Maricopa County supervisors will vote on forensic election audit

By: - January 26, 2021 12:34 pm
early ballot

Photo by Jim Small | Arizona Mirror

The Maricopa County Board of Supervisors will vote on whether to conduct a forensic audit of the county’s election equipment and software, acting unilaterally while negotiations continue over disputed subpoenas from the Arizona Senate, which wants to conduct an audit of its own.

The audit question is on the agenda for the supervisors’ meeting on Wednesday. All five supervisors have expressed a willingness or desire to conduct such an audit, but had said they had to wait because the ballot tabulations machines and other equipment could be considered evidence in several ongoing lawsuits challenging the election results in Maricopa. 

Those lawsuits have been appealed to the 9th U.S. Circuit Court of Appeals or U.S. Supreme Court, and have yet to reach a final disposition. But county spokesman Fields Moseley said the supervisors’ attorneys believe they can conduct an audit now with little legal risk because Congress has certified the results of the election and President Joe Biden has been sworn in.

The audit that the supervisors will consider on Wednesday is completely unrelated to a separate audit that the state Senate wants to conduct. Senate President Karen Fann and Judiciary Committee Chairman Warren Petersen have issued subpoenas for Maricopa County’s election equipment, software, data and ballots for the purpose of conducting an audit. The county is fighting those subpoenas in court, arguing that the Senate lacks authority to seize the equipment or audit the election.

At the heart of the matter are false and baseless allegations of election fraud spread by President Donald Trump and many of his supporters, including GOP congressmen, lawmakers and other high-profile Republican figures in Arizona. 

Despite the total lack of evidence to support any of the claims, and the failure of numerous lawsuits challenging the election results in Maricopa County, the Senate issued subpoenas with the intent of auditing the election. 

Supervisor Jack Sellers, the board’s chairman, noted that a post-election hand count of nearly 9,200 ballots showed a perfect match with the machine count, a logic-and-accuracy test showed no problems with the machines, and that several lawsuits alleging irregularities or misconduct in the way Maricopa County conducted the election fell flat in court. But a large number of voters want further assurances, “especially given all the misinformation that spread following the November 3 General Election.”

“While I am confident in our staff and our equipment, not all our residents are. This is a problem.  A democracy cannot survive if enough of its people doubt elections are free and fair. Some will never be satisfied, but this vote is not about them,” Sellers said in a press statement on Tuesday. “The best we can do, in my opinion, is to err on the side of transparency, to embrace the opportunity to once again show our work, and to put facts in their proper place at the center of public discourse instead of the periphery.”

Fann announced last week that the two sides had reached a settlement, but the county said there had been no agreement and that negotiations were ongoing. One provision of that settlement would require the Senate to use an auditor certified by the U.S. Election Assistance Commission. Moseley said there are only two such auditors — Pro V&V and SLI Compliance — and that the supervisors will vote Wednesday on retaining both.

Many of the groundless claims about the election involve Dominion Voting Systems, the vendor that provided Maricopa County with the ballot tabulation machines and software it purchased in 2019. 

Several lawsuits have made fantastical claims about Dominion, including allegations that they conspired with the government of Venezuela to rig the election against former President Donald Trump. Some Trump supporters have alleged that Dominion machines in Arizona and other swing states that voted for Biden were connected to the internet so results could be changed, though Maricopa County has repeatedly affirmed that the machines were never connected to the internet.

According to a draft of the scope of work for the proposed audit that the supervisors will vote on, the auditors will analyze Maricopa County’s tabulation machines for hacking vulnerabilities, verify that no malicious software was installed on the machines, ensure that the machines weren’t sending or receiving information online and that they weren’t connected to the internet during the election, and confirm that the machines didn’t switch votes. The auditors will also conduct new logic-and-accuracy tests, and will ensure that Maricopa County’s lease agreement with Dominion met all procurement requirements.

It is unclear whether the Senate will continue to attempt to enforce its subpoenas and conduct its own audit if the supervisors vote for an audit on Wednesday. It is unclear whether the Senate’s proposed audit would differ in scope than the one on the supervisors’ Wednesday agenda. 

Fann and Petersen did not immediately respond to requests for comment.

Sellers said the audit isn’t the result of any agreement or settlement with the Senate, but the supervisors hope it will assuage the Senate’s concerns and bring an end to their legal dispute. Sellers said the scope of the audit is largely based on the issues that Fann and Petersen raised in their subpoenas.

“If we’re going to do an audit, we only want to do it once. So, we need to answer all the concerns and questions that people have with one audit,” Sellers told Arizona Mirror. “We’ve looked at the subpoenas from the Senate. We’ve looked at the questions from a lot of people. And we’ve tried to address all that with the audit that we’re going to perform.”

But one thing that the supervisors won’t do is turn over ballots to be counted. Supervisor Bill Gates, the board’s vice chairman, said state law strictly governs when a recount can take place. And the thresholds in state law haven’t been triggered. 

“It’s important for people to understand that this isn’t a recount,” Gates said. “The focus instead is on the machines themselves.”

Sellers doesn’t think it will be possible to convince every skeptic that the election was fair and honest. But he’s hopeful that it will at least satisfy some people who have been “swayed by the noise” since the election.

The supervisors plan to allow representatives from the governor’s office, secretary of state’s office, state political parties and other stakeholders to observe the audit.

Supervisor Steve Gallardo, the board’s lone Democrat, was less hopeful that the audit will mollify anyone who still believes the various allegations and conspiracy theories swirling around the election, including Republican members of the legislature who have been spreading those claims.

“Let’s be honest: These are lies. These are false, baseless lies about the election system and how we conduct the election. We’re never going to satisfy them. They’re always going to continue to make up lies about our process,” he said.

But there are plenty of other voters out there who might be wondering if Maricopa County’s elections are safe and secure. Those are the people Gallardo is hoping to reach with the audit. He suggested that the county launch a paid media campaign to tout the audit’s results once it’s finished.

Dominion has filed defamation lawsuits against Trump campaign attorney Rudy Giuliani and Sidney Powell, another attorney who has filed lawsuits in Arizona and elsewhere featuring bogus claims against the company. Dominion has also sent a cease-and-desist letter to Arizona Republican Party Chairwoman Kelli Ward. A spokesperson for the company said Dominion is still considering litigation against Ward.

“We fully intend to hold others who continue to spread disinformation and deceive the American public to account,” the company told the Arizona Mirror.

***UPDATED: This story has been updated with comments from Sellers, Gates and Gallardo.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”