Key Points: 

• Santa Cruz County sought clarity on releasing election and voting tally data

• County denied request for ballot images and sued requester

• Judges question impact on transparency, public access to records 

A case poised to determine whether a county can sue a public records requester to obtain court-ordered clarity is pending at the Arizona Court of Appeals.  

Under public records law, when someone requests a public record and is denied access, they have the authority to challenge the decision in court. If successful, they are entitled to recoup their legal costs. 

But, when Santa Cruz County faced some uncertainty over whether to release an elections-related record, it decided to sue the organization requesting the record to get a final word from the court.  

The Court of Appeals is now tasked with deciding whether Santa Cruz County does, in fact, have the authority to seek a declaratory action instead of becoming a defendant in a special action. 

After the 2022 primary, Americans United for Democracy, Integrity and Transparency in Elections, also known as AUDIT USA, sent a public records request to Santa Cruz County for ballot images and the Cast Vote Record, or CVR, a dataset that anonymously shows each vote cast.  

Santa Cruz County denied the request for ballot images due to a state law that shields access but initially agreed to transmit the CVR, along with some additional requests from the organization.   

But on the day AUDIT USA expected the county to send the records, Santa Cruz County and its election director Alma Schultz changed course and filed a lawsuit in Pima County seeking a declaratory judgment on whether the CVR constituted a public record. 

The county took the position that the CVR was protected by the same law shielding digital ballot images and sued first in anticipation of AUDIT USA doing the same.  

AUDIT USA did not sue the county. But, Santa Cruz continued in its crusade for court clarification on the CVR and public records law.

Pima County Superior Court dismissed the lawsuit, denied reconsideration, and then rejected the claim a third time after the Arizona Court of Appeals remanded for further inquiry into whether a renewed request from AUDIT USA for the CVR could provide grounds for the suit. 

The question is once again on appeal, with the Court of Appeals now considering whether a declaratory action is a reasonable course of action for a county to take when faced with a questionable public records decision. 

In a draft decision issued before oral argument, the Arizona Court of Appeals again found the county did not have a justiciable controversy. 

But the panel heard arguments Oct. 14 ahead of issuing a final ruling. 

Justin Pierce, attorney for Santa Cruz, argued that counties are stuck “waiting to be sued” but noted the declaratory judgments act should allow a party to strike first if there is an actual case or controversy. 

Judge Peter Eckerstrom pressed on how far a declaratory action statute can stretch. 

“The declaratory action statute is certainly to be construed liberally, but it’s not to be construed to require a court to issue advisory opinions to every governmental entity that has to make a tough decision, right?” Eckerstrom said. 

Pierce agreed, but said the county had public officials subject to liability in a “potential, but realistic cause of action.” 

He said the case at hand is not a request for an advisory decision, but rather a situation where the county needs clarity given AUDIT USA’s history of litigation. 

AUDIT USA’s website clarifies its aim at auditing ballot images and notes its work “often entails filing lawsuits against election officials who do not follow federal requirements to maintain election materials.” 

But attorney for AUDIT USA Bill Risner countered the characterization of the organization as litigious and noted the organization had only sued once before in Maricopa County. 

Risner argued the county never had a real conflict because the county never formally denied the request, leaving no controversy to litigate. He said there would not have been a difference if the county had decided to deny the records request and claimed that AUDIT USA never had any intention to sue Santa Cruz County over the denial. 

Risner noted that litigation is not the only option available to the county, noting the ability to consult the secretary of sState or the attorney general. 

As for the option to go to the attorney general for an advisory opinion, Pierce once again noted the need for some binding precedent.

“We believe we have the right to request a judicial determination on that to protect the county and to protect the county officials who are making decisions on these things in good faith,” Pierce said. 

Eckerstrom was not convinced, noting that the current state law explicitly allows public records requestors to file a special action, not the other way around. 

“You’re saying that we should rule, as a matter of law, that anytime someone files public records request that in your bag of options, it’s not to say yes or no, there’s a third option, file a lawsuit against them or a (declaratory judgment) action in a Superior Court, because we can’t decide whether to say yes or no,” Eckerstrom said. 

He continued, “Doesn’t that impose at minimum attorney fee costs on people seeking public records? And wouldn’t that counter the public policy behind the public records law itself?” 

And Eckerstrom pressed Pierce on the potential impact of attorneys’ fees. 

“Couldn’t you chill people from filing public records requests if they don’t have deep pockets?” Eckerstrom asked. 

Pierce argued it was appropriate for a county to pursue a judicial answer and said the parties sued could be named out of necessity, or enter an appearance if they decided not to defend the suit. 

But Judge Sean Brearcliffe said that situation could give way to a county choosing a defendant who would be unable to put up a legal fight. 

Pierce contended the courts could still serve as a safeguard in that scenario, and he again stressed the county has no path forward to get a judicial determination. 

The disclosure of the CVR issue is still unclear, though, and Pierce noted that all the county has been asking for is to address the legality directly. 

“Wouldn’t you get that if someone thought it was important enough to file a special action?” Judge Christopher Staring said. 

Pierce said the county could, but it goes back to the central issue of the case, whether the county is compelled to wait for litigation.

“We believe the law is that we’re not. And that’s why we pursued this course. And we believe that the court should remand to the Superior Court to make a decision on this once and for all on the merits,” Pierce said. 

Ken Bennett, chair for AUDIT USA and former lawmaker, said he, Risner and director John Brakey were “cautiously optimistic” given the draft ruling and the “tenor of (the judges’) questions today.” 

A spokesperson for Santa Cruz County did not immediately respond to a request for comment. 

Counties typically deny or heavily redact requests for the CVR, fearing a violation of voter privacy by releasing data showing how people voted. 

And, state law requires election officers to “ensure that electronic data from and electronic or digital images of ballots are protected from physical and electronic access, including unauthorized copying or transfer.” 

Lawmakers have attempted to make the CVR a public record in the past, though none have been successful. 

In the 2025 session, Sen. Mark Finchem introduced a CVR bill but hit a wall at the Governor’s Office.

“As secretary of state, I protected the right of every Arizonan to make their voice heard at the ballot box,” Gov. Katie Hobbs wrote in her veto letter. “This bill would place constitutionally protected voter privacy at risk.”