Are ballot images — and signatures — public record? Maricopa County recorder tells court no
Maricopa County Recorder Stephen Richer is asking a judge to deny losing Arizona gubernatorial candidate Kari Lake to get access to signatures on early ballot envelopes.
On Thursday, Richer told the judge in a hearing that state law exempts those envelopes from public records law.
He also said that said even if it weren't the law, making them public could 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.
"Any member of the public who makes this request would have nicely lined up all 1.3 million Arizonans 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,
The judge dismissed Lake’s three witnesses, saying they did not have relevant claims. The trial is set to resume Monday.
Access could have 'chilling effect' on voting
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 be 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 Maricopa County Judge John 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.
Case part of efforts to overturn election loss
Bryan Blehm, Lake's attorney, argued 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 Gov. 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.
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.''
Are ballot images a public record?
Blehm tried 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 not 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.
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, representing 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.