As the Senate-authorized audit of 2.1 million Maricopa County ballots continues, a judge announced Thursday he will hear arguments in a lawsuit about whether communications, reports, and other documents between Senators, their contracted auditors, and volunteers are public records.
Judge Michael Kemp of the Maricopa County Superior Court has set July 7 for oral arguments in the case filed earlier this month by American Oversight, a Washington DC-based nonprofit which has been trying since April to obtain records related to planning, procedures, costs, and payments for the election audit.
Several audit-related documents have been turned over to American Oversight by Norm Moore, the Senate’s public records attorney, before and after the May 20 lawsuit was filed. However, Moore has also responded that the Senate “does not have in its possession, custody or control” many of the documents American Oversight wants.
Those records are reportedly in the possession, custody, and control of Florida-based Cyber Ninjas, the company Senate President Karen Fann selected back in March to conduct the audit “on behalf of the Senate.” Cyber Ninjas is being paid through public funds, and is also believed to be receiving “donations” to cover the costs of its work as well as that of various subcontractors.
Other records are believed to be under the control of subcontractors as well as Ken Bennett, a former Arizona Secretary of State serving as the Senate’s liaison with the auditors.
The legal issue for Kemp is whether the companies and non-government employees involved in the audit are subject to Arizona Revised Statute 39-121, the state’s public records law. Attorneys for American Oversight contend the Senate’s position goes against the spirit and the letter of Arizona’s public records law which is based on a presumption of public access.
In an April 6 letter to Fann, the company noted access to the requested records “would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.”
The defendants in American Oversight’s lawsuit include the Senate as a public body, as well as Fann and Sen. Warren Petersen. It was Petersen, as chair of the Senate Judiciary Committee, who joined Fann in signing a subpoena served on Maricopa County in January to obtain access to the county’s voting system equipment, election records, and original ballots.
Judge Kemp also set a June 9 deadline for the Senate to file for dismissal of the lawsuit which, if filed, would be heard July 7 before the other arguments.
Senate President Karen Fann will try one more time this week to pull together the 16 votes needed to pass the budget bills, something she could not do Wednesday when one of the 30 senators did not come to work.
The Republican-majority Senate stands in recess until 11 a.m. Thursday at which time several bills are scheduled to be considered, most of which are budget-related. There was hope Wednesday that the 16 Republicans would pass the bills, but Sen. Michelle Ugenti-Rita’s daylong absence quashed that option.
Fann and Majority Leader Sen. Rick Gray need the entire Senate Republican caucus on board, so if it appears the 16 votes are not a sure thing Thursday then Fann can simply recess her chamber until June 10, a plan put into place Wednesday night after House Speaker Rusty Bowyers chose to recess his chamber for several days.
In the meantime, the fate of the months-long negotiated spending budget, tax cuts, and plan to transition Arizona to a flat rate income tax remains uncertain, according to budget-watchers. And that may not bode well for the flat tax plan which Republicans have sought for years.
“Right now, the flat tax proposal is still being negotiated among members to address a couple of concerns,” according to Scot Mussi, head of the Arizona Free Enterprise Club. “The first concern is the alleged impact on cities and towns due to revenue sharing. Cities are arguing that the tax cut will result in a massive cut in shared revenue from the state.”
But Mussi pointed out that flat tax supporters, including AFEC, believe cities are enjoying budget surpluses -in some cities quite sizable surpluses- and continue to receive a large infusion of new revenue from the taxation of online remote sales.
“The second concern was that the proposed tax package included a tranche of special interest tax breaks, which groups like ours oppose,” Mussi said. “It is our understanding that most of these tax breaks, including one for low income housing and another for wealthy investors, will be removed from the plan.”
But Mussi says groups like AFEC continue to support this year’s budget plan -minus the special interest tax breaks.
“Currently, Arizona has one of the highest income tax rates in the nation and we are uncompetitive compared to our low tax neighbors. The proposed tax plan goes a long way toward addressing this problem,” he explained.
With uncertainty over whether Fann has the 16 votes in the Senate and House Speaker Rusty Bowyers has his 31 votes, Mussi says the budget negotiations are likely not over.
“There is still a lot of horse trading occurring, much of which will continue,” he said. “Some of the demands still being made related to the budget is to rein in some of the pork barrel spending, make tweaks to the tax plan to address concerns with the cities, and to address other policy issues such as election integrity and school choice.”
And what about Fann and Bowyers trying to poach support from a few Democrats if not all Republicans are on board soon? Mussi believes the only budget bills Democrats may vote for would be the Education Budget which includes K-12 spending increases. But the legislative leaders are likely to have a hard time getting any further support across the aisle for the rest of the budget, Mussi said.
Republicans have touted making changes to Arizona’s election laws since long before the current legislative session began Jan. 11. But only one major election-related bill has been signed by Gov. Doug Ducey so far, and on Wednesday another bill died and a third was put on hold.
In an unexpected move Wednesday, Republican Reps. Joel John and Michelle Udall cast their votes with all 29 House Democrats against SB1713, the Sen. J.D. Mesnard-sponsored bill which would have required voters to provide one bit of personal identification information on their early ballot affidavit before mailing it in.
SB1713 was introduced by Mesnard (R-LD17) in February to address concerns that a signature on the affidavit without some other identifying information was not sufficient to ensure ballot integrity. The bill later sat in the House for nearly two months before being amended Wednesday to require an early ballot voter’s date of birth to be included on the voter’s affidavit long with their Arizona driver’s license (or non-operating state ID) number or voter registration number.
The amendment passed but a short time later the newly worded bill failed 29 to 31 when John (R-LD4) and Udall (R-LD25) voted no, effectively killing the bill for the session.
Meanwhile, another election-related bill is on life support despite efforts by Sen. Kelly Townsend (R-LD16) and Rep. John Kavanagh (R-LD23) to push through more than 20 changes to how Arizona’s elections are conducted, changes Townsend says are needed to ensure “election integrity, election reform, and election security.”
Among the varied topics covered in SB1241 are the handling of data storage devices used during elections, affidavits for persons who process or count ballots, chain of custody requirements for election equipment, and what to do if there is a conflict between the state’s Election Procedures Manual and state law (hint: the law wins).
SB1241 also makes it easier to cancel a voter’s registration in another state upon their move to Arizona, allows voters who cast ballots at a voting location to request a receipt, prohibits any tabulation equipment from being connected to the internet, and requires all tabulation results to remain in the United States.
Some violations of the bill could be prosecuted as a Class 2 misdemeanor. In addition, it would force county elections officials to report to the Arizona Attorney General or the local county attorney any “inconsistent” signatures on early ballot affidavits.
A scheduled Third Read of SB1241 on Wednesday did not happen due to budget negotiations which led to the House recessing for the next week or so. Assuming it passed the House at some point, it would still need to go back to Senate to vote on the current amended version of the bill.
In its longest workday of the session, some legislators debated various budget bills late into the evening after 11 bills cleared the Appropriation Committee in each chamber earlier in the day.
At stake is how to divvy up Arizona’s forecasted budget surplus of $1.5 to $2 billion while transitioning the state to a flat rate income tax and fine-tuning a $12.8 billion budget spending plan released Monday without tweaking it too much.
Many House Representatives believe the budget will be voted on no later than Friday afternoon, allowing lawmakers to leave for the long Memorial Day weekend. But as of Tuesday night, the 16 Republican Senators appeared nowhere near being on the same page, which is critical as all their votes are needed to pass the budget unless a few Democrats can be enticed to cross the aisle.
Masks in public schools turned out to be a divisive issue for many legislators after it was revealed that wording in the Education budget bill would allow schools to have the final say on wearing of masks. That led to a pushback from Sen. Michelle Ugenti-Rita as well as a sharply worded rebuke from Rep. Joseph Chaplik on Twitter.
“This is completely unacceptable and will not get my vote. In fact, I will not agree to any budget that doesn’t strip the power for mask mandates from school districts. Enough is enough,” Chaplik tweeted.
After much debate it appears as of press time that the mask language will be dropped.
Another highly debated issue involved what role the legislature should have in regulating vaccine passports, which some lawmakers refer to as “show me your medical records.” There has been a split among legislators on where, when, and why the vaccine passports could be allowed.
Currently Gov. Doug Ducey has an executive order in place which prohibits proof of COVID-19 vaccinations as a condition to enter state and local government buildings or to receive public benefits. His order also bans private businesses which conduct services on behalf of state and local governments from implementing a vaccine passport policy.
However, the question of whether universities, retail businesses, transportation companies, and large social venues can set some threshold of vaccination documentation remains unsettled. As is whether the legislature should weigh in on private employers demanding employees to be vaccinated to keep their jobs.
Other debated spending in the budget bill includes unemployment tax payments, low-income housing credits, and an increase in impounded vehicle fees, all of which would impact lower- and middle-income Arizonans the most.
Meanwhile, other legislators are concerned about the state’s long-term fiscal health and want to see Arizona’s debt addressed with some of the existing budget surplus, along with increasing the Rainy Day Fund and upping funding for the state’s universities. And rural lawmakers continue to push for increases in legislative per diems, which have not been adjusted in years.
One large ticket item already in the bill is $50 million toward the cost of widening a dangerous section of Interstate 10 between Casa Grande and Chandler. That funding was necessary to ensure an “aye” vote from Sen. TJ Shope.
Rep. Jake Hoffman said Tuesday he supports the budget’s flat tax proposal, but was still a no vote until much “unnecessary” spending was dumped. And while the idea of a flat tax is popular with Republicans, there still is not much consensus on the details.
There were also talk of Sen. Kelly Townsend seeing her long-sought election bills accounted for in some manner within the budget, in order to guarantee her vote. Instead, a multi-item amendment has been introduced to Townsend’s SB1241, meaning the bill will be address separate of the budget.
Republicans have only a two-vote majority in each chamber, giving each of the caucus’s 16 Senators and 31 Representatives an above average amount of leverage in budget negotiations. It is unclear whether sufficient Democrat-friendly priorities have been included in the budget bills to attract a few votes from the blue side in the event Republicans like Hoffman and Chaplik don’t come onboard.
Arizona’s forecasted budget surplus of $1.5 to $2 billion means a lot of potential massaging of the $12.8 billion budget spending plan released Monday after months in negotiations with Gov. Doug Ducey.
The surplus also means legislators will be more likely to flex their muscle in hopes of ensuring their constituents and pet projects are covered in the budget, with encouragement from Sen. TJ Shope (R-LD8), who said last week there is “plenty of money if we need to buy people off” to secure votes.
On Monday, Sen. Michelle Ugenti-Rita (R-LD23) tweeted an apparently rhetorical question about the budget plan.
“Instead of having a clean tax cut bill members could vote on, Senate leadership added to the tax bill an increase in unemployment insurance benefits, a 10 year extension of the Angel tax credit (which doesn’t expire for 3 yrs) and a $180M tax credit for low income housing. Why?” she tweeted.
Ugenti-Rita also expressed frustration Monday that some items have been included in various budget bills despite the fact the issue was previously voted down by the legislature. One such example is a storage fee increase for impounded vehicles.
“Funny thing is, a bill with this provision in it died in the Senate the other week,” she tweeted. “Wonder how many more dead bills have been resurrected in the budget..?” She also called out a “level of excessive spending” she cannot support as a fiscal conservative.
Members of the Senate Appropriations Committee will convene at 9 a.m. Tuesday, while their House counterparts are set to meet at 8 a.m. In a strategic move, Senate President Karen Fann appointed Senate Majority Leader Rick Gray (R-LD21) to Appropriations in an effort to blunt any committee opposition from Ugenti-Rita.
As to Shope, he made it known weeks ago his support for the budget would be contingent on funds to widen a dangerous section of Interstate 10 between Casa Grande and Chandler. The result was $50 million earmarked in the budget for Shope’s project.
But while Shope received what he wanted, it is unclear whether Republicans such as Sen. Paul Boyer and Rep. David Cook will have their demands sufficiently met to ensure their budget votes. Boyer (R-LD20) outlined his budget priorities last week, including concerns about Arizona’s debt, Rainy Day Fund, and insufficient funding for the state’s universities.
Cook (R-LD8) is unhappy Ducey and the legislative budget team included the increase in unemployment benefits, although whether the increase ever kicks in next year is contingent on several economic thresholds. While on the House side, Rep. Jake Hoffman (R-LD12) is leading the charge to increase the state’s spending on elections by cutting millions from other projects, including a boost in salary for state employees.
Sen. J.D. Mesnard, a Republican for LD17, has been involved in the budget process, and cautioned his fellow legislators that “a million dollars here or there” of new expenditures “adds up.” Which can put other budget features at risk, including a much-touted plan to transition Arizona to a flat-tax method for income tax.
Republicans only have a two vote majority in each chamber, giving each of the 16 Senators and 31 Representatives within the Republican caucus some leverage in budget negotiations. Normally there may be enough Democrat-friendly priorities built into the budget bills to persuade one or two to cross the aisle, but the size of proposed tax cuts -currently at $3 billion over the next three years- could slam that door shut.
