By Howard Fischer
Capitol Media Services
PHOENIX -- Arizonans are entitled to see the policies and procedures being used in the Senate's audit of the 2020 election returns, a judge has ruled.
At a hearing Wednesday, attorney Kory Langhofer who represents the Senate, argued there are constitutional provisions that protect lawmakers from being sued. He argued these extend to work being done on behalf of the Senate by Cyber Ninjas, the private firm hired by Senate President Karen Fann to conduct the review on the Senate's behalf.
And Langhofer said even if there are questions about the how the audit is being conducted there's no need for judicial intervention.
"The legislature can be trusted to handle its affairs responsibly,'' he told Maricopa County Superior Court Judge Daniel Martin. "We have to trust the legislature will act responsibly.''
Martin, however, said there's no legal basis for those arguments.
He said one constitutional provision cited by Langhofer does protect lawmakers from "civil process'' -- having to be hauled into court -- during the legislative session. But that, said Martin, does not extend to others, even if they are working under contract for the Senate.
There is another clause that spells out that no member of the legislature can be liable in any civil or criminal prosecution for words spoken in debate. And Martin said that might even apply to communications between lawmakers and their contractors.
But this, he said, isn't that.
"The policies and procedures presently in issue cannot fairly be characterized as communications for that purpose,'' Martin said. "And even if they could, they would not meet the standard (under Arizona case law) as matters that constitute an integral part of the legislative deliberative process.''
In ordering the documents made public, the judge also effectively rejected arguments by attorneys for Cyber Ninjas that what is in them constitutes some sort of trade secret.
Wednesday's ruling may not be the end of the fight. Martin gave the attorneys for the Senate and Cyber Ninjas until noon Thursday to try to get an appellate judge to overturn or at least stay his disclosure order. Absent that, he said, the policies become public.
Martin, however, refused to put the audit on "hold'' or otherwise restrict how it is being conducted at Veterans Memorial Coliseum. He said there was not enough evidence at this point to support such a move.
But he did leave the door open to revisiting that issue depending on what the Arizona Democratic Party, which has sued to halt the audit, finds in the policies. Attorney Andy Gaona argued hat what is occurring is leaving the election equipment, the ballots and files with personally identifying information "to an audit that is being done by a known conspiracy theorist.''
Martin, for his part, did not get into the issue of statements made by Cyber Ninjas CEO Doug Logan questioning whether Joe Biden really won the election.
Instead, he said, this is a simple question of law. And he said that, absent a clear showing of harm, Arizona court rules require pretty much everything introduced as evidence to be public.
What that also means is that any hearing into the adequacy of the company's policies to protect the ballots and personal voter information will not be closed to the public, as Cyber Ninjas had asked.
Strictly speaking, Wednesday's ruling, coming from a trial judge, sets no new precedents. But it still is a setback for the contention of Langhofer, on behalf of the Senate, that much of what it lawmakers do, including this audit, is beyond the scope of the judicial branch to review.
Langhofer echoed statements by Fann that the audit is necessary so that lawmakers can find out what occurred in the 2020 election where Biden outpolled Trump in Arizona by 10,457 votes. That victory was gained by Maricopa County's tally with the Democrat winning by 45,109 votes.
"They've got tens of thousands of constituent calls that are very concerned about this,'' he said. "Rightly or wrongly, there is widespread concern about the conduct of the 2020 election.''
Since lawmakers don't have personal knowledge of what actually happened to speak about it and craft legislation, they hired Cyber Ninjas to conduct a review, Langhofer said. And that, he argued, makes the conduct of the audit protected by the "speech and debate'' clause of the Arizona Constitution.
Gaona, however, said none of that shields the taxpayer-funded audit -- and the promised protections of ballot security as well as transparency in the process -- from public scrutiny.
Anyway, he noted, both Fann and former Secretary of State Ken Bennett, whom she hired to be the Senate's liaison to Cyber Ninjas, already have made multiple statements about the audit and the procedures, all assuring the public that everything was being done in a transparent fashion.
"They should not be permitted to pick and choose which communications are withheld from the public, and even from the parties in this case,'' Gaona said, pointing out to Martin that Cyber Ninjas, while ordered by the court to produce the policies for review, won't even share them with the challengers.
Gaona also asked Martin to brush aside Langhofer's argument that the court -- and, by extension, the public -- should trust the Senate, Cyber Ninjas and the policies to protect the ballots, equipment and voter information.
"I think that ship has long since sailed,'' he said.
"There is no trust currently in the legislature,'' Gaona continued. "And if the idea here is, as President Fann has repeatedly urged, is that this was to be a transparent process, one that would be fair and that we could all trust of the results of, then the simple thing for them to do is to release these policies and procedures for public scrutiny.''
Cyber Ninjas needs to complete its review by May 14, the day its temporary lease of Veterans Memorial Coliseum runs out.
