The last time Bill Risner went to court for a public-records lawsuit he filed on behalf of the Pima County Democratic Party, not only did he and his fellow Democrats win; the attorney also won almost $300,000 from Pima County in legal fees.
Well, it looks like it could happen all over again with a different public records lawsuit Risner filed last year. And if Risner wins, according to state law, Pima County will legally be forced to reimburse him thousands of dollars in legal fees—and that's beyond the money the county has paid for the lawyers they've retained to represent the Board of Supervisors and Pima County Treasurer Beth Ford.
While this lawsuit is a little different, it still goes back to what brought Risner, the Democrats, and the Democrat-led Board of Supervisors to battle in the first place several years ago—the 2006 Regional Transportation Authority election. Risner’s first public records-lawsuit win happened in 2008, when he continued his legal battle with the supes over the election. The result of his and the Democratic Party’s efforts was some much-needed attention to the many problems with the county’s voting procedures.
It was also an attempt, however, to get a closer look at the RTA ballots — Risner and other election-integrity activists felt that based on how the ballots were counted, and other blips that came up in their review, the election could very well have been fixed. Crazy things surfaced — one of which was the fact that an elections department employee admitted he had purchased a crop scanner, which is an effective tool in changing election computer counts. The employee said he never used it during the election and just wanted to see if what he heard was true, and it was never proven he used it during the RTA. The Democrats started putting a lot of public pressure
on the state Attorney General’s Office to do an investigation, and that finally happened last year, when the AG’s office took the RTA ballots to Phoenix for an investigative count and declared no wrong-doing occurred.
But Risner's latest public records lawsuit isn't about the RTA ballots. This time, according to Risner, it's about getting to the heart of Arizona's public records law and the poll tapes—the strips of paper printed out from every precinct computer at the end of every election. That's what Risner and the Democrats want right now. If no one had challenged that request, Risner says it would have only cost about $275, but because it's being challenged, it's going to cost more than $150,000 to pay lawyers Risner gets to see in court.
On Tuesday, Feb. 9, the BOS voted 3-2 to continue to pay attorneys representing the county and Ford. According to the County Administrator Chuck Huckelberry's memo to the board regarding the legal fees (read here), $30,000 needed to be added to the $50,000 contract with DeConcini McDonald Yetwin and Lacy (the law firm representing Ford), and $25,000 was added to the contract with Ronna Fickbolm, representing the county. Fickbolm was with Gabroy Rollman and Bosse, where the county has already paid $50,000.
"In total, in excess $150,000 of taxpayer money has been spent on this continuing litigation and additional costs will likely be incurred," Huckelberry wrote.
Huckelberry goes on that the reason it's continuing to cost so much money is because a court order is needed to open the RTA ballot boxes in order to get the poll tapes—ballots a judge recently declared can now be destroyed.
"This litigation is a complete waste of taxpayer money. The primary issue was whether the RTA election was flipped. The hand count by the Attorney General proved this was not the case. This continuing expenditure of public funds is an example of waste and litigation abuse," Huckelberry ends.
From Risner's perspective, it doesn't have to be that way. If the county and its attorney followed public-records law, there wouldn't be a challenge. And asking for poll tapes doesn't set a precedent. One of the exhibits in this lawsuit is a copy of a poll tape given to an elections-integrity activist after a request. According to state law, says Risner, anyone can walk into the elections office and request the poll tapes.
"My calculation is that it’ll cost us $275 for the copies we want," Risner says.
The $150,000 the county is willing to pay is to simply stall the party. Lawyers are telling Risner that they could probably work on getting copies to him by August, and that it’s going to take a lot of time to get the boxes. Risner says it is a stall tactic, considering he knows exactly where the poll tapes are located, has the box numbers, and has a quick plan that would take only a few hours at Iron Mountain Storage, where the ballots and the poll tapes remain until all the litigation is over.
Risner says it’s the possibility that a crop scanner was used that has him and others curious about the poll tapes. An election expert they've turned to showed Risner and other election-integrity activists that you can tell if a crop scanner has been used in an election just by looking at the poll tapes. It's that easy.
"We want to learn what went on; that's our job," Risner says, referring to the political party's mandate to observe and be part of the elections process.
But it is ultimately a public-records lawsuit. The public records request was filed last year; typically a request should be addressed within 10 days. And if Risner wins and gets a court order for the poll tapes—that $150,000 may seem like such a small price to pay for following the law.