Despite the State Senate’s announcement last month that four companies have been contracted to undertake an audit of Maricopa County’s election process, not one ballot has been counted and no start date has been set.
On Tuesday, retired Army Col. Phil Waldron said on national television that “100 or so” people are currently undergoing background checks in order to participate in a hand count which he said will begin “within the next week or so.”
It is unclear whether Waldron, who has been put forth by several audit supporters as a cybersecurity expert, is associated with any of the companies contracted for the audit, or if not, how he came by the statement he made.
What is known is that there are many moving parts at play, including a letter Senate President Karen Fann received Tuesday from the heads of several companies self-described as “specialists in election administration and security.” The letter calls out Fann’s selection of Cyber Ninjas Inc. as the main auditing contractor, citing the company’s apparent lack of “independence or technical expertise.”
That letter comes on the heels of one Fann received earlier this month from three law firms with offices in Maricopa County warning of legal action if her auditors -which also include CyTech Services, Wake Technology Services, and Digital Discovery- violate federal laws, including the Ku Klux Klan Act of 1871 through to the Voting Rights Act of 1965, which protect voters from acts of intimidation.
The letter, signed by officials with Barton Mendez Soto, Coppersmith Brockelman, and Perkins Coie, as well as the non-profit Protect Democracy Project, also put Fann on notice that all records related to the audit be retained for any potential litigation.
But it is not only Fann’s activities under scrutiny. The actions of Maricopa County’s five supervisors are also being questioned after County Board Chairman Jack Sellers recently told Fann the county “will not communicate with your vendors or interpret Arizona law for them” even though the county is the owner of the voting equipment, elections records, and ballots.
Judge Timothy Thomason of the Maricopa County Superior Court ordered Sellers and his fellow supervisors in February to turn over to the Senate all 2.1 million ballots which went through tabulation. That hasn’t been done, and it is believed the board has not even given the ballots to Maricopa County Treasurer John Allen as required by state elections law.
Earlier this month Allen indicated to at least one state senator that he did not have control of the ballots but would comply with the subpoena if he could.
Also on Tuesday, questions were raised about the county board’s lack of transparency in letting the public know why a closed executive session was being held. The only notice on the county’s website simply advised the public that an executive session was planned for 2 p.m., but no other details were listed.
The actual agenda, which had to be requested or picked up from the county offices, showed the executive session was related to obtaining legal advice and/or for litigation, contract negotiations, or settlement discussions about the board’s responsibilities and authority regarding elections, ballots, and compliance with the Senate subpoena.
County board meetings have regularly been livestreamed, and even the meeting notice stated that “Executive Sessions are always preceded by an open meeting as per A.R.S.§38-431-03.” But Tuesday’s open meeting at which the supervisors voted to go into executive session was not livestreamed.
It is known that all five supervisors attended the meeting, along with Clerk of the Board Juanita Garza, County Manager Joy Rich, and Andrea Cummings of the Maricopa County Attorney’s Office. Details of what was discussed in the executive session is confidential under state law, although no votes are permitted.
Another wild card in the audit process is Arizona Secretary of State Katie Hobbs, who was recently given a green light by Arizona Attorney General Mark Brnovich to retain private legal services to see how her office might challenge the Senate’s plans.
Hobbs is considered the state’s chief elections officer. She wrote to the Maricopa County supervisors earlier this month of her concern with Fann’s selection of Cyber Ninjas. The choice, wrote Hobbs, “made it clear that the Senate has no intention of conducting an independent audit or ensuring the ongoing security and confidentiality of Maricopa County’s ballots and voting equipment.”
She then called on the supervisors to “carefully consider every option, and do what is necessary to protect our voters and our democracy.”
Meanwhile, some audit supporters have touted the idea of accepting donations to cover the Senate’s costs. The legality of the idea has come under scrutiny after Gov. Doug Ducey recently signed legislation which bars the state from accepting private “grants” in connection to election operations.
“If third party groups want to engage in advocacy and encourage people to vote, that’s great,” Ducey wrote when he signed the bill. “But the mechanics of elections cannot be in question, and therefore, all third party money must be excluded going forward to avoid any possible allegations of wrongdoing.”
The legislation becomes effective later this summer, so the timing of any audit donations might be able to skirt the spirit of the law.