The Washington PostDemocracy Dies in Darkness

Arizona Republicans exempt lawmakers from the state’s open-records law

After Ginni Thomas’s emails and the work of the Cyber Ninjas go public, GOP legislators retreat into secrecy

Contractors working for Cyber Ninjas, hired by the Arizona Senate, examined ballots from the 2020 election at Veterans Memorial Coliseum in Phoenix in May 2021. (Courtney Pedroza for The Washington Post)
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PHOENIX — Arizona Republicans shielded legislators from the state’s open-records law this week — a move that comes months after the release of thousands of documents detailing extensive efforts to undermine Joe Biden’s victory here in the 2020 presidential election.

Documents that have surfaced over the past two years include correspondence describing the inner workings of a partisan review of the 2020 election by the Cyber Ninjas, as well as emails by Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, urging lawmakers to overturn President Donald Trump’s narrow defeat in the state.

The new rules will greatly limit the public release of lawmakers’ communications. State senators will not have to disclose any text messages sent on personal devices, even when dealing with state business. For lawmakers in both the Senate and the House, emails and other documents will be destroyed after 90 days — in many cases, well before members of the public know to ask for them.

“I think it is petty, vindictive and contrary to the plain interests of transparency and government accountability in Arizona,” said David Bodney, a lawyer who has represented the Arizona Republic in open-records litigation over the 2020 election review.

Ordinarily, Arizona officials must retain most public records indefinitely and release them when someone asks for them. Seizing on a recent state Supreme Court ruling, the lawmakers on Tuesday and Wednesday adopted rules that set limited standards for when they must make documents public. Capitol Media Services first reported the rule changes.

Last month, the Arizona Supreme Court ruled it had no power to enforce the state’s open-meetings law when it came to legislators. The ruling appeared to clear the way for the legislature, narrowly led by Republicans, to set its own transparency policies, which it has promptly done.

The liberal group American Oversight used Arizona’s records law to uncover the way Republicans conducted the 2020 election review, which was overseen by Cyber Ninjas, a secretive group that had never before analyzed an election. Without those records, the public wouldn’t know as much as it does, said Heather Sawyer, American Oversight’s executive director.

“It does seem like they’re just trying to find a way to be able to operate in the dark, which is incredibly anti-democratic. It’s anti-American, quite frankly,” Sawyer said. The rule change benefits all lawmakers at the expense of ordinary voters of all political stripes, she said; Arizonans won’t be able to find out what legislators are doing behind the scenes, whether they’re Democrats or Republicans.

“It is one of the things that sets us apart from autocracies, that we require our public officials to be accountable to the people they serve,” she said.

Brendan Fischer, the deputy executive director of the group Documented, argued the rules will “further obscure the roles of far-right national groups” that seek to influence the legislature.

Members of Congress long ago exempted themselves from the federal Freedom of Information Act, so their emails, text messages and other communications generally aren’t available to the public. Many states have taken a different approach and subjected their lawmakers to records laws so the public can more fully judge the work they’re doing.

The precise rules differ by state, with records readily available in some states and difficult to get in others. Some states provide loopholes for lawmakers that aren’t available for other officials. For instance, in Wisconsin, lawmakers are not required to retain their records, allowing them to delete sensitive emails and text messages before anyone in the public asks for them.

The rule change in Arizona will restrict the public’s access to lawmakers’ correspondence under a law that dates to 1901 and is intended to bolster public access to information about how elected officials and government workers operate.

The law allows constituents, reporters, lawyers and others to request paper documents, emails, text messages, video and audio recordings, government reports and communications about publicly funded activities, no matter the device. Generally, the public has the right to review or obtain the records but sometimes must pay for them.

The move comes after Republican lawmakers, who hold one-vote majorities in each chamber, fielded requests for records from state lawmakers and Capitol aides involving efforts to either overturn the 2020 election or question the results.

Public records helped Americans better understand how some people tried to sow doubt about the validity of Biden’s victory. Lawmakers’ emails, text messages, video recordings and other information — pieced together by journalists and advocacy groups — provided an up-close look at efforts to delegitimize Biden’s win, as well as counter-efforts by Rusty Bowers, the former Arizona House speaker, to uphold the will of voters.

“I think there’s no denying that the whole Cyber Ninjas case and the other aspects of how Arizona officials handled election issues are of great public interest, so it’s hard to imagine that they’re doing anything but trying to avoid that from coming up again,” said Gregg Leslie, a law professor and the executive director of the First Amendment Clinic at Arizona State University.

Kim Quintero, a spokeswoman for Senate Republicans, on Thursday asserted that the rule change was not prompted by political fallout from the 2020 election or the resulting ballot review, which ultimately affirmed Biden’s victory.

“We believe that this is best practice,” Quintero said. “We aren’t doing anything different than what current courts and the [attorney general’s] office is doing.

“Cyber Ninjas didn’t come up in discussion when we were crafting the rules.”

Calli Jones, a spokeswoman for Senate Democrats, said the rules were “irresponsible” and unnecessary. She said they were drafted without input from Democrats, who represent nearly half of the legislature.

“Our caucus recognizes that these were undemocratic and a move to shut down opposition to Republicans,” Jones said.

Other rule changes in the House make it more difficult to overcome opposition by the speaker to bring issues to the floor. The changes also allow GOP leaders to take legal action over “any injury” to the legislature’s powers or duties, without consultation with other members, and limit floor debate over legislation.

In a floor speech this week, Andrés Cano, the House Democratic leader, said the rules, which came with little notification, limit debate on crucial issues. He said they will “rob the public” of important information about issues that affect their lives.

“How many lawsuits can we expect?” Cano said. “Will it be ‘fraudit’ and Cyber Ninjas every day? How much will that cost?

“Arizonans want a government that’s open and transparent. This is not it.”

A spokesman for House Republicans did not respond to The Washington Post’s request for comment.

Attorney General Kris Mayes (D) said she had “deep concerns” about the legislature’s new rules. “Transparency and accountability in the workings of government and the activities of our elected leaders are core to the principles of American democracy,” she wrote in an email.