By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — An attorney for Maricopa County told a judge Monday he should reject a bid by failed gubernatorial hopeful Kari Lake to get images of ballot envelopes and signatures because that’s just not allowed under the law.

Joseph La Rue does not dispute Arizona law presumes that all records in the custody of government agencies are presumed to be public.

But he said a section of the state Election Code spells out that voter registration records “shall not be accessible or reproduced by any person other than the voter.” And that, he told Maricopa County Superior Court Judge John Hannah, should end the matter as that overrides laws that presumption of public disclosure.

La Rue did not dispute a judge in another, unrelated case, has ruled the signatures on the ballot envelopes do not become a part of the voter’s registration record that are confidential. He urged Hannah, however, to ignore that other ruling as irrelevant to this case.

But if Hannah isn’t buying that argument, La Rue has a fallback.

He said even assuming the records are public — which he does not dispute — and even if the judge does not accept his claim they are confidential under the Election Code, Arizona law allows records to be withheld if their release is “not in the best interests of the public.” And La Rue had several witnesses testify about their own fears of what would happen if their signatures on their ballot envelopes were released to anyone who asks for them.

In Lake’s case, she has made it clear she wants the signatures to buttress her claims in her direct challenge to her loss to Democrat Katie Hobbs that early ballots were counted where the signatures did not match.

With those early ballots having trended to Hobbs, Lake contends there were enough of those bad signature matches to overturn her official 17,117-vote loss in November. Granting her request would let her have someone review all 1.3 million of them in Maricopa County.

That question of whether Hannah believes there are legitimate fears that allow him to shut down Lake’s request is not simple.

At Monday’s hearing, Bonnie Eckard testified that two people came to her door in August 2021 to ask her about the 2020 election, the one that Donald Trump contends he was cheated out of, a position supported by Lake.

“They immediately began to pepper me with questions that they seemed to already have the answer to,” she said, including if certain people lived there, did they vote Democratic, did they vote by mail, did anyone else vote from that house, and whether they received extra ballots. Eckard said about the only answer she got when she asked who they were was “something about election integrity.”

She said the questioners were “extremely aggressive with me,” at one point even telling her “about dead people voting” and spouting “unproved conspiracy theories.”

La Rue said Eckard and others said if they fear their signatures on ballot envelopes become public it will lead to more harassment. And that, he said, will result in some people giving up the right to vote by mail or giving up the right to vote at all.

But Bryan Blehm, Lake's attorney,  pointed out to Eckard that her signature — and that of other voters — already is available elsewhere, and publicly, on everything from property deeds filed with the County Recorder’s Office to signatures on petitions to nominate candidates or put a measure on the ballot. And he got Eckard to admit the public availability of those signatures would not preclude her from signing petitions or buying a new home.

Hannah, however, said the availability of signatures elsewhere is likely irrelevant to the narrower question before him of whether these particular signatures on ballot envelopes are public records.

La Rue said it isn’t just about signatures. He pointed out those ballot envelopes Lake wants usually contain the phone numbers.

While not required, voters are asked to provide them if county election officials have questions about what might be a mismatched signature, or even in cases where someone forgets to sign. It provides a quick method of contacting the voter.

He told Hannah that if voters balk at providing that number, it could result in some people’s ballots never getting counted.

That’s because an unsigned ballot envelope has to be “cured” by 7 p.m. on Election Day. Mismatched signatures get a bit more time: five business days after the election.

Maricopa County Recorder Stephen Richer has testified that's easy now with access to voter phone numbers. But he said meeting those deadlines that could prove impossible if hundreds of thousands of voters, fearing their phone numbers would become public if Lake wins her case, choose to leave them off the ballots.

And there’s something else on those early ballot envelopes: each voter’s address.

“We have a track record of people going canvassing, door to door, to ask people about their early ballot, and who they voted for and whether or not it was their signature,” La Rue said.

“That creates a risk that voters will be harassed,” he continued. “And this could ultimately disenfranchise voters because voters become fearful that if we vote, we may get accosted about it.”

Blehm told Hannah there’s nothing inherently wrong with people canvassing neighborhoods about elections. The judge, however, had questions, not the least of which relates to the fact that he said canvassing usually occurs before an election.

“What do I do about what these witnesses said,” Hannah asked Blehm. “Should I not believe them when they say that they were frightened and offended that people came around after the election ... questioning them about their votes?”

“We have a 200-plus-year history of doing this type of activity, canvassing, going and talking to voters, going door to door,” Lake’s attorney responded. Hannah, however, said that is usually pre-election activity.

The judge also appeared to be unimpressed with Blehm’s argument that voter signatures are available elsewhere, like on publicly recorded documents and petitions. He said this case is being argued under an entirely different provision of the law.

Hannah also pointed to a 1998 ruling in a case where a Phoenix TV station sought the phone numbers of teachers in the Scottsdale Unified School District as part of an investigation into whether the district was doing proper background checks to see if teachers were sex offenders.

In that case, the Arizona Supreme Court acknowledged that the phone numbers might be available elsewhere. But the justices said that was irrelevant and that, publicly available or not, teachers have a privacy interest in their phone numbers and the district was not obligated to provide information that the teachers had provided to it.

Hannah did not say when he will rule.