Arizona Court of Appeals, Division One, holds that Cast Vote Records are not public records subject to disclosure.

A man submitted a public records request to Maricopa County seeking Cast Vote Records (“CVR”) for Arizona’s 2024 Presidential Preference Election. CVR are electronic records of a voter’s ballot selection, potentially including images of a voter’s entire ballot as well as voter-identifying information. The County responded to the public records request by asserting that CVR was not public record. The man went on to submit two additional requests; the County did not produce CVR in response to any of them.

The man eventually filed a special action, seeking to compel the County to produce CVR in response to his requests. The County moved for judgment on the pleadings, arguing it was prohibited from releasing CVR by A.R.S. § 16-625, which requires “[t]he officer in charge of elections” to “ensure that electronic data from and electronic or digital images of ballots are protected from physical and electronic access.” The superior court agreed and granted the County’s motion.

On appeal, the Arizona Court of Appeals affirmed. The Court had little trouble concluding that A.R.S. § 16-625 applied to CVR—those records were “electronic data” that was derived “from” the ballots, which meant it fell within the ambit of A.R.S. § 16-625.

Consequently, the Court also had little trouble rejecting the man’s argument that A.R.S. § 16-625 applied only to active elections. Nothing in the text of A.R.S. § 16-625 suggested it was so limited, and a separate statute, A.R.S. § 16-624, required that ballots be secured until they were destroyed. This, the Court said, confirmed that the statutory scheme protecting ballot information extended beyond an active election. In the same vein, and despite the man’s arguments, the Court concluded that A.R.S. § 16-625 was a specific exemption to the broader public disclosure laws.

As such, the Court affirmed the superior court. In doing so, it affirmed the superior court’s decision not to convert the County’s motion to one for summary judgment. Although the County had attached documents outside the pleadings to its motion, each document was a public record. This meant that the superior court was not required to treat the motion as one for summary judgment.

Judge Foster authored the opinion, joined by now-retired Judge Gass and Judge Gaona.

Posted by: Joshua J. Messer