ELECTION 2022

Lake wants election records now; Maricopa County says wait your turn

Posted 12/4/22

PHOENIX - Maricopa County wants a judge to toss out a bid by failed gubernatorial hopeful Kari Lake to get immediate action on her request for election records so she can challenge her loss to Katie …

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ELECTION 2022

Lake wants election records now; Maricopa County says wait your turn

Posted

PHOENIX - Maricopa County wants a judge to toss out a bid by failed gubernatorial hopeful Kari Lake to get immediate action on her request for election records so she can challenge her loss to Katie Hobbs.

At a hearing this past week, Deputy County Attorney Joseph Branco acknowledged that Lake is entitled to the various documents she wants to the extent they exist. She has submitted a laundry list of records on issues ranging from Election Day printer and tabulator problems to information on voided and "spoiled'' ballots.

But what she wants, he told Maricopa County Superior Court Judge Scott Blaney, amounts to "jumping to the front of the line.'' And Branco said nothing in state law entitles her to get ahead of others, ranging from public interest groups to prisoners and reporters whose demands for records were submitted long before her Nov. 15 request.

If the judge agrees and dismisses the case, that could affect Lake's stated plans to file suit to overturn the election returns which show her losing to Democrat Katie Hobbs by more than 17,000 votes.

Arizona law requires all election challenges to be filed within five days of the formal state canvass. That is set to occur Monday. But Blaney, while agreeing to expedite the records lawsuit as "an issue of statewide concern,'' isn't even scheduled to hear arguments until Wednesday about whether he should order the county to give special treatment to Lake - or throw out the case entirely.

Tim La Sota, her attorney, acknowledged the time crunch.

"This information loses not all of its value but a lot of its value in an election context pretty quickly,'' he told the judge at a hearing this past week.

At the heart of the fight is the state's public records law.

In essence, it says that public records and other matters in the custody of any public officer are open to inspection. And if copies are requested must furnish them "promptly.''

The law also says that the records are deemed denied if they are not produced promptly, allowing the person requesting them to sue.

La Sota contends that the failure of the county to produce the records within days of Lake's request -- and before Monday's canvass - violates the law.

Only thing is, there is no definition in the law about what constitutes a "prompt'' response. So he is arguing to Blaney that it has to be determined based on the circumstances.

"In this case, 'promptly' must mean sufficiently in advance of the canvassing to permit plaintiff and the court to quickly determine the full extent of the problems identified and their impacts on electors due to numerous documented failures in the (county's) administration of the election,'' La Sota told the judge.

With no response to the records request by Nov. 23, he sued. And now La Sota wants the case to be put on the fast track, even though under normal circumstances the county would not be required to even files its response to the lawsuit until Dec. 19.

Branco said the claim is flawed, saying it is based on Lake's "subjective expectations'' of what constitutes promptness in production of records. And that, he told the judge, is legally irrelevant.

"Setting this (claim) on an expedited schedule I think would set a terrible precedent,'' Branco said. He said it would pave the way for a series of lawsuits by a host of individuals and groups, all of whom argue that the records they want are "extremely important to them.''

"County agencies receive requests from inmates who believe that the records they are going to receive will lead to their liberty,'' Branco told Blaney. Then there are activists concerned about animal welfare or homelessness "that believe that getting those records are going to move the needle on public policy decisions.''

And then, he said, there are news reporters "who want records as promptly as possible, as fast as possible, immediately, in order to meet deadlines.''

"I don't think there's an exception for records that have to do with elections,'' Branco said.

Beyond that, he said some of what Lake is demanding already has been posted by the county on its web site designed to answer various questions about how the election was run, including what happened with some printers that resulted in the ballots not being immediately read at the voting centers. And Branco said that the county will work with La Sota to try to narrow the scope of the request to  make it easier and faster to produce other records.

Finally, he said even a court order - should Blaney issue one - won't get Lake what she wants when she wants it.

"If the court was to order some type of relief today ... there is nothing under Arizona law that would provide for the immediate production or immediately produce and make available those records,'' Branco said. Instead, all Blaney could do is direct the county to produce the records promptly.

La Sota, however, said this isn't a question of interpreting the law based on what Lake’s subjective expectation of the importance of her request is.

"The legislature used the word 'promptly,' '' he said of the records law. "It means different things in different contexts.''

And he told Blaney he should understand the context of this particular request.

"This involves a general election,'' La Sota said. "There's a lot of public interest.''

He also said other candidates are interested in the same information, citing the 510-vote difference that separates Democrat Kris Mayes from Republican Abe Hamadeh in the race for attorney general.

"I think that, objectively, most people would say, well, these records are more important in terms of producing them more promptly than, say, somebody who's trying to change policy,'' La Sota. "We want the county focused, first and foremost, on this public records request.''