By Howard Fischer
Capitol Media Services
PHOENIX -- Senate President Karen Fann said lawmakers may have to take new steps -- including new subpoenas and possibly going back to court -- to get information that Maricopa County election officials are refusing to provide about their ballots and equipment.
The move by the Prescott Republican comes after county officials, as promised, refused to show up at a hearing she had called for Tuesday where they were supposed to answer the questions posed by Cyber Ninjas. That's the firm she hired to conduct a review of the 2020 election returns, including the 2.1 million ballots.
County supervisors did submit written responses on Monday. But they also made it clear they were not going to attend on Tuesday. And they said they were done answering questions related to what several consider a "sham'' audit being conducted by a firm run by Doug Logan who had previously said he does not believe that Donald Trump lost the election.
In the end, that just led to Logan and others involved with the audit telling Fann and Sen. Warren Petersen, R-Gilbert, who chairs the Senate Judiciary Committee, what they still don't know and why they still believe they need to know it to finish their report.
Tuesday's hearing did produce one new piece of information.
Ben Cotton, founder of CyFIR, one of the subcontractors hired by Cyber Ninjas, told lawmakers he was able to locate files in election equipment that the auditors initially claimed the county had deleted. He said it turns out there were duplicates in the system.
Less clear is what happens now given the county's refusal to answer more questions.
Ken Bennett, the Senate's liaison with the auditors, said work will resume Monday at Veterans Memorial Coliseum.
The plan had been to have the audit done by the end of last week. But when that didn't happen, the auditors needed to pack up all the ballots and equipment and store them in another building at the State Fairgrounds because the coliseum had been promised for high school graduation ceremonies.
Fann said the auditors, denied additional answers from Maricopa County, will proceed as best they can with the information they have.
"At that point we'll figure it out,'' she said.
"We may need to take it to another level and see if we can get them to please sit down with us,'' Fann said. That opens the possibility of yet another subpoena beyond the earlier ones that eventually forced the county to surrender the ballots and election equipment.
And that could lead to new litigation, with a judge asked to decide what questions, if any, the county needs to answer so the Senate can complete its examination.
But that's not the only option.
"Or the auditors will issue a report to say, 'Here's what we've found and here are the questions that we have but we can't seem to get answers for them,' '' Fann said.
In any event, she said, the next step following completion of the audit would be changes in election laws to deal with any issues that senators believe are weak points in the election process. But that may not happen this legislative session as the completion deadline has now moved to June.
One question that neither Fann nor Petersen asked of Logan is where he is getting the money to conduct the review.
Logan has long since acknowledged the audit is costing more than the $150,000 authorized by the Senate. And outside interests tied to efforts to discredit the election results have been engaged in fundraising efforts.
One site, Fundtheaudit.com, claims it already has raised more than $1.7 million towards its $2.8 million goal. That site is being operated by The America Project, started by millionaire Patrick Byrne, the former CEO of Overstock.com, who has said it was "a fraudulent election.''
Fann told Capitol Media Services Tuesday she does not know who is providing the extra cash.
"They have told me I will get a list at the end of the audit,'' she said. And Fann said once she gets it, she will make that public.
Much else of what else emerged Tuesday was already known, such as the refusal of county officials to provide Senate auditors with the password for the highest-level access to the vote tallying machines.
"We cannot give you a password that we do not possess any more than we can give you the formula for Coca Cola,'' they wrote Monday in their response. "We do not have it; we have no legal right to acquire it; and so, we cannot give it to you.''
Cotton told Fann and Petersen he has been told those passwords remain in the exclusive custody of Dominion Voting Systems which owns the equipment leased by the county.
Dominion did provide them earlier this year, not to the county but to two firms hired by the county to conduct their own forensic audits. County officials said those firms -- unlike Cyber Ninjas -- are both certified by the U.S. Election Assistance Commission as voting system testing laboratories.
And county officials said even if they did have the passwords they would not turn them over.
"Your chosen 'auditors,' the Cyber Ninjas, are certainly many things,'' the supervisors wrote. "But
accredited by the EAC' is not one of them.''
But Cotton, under questioning from Petersen, said he has been certified as an expert witness in court hearings. And he said he has done highly confidential security work for private corporations.
Cotton also disputed a contention by the county that providing Senate auditors with the highest-level password access would allow them to see Dominion's proprietary "source code'' for how the machine operates.
What it would allow them to do, he said, is determine if any of these tabulators had the capability of being connected to the internet. And Cotton said Pro V & V, one of the companies hired by the county for its own audit, said there was no such connection.
"The county, however, cannot validate or verify that there were or were not Verizon wireless cards inside those tabulators which would have, by definition, touched the internet,'' he said. "They can't validate that their own policies and procedures are being carried out without the ability to validate the configurations of the systems.''
Nothing in Tuesday's hearing cleared up the questions about access to the routers, essentially the equipment that directs messages and other traffic between computers.
Bennett again insisted that he was told earlier this year by Joseph LaRue, a deputy county attorney, that the routers had been removed from the system and were ready for delivery. The current county position is that providing the routers would provide a "blueprint'' of the county computer system which could direct criminals where to stage their hacking attacks to access confidential information and compromise law enforcement.
But Cotton said if that is true, that means the election equipment which was connected to the routers also had to be exposed to the internet.
"That's certainly something that we need to explore given the inconsistencies in the public statements and reports,'' he said.
Tuesday's event was hardly a hearing, at least in the traditional sense. Only Fann and Petersen got to participate. And Democrats who are members of the Senate Judiciary Committee, on whose behalf the initial subpoenas were issued, were not invited.