Arizona official says failed gubernatorial candidate shouldn't get access to ballot signatures
By Howard Fischer
Capitol Media Services
PHOENIX -- Maricopa County Recorder Stephen Richer told a judge Thursday he should reject a bid by failed gubernatorial hopeful Kari Lake to get access to signatures on early ballot envelopes.
Richer said Arizona law is clear that the information she wants -- presumably to help her challenge the results of the 2022 election -- is exempt from disclosure under the Public Records Law.
But Richer told Maricopa County Superior Court Judge John Hannah that said even if it weren't the law, he would be concerned about Lake's request to have those envelopes declared a public record, something that would make those images available to not just her but anyone else who wants them. He said that would make it far easier for people to inject fraudulent votes into the system by stealing people's early ballots from mailboxes and homes and then being able to return them with what appears to be a valid signature.
Beyond that, Richer told the judge that any decision he would make declaring ballot signatures as public could affect the entire voting process.
For example, he said some people, not wanting their signatures available by others, may choose not to sign the envelopes before returning them. That, in turn, would force election workers to have to try to reach out to all of those voters -- their names are printed on the envelopes -- to get them to verify that they were, in fact the individuals who filled out the ballots and mailed them back.
"If that happens, with our current staffing, we wouldn't be able to make good attempts for all 160,000 of those people,'' he said, guessing that's how many of the 1.6 million ballots that were cast in the county in 2022 would come back with no signature. And if they are not verified through that "curing'' process, they would not get counted.
"And I suspect that some of those people would be disenfranchised,'' Richer said.
And there's something else. Richer said he suspects some people who are used to voting by mail, facing the prospect of their signatures being available throughout the world through a public records request, would simply choose not to vote, creating a "chilling effect.''
All that, he said, further backs his decision to refuse to surrender the envelopes. He said even if state law did not specifically exempt them from the Public Records Law - a point contested by Lake -- there also is a catch-all that allows otherwise public documents to be kept confidential if it is in "the best interests of the state.''
The result of the legal fight playing out in Hannah's court has implications beyond Maricopa County. Richer said that counterparts in the state's other 14 counties also keep those signatures from public view.
Bryan Blehm, Lake's attorney, is attempting to argue that Lake needs the ballot envelopes -- and the signatures on them where people attest they are the voter to whom the ballot was sent -- to be able to determine if they match the voter's original signature on file, something that is accessible under the law for certain political purposes.
That goes to her ongoing efforts, all unsuccessful so far, to overturn her 17,117-vote loss to Katie Hobbs based on a variety of claims, including that fraudulent early ballots were counted. And Blehm said that serves its own public purpose, countering Richer's arguments.
"It's in the best interests of the state and the people to be able to understand what is taking place in their election,'' Blehm said. "Do the people have a right to know what we think these documents will show them?
Blehm tried to show Hannah images he got from two ballot envelopes -- the attorney did not name his source -- alongside the images from the voter registration records.
"This, again, gets to why we want access to the records,'' Blehm said.
Presumably, the ballot signatures he wanted to display would not match the records. But he never got that far as Hannah shot down that request.
The only thing that is relevant, the judge said, is the presumption that records are presumed to be public. What is at issue here is whether those envelopes are exempt as a matter of law.
"Why the person says they need the records, that's irrelevant,'' Hannah said, saying his decision will be based on his interpretation of the law. "What this information would be used for is simply not an issue at this hearing.''
Blehm had no better luck in his bid to call witnesses who he said would testify about what they claim were irregularities in the signature-verification process. All that, the judge said, also is legally irrelevant to the sole question: Are ballot images a public record.
That left Lake's attorney with no witnesses of his own to call.
Much of Blehm's claim comes down to his argument that, generally speaking, signatures are no considered private.
He pointed out that people sign their names to all sorts of things, like credit cards receipts and checks, giving them to strangers without any expectation of privacy. And he said people even put their ballot envelopes, with signatures on the outside, into mail boxes.
"The individuals who signed these ballot affidavit envelopes, your honor, have waived any right of confidentiality by making those signatures public,'' he told the judge.
Blehm also got Richer to admit that there are other records kept in his office that have signatures that are public. That includes deeds and any other document people want recorded, in some cases, even divorce decrees.
Hannah, for his part, also suggested that, too, is irrelevant as those are not governed by election laws and their provisions of privacy.
Richer, for his part, sought to undermine arguments that have been advanced by Lake and supporters that it is easy to put fraudulent early ballots into the system.
It starts, he said, with having to register to vote and produce identification at least 29 days before the election and provide a valid mailing address. Then his office sends a card to that address.
"If it comes back as undeliverable, then we won't put you on the voter registration rolls,'' Richer said.
He also said there's another safeguard: If someone who sought an early ballot calls to say he or she did not get it, that ballot -- with its unique identification number -- is deactivated.
"If somebody was swiping mailboxes or sneaking into people's homes in order to, I guess, round up thousands of necessary ballots to have an impact on an election, that would only be meaningful if the intended voters didn't say, 'Hey, I don't have my ballot any more. Can you send me a new one?' ''
But Richer said one reason that doesn't happen a lot -- at least not now -- is that it is just too difficult for those who would commit fraud to obtain a copy of the voter's signature. All that, he said, would change if Lake succeeds in getting a ruling that ballot signatures are available to anyone at all who asks.
"Any member of the public who makes this request would have nicely lined up all 1.3 million Arizonans (in Maricopa County) who have returned an early ballot affidavit envelope in the 2022 election, they would have their address, they would have their name, and they would have their most recent signature right there,'' Richer said.
"By making this a public record, it's not just people in our community who might have a legitimate purpose,'' he said. "Anyone in the world, whether they're from Russia or China, would be able to write into our office and say, 'This is a public record, I'm making a public records request,' and we would fulfill it.''
The county is not relying entirely on the legal question of whether the envelopes are a public record. It also presented several witnesses, including lobbyists from Creosote Partners who represent the Arizona Coalition to End Domestic and Sexual Violence who said their clients are concerned about their identities becoming public if ballot envelopes are made public.
The case resumes Monday with the county expected to have two more witnesses.
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