Election returns aren’t public records, Utah’s Court of Appeals ruling affirms

SALT LAKE CITY — A pair of Utah women who sued to get access to sensitive election returns from 2020 have again been denied access to those records thanks to a Utah Court of Appeals ruling Thursday. That ruling affirmed that election returns are not public record.

Jennifer Orten and Sophie Anderson, who have repeatedly alleged fraud in Utah’s elections as the duo Two Red Pills, first sued Utah, Juab, and Millard counties in March of 2022 after the counties denied their public records requests seeking four types of tabulation records. A 4th District judge dismissed that case in July of that year.

On Thursday, Judge Ryan Tenny with Utah’s Court of Appeals again denied Orten and Anderson’s attempt, upholding the lower court’s decision to dismiss the case.

Orten v. Utah County, Utah Court of Appeals by lcurtis on Scribd

Tenny affirmed in the ruling that each of the four returns sought was part of what Utah law considers “election returns,” which can’t be accessed under public records laws, known as GRAMA, or Government Records Access and Management Act.

Further, Utah law says all election “ballots” and “election returns” must be sealed for 22 months after the election and must be destroyed without anyone “opening or examining” them.

Utah’s Constitution guarantees a right to a secret ballot and election officials have also said these returns could be used to determine how someone voted.

“We are extremely disappointed with the decision from the court of appeals ruling against the people being able to see what the government is doing,” Orten and Anderson’s attorney Chad Shattuck said. “Apparently the cloak of secrecy is more important than following Utah law that mandates that records be available to the public unless specifically prohibited by the Utah code.”

“My clients even showed the courts examples of all four records being made public in the past by counties here in Utah. but it ignored that evidence,” he said.

“Apparently government is the only place where the employees get to do whatever they want and the employer (the public) cannot see what they are doing. It’s wrong.”

Shattuck said they haven’t made a decision whether they plan to bring their claims to Utah’s Supreme Court.

Four types of records sought

In their suit, Orten and Anderson were seeking Cast Vote Records, Project Backup Databases, Ballot Images and Tabulator Tapes. The pair argued that because those types of returns weren’t explicitly mentioned in state’s GRAMA laws, they weren’t protected.

When it came to ballot images — which are a digitally scanned copy of the front and back of a ballot, and include the voter’s vote — Anderson and Orten argued “copies of ballots are not the originals.”

The opinion disagreed under the state’s definition of a ballot.

“Like the original ballot, a copy of a ballot would be a ‘storage medium’ that ‘records an individual voter’s vote.’ Thus, under the plain language of the statute, we conclude that a copy of a ballot would qualify as a ballot,” the ruling states.

The ruling made a similar determination for Cast Vote Records, a spreadsheet with a line of text that shows how the vote was cast.

The judge acknowledged the definition of a “ballot” wouldn’t apply to this type of record, however CVR’s were deemed “a form related to the election,” which cannot be released.

Next, Project Backup Databases are basically a backup of the election. They contain “project files from the election management server tabulators and any external drives, such as log files, reports, audio files, and backups of the ballots, etc.”

The judge ruled that these would include ballot images and CVRs, which they wouldn’t be allowed to access.

Finally, the ruling states that Tabulator Tapes, which are a record of each batch tabulated during the election, are a “record to tally multiple votes” and thus would also qualify as a protected “election form.”

Lieutenant governor’s concern over giving out protected records

Utah’s Lt. Gov. Deidre Henderson had asked for Orten and Anderson’s original case to be dismissed, citing the “comprehensive” nature of Utah’s election law that restricted access to these types of tabulation records.

The ruling, and Henderson, also pointed out that “Orten and Anderson planned to share these documents with the public through ‘local and national, broadcasts, podcast interviews, radio, and media events.'”

“The two also planned to give the documents to several advocacy organizations, as well as to local officials and state legislators,” the opinion said.

The concern over giving out these types of records spilled into this year’s primary election when the lieutenant governor warned county clerks about releasing them.

Henderson issued a public letter telling county officials that “cast vote records, tabulator information, ballot images, tabulator tapes, backup project databases, and other election materials” are considered “election returns” and are not subject to GRAMA laws.

The letter was in response to multiple requests for guidance by several county clerks after they received public records requests for those types of records, a spokesman for Henderson’s office told KSL at the time.

The lieutenant governor did not respond to a request for comment.