Arizona Court of Appeals to Hear Case Involving 2020 Maricopa County Ballot Images

Audit USA (AU), a nonpartisan organization based in Arizona focusing on election integrity, will have an opportunity to present arguments in the Arizona Court of Appeals Wednesday in a case involving Maricopa County and ballot images.

“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 AU. “Transparency is the currency of trust and without it, our democracy will die in darkness.”

Barkey stated that ballot images are an “invaluable tool” for verifying elections and giving the public confidence in outcomes. They are kept anonymous not to reveal who cast it but still allow viewers to see exactly what marks were put down on any ballot. While Maricopa County does not make ballot images publicly available, other states, like Maryland and Florida, do.

In February 2021, AU submitted a public records request to Maricopa County to receive an electronic copy of all ballot images from the 2020 general election. However, the request went unanswered, and the AU filed a public records special action in Maricopa County Superior Court.

The county filed to dismiss, relying on Arizona Revised Statute (ARS) § 16-625 to state that the Maricopa County Board of Supervisors (MCBOS) could not legally produce the ballot images. The court agreed, concluding the statute prohibits any unauthorized copying or transfer of ballot images, nor does it authorize a private entity to obtain a copy of the images.

The AU first filed an appeal in March 2021. In its opening brief, the organization sought to challenge the interpretation of 16-625.

Specifically, 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.”

The AU said that this is “purely a protective statute” and did not say the MCBOS cannot make copies of ballot images nor that the images are not subject to public records requests. Additionally, the AU said that making a copy of the ballot image will not endanger the file.

“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.”

Moreover, the AU argued that if the county wanted to provide an avenue of transparency to voters, it would release the images. Yet, by not doing so, they prevented some examination of potential fraud.

Following the opening brief, the county responded, restating that the MCBOS had no authority to release the images. The AU then had a chance to give a response to the county, again arguing that this is a public records case and that nothing in 16-625 or other statutes prevent the county from completing the request.

The Arizona Sun Times reached out to Maricopa County for a comment on this case but did not hear back.

Now, nearly a year after initially appealing, the AU will argue in court on Wednesday at 10:15 a.m.

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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Voter” by Phil Roeder. CC BY 2.0.