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A Maricopa County judge is weighing whether voters’ signatures on envelopes used to return their early ballots should be made public after a two-day trial on the question concluded Monday.
Former gubernatorial candidate Kari Lake and her lawyer sued the county earlier this year to get access to the about 1.3 million envelopes and voter signatures on them, which they want to analyze in Lake's ongoing effort to cast doubt on her election defeat. She lost to Democratic Gov. Katie Hobbs in November by less than one percentage point.
The crux of the trial was a public records issue, but the climate around elections also played a central role.
While Arizona Public Records Law presumes all government records are subject to public review — giving residents and the media a method to oversee the actions of government and their elected leaders — it also includes exceptions.
Maricopa County Superior Court Judge John Hannah will decide whether Recorder Stephen Richer was legally justified when his office declined Lake’s request, citing two of those exceptions.
The county cites a portion of state law that makes voter signatures available only to certain individuals, like news reporters or election workers and others. The county's attorneys also argued it is in the best interest of the state to withhold the records, because of what can be a hostile climate around elections.
Two witnesses testified about feeling angry or frightened when people came to their door in 2021, during the Arizona Senate’s partisan ballot review. One witness identified those people as affiliated with a voter contact effort backed by former lawmaker Liz Harris, who was expelled from the Legislature earlier this year by her peers.
The second witness, Bonnie Eckard, said two people came to her door in August 2021 asking who lived at her address, if any ballots were sent there that shouldn't have been, and if Eckard voted Democratic. Eckard said they spoke of "election integrity" and claimed dead people were voting — which Eckard said made her think of zombies, a quip that prompted laughs in the courtroom.
But the experience on her doorstep was so serious, Eckard said she reported it to then-Attorney General Mark Brnovich.
"It was the tone, and the body language and the interrupting," she said in describing how she felt during the encounter with the two people. "I mean, it was very frightening and aggressive to me."
Kristi Passarelli, who formerly was the assistant director of election services in Maricopa County, testified about threats she received after videos of her at work were posted online by the political group We The People AZ Alliance, which did work on the Arizona Senate's widely questioned review of the 2020 presidential result in Maricopa County. The videos, which were not shown in court, are of Passarelli preparing equipment to be turned over for the Senate's audit and appear to be taken from the county's live feed of election offices, according to Passarelli's testimony.
"I haven't ever talked about it before ... but it's unnerving, scary, depending on the type of call or voicemail that I received," she said. "It's definitely the most stressful part of doing my job."
Releasing signatures amid that environment “creates a risk that voters will be harassed,” Deputy County Attorney Joseph LaRue told the judge. “And if voters are harassed, again, it doesn’t take much to connect the dots. This could lead to a decrease in voting participation, and this could ultimately disenfranchise voters.”
Lake’s lawyer, Bryan Blehm, said “inflamed passions” were not reason enough to keep the signatures secret, arguing that voters' information can be obtained by the public elsewhere — including reviewing signatures on candidate petitions.
People have no expectation of privacy when it comes to signatures that are put into the mail on their ballot return envelope and, in that way, made public, Blehm argued.
Hannah — who asked questions of witnesses and lawyers throughout the day — seemingly shot down that argument, however. He cited a case from the 1990s in which journalists at 12 News investigating teacher misconduct filed a public records request for birth dates of teachers at Scottsdale Unified School District. The Arizona Supreme Court ultimately decided the teachers' privacy interests outweighed the argument for public disclosure and kept the birth dates secret, even though the information was available from other sources.
"This is exactly the same thing, so the availability of signatures to verify candidate and signature petitions, I'm not sure that it's even enough to say it's not relevant," Hannah said. "It's not a reason. It is a zero in the analysis."
Blehm said the efforts of groups like Harris' and We The People AZ Alliance were typical political efforts and equated them to canvassing — a term most often used for political parties and candidates who go door to door to generate support before votes are cast.
Hannah had previously prevented Shelby Busch, the leader of We The People, from testifying, finding her unqualified to do so.
After closing arguments Monday morning, Hannah said he would take the case under advisement and make a ruling as quickly as possible.
The trial began on Thursday with Richer, who said it was a longstanding and widespread practice of recorders — who oversee early voting — to withhold signatures under state law. He testified about threats he received because of his work, and said if signatures were made public, it could lead to fraud.
But Richer's utmost concern was that making signatures public would put more of a burden on the county if people chose to stop signing their ballot for fear private information would be made public. That fear could disenfranchise voters, he said.
Blehm did not call any witnesses, because Hannah ruled that each person he wanted to call was irrelevant, unqualified, or unnecessary to the matter at hand. Hannah kept the case strictly focused on the public records question, thwarting Blehm anytime he veered into election conspiracies.
Blehm questioned Passarelli about the videos, and whether they showed unauthorized people in the elections center. Passarelli said the videos did not show that, and Hannah soon cut off Blehm's line of questions.
"Now we're catapulting the falsehoods," Hannah said. "Stop it."
Republican senators Anthony Kern and Wendy Rogers, who have continued to cast doubt on elections since Trump’s defeat in 2020, attended the trial Monday. Blehm wanted to call Kern, who is among the group of 11 illegitimate GOP electors being investigated by Arizona Attorney General Kris Mayes, to testify to rebut testimony from last week about the hostile environment at the state Capitol. But Hannah said the prior testimony was irrelevant and Kern's testimony would, essentially, be a waste of time.
Lake was not in the courtroom, though she did attend the previous day of testimony on Thursday before flying to Iowa to campaign for former President Donald Trump, who is seeking to return to the White House in 2024. Lake has suggested she will run for U.S. Senate next year in what could be a three-way matchup for the seat held by Sen. Kyrsten Sinema, I-Ariz.
The public records case is separate from Lake's election challenge, in which Lake asked a judge to name her governor or order a redo of the 2022 election. That led to a string of courtroom losses but is still pending before an Arizona appeals court.
Reach reporter Stacey Barchenger at email@example.com or 480-416-5669.
This article originally appeared on Arizona Republic: Kari Lake awaits judge's ruling on access to Arizona ballot envelopes