The formal kickoff of the Arizona Senate’s long-awaited audit of Maricopa County’s 2020 General Election process did not get off to a good start Friday and it only got worse when a judge ordered that the Senate must comply with state laws, and an Arizona Supreme Court justice agreed for now.
The official first day of ballot counting started at Veterans Memorial Coliseum in mass confusion, as dozens of volunteer ballot counters and observers had to wait more than 30 minutes just to get into a parking lot. Then many who had received email invitations for a six-hour shift were turned away due to purportedly missing background information.
There was additional confusion and delay later in the morning when Judge Christopher Coury of the Maricopa County Superior Court ordered a temporary halt to all audit activities while organizer removed all blue pens from the auditorium floor.
Voting tabulation machines can read blue and black ink on ballots, which is why the Arizona Elections Procedure Manual (EPM) prohibits such pens from being anywhere near ballots. Eventually pens with green or red ink were distributed on the floor.
Coury had been asked by the Arizona Democratic Party and Maricopa County Board Supervisor Steve Gallardo (in his personal capacity as a registered voter) to halt the Senate’s long-planned audit. Among their arguments is a lack of training materials and written policies, which the plaintiffs contend could lead to violations of Arizona’s elections laws.
Arizona Democratic Party chair Raquel Teran justified the legal action, saying the Senate audit has become an “embarrassing and dangerous circus.” She and Arizona Secretary of State Katie Hobbs had called on Attorney General Mark Brnovich to do something about potential violations of voter confidentiality laws.
For his part, Brnovich derided the request by Hobbs -the state’s top elections official- as being based on conjecture or politics instead of credible facts.
Coury also issued a third order which could have shut down all audit activities until at least Monday morning if the AZ Dems had ponied up a $1 million bond, which they did not do.
Instead, the parties will return to Coury’s virtual courtroom on Monday for further arguments. One question the judge must decide is whether Senate President Karen Fann and subpoena co-signer Sen. Warren Petersen have immunity from civil litigation during a legislative session, and whether that protection applies to the companies contracted to conduct the audit.
Another issue for Coury is whether Gallardo and the AZ Dems even have legal standing to challenge audit protocols at this time or even in the future.
Kory Langhofer, an attorney for the Senate defendants, argued that the courts have no authority to critique or get involved in the audit activities.
“How the legislature conducts its own investigations in determining whether new legislation is necessary and what that legislation might look like isn’t a question on which the judicial branch can opine,” Langhofer said. A similar argument was put forth by Alex Kolodin, a Phoenix attorney appearing for Florida-based Cyber Ninjas, the main audit contractor.
Neither Langhofer nor Kolodin referred to a February court order by another Maricopa County judge concerning handling of all subpoenaed materials. That order, by Judge Timothy Thomason, required Maricopa County officials to comply with the Senate subpoenas but he noted his concern about preserving confidentiality of the information.
Thomason noted in his order that Senators “certainly are obligated to maintain confidentiality of the subpoenaed materials here.”
Roopali Desai, one of the plaintiffs’ attorneys, made several comments to Coury about concerns that private funds which are reportedly going to Cyber Ninjas, three additional audit contractors, and possibly other vendors and individuals.
Senate officials have stated several times that only $150,000 from the Senate budget is being expended for the audit. Kolodin, however, told Coury that even a few days of inactivity with the audit could cost his client up to $1 million.
Such financial considerations call into question “who is influencing, directing and controlling these workers,” Desai said, adding that there were also questions with the vetting of volunteers, employees, and contractors.
Those issues and more are likely to be argued Monday in front of Coury, who ordered the defendants to provide him with all of their policies and procedures by Sunday. It is one of the issues Langhofer and Kolodin took to the Arizona Supreme Court on Monday afternoon in an attempt to get Coury’s orders put on hold.
However, Justice Clink Bolick found no grounds for granting the Senate’s emergency request to set those orders aside, and ruled that Coury did not abuse his discretion with the orders he issued.
Bolick went ahead and set several deadlines for legal briefs to the supreme court, the last being due the end of business on April 29. In the meantime, the case in Coury’s court remains active.
According to Senate Audit Liaison Ken Bennett, only votes cast for the two U.S. Senate races and the presidential race are being addressed by the audit. On Thursday, he and Cyber Ninjas owner Doug Logan said they plan to be out of the Coliseum in about 16 days.
That would mean more than 131,000 ballots would have to be reviewed each of the 16 days to get through the nearly 2.1 million ballots which were cast in Maricopa County during the 2020 General Election.