Arizona Court Of Appeals To Hear Arguments In Maricopa County Ballot Image Case

phil the ballot
Maricopa County Supervisor Bill Gates, Phil the Ballot, and Maricopa County Elections Director Scott Jarrett. [Photo via Maricopa County]

On the morning of January 4th, the Arizona Court of Appeals will hear oral arguments in a case brought by AUDIT-USA against the Maricopa County Board of Supervisors for their refusal to make ballot images available to the public.

AUDIT Elections USA, a nonpartisan, nonprofit public interest organization based in Arizona, is asking the Appeals Court to order the Maricopa Board of Supervisors to follow the law and release electronic copies of the 2.1 million ballot images from the November 2020 General Election and all elections thereafter.

“I’m hopeful we will win this case because the facts are with us and transparency in our elections is vital for democracy,” said John Brakey, co-founder, and director of AUDIT USA. “Transparency is the currency of trust and without it, our democracy will die in darkness.”

Ballot images are a picture of every ballot cast in an election. The images are completely anonymous because ballots are anonymous once they leave a voter’s hands, so the images do not reveal the identity of voters. The images are an invaluable tool for verifying election results and can be sorted by candidate, by precinct, by overvotes or undervotes, and in a variety of other ways. While Maricopa County is preventing public access to ballot images, other places such as San Francisco, one of the largest voting jurisdictions in the United States, posts all its ballot images online for the public to be able to view.

Audit USA won an important legal victory in 2016 with its lawsuit to require all Arizona counties to retain ballot images for 22 months after every election. As a result of AUDIT’s court case, all Arizona counties now preserve ballot images. Following this court decision, the Arizona legislature passed a law, § 16-625, to protect the original ballot image files from unauthorized access.

While Audit USA believe this law was a good step to protect the original images, they believe Maricopa County has wrongly chosen to interpret it to mean that copies of the original ballot files cannot be given to the public, something that the legislature did not intend to happen.

AUDIT’S lawsuit to release ballot images to the public is a “de novo” (first-of-a-kind) case because the Arizona courts have never been asked before to interpret Arizona statute § 16-625. This statute, passed in early 2017, is only 47 words long and is the center of the controversy between Maricopa County and AUDIT USA. The statute reads:

“The officer in charge of elections shall ensure that electronic data from and electronic or digital images of ballots are protected from physical and electronic access, including UNAUTHORIZED copying or transfer, and that all security measures are at least as protective as those prescribed for paper ballots.”

Audit USA believes the language in this statute makes it clear that the “officer in charge of elections” is authorized to permit copies of ballot images to the public as long as the original ballot images are protected.

“Unfortunately, the judge in the lower court case declined to even hear the evidence,” said Bill Risner, AUDIT USA’s Arizona attorney. “We were forced to go to the Court of Appeals, but we believe the Appeals Court will agree with the plain language of the statute. Anyone with a computer knows that you can give a copy of a file to someone without endangering the original data.”

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