Lawsuit filed naming chair and chief elections officer; commission votes to retain AG privilege

A federal lawsuit related to the commission’s recent complaints was filed in November and disclosed during the commission’s Dec. 3 meeting. Attorney and testifier Peter Berneger told the commission he had filed a federal case and criminal referrals and said he had placed a litigation hold on U.S. Postal Service records related to the Nov. 5, 2024 election.

Following public testimony and commissioner questions, the commission debated whether to waive attorney‑client privilege for an opinion the deputy attorney general prepared at the commission’s request about the underlying complaint. The deputy attorney general advised against waiver, saying the opinion contained material relevant to active litigation and releasing it could harm the state’s litigation position. After discussion, a motion that the commission retain/assert attorney‑client privilege for that AG opinion passed on roll call.

Why it matters: the lawsuit and the commission’s decision on privilege intersect with oversight responsibilities, public transparency and the AG’s role representing the commission. Several public testifiers urged removing the chief elections officer and said the commission should make litigation materials public. The panel was divided over immediate public disclosure of the AG’s written advice versus protecting litigation strategy.

Outcome: The commission voted to retain the attorney‑client privilege for the deputy attorney‑general's opinion; the AG will continue representing the commission and chair in official capacities. The commission also opened item 5 to public testimony about the lawsuit and reserved any legal‑strategy discussion for executive session if needed.

Next steps: The AG’s office will continue to prepare a response to the complaint and advise the commission; commissioners may request executive session for privileged legal briefings in the future.