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Judge rejects Senate's claim of 'legislative privilege' over audit records

A judge late Thursday rejected broad claims by the Senate that it need not disclose various documents related to a GOP-led review of the 2020 election.

In a sometimes strongly worded ruling, Maricopa County Superior Court Judge Michael Kemp chided the Senate for withholding virtually every communication among Republican senators and liaisons between lawmakers and Cyber Ninjas, the Florida-based firm hired to conduct the election review.

The Senate has claimed that “legislative privilege” shields communications with anyone associated with Cyber Ninjas and the subcontractors it hired.

Kemp ruled that the Senate’s view of what records are privileged is “clearly overbroad,” and the interest of the public at large to gain access to those communications “substantially outweighs” any interest the Senate has in keeping those records secret.

The public’s right to know is even important, the judge said, given the issues at stake.

"It is hard to imagine more serious litigation than the disclosure of documents underlying an audit of the election of the president of the United States and a United States senator in Maricopa County,'' Kemp wrote. 

Claims by Senate President Karen Fann (R-Prescott) that the results of the audit might be used at some point in the future to craft changes in election law does not allow her and the Senate to keep underlying documents and communications away from the public, Kemp added.

"The audit challenges whether there was an election free of fraud, corruption or incompetence,'' the judge said. "The stakes could not be higher and transparency, which is at the heart of the public records law, substantially outweighs any concern regarding chilling future legislative deliberations.''

Kemp noted that the Senate has already made public a three-volume report on the findings of Cyber Ninjas and other consultants, which claimed a hand count of nearly 2.1 million ballots cast last November was virtually identical to the official results, which confirmed Joe Biden received more votes than Donald Trump.

But the report also made sweeping claims of missing and duplicate ballots and errors in the county’s signature verification process for early ballot envelopes.

Maricopa County election officials produced a report which disputed the findings and explained the apparent discrepancies, saying that Cyber Ninjas — which has faced fierce criticism for its lack of relevant elections experience — clearly did not understand Arizona election laws and procedures.

All that is relevant here, the judge said, as voters attempt to reach their own conclusions about the 2020 election results and subsequent review.

"The public has a right to know the basis for these conclusions and findings and to challenge and scrutinize those findings,'' Kemp wrote.

Kemp also cited public statements, both by Cyber Ninjas CEO Doug Logan and senators, and a briefing presenting the reports on the Senate floor, as reasons to let the public know the basis for those claims.

"Senate defendants cannot publicly release numerous public statements about the audit, release a comprehensive report about the audit, and then refuse to disclose documents and communications that are central and integral to the findings and conclusions of that report,'' the judge wrote.

Kemp has set a hearing for Nov. 2 to hear what the Senate has disclosed as well as consider whether Fann or others should be held in contempt for failing to surrender other documents first sought by American Oversight, a self-proclaimed nonpartisan watchdog organization.

Kory Langhofer, an attorney for Senate Republicans, said they plan to challenge Kemp’s latest ruling.

KJZZ's Ben Giles contributed to this report.

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