An Arizona court is deliberating on whether to give a nonprofit copies of election records the nonprofit requested from Santa Cruz County in 2022.
The nonprofit, AUDIT-USA, requested voting records, but instead of providing them, the county sued the nonprofit.
In its complaint, Santa Cruz County asked the court to clarify whether the requested records are in fact public.
AUDIT-USA Chair Ken Bennett — former secretary of state and state Senate president — said his group was initially told the county would send the nonprofit the records on Aug. 18, 2022, but the nonprofit was hit with the lawsuit that day instead.
“Instead of giving us the records, they filed a lawsuit against us for asking for public records. It’s the most bizarre thing I've ever seen,” Bennett said.
The county argued in a hearing on Tuesday that it has no reason to obstruct the records request. The county said it’s just not sure whether it would be violating the law by refusing to fulfill the request.
Division Two of the Arizona Court of Appeals issued a draft decision in the nonprofit’s favor on Oct. 9 but hasn’t made an official ruling yet. The tone of the hearing didn’t sound favorable to the county.
“You’re saying that we should rule as a matter of law that anytime someone files a public records request that in your bag of options is not to say yes or no. There’s a third option: file a lawsuit against them?” Judge Peter Eckerstrom asked the county’s attorney.
Eckerstrom went on to say that at a minimum, setting that precedent could chill public records requests going forward because it would impose a risk of incurring attorney’s fees on anyone seeking public records
The court case was first filed in Pima County Superior Court.
“This sends a terrible message to the public: that you need to be fearful of your government suing you for asking questions,” AUDIT-USA Director John Brakey said of the lawsuit.
The county did not respond to requests for comment.
The records AUDIT-USA is asking for are “cast voter records.” Cast vote records show how voters voted (anonymously) in the form of a spreadsheet.
Bennett said in a briefing following the hearing that AUDIT-USA’s goal in collecting those records is to be able to provide people with something they can use to verify ballots are being correctly counted.
Bennett and Brakey had an interesting exchange while explaining their plans for the voting records.
“In any county in Arizona or nationwide for that matter [people] can sit down and verify that the votes on these ballots are correctly reflected in the cast vote record, and that the results the county gave us are accurate. That's all we’re trying to do,” Bennett said.
Then Brakey jumped in: “And in Ken’s plan, the fifth part of that whole plan —”
“Well, let’s not get into that right now —” Bennett interjected.
“Well, there’s a ballot library,” Brakey continued. “If you don't believe the images you can pull a few and look at ’em! Why not? We’re fighting the cynicism that’s destroying our country.”
In 2021, Bennett served as the Arizona Senate’s “audit liaison” during the 2020 Maricopa County election audit following President Donald Trump’s loss to former President Joe Biden.
Trump falsely claimed the election was stolen, and all Maricopa County ballots were reviewed for signs of fraud. The audit ultimately found that Biden won by a slightly wider margin than first reported.
Brakey was Bennett’s co-liaison, and Bennett said he stayed in touch. Bennett joined AUDIT-USA about a year ago.
