Libertarian Party Hits Maricopa County With Lawsuit For Denying Access To Audits

Maricopa County has been at the center of controversy in the 2020 General Election. [Photo courtesy Maricopa County Elections Department]

One of three political parties authorized by state law to participate in post-election audits is suing Maricopa County and several county officials for being denied access to the current audit of ballot tabulation equipment, but it’s not the political party most people would expect.

On Tuesday, the Maricopa County Libertarian Party filed an election complaint alleging its party representative has been illegally prohibited from observing the audit approved by the county’s Board of Supervisors (BOS). The lawsuit seeks a court order for all three recognized political parties in Maricopa County to be immediately allowed access to the audit.

Judge Joseph Mikitish of the Maricopa County Superior Court will conduct a show-cause hearing Feb. 17. The audit is expected to continue through March.

According to the lawsuit, county officials have previously recognized that the Maricopa County Libertarian Party has standing to observe post-election audits. However, some county officials refuse to recognize that legal right during the current audit involving select elements of the 2020 General Election.

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“Arizona Revised Statutes allow and require political party observers to participate in election procedures during numerous important events, including Logic & Accuracy Tests, at polling places, at audits, at hand recounts, and any other significant voting or processing activity, including vote counting,” the lawsuit contends. “ARS § 16-449 requires elections officials to invite recognized political party observers at Logic & Accuracy Tests.”

The Libertarians’ lawsuit names as defendants in the lawsuit are Maricopa County, the Maricopa County Board of Supervisors as an entity, the five individual supervisors in their official capacity, County Recorder Stephen Richer, Interim Board Clerk Juanita Garza, and Reynaldo Valenzuela Jr., the county’s director of election services.

The lawsuit contends that the Libertarian’s observer should be allowed to monitor what is happening during the audit. That observer, John Brakey, is the director of the non-partisan Audit Elections USA and has 17 years of experience monitoring, observing, and investigating elections in Arizona and numerous other states.

As of Tuesday, the county’s public notice of the ongoing audit noted that political parties are invited to observe. However, in a Feb. 2 email, Valenzuela informed Brandon Slayton, chairman of the Maricopa County Libertarian Party, that none of the three main political parties could attend “due to limited space, COVID-19, and to avoid disruptions to the audit process.”

Instead, the League of Women Voters and Deputy Registrars who are certified volunteers would assist with portions of the audit.

“The volunteers are registered Republicans, Democrats, and Independents,” Valenzuela noted. The same information was relayed to Slayton on Feb. 8 by an employee of Richer’s office.

“The Board of Supervisors intended to include political parties, but Defendants, or several of them, are now excluding political parties, in violation of law, and which constitutes a crime,” the lawsuit states. “Defendants, or several of them, have reduced the transparency and credibility of the ‘forensic audit’ by excluding political party representative participation, though Defendants publicly acknowledged their importance as stakeholders in the elections process.”

After the lawsuit was filed, Slayton called the League of Women Voters “a great organization” but said it is not a substitute “for representation by political parties, which provide scrutiny and oversight for all their members.”

“The public should be outraged that all three parties are being denied the right to attend this audit,” Slayton added. “It doesn’t make sense to omit key stakeholders when the audit’s goal is to instill public confidence in our system.”

For his part, Brakey questions why Maricopa County are not conducting “a more meaningful audit” which would involve looking at the ballot images from the election.  Ballot images are essentially digital photos of each ballot as they were scanned into the voting machines; tabulations are conducted based on the ballot images, not the paper ballots.

“The digital ballot images are the best evidence of whether or not the election tabulation is substantially accurate,” Brakey said. “So why isn’t the best evidence of accuracy being presented? I believe the Court will agree that political parties have an absolute legal right to attend this audit and I’m looking forward to observing it.”

The lawsuit also challenges information put forth by some county officials that a post-election Logic & Accuracy Test is an audit which can determine whether votes were switched during the election.

“The county has every right to conduct a Logic & Accuracy Test, but it is a test, not an audit, and only proves that the machines are working properly at that moment in time,” Slayton says. “The county has a right to do something – but it does not have a right to pretend to do something.”