By Howard Fischer
Capitol Media Services
PHOENIX -- A judge on Tuesday said he has yet to be convinced that the rights of Maricopa County voters are being protected in the audit being conducted at the demand of the state Senate.
In a wide-ranging ruling, Judge Daniel Martin affirmed that the Senate has the authority to review the 2.1 million ballots and the machinery used to tabulate them as part of its legislative function. But he rejected claims by attorneys for the Senate that its members are constitutionally immune from being sued over how the audit is being handled by an outside contractor.
"The manner in which that audit is being conducted must be balanced against the constitutional rights of the voters in Maricopa County, including the rights to secrecy and and confidentiality of information,'' he said.
Martin acknowledged that not all the procedures in state law and the official Election Procedures Manual for handling the ballots and protecting the security apply in a post-election audit, particularly one that has no possibility of overturning the results. Whatever comes out of the audit will not affect the fact that Joe Biden outpolled Donald Trump in Arizona.
"Certain of those procedures, however, plainly apply, and require the application of at least minimal safeguards to the audit process,'' the judge said. And that means neither the Senate or Cyber Ninjas have a free hand to do what they will with the ballots and the equipment.
All that, Martin said, means the outcome of the challenge by the Arizona Democratic Party will depend on what kinds of policies and procedures have been implemented.
It starts, the judge said, with what is required by the Senate which, in turn, communicates with Cyber Ninjas through former Secretary of State Ken Bennett who Senate President Karen Fann has tasked with being her voluntary liaison with Cyber Ninjas.
At the same time, Cyber Ninjas is claiming that Bennett has ultimate responsibility for physical security at Veterans Memorial Coliseum where the audit is being conducted as well as the security of the hardware there.
"To date, there has been no showing of how Mr. Bennett intends to achieve these goals,'' Martin said.
All that, in turn, goes to the question of whether Cyber Ninjas has to share with challengers -- and with the public -- its policies.
On Tuesday, Martin gave the First Amendment Coalition the right to intercede in the case. That came over the objection of attorneys for both the Senate and Cyber Ninjas who argued not only that the policies used to conduct the audit should be kept confidential but that any hearing on them should be closed.
That ruling allow attorney Dan Barr to argue that the public has an interest in knowing exactly what is happening at the audit site and, more to the point, how the ballots and equipment are being protected -- or not.
"I question whether there are any trade secrets here to begin with,'' Barr told the judge. "I find that fairly dubious to begin with.''
Beyond that, he said there is a constitutional right of the public to observe and assess the proceedings.
"I can't imagine a higher public interest here than the validity of the vote, the care that a private company gives to live ballots which are protected by the state constitution,'' Barr said.
But the judge put off until Wednesday any ruling the question of whether the policies and procedures that are being used by Cyber Ninjas are subject to public disclosure.
Hanging in the balance is whether the hand count and examination of both the ballots and equipment will continue, and under what conditions.
Senate President Karen Fann said the audit will help resolve concerns by constituents about whether the results of the 2020 election -- and the vote for Biden -- were accurate. But the legal position of the Senate is that it needs the review to determine if there are weaknesses in current election laws that need to be addressed.
It was that argument that resulted in Maricopa County Superior Court Judge Timothy Thomason concluding two months ago that the Senate had the right to enforce its subpoena.
But Thomason made it clear that did not overcome is concerns about the confidentiality of the materials. And attorney Roopali Desai who represents the challengers said there is enough evidence of problems to bring the process to a halt unless and until questions are answered.
For example, she told Martin that Cyber Ninjas and the people it hired have access to voter files.
"They say that there are qualified people trained to handle the ballots,'' Desai said. "We're asking who are these people, how they have been hired, have there been sufficient background checks done, and are they trained?''
She also said Cyber Ninjas has said it has an earnest desire to comply with the law.
"Well, what steps are they taking to make sure that their desire is a reality?'' Desai said.
But Alexander Kolodin who represents Cyber Ninjas told Martin that an injunction against proceedings, even for a day, "may derail this audit.'' He pointed out the Senate has possession of Veterans Memorial Coliseum only through May 14.
Anyway, he argued, there's no basis for a court to intercede, especially on a complaint by the Arizona Democratic Party.
"This audit is the will of the Senate, the people's elected representative,'' Kolodin said. "A political party should not get a heckler's veto by filing a late action to stop the legislature from carrying out the people's work.''
Martin, however, said the Democratic Party has standing to raise the questions about the procedures being used to review the ballots and equipment. And he rejected arguments that the lawsuit, filed just a week ago, came too late.
