After promising to release records of its August 2022 Primary Election to an election integrity watchdog organization, Santa Cruz County officials filed a lawsuit in Pima County in hopes of securing a court order that the records are confidential and not releasable to the public.
And Santa Cruz County wants Tucson-based AUDIT USA and its director John Brakey to pay the county’s attorney’s fees in what the organization’s longtime attorney William Risner describes as a “frivolous, brazen, and ludicrous” lawsuit.
That lawsuit filed back in August on the same day Santa Cruz County had promised to turn over records of its primary election should be thrown out, Risner argues to Judge Casey McGinley in an Oct. 19 motion to dismiss.
And Santa Cruz County’s effort to force AUDIT USA and Brakey to pay the county’s cost for its privately retained law firm should also be rejected, Risner argues, because county officials never tried to resolve the dispute without litigation.
“To allow Santa Cruz to successfully sue a citizen requestor simply for requesting a public record would turn the entire concept of public records on its head. It would have a chilling effect on the public’s willingness and ability to even ask for government records, much less obtain them,” the motion to dismiss argues.
The public records dispute goes back to July 28 when Brakey, on behalf of AUDIT USA, provided Santa Cruz County officials a heads up that the group would be taking a close look at how the county’s Aug. 2 Primary Election was conducted. Brakey’s notice included a formal public records request for the release of six election records once the results were canvassed.
Santa Cruz County retained a Scottsdale-based law firm, Pierce Coleman PLLC, to handle “election matters,” according to an Aug. 11 response to AUDIT USA. In that response, the law firm declined to release the Ballot Images, and promised to provide the other five items, including the Cast Vote Record and CVR Database, by Aug. 18.
A Cast Vote Record is an electronic record of a voter’s selections from the ballot image created from the voter’s ballot. It is captured through equipment and subsequently copied to an election management system that aggregates and tabulates the votes.
Ballot images of the actual ballots are what is actually tabulated during an election to achieve vote counts for every race or contest on a ballot. The CVR Database is a compilation of all Cast Vote Records for a particular election cycle. All of the data is anonymous as to the individual voters, according to Brakey.
AUDIT USA’s motion to dismiss points out Maricopa County released 2.1 million Cast Vote Records from the 2020 General Election. And that Santa Cruz County previously released more than 19,800 Cast Vote Records from the 2020 election cycle.
But instead of providing the Cast Vote Records and CVR Database as promised, attorneys with Pierce Coleman filed the special action lawsuit in Pima County on Aug. 18. Santa Cruz County officials are now taking the position that state law prohibits the release of all “data” from the ballot images, including the Cast Vote Record and CVR Database.
“Of course, everyone is allowed to change their mind as the Santa Cruz County Board of Supervisors has done. The proper course would have been to notify AUDIT-USA as the requester of public records and for each side to consider the facts and law,” Risner argues in the motion to dismiss.
Further, the motion argues that AUDIT USA and Brakey had every right under Arizona’s public records law to request the county’s election records.
“If the county does not want to provide a certain record, state law requires that it must provide a statutory reason for withholding that record,” Risner wrote, adding that if Santa Cruz County cannot cite a statute which prohibits release of the Cast Vote Record, “that is the county’s problem,” not the requestors.
And by not attempting to resolve the matter without litigation, Risner suggests county officials had an ulterior motive in not first advising AUDIT USA and Brakey that the county changed its position on release of Cast Vote Record data.
“The Santa Cruz County Board of Supervisors’ goal appears to be the financial crippling of a citizen group that has shown interest in how elections are conducted in Santa Cruz County by the Board of Supervisors,” Risner wrote in the motion, which asks McGinley to order county officials to pay AUDIT USA’s legal costs as a result.
Earlier this month, the Arizona Court of Appeals announced it will hold oral arguments in the near future in a dispute between Maricopa County and AUDIT USA on whether the ballot images created by scanning the original ballots must be released in response to a public records request.
Santa Cruz County Sues To Keep Ballot Records Away From Election Watchdog