PHOENIX — Senate President Karen Fann is making a last-ditch effort from having to publicly release the records of the firm conducting the Senate-ordered audit of the 2020 election.
And the attorney for the Prescott Republican is doing it, at least in part, by telling the Arizona Supreme Court that judges can't force her to cough up the documents now held by Cyber Ninjas.
“The right of a constitutional department of government to control its own records is the hallmark of institutional independence and the fulcrum of the separation of powers,” attorney Kory Langhofer is telling the justices. And he pointed out that, just weeks ago, the court said former House Speaker J.D. Mesnard had “absolute immunity” for what he did as part of his legislative job.
But Langhofer may have no better luck convincing the state's high court than he did when he made similar arguments to the Court of Appeals. In a strongly worded ruling Thursday, they said he was misreading that immunity.
The appellate judges pointed out that the ruling for Mesnard said he could not be held personally liable for release of an investigative report about sexual harassment charges against another legislator. This, they said is different, noting the issue is compliance with the public records law that they themselves approved.
“Legislators are not afforded absolute immunity for all acts that are in any way related to the legislative process,” wrote appellate court Judge Maria Elenz Cruz for the unanimous panel. “Nor is legislative immunity intended to make legislators ‘super-citizens’ immune from all responsibilities.”
And she noted that lawmakers could have -- but did not -- exempt themselves from the public records law. Now, Cruz said, someone is suing to enforce that law.
"Legislative immunity does not prevent this action against legislators in their capacity as elected officials, or the legislature, for its failure to comply with statutory obligations,” she said.
The petition to the Supreme Court comes as Cyber Ninjas this coming week is supposed to turn over its report to the Senate. But it is unclear when the public actually will get a look, as Fann said she first wants to review the findings with her staff and, if necessary, recommend changes.
No date has been set for public release.
But that isn't stopping some others from issuing what amount to “prebuttals” designed to undermine what they contend will be a flawed report from a firm that had never done such a review and started out with a pre-determined bias.
The most extensive came this week from Maricopa County Recorder Stephen Richer.
Elected in November, he had nothing to do with the 2020 race and how the ballots were handled and counted, meaning he has nothing to gain by defending how the election was conducted by his Democratic predecessor.
In a 38-page letter to fellow Republicans, Richer made a point-by-point argument about why the results were not flawed and why any conclusion by Cyber Ninjas to the contrary should be dismissed.
Some of it has to do with the process, like having volunteers use rotating turntables where they would get just a few seconds at most to count the votes. Then there were issues of chain of custody and even pre-audit pronouncements from Cyber Ninjas CEO Doug Logan that there was fraud in the 2020 election.
And then there was everything else that happened after the election, including a legally required hand count of a sample of ballots, a series of failed lawsuits, and two audits that Maricopa County conducted itself that found no problems — and no evidence that, as alleged, the counting equipment ever had been connected to the internet.
Fann, for her part, remains unconvinced, and continues to insist the county produce the routers so Cyber Ninjas can make its own determination.
The county has refused, leading Senate Majority Whip Sonny Borrelli, R-Lake Havasu City, to ask Attorney General Mark Brnovich to investigate.
The more immediate issue are the records sought by American Oversight, an organization launched in 2017 initially to track the activities of the Trump administration and look for potential fraud.
Some of what is sought already has been produced, like a copy of the contract between the Senate and Cyber Ninjas. But American Oversight also wants more, including any communications involving Cyber Ninjas related to the audit.
Fann has argued that records belonging to private companies are not public, even if those companies are doing business with the state. But Cruz, in the appellate court ruling, said that's not how the public records law works.
She said that statute requires public officials to "make and maintain records reasonably necessary to provide knowledge of all activities they undertake in furtherance of their duties.” And Cruz said the audit is being conducted by the Senate as an official legislative duty.
The judge said that a ruling allowing the records of Cyber Ninjas to be kept from public scrutiny would amount to letting the Senate "shield itself from the responsibility to inform the public of activities regarding the audit.”
Nor was Cruz impressed by Fann's argument that the Senate doesn't actually have the records.
"The Senate defendants, as officers and a public body under the public records law, have a duty to maintain and produce public records related to their official duties,” she wrote.
"This includes public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate's agents,” Cruz continued. "The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”
The Supreme Court has not said when it will rule.
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