Election audit continues, but judge orders release of documents guiding the audit

The election audit ordered by Senate Republicans won’t be halted because Democrats haven’t shown that voter privacy has been violated, a judge ruled Wednesday. 

Maricopa County Superior Court Judge Daniel Martin denied the Democrats’ request for a temporary restraining order, saying that they have not brought “substantive evidence” to prove voter privacy has or could be harmed by the audit. 

The Arizona Democratic Party and Maricopa County Democratic Supervisor Steve Gallardo filed the lawsuit to stop the audit. The original judge on the case ordered the audit to pause, but that didn’t happen because the Democrats were unwilling to pay the $1 million bond required. 

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 was 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.

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.

Also on Wednesday, Martin rejected arguments from Senate Republicans and the firm they’ve hired to lead the audit team, Cyber Ninjas, to seal documents outlining the policies and procedures that are guiding how the audit of the Maricopa County election is conducted. They had said those documents could jeopardize security of the audit.

Roopali Desai, an attorney for the Arizona Democrats, told the court that these documents may be pertinent to them establishing the evidence needed for a TRO. 

Martin ruled that attorneys representing Cyber Ninjas and the Arizona Senate failed to meet the requirements met to prove that the documents needed to be filed under seal. 

The documents will be made publicly available Thursday at noon, though the Senate or Cyber Ninjas could ask the Court of Appeals or the Arizona Supreme Court to weigh in. 

The documents, which have not been seen by the press or the plaintiffs in the case, are said to 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, according to Cyber Ninjas’s attorneys. 

“I’ve argued these motions a lot over the years — 60, 70, 80 times,” Dan Barr, an attorney representing the First Amendment Coalition of Arizona argued in court Wednesday, adding that never before has he been involved in a case in which the plaintiffs have not seen the documents which are being kept under seal. “It’s highly unusual to say the least.”

Attorney Kory Langhofer, who represented the Senate, said that the documents were protected under legislative immunity, which is granted to state lawmakers as part of their duties. But Martin disagreed, and ruled that legislative immunity does not extend to third-party vendors. 

An attorney representing Secretary of State Katie Hobbs also made a motion in Wednesday’s hearing asking for the state’s top elections official to be allowed to inspect the audit and its location. 

Martin gave attorneys in the case until 5 p.m. Wednesday to work out a deal for Hobbs to inspect the audit and, if no deal is struck, each side will file legal briefs by noon Thursday and Martin will consider their arguments.