Should the digital images created of ballots as part of the tabulation process be available to anyone who files a public records request, or is there a legitimate government interest is considering the image files confidential?
That is what the Arizona Court of Appeals – Division One considered last week during oral arguments in a first of its kind legal question. And the discussion included a rudimentary tutorial about ballots, including the fact that in most Arizona counties it is not the ballot itself which is tabulated.
Instead, vote counts are conducted from the digital image a tabulator creates when the paper ballot is inserted into the machine.
Tucson-based AUDIT Elections USA has spent the last several years fighting for access to various elections documents, including the ballot images as part of its mission to make all elections transparent, trackable, and publicly verifiable. The group contends that the public needs to have access to those images in order to ensure the original ballots marked by voters is properly tabulated.
However, the Maricopa County Board of Supervisors denied AUDIT Elections USA’s public records request for a copy of its 2.1 million ballot images for the 2020 General Election.
Although Maricopa County is preventing public access to the images, jurisdictions such as San Francisco routinely make their ballot images available to the public, according to AUDIT Elections USA founder John Brakey.
The group sued Maricopa County under Arizona’s public records law, but a superior court judge sided with the county’s position. The Arizona Court of Appeals agreed last year to hear the case, which led to the Jan. 4 oral arguments.
As the three-judge appellate panel heard last week, ballot images are anonymous pictures of every ballot cast in an election. It is important to ensure the images are an accurate reflection of the ballots and that tabulators accurately read the image, according to Brakey.
In 2016, AUDIT Elections USA was part of a legal challenge that ended with a decision that requires ballot images to be retained by every county and then destroyed 22 months after an election, same as is required of all paper ballots.
But getting access to those images is another story, as Brakey’s group has learned. Maricopa County argued to the court of appeals that state law prohibits anyone at the county to copy original ballot files for public release.
Bill Risner, the attorney for AUDIT Elections USA, has made numerous arguments that the Arizona Legislature fully intended the ballot images be publicly available after an election as part of election integrity efforts.
The retention period for the 2020 election cycle is long past, but a court ordered injunction prevent Maricopa County from destroying the records while the case is litigated.
The court of appeals also heard arguments last week about the fact Maricopa County provided the state senate a full copy of the 2020 ballot images as part of the senate’s audit activities. It is unclear whether that copy must also be destroyed under the retention law, and whether additional copies were made by audit contractors.
A decision by the court of appeals could take months. The case is expected to reach the Arizona Supreme Court regardless of the appellate ruling.