Court Actions in AZ Senate’s “forensic audit”

Benny White, JD

August 16, 2021

There are some important court hearings coming up that will decide whether the Senate has to produce records they and their agents have accumulated during their so-called “forensic audit.”

One case involves Phoenix Newspapers Inc. v Arizona State Senate. That case is moving slowly and will be impacted by a different case, Fann v Kemp, being heard this week and a companion case Fann v Kemp and American Oversight, being heard next week in the Arizona Court of Appeals Division One.

Both of these cases are asking for similar records from the Senate. The Senate and their agent, CyberNinjas, have argued that they have legislative immunity and are independent contractors and are therefore not subject to Arizona’s Public Records Law. On August 2, Judge Kemp, in Maricopa County Superior Court decided in the American Oversight case that the records accumulated during the “audit” were public records and the Senate was required to obtain records from their agents if they were not already in possession of the records. That ruling is being appealed.

On Wednesday, August 18, Fann v Kemp, will be heard to decide whether the case can proceed as a Special Action. The Court of Appeals will probably decide that the matter is appropriate for a Special Action since it involves public officers and agencies. But next week on Wednesday, August 25, the important case, Fann v Kemp and American Oversight, will be heard. That case will decide whether Judge Kemp was correct and the requested records must be produced or Senator Fann is correct that they don’t have to tell the public what they have been doing.

We expect a decision after the hearing on the American Oversight case prior to Labor Day. The difference between what the newspapers and American Oversight is asking for is that we are asking for the ballot counts and the vote counts. The other requests don’t cover those and without those counts the public will never know if the reports by the Ninjas and the Senate are correct or not. That is why I submitted a public records request for the records involving the counts of ballots and votes generated by the Ninjas and the Senate machine count of the ballots. Without those records the Ninjas and the Arizona Senators can say anything they want to say and there will be no way for the public to see if they are telling the truth or not.

No matter what the Court of Appeals decides, I expect the losing party to appeal to the Arizona Supreme Court. There are numerous deadlines for filing various pleadings and for the Supreme Court to decide whether or not they want to hear the case. I expect them to take the case because it is an urgent matter of statewide importance. With all of that said election cases are generally expedited through the courts. I anticipate that the Arizona Supreme Court will hear the case and issue an opinion by the end of September. The loser in that case could petition the U.S. Supreme Court to hear the case but I doubt either party will take it that far.

Author: Benny White

J.D., Republican, Data Analyst for the Arizona Republican Party, Represent Pima County Administrator as member of Pima County Election Integrity Commission, 25 years of political activity, 14 years experience with election law, procedures and administration.