Arizona Supreme Court to decide if Senate audit records secret

By Jill Ryan
Associated Press
Published: Wednesday, February 16, 2022 - 9:37am

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The audit site at Veterans Memorial Coliseum
Ben Giles/KJZZ
The audit site at Veterans Memorial Coliseum in Phoenix on April 22, 2021.

The Arizona Supreme Court said Tuesday it will hear the Arizona Senate's appeal of lower court rulings that held it must release hundreds of records related to its partisan review of the 2020 election.

The state's highest court said it will consider whether the Arizona Court of Appeals and a trial court properly rejected the Senate's claim that the records were protected under legislative privilege.

→ Legal bills mount for Arizona Senate Republicans fighting to withhold audit records

The appeals court ruled last month that legislative privilege does not broadly protect the records. It upheld a lower court's narrow view of the legislative privilege, rejecting arguments by lawyers for the Republican-controlled Senate.

The Senate and Cyber Ninjas, the inexperienced firm it hired to run the GOP's 2020 election review, have been battling for months over two public records lawsuits, one filed by the parent of The Arizona Republic and the second by American Oversight, a government watchdog group.

They argue that the public has a clear right to know how the Senate and its contractors conducted the election review. The Senate's contractors recounted 2.1 million Maricopa County ballots by hand amid claims by some Republicans that former President Donald Trump lost Arizona because of election fraud.

The review found President Joe Biden won the election and discovered no major issues.

The rulings and the Supreme Court case cover just the American Oversight public records lawsuit. The high court declined to combine the two cases for purposes of its review.

The Senate has disclosed more than 20,000 records but is withholding all or part of about 1,000 documents citing the legislative privilege, which is meant to promote robust debate among elected officials.

Senate Republicans argued that the privilege applies broadly to lawmakers' communications about the election review. The lower courts have ruled that privilege applies only to discussions related to the process of passing legislation.

The Arizona Supreme Court will directly review whether that is the correct standard as well as two other related issues.

The appeals court directed the Senate to release the records to American Oversight or give them to a judge to decide whether the more narrow view of legislative privilege will allow the Senate to withhold specific documents.

The Arizona Supreme Court blocked the release of the records while it considered whether to take the Senate's appeal. Tuesday's order accepting the case also keeps the secrecy order in place.