Whether the Arizona Senate’s audit of Maricopa County’s 2020 General Election process will continue or if volunteers will be sent home could be decided as earlier as Tuesday morning, depending on how a judge rules.
Judge Daniel Martin of the Maricopa County Superior Court will conduct a review hearing Tuesday at 11 a.m. in a lawsuit filed last week by the Arizona Democratic Party and a Maricopa County Board Supervisor seeking to halt the audit until Senate President Karen Fann guarantees the audit will be conducted in accordance with state law.
However, Martin has already been asked by attorneys for Fann, Senate audit liaison Ken Bennett, and Sen. Warren Petersen of the Judiciary Committee, to dismiss the case based in part on arguments that Arizona’s elections laws and election procedures do not apply to senators and their contracted auditors.
In addition, attorney Kory Langhofer says his Senate clients “are immune from suit pursuant to two related but distinct protections conferred by the Arizona Constitution.” The first, he argues, is that legislators shall not be subject to “any civil process” during the legislative session.
The second basis for dismissal of the case, says Langhofer, is the Speech or Debate Clause of the Constitution which he argues protects legislators from having “their time, energy, and attention” diverted to defend a private civil action. Such protection would “transpose onto their agents and representatives in the course of the latter’s authorized legislative functions,” he argues.
In response, the Democratic plaintiffs noted that Fann and Petersen were named as defendants in other election-related legal proceedings during the current legislative session without ever bringing up the issue of immunity.
Meanwhile, attorneys for audit contractor Cyber Ninjas have asked Martin to allow them to file several policies and procedures under seal, claiming some of the documents are of a proprietary nature.
Martin will also have to decide Tuesday whether Staci Burk will be allowed to intervene in the case. Burk, who claims she was threatened if she continued suggesting there may have been fraud in last November’s election, says she has a recording of a man describing the airlifting of ballots into Sky Harbor Airport prior to Nov. 3.
Those ballots may have been taken to Maricopa County’s election center for tabulation, Burk says.
But what is most interesting is that Burk has criticized the manner the Senate’s audit is being conducted. For example, she believes the protocols for handling original ballots could be destroying finger print evidence of election fraud.
Another issue which may end up in court on Tuesday is the refusal of Senate audit liaison Ken Bennett and the auditors to allow Arizona-based credentialed journalists into the Coliseum.
Bennett has refused to conduct his previously promised press conferences the last few days, citing a “gag order” although no judge has issued such an order. In the meantime, California-based OANN has been given permission for live broadcasting from the Coliseum and Bennett even took part in a live audio chat about the audit via Telegram, an encrypted social media app.
In addition, Bennett appeared in an Arizona Republican Party video on Monday in which he called Maricopa County’s claims of conducting two prior audits “a total misrepresentation,” and said it is time to conduct a full forensic audit “to prove that elections can be transparent and open and verifiable.”
Although Bennett also said the Senate’s audit is not intended to be a partisan activity, his comments were played with overlays soliciting donations for the AZGOP.
The hearing scheduled for Tuesday morning was to be held on Monday, but Judge Christopher Coury recused himself in a rare Sunday court order after he discovered one of Cyber Ninjas’ attorneys had served as an extern with Coury within the past five years. A legal extern is a law student obtaining on-the-job training in exchange for academic credit instead of money.
His order that the Senate audit must comply with all state laws was set to expire Monday at noon but Judge Martin extended the order pending Tuesday’s hearing.