Judge balks at voting advocates' bid to release 'privileged' Arizona Legislature records

PHOENIX (CN) — A federal judge appeared likely on Monday to side against the voting rights advocates asking him to order the Arizona Legislature to release nearly 200 internal communications documents the governing body claims are protected by legislative privilege.

Mi Familia Vota and other voting rights advocacy groups subpoenaed the documents as part of a voting rights lawsuit aimed at stopping Arizona’s secretary of state from enforcing two 2021 election laws the plaintiffs say will disproportionately affect people of color. Attorneys for the groups argued in a Monday morning hearing that turning over the documents is likely to prove an intention of racial discrimination by the legislative body.

But U.S. District Judge Dominic Lanza did not seem inclined to change his mind from the tentative ruling he issued on July 7, preemptively denying plaintiffs’ motion to release the documents.

Taking issue with the two laws, SB1485 and SB1003, the advocacy groups in August 2021 sued the offices of the secretary of state and attorney general as well as all 15 county recorders.

The first, known by plaintiffs as the “voter purge law,” removes people from the active early voting list if they don’t cast mail-in ballots in two consecutive voting cycles. Plaintiffs say it disproportionately affects minority groups and impoverished people, as those groups are less likely than white and wealthy people to vote in every election. The second law, known as the “cure period law,” requires ballots submitted incorrectly or without signatures to be fixed by 7 p.m. on election night, rendering it nearly impossible for voters to correct their mistakes and ensure their vote is counted.

“The voter purge law and the cure period law are simply the latest iteration in a pattern of intentional and systemic discrimination directed at voters of color in Arizona going back decades,” the plaintiffs wrote in the complaint. “Both laws violate section two of the Voting Rights Act and the Fourteenth and Fifteenth Amendments, which prohibit the denial or abridgement of the right to vote on account of race or color.”

Plaintiffs believe legislators intended for the laws to harm people of color, pointing to a statement Republican Senator John Kavanagh of Fountain Hills made in March 2021 while debating the bills. He said like-minded legislators “don’t mind putting security measures in that won’t let everybody vote — but everybody shouldn’t be voting. The quantity is important, but we have to look at the quality of votes as well.”

Plaintiffs subpoenaed the Legislature in January 2022 and again in April 2022 for all communications related to the bills in question, looking for more evidence that the legislators intended to racially discriminate by passing the laws. They filed a motion to compel in March after the Legislature withheld 196 documents, claiming legislative privilege and confidentiality.

“While discrimination is seldomly publicly announced, we believe these public statements make it more likely that there are private communications to the same effect,” plaintiff attorney Will McElhaney said in the Monday hearing.

Judge Lanza wrote in his tentative order that while the subject matter is important and the documents plaintiffs seek are at the heart of it, compelling the Legislature to release the documents might “chill legislative debate and earnest discussion within governmental walls.” And because it already received thousands of other documents in cooperating with the subpoena, plaintiffs should have enough evidence to go off without the extra 196 documents, he said.

McElhaney disagreed, saying the volume of documents already presented doesn’t change whether those documents include the evidence his team needs.

He noted that 39 of the 196 documents are communications between legislators and third-parties, eliminating legislator privilege. As constituents are always free to share communications between them and legislators publicly, there would be no need for secrecy surrounding the communications.

Rather than adopt McElhaney’s view of that fact as a reason the Legislature should turn over the documents Lanza, a Trump appointee, concluded the opposite. Because the communications are attainable by subpoenaing the other non-legislative parties in the exchanges, plaintiffs have an alternative route to the evidence that doesn’t require a judge’s order compelling the Legislature to break its privilege.

Hannah Porter, on behalf of the Legislature, said subpoenaing the other parties, many of which are lobbyists, may bring up First Amendment concerns and could muddy the waters by bringing even more unrelated parties into the case.

Porter said legislative privilege isn’t only for confidentiality: She fears compelling legislators to produce even more documents can interfere with their duties as lawmakers. She also pushed back on the plaintiffs’ use of Kavanagh’s statement as evidence there’s more to the documents they are requesting, arguing that the position of one lawmaker doesn’t speak for the body that enacted a law.

Lanza said if he can’t come to a clear conclusion on whether to break the privilege, he’ll consider an in camera review, in which case he would review all of the documents privately to personally decide whether they’re relevant to the case. It is unclear when he’ll make that decision.

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