Appeals court orders release of Arizona Senate audit records

PHOENIX — An appeals court on Thursday rejected an effort by the Arizona Senate to keep secret records of its ongoing review of the 2020 election in Maricopa County that are in the possession of the contractors conducting the recount.

The Arizona Court of Appeals ruled that the documents sought by the watchdog group American Oversight detailing how the recount and audit are being conducted are public and must be turned over.

Republicans who control the Senate argued that because the records are maintained by its contractors, they were not subject to public records law and that legislative immunity applies. But the court said that was not the case.

The court said the main contractor, Florida company Cyber Ninjas, was subject to the records law because it was performing a core government function that the Senate farmed out.

“Allowing the legislature to disregard the clear mandate of the (public records law) would undermine the integrity of the legislative process and discourage transparency, which contradicts the purpose of both the immunity doctrine and the (law),” acting presiding Judge Maria Elena Cruz wrote for the three-judge panel.

“The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas,” Cruz wrote later in the ruling.

The ruling upholds a decision by a Maricopa County Superior Court judge, who has ordered the Senate to turn over the records by Aug. 31.

“The Senate has taken radical positions to obstruct basic public access to information about its so-called audit,” Austin Evers, American Oversight’s executive director, said in a statement. “It has tried to get away with outsourcing the audit to a third party and argued that the public has no right to enforce transparency laws against them.”

Kory Langhofer, the Senate’s lawyer, said they plan to appeal to the Arizona Supreme Court.

The unprecedented partisan recount and review of election results in the state’s most populous county was prompted by former President Donald Trump’s loss in the state and his contention without evidence that he lost in Arizona and other battleground states because of fraud.

Senate Republicans issued subpoenas to Maricopa County for all 2020 ballots, the machines that counted them and other data in the state’s most populated county.

The materials were given to contractors with little to no election experience for what Arizona Senate President Karen Fann calls a “forensic audit.” Election experts say the 2020 election was secure and well-run, and the contractors are using bizarre and unreliable procedures. Maricopa County has refused further participation.

The results of the audit and hand recount are expected to be handed over to the Senate next week. A date for public release has not been announced.