Maricopa County demands Senate preserve election audit documents for litigation

By: - May 21, 2021 4:21 pm
Arizona election audit

A volunteer observer (right, dressed in orange) watches as Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona senate at the Veterans Memorial Coliseum in Phoenix, Ariz. on April 27, 2021. Photo by Rob Schumacher | Arizona Republic/pool

The Maricopa County Board of Supervisors sent Senate President Karen Fann a letter demanding that she preserve documents related to the Senate’s controversial audit of the 2020 general election, indicating that the county may sue her over what it says are defamatory allegations that it deleted files from a hard drive.

Attorney Thomas Liddy, who represents the supervisors, told Fann that the county may have legal claims against her and her audit as a result of allegations the audit and one of its subcontractors made accusing the county of deleting files that she and Senate Judiciary Committee Chairman Warren Petersen subpoenaed. The supervisors have demanded a retraction, which Fann and the audit have not given.

“Our clients delivered the server exactly as it was kept by the Maricopa County Elections Department. Nothing was deleted, or added, from the server when we prepared it to be sent to the Senate pursuant to the Senate’s subpoena,” Liddy wrote on behalf of the supervisors, county Recorder Stephen Richer and unnamed county employees.

In a press release, Board of Supervisors Chairman Jack Sellers said it’s clear that the Senate and its contractors won’t retract their accusation, even after an audit contractor said he “recovered” the allegedly deleted files. He reiterated a comment that he made earlier in week that the Senate should be prepared to defend their actions and their findings in court.

“We demanded a retraction. But Senate President Fann’s letter and tweet from the official Senate audit Twitter account continues to spread the false allegation even after her own contractor admitted he found the files on the copy he made of the server,” Sellers said.

Among the records that Liddy asked Fann to preserve are written and electronic documents, emails, text messages, social media messages, voicemails, video and audio recordings and browsing histories, as well computers and tablet devices. Liddy’s letter notes that the county believes the audit “is not being done in accordance with Arizona law,” indicating that potential litigation may include the audit itself and not just the alleged defamatory statements.

The audit’s Twitter account claimed last week that the county “deleted a directory full of election databases from the 2020 election cycle, which it decried as “spoliation of evidence.” At a meeting on Monday, the supervisors vehemently denied the allegation, responding with a 13-page letter alleging that Fann’s audit team was simply unqualified and incompetent. The county speculated that the third-party software CyFIR used to analyze digital copies gave the appearance that files were missing or deleted because the files were not in their original place.

A day later, Ben Cotton, founder of the digital forensics company CyFIR, a subcontractor on the audit team, told Fann and Petersen at an ad hoc Senate hearing that he’d recovered the files from the digital copies he’d made of the server. Though Cotton continued to use the word “deleted,” he explained that the audit team hadn’t correctly configured the digital copy of the drive because the county, which has refused to cooperate with the audit, didn’t provide it with the system parameters. 

Once the auditors properly configured the system, they found the files.

Fann, R-Prescott, did not respond to a request for comment about the litigation hold letter.

Fann and Petersen stood by Cotton’s claim that the files were deleted, though Fann told the Arizona Mirror that she hadn’t referred the issue to the Attorney General’s Office or other law enforcement entities because “we never said there was any wrongdoing.”

Petersen, R-Gilbert, insisted that the media mischaracterized Cotton’s statements.

“The media got it way wrong. It’s too bad some media fall over themselves to falsely discredit the audit,” Petersen tweeted on Wednesday.

The supervisors’ letter capped a week-long hiatus for the audit, which paused because Veterans Memorial Coliseum, where it’s being conducted, hosted a series of high school graduations. The audit, which is weeks behind schedule, will resume on Monday. Doug Logan, CEO of Cyber Ninjas, the lead contractor on the audit team, told Fann and Petersen on Tuesday that the audit, which was originally scheduled to finish on May 14, is now expected to conclude before the end of June. 

An audit spokesman said the team has counted about 500,000 of the nearly 2.1 million ballots cast in the November election.

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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.”