Boxes of ballots cast in the November 2020 election in Maricopa County sit behind a chain link fence inside Veterans Memorial Coliseum the day before the state Senate’s election audit was set to begin. Photo by Jerod MacDonald-Evoy | Arizona Mirror
A brief weekend pause in the Arizona Senate’s election audit that a judge ordered on Friday won’t happen because the Arizona Democratic Party declined to put up a $1 million bond that the judge requested to cover any expenses that the Senate wrongfully incurs due to the halt.
Maricopa County Superior Court Judge Christopher Coury ruled that the audit must halt from 5 p.m. Friday to noon on Monday. But that order was contingent on the Arizona Democratic Party, which brought the lawsuit seeking to block the audit, posting a $1 million bond to cover any expenses that the Senate wrongfully incurs due to the delay. The Senate’s lease of Veterans Memorial Coliseum, where the audit is being conducted, ends on May 14.
Roopali Desai, the Democrats’ attorney, said the party won’t put up the bond. That means the audit will continue uninterrupted.
Nonetheless, the audit will still have to comply with several other orders Coury issued during a hearing on Friday.
The judge ordered the Senate and its audit team to comply with all laws governing the right to a secret ballot and the confidentiality of voter registration data, and to provide copies of all relevant policies and procedures to the court, which the audit team has never made public. He also ordered that the auditors use only red pens on the audit floor, an issue that came up after an Arizona Republic reporter who’s working as a volunteer observer noted that the auditors were using blue pens.
State election rules require that only red pens be used near ballots because the tabulation machines that are used to count them will read any markings made in blue or black ink.
Doug is running this audit. He told me that his understanding was that blue ink was fine – that the ballots only read black ink.
Then he came back and said actually it seems I am correct. But he still seemed unsure. He said that they would work on this.
— Jen Fifield (@JenAFifield) April 23, 2021
In a lawsuit filed Thursday afternoon, the Democratic Party and Maricopa County Supervisor Steve Gallardo alleged that the audit was unlawful because the Senate and its contractors were violating various laws regarding the confidentiality of ballots and voter registration data, and had failed to abide by other requirements on election procedures.
Attorney Kory Langhofer, who represents the Senate, argued that the lawsuit should be barred by lawmakers’ legislative immunity from being served with lawsuits during the legislative session. He also argued that the Democratic Party and Gallardo lack standing to sue, and that the lawsuit violates the separation of powers between the legislative and judicial branches.
Langhofer told the Arizona Mirror that the Senate will still appeal the ruling to defend lawmakers’ right to legislative immunity during the session. A hearing with a duty justice of the Arizona Supreme Court is scheduled for 3 p.m.
Coury ordered the attorneys to file briefings over the weekend on the legislative immunity, separation-of-powers and standing arguments, and will hold another hearing at 11 a.m. Monday.
Desai argued in the lawsuit that, in addition to the laws protecting ballot secrecy and voter registration information, the Senate and its audit team are ignoring other requirements in state statute and the secretary of state’s election procedures manual, which has the force of law, that govern other aspects of the election process.
For example, Desai noted in the lawsuit that the manual requires counties to ensure that election workers have training in signature verification, which is used to confirm the identities of voters who cast early ballots. She argued that the Senate’s auditors aren’t following that requirement.
Langhofer said Cyber Ninjas, the Florida-based cybersecurity company that’s leading the Senate’s audit team, is contractually bound to follow all applicable state and federal laws, including on issues like the confidentiality of voter data. But not all of the laws that the Democrats cited are relevant, he said.
“A lot of (election procedures manual) procedures they cited just don’t apply here,” Langhofer said.
The Senate’s attorneys also said that the auditors who are counting the 2.1 million ballots from the election in Maricopa County are bound by non-disclosure agreements to keep the information they see confidential, which the Senate and its audit team had never publicly disclosed prior to Friday’s court hearing.
***UPDATED: This story has been updated to include additional information from the court hearing.
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