Pima County had filed an answer to our initial complaint and a motion to dismiss. You can read their document here (pdf).

Pima County claims:

“Public records may be withheld from a public records request where the best interests of the government and the people justify nondisclosure. The Arizona Legislature has even criminalized the showing of a voted ballot to any person so as to reveal the contents.

All voted ballots are securely retained “unopened and unaltered” for a specific period of time after
an election. Ballots may only be brought out in public upon a court order in the specific context of a mandatory recount or election contest under A.R.S. § 16-624(D).

If a ballot image copy were released to the public, it would accomplish the same thing as showing the voted ballot as to reveal the contents and could potentially subject Pima County employees to criminal liability. While it is true that a ballot does not directly identify the voter, there are scenarios that can lead to identification of the voter and enable election fraud and intimidation.

A voter could intentionally mark a ballot in such a way as to identify themselves to facilitate vote buying. A voter could also be coerced into marking a ballot in such a way as to identify themselves. This would defeat the clear public policy of a secure secret ballot.”

We have some initial remarks about the complaint:

This complaint’s history lesson recalling all of the various circumstances leading up to our current voting system makes for an interesting narrative, but has nothing to do with whether those named “scenarios that can lead to identification of the voter and enable election fraud and intimidation” take place in our current voting system.

Pima County will be very hard pressed to demonstrate how fraud and intimidation are feasible or even demonstrated in other states that permit the use of ballot images to help verify elections.

If Pima County’s verification mechanisms and the level of election integrity were sufficient today, we wouldn’t have had such a disastrous primary election. John Brakey wouldn’t have caught a Pima County Elections worker breaking security seals on the central tabulator before last fall’s bond election.

In fact, the concerted, consistent efforts
to avoid transparency and verifiability is of grave concern for voters which far outweighs Pima County’s fanciful risks, which were never realized in states that legally consider ballots public records.

Where is the criminal liability in the states that already allow for ballots and ballot images as means to check the integrity of their elections?

Pima County may try to argue that the elections record case in 2008 is not at issue or relevant, but their arguments against disclosure are exactly the same. It resurrects ‘mayhem and chaos’ by suggesting some cloak and dagger code could be applied as a scribble on a single ballot among thousands, which potentially subjects Pima County to legal liability.

AUDITAZ co-founder John Brakey sees this argument as problematic for vote-by-mail ballots:

“According to Pima County Attorney Daniel Jurkowitz’s argument, vote-by-mail should be illegal. That is 85% of the vote. It appears that
Jurkowitz’s job is to make sure that these ballot images never see light of day and are destroyed. God forbid if ‘We the People’ had transparent and verifiable elections.

Additionally, how do you spend close to $ 800,000 on a good election system and then destroy it’s built in audit system? Why?

Is it because someone wants to protect the right to cheat with impunity now and in future elections?”

John Brakey shot a video of today’s hearing: