The Arizona Supreme Court ruled Wednesday that the state Senate can keep hundreds of secret emails and other records related to its partisan review of the 2020 election because they are “privileged” and exempt from disclosure under state public records law.
The unanimous ruling means the public will likely never know much of what Republican Senate President Karen Fann and GOP Sen. Warren Petersen, who heads the judiciary committee, were telling Doug Logan and others involved in the “audit.”
Logan heads Cyber Ninjas, the inexperienced firm the Senate hired to oversee the audit of computers and ballot counting machines and recount by hand 2.1 million ballots cast in 2020's election in Maricopa County.
President Joe Biden's win led former President Donald Trump to allege without evidence that he lost in Arizona and other battleground states because of fraud. The Senate then launched the review, which found the ballot count results were true.
Logan's report did raise a series of other claims about potential problems with the election, most since disproven. They include the potential for election equipment to be connected to the internet or that large numbers of ballots were cast by dead voters.
The ruling written by Justice John Lopez says legislative privilege applies because the audit was part of an investigation that could conceivably lead to new election laws. That is enough to shield the approximately 1,000 emails, text messages and other communications the Senate refused to release.
“The Audit is a legislative activity within the legislature’s authority, and communications concerning this activity are covered by legislative privilege,” Lopez wrote. “Consequently, the Senate’s internal communications concerning the authorization, planning, and findings of the Audit investigation are privileged.”
The ruling overturns both a trial court judge and the state court of appeals, which took narrow views of legislative privilege and held that the public had a right to know what senators discussed about the audit.
“It's a win for the Senate on every issue unanimously,” said Kory Langhofer, the Senate's lawyer. “It couldn't be a better ruling.”
The Senate will have to reveal any records that are political in nature or involve the administration of the audit itself, but the Senate had already agreed to do that.
Fann said in a statement that the Senate's position that the records could be kept secret was supported by “decades of precedent” from state and federal courts.
"We absolutely believe in transparency, however, there are times when legislative privilege should be exercised so that we can do the jobs that the people of Arizona elected us to carry out,” Fann said.
The public records lawsuit the court decided was filed by a watchdog group called American Oversight, which pushes for government transparency, shortly after the audit was launched in spring 2021.
The Senate disclosed more than 20,000 records after court orders prompted by lawsuits filed by American Oversight and the Arizona Republic, orders that the Supreme Court refused to block last year. But it withheld all or part of about 1,000 other documents, citing legislative privilege meant to promote robust debate among elected officials.
The court of appeals said privilege did not apply because the audit was mainly political, no legislation was being considered and the Senate failed to show releasing the documents would impair its deliberations. The Supreme Court rejected those findings, which American Oversight said will keep important information hidden from public view.
“While legislative privilege should protect legitimate functions of the legislature, extending the privilege to activities that the Court recognized as uniquely politicized is misguided," American Oversight Executive Director Heather Sawyer said in a statement. “This ruling makes it easier for officials to hide the truth about their motives and conduct from the public.”
The high court ordered the judge who issued the initial ruling saying the records must be released to review an updated “privilege log,” filed by the Senate's lawyers. But the Supreme Court said the judge cannot review the records to make sure the Senate is not withholding records that should be released.
In concluding his ruling, Lopez noted that disputes over the 2020 election continue to be “a central focus of the political realm, a matter outside this Court’s constitutional prerogative.”
He said the ruling followed longstanding precedent preserving separation of powers and guards lawmaker's ability to do their jobs without undue interference. And he said if the public does not like what they do, they have a way to deal with that.
“Arizona legislators routinely stand for election and, thus, are accountable to the state’s electorate who serve as the ultimate arbiters of the wisdom of any legislative action, rather than the courts,” Lopez wrote.
