A Wednesday court hearing to determine whether election auditors hired by Arizona Senate Republicans can shield the policies and procedures guiding their work from the public will take place in open court after a judge on Tuesday rejected an attempt by the auditors and Republicans to bar the press and the public from the court.
Maricopa County Superior Court Judge Daniel Martin ruled that the hearing would be open to the public, despite objections by lawyers representing Senate Republicans and Cyber Ninjas, the Florida-based firm hired to lead the audit.
Attorneys representing the auditors argued that policies and procedures largely related to security needed to remain under seal in order to keep “bad actors” from manipulating the hand-recount of the 2020 election that is taking place on the floor of Veterans Memorial Coliseum.
Attorney Alexander Kolodin, who is representing Cyber Ninjas, said that the documents contain plans to respond to security incidents and show vulnerabilities of the one-time basketball arena where the nearly 2.1 million ballots are stored.
The attorneys representing the Arizona Democratic Party argued that it was a matter of transparency due to the information being handled by volunteers and auditors.
“If there was ever a function that was subject to public transparency, this was it,” attorney Roopali Desai told the court.
Martin also granted permission for the First Amendment Coalition of Arizona to argue their case that the documents be made public at a Wednesday morning hearing and ruled in favor of the proceeding to be open to the public. The nonprofit represents media interests, and advocates for a free press, free speech rights and government transparency. (Editor’s note: Arizona Mirror Editor in Chief Jim Small has served on the board of the First Amendment Coalition of Arizona.)
First Amendment Coalition attorney Dan Barr argued that the policies and procedures for the audit likely do not have proprietary information, and he refuted the argument that security could be compromised by disclosing those policies.
The security of the audit has been a contentious issue for the auditors, who have dismissed concerns raised by media reports around the site’s security.
“To date there has been no showing of how Mr. Bennett plans to achieve those goals,” Martin said about security plans established by the Senate’s liaison, former Secretary of State Ken Bennett. “I am not yet persuaded that there has been a showing that the rights of the voters are being protected.”
The court will also hear arguments Wednesday morning on whether or not a court order should be put in place that could prevent the audit from continuing its work.
The judge initially assigned to the case, Christopher Coury, ruled last week that the auditors must 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.
That order is no longer in place and the court will hear arguments from both sides Wednesday about if the order should be reinstated.
Coury recused himself from the case on April 25 after the law firm representing Cyber Ninjas told the court that one of its attorneys who had worked for Coury in the past would be joining the legal team. The case was then assigned to Martin.
Martin also allowed Secretary of State Katie Hobbs to intervene in the case, which could allow for a $1 million bond that Coury imposed to halt the audit to be removed.
Josh Bendor, an attorney representing the Secretary of State’s office noted that the State of Arizona and its officers are not required to post such payments. Now that the Secretary of State is a party to the case, if the court decides to reinstate the order pausing the audit, there would be no need for a bond to be posted.
Testimony from lawyers representing Cyber Ninjas also revealed some new information as to how the audit, which is on its fourth official day, has been going.
Attorney Alexander Kolodin, who was representing the firm, said that one of the main workers for Wake Technologies, a subcontractor with Cyber Ninjas, has been working 20-hour back-to-back shifts and is often skipping meals. This worker recently passed out on the audit floor as a result, he said.
Kolodin used the man’s ailing health to demonstrate why the audit cannot stop, as the auditors are working in a “race against the clock” because their lease for the coliseum runs out on May 14. The space will be leased out to another entity after that, leaving no time to extend the lease.
“An injunction of even a day may derail this audit,” Kolodin said.
Martin also denied allowing Staci Burk, the former president of Gilbert Public Schools, from intervening in the case. She argued that the audit was “spoiling” ballots for a lawsuit she is pursuing that seeks to overturn the 2020 election.
Burk’s claims are largely copied from the federal “kraken” case brought by former Trump campaign attorney Sidney Powell which was also dismissed.
“Our client is not going into this with the perception that anything went wrong (with the election),” Kolodin said to the court about Burk’s motion to join the case and the contents of her filing. “We just want to make that clear to the court.”
Cyber Ninja CEO Doug Logan’s now-deleted Twitter account retweeted accounts that claimed there was fraud in the 2020 election against former President Donald Trump and also used the hashtag “#StopTheSteal.” He has also claimed that Dominion Voting Systems ballot tabulation machines, including those used in Arizona, facilitated election fraud.