By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Democratic Party is going to court to halt -- or at least delay -- the audit of Maricopa County election results.
Legal papers filed late Thursday note that the Senate, which demanded possession of the 2.1 million ballots and counting equipment, has now had all that turned over directly to outsiders hired by the legislature. They are planning to conduct the review starting Friday at the Veterans Memorial Coliseum.
The problem said attorney Roopali Desai, is there is no evidence that the private firms hired by the Senate and the people they are retaining have been properly trained, not just in things like signature verification but also in protecting the security and privacy of the records.
So Desai wants Maricopa County Superior Court Judge Christopher Coury to declare the audit is unlawful and violates both state law and the state's Election Procedures Manual.
More immediately she wants Coury to issue an immediate restraining order blocking further action until there is more information. A hearing is set for Friday morning.
Senate President Karen Fann, R-Prescott, said she had not seen the lawsuit.
The litigation is the latest wrinkle in efforts dating back to December by some senators to get a closer look at the election results in the state's largest county where Joe Biden outpolled Donald Trump by 45,109. That was more than enough to offset votes for Trump elsewhere, giving the Democrat a 10,457 vote edge statewide and Arizona's 11 electoral votes.
That led to various charges of fraud and demands to review the results. There even was an ill-fated effort by some Republican lawmakers to void the returns and require the state's electoral votes go to Trump.
Maricopa County supervisors defended the final numbers, pointing out they had conducted required accuracy checks on machines both before and after the vote. There also was a legally mandated hand count of a random sample of ballots that county officials said matched the machine results 100%.
And when that wasn't enough, they hired outside firms to conduct two audits of the equipment, both of which they said verified the results.
Fann, however, said she agreed to issue a subpoena for the ballots and the machinery because there are still people unconvinced the results were accurate.
That was fed by conspiracy theories peddled by not just some state lawmakers but Rudy Giuliani, an attorney for Trump, who came to Phoenix to tell lawmakers he had evidence of fraud.
Fann said the audit should get to the bottom of all this.
But the decision has been marred not just by the refusal of the county to allow the audit in their offices. That has forced the Senate to rent space in the Coliseum.
The Senate chose the firm Cyber Ninjas, with no history of conducting audits, to lead the audit team. And Doug Logan, the company's founder and chief executive has previously made public statements that he believes the 2020 General Election was rigged.
What makes all that legally problematic, Desai told Coury, is that neither the Senate nor Cyber Ninjas appear to have policies and procedures in place to perform their tasks or for preserving the integrity of the process.
For example, she said, there is nothing to ensure that markings on ballots are not altered or added to during the audit. And there is nothing to ensure "a secure and documented chain of custody for the ballots and election equipment.''
Desai also said there is reason to believe that the inspections may not be performed by bipartisan teams including at east two members of different political parties.
She said former Secretary of State Ken Bennett, who the Senate hired to be the liaison with the auditors, has said that about 70% of those who have applied to be observers are Republicans, with the balance split among Libertarians, Democrats or independents.
And there are other issues, including conflicting statements from Bennett on what procedures will be in place to ensure that reporters will be able to observe the process.
Desai told Coury none of the claims should come as a surprise to Fann, Bennett or Cyber Ninjas, all of whom are named as defendants in the lawsuit.
She pointed out that Judge Timothy Thomason, in agreeing to let the Senate subpoena the ballots and the equipment, specifically expressed concerns about the confidentiality of the the information he ordered the county to turn over.
That was followed up by a letter to Fann last month by Secretary of State Katie Hobbs who is the state's chief elections officer. Hobbs reminded Fann of the obligation to maintain security and confidentiality of the materials.
"If your goal is truly to rebuild public confidence in our democracy, it is imperative that you establish and abide by clear procedures and parameters for the security and confidentiality of the ballot and election equipment while in your custody and ensure independence and transparency should you proceeds with any further audit,'' Hobbs wrote.
