, the county board and the county’s election director, Alma Schultz, filed a lawsuit that day against the group and Brakey.
The lawsuit argues a conflict exists between two state laws -one involving public records, the other elections- as to the release of the CVR and CVR Database. If either law is violated, it “will result in serious repercussions for the County,” according to the filing, which is formally called a Verified Complaint for Declaratory Judgment.
“Arizona’s Public Records law applies to the County and Schultz as its Elections Director who collectively strive to provide prompt and accurate information to the public in response to public record requests,” the complaint notes, adding that a provision in the public records law allows a public body to ask a judge to decide if release of a record is allowed.
“The County accordingly requests a declaratory judgment as to whether these records are exempt from public disclosure,” the complaint states.
But Santa Cruz County officials went a step further than simply asking a judge to decide whether the CVR records are releasable.
The county’s complaint makes its own legal arguments that the public does not have a right to those records, even though Santa Cruz County previously released the CVR for the November 2020 General Election in response to an unrelated public records request.
The legal action, the complaint states, is being initiated to “ensure protection of an individual voter’s ballot information and preserve the system of secret ballots by affirming the CVR and CVR Database are not subject to disclosure under the Arizona Public Records Law.”
As to Santa Cruz County’s release of a CVR from a 2020 election, the county’s privately retained attorneys at Pierce Coleman PLLC explain that elections officials once believed such records were simply similar to any other election report that provides an aggregate of votes cast, votes rejected, undervotes, overvotes, and other information.
Doing more research about the CVR led county officials to determine the CVR records “are unlike summary election reports” and are thus subject to the same protections under state law as digital ballots.
Bruce Bracker, chairman of the Santa Cruz County Board of Supervisors, approved the legal action, according to the filing. The complaint also seeks an award of attorney’s fees against AUDIT USA for attempting to obtain the election records.