Documentation of every vote cast in an election is not public record, Maricopa County judge rules

A Maricopa County judge ruled that the public does not have the right to inspect the cast vote record, documentation detailing every vote cast in an election.

The cast vote record is created by ballot counting machines and includes details about how people voted with other information, like “precinct, whether the ballot was adjudicated, and the completeness of the voter’s markings,” according to court records.

The record does not include voter names or other personal identification information included on ballots. However, in some cases, information included in the cast vote record could be used to piece together information and determine a voter’s identity.

Lawrence Hudson, a Republican who lost in the Legislative District 12 general election last year, filed a lawsuit in Maricopa County Superior Court seeking to force the county to turn over the cast vote record for the 2024 election.

Votebeat reported that Maricopa and Pima counties had provided the cast vote record in past years to experienced election analysts seeking to drill down into election results and explain the prevalence of so-called split ticket voters, like someone who voted for a Republican presidential candidate and a Democrat for U.S. Senate. The wonky dataset is unlikely to be useful to the average person who isn’t familiar with how to parse the massive trove of information.

But the county later changed course, as election offices around the country were inundated with requests for the file — many coming from individuals seeking to validate unproven election fraud claims.

In court documents, Maricopa County argued Arizona law prevents counties from disclosing the cast vote record.

Superior Court Judge Melissa Julian agreed.

In an order signed last week, Julian found that state election law exempts the cast vote record from Arizona’s Public Records Law, which allows the public to inspect most government records in the state.

She cited a law that requires election officials to ensure the security measures used to secure “electronic data from and digital images of ballots…are at least as protective as those prescribed for paper ballots.”

“CVRs, which reflect how each ballot was tabulated, are electronically derived from voters’ marked ballots. As such, they are explicitly covered by section 16-625 and cannot be disclosed to members of the public through a public records request,” Julian wrote.

The judge found that the county should not have disclosed the record in the past.

“The County acknowledges that it previously disclosed CVRs from the 2020 election, and that those prior CVRs are available through third-party repositories,” Julian wrote. “However, the fact that prior disclosures may have occurred in contravention of section 16-625 does not render the statute unenforceable or justify new violations.”

Maricopa County Judge Joseph Mikitish cited the same law in 2021 to justify dismissing a Tucson election analysts’ lawsuit seeking access to ballot images after the county denied a public records request seeking those images along with the cast vote record. An Arizona Court of Appeals panel affirmed that ruling.