Senate indicates more election review subpoenas are likely

By: - July 15, 2021 3:46 pm

The floor of Veterans Memorial Coliseum during the Arizona Senate’s audit of the 2020 general election in Maricopa County. Photo by Courtney Pedroza | Washington Post/pool

The Arizona State Senate might issue more subpoenas related to an ongoing review of the Maricopa County 2020 election, which has been going on since late April. 

During a nearly two-hour hearing in the Senate Thursday morning with Senate President Karen Fann and Sen. Warren Petersen, who chairs the Senate Judiciary Committee, contractors for the audit as well as the audit’s liaison, former Secretary of State Ken Bennett, said they wanted more materials that the county hadn’t yet provided. 

“I honestly recommend, Madam President, that they be re-subpoenaed,” Bennett said during the hearing. 

Fann and Petersen already subpoenaed nearly 2.1 million ballots, ballot tabulation machines and other election materials from Maricopa County. Now the Senate is looking to issue additional subpoenas for a litany of new items and materials, including information on changes to voter rolls, a full backup copy of a database of voters, network diagrams for the county, tabulation logs, routers, records of all mailed ballots and more. 

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The county responded forcefully, indicating that it will sue the Senate over its election review.

“To Senate leaders I say, stop accusing us of not cooperating when we have given you everything qualified auditors would need to do this job,” Maricopa County Board of Supervisors Chairman Jack Sellers said in a statement. “Finish your audit, release the report and be prepared to defend it in Court.”

Some of the information that could be the subject of a new subpoena has been a point of contention already between the Senate and the county. The routers were part of the Senate’s original subpoena, but the county said handing them over will cost $6 million to replace. And Maricopa County Sheriff Paul Penzone has said that giving up possession of the routers would jeopardize law enforcement security. 

But contractors with the Senate’s audit see it differently, claiming that the routers are critical to their work. Election machines are not supposed to be connected to the internet, and Maricopa County elections officials — and two auditors they hired — say that was the case in 2020. 

But one baseless conspiracy theory is that the machines were online, and then were hacked to change votes from Donald Trump to Joe Biden. There is no evidence to support those claims.

Ben Cotton, CEO of CyFir, one of the subcontractors working for the Florida-based firm Cyber Ninjas, who was hired by the Senate to complete the ballot review, said that handing over the routers would not compromise security. 

Audit official says he ‘recovered’ files, undercutting claim county officials deleted them

The Maricopa County Board of Supervisors and the Senate have been battling over the audit for months and the battle first came to a head when the Senate threatened to hold the board in contempt over previous subpoenas, threatening to arrest the board for not complying

But subpoenas are not the only thing back on the table for the Senate in their on-going audit. 

Canvassing returns

In May, Fann halted plans for auditors to knock on doors to confirm voter registration due in part to pressure from the U.S. Department of Justice, which raised concerns about voter intimidation, among other things. 

Fann brought up the canvassing again during Thursday’s hearing, comparing it to the White House’s plan to go door-to-door giving out information on the COVID-19 vaccine. The remark was met by laughter among those in attendance, including Cyber Ninjas CEO Doug Logan. 

Doug Logan Cyber Ninjas
Cyber Ninjas CEO Doug Logan (left) testifies to the Senate on July 15, 2021.

“I highly recommend we do the canvassing,” Logan told Fann. 

A group of voting rights organizations asked the Department of Justice in late April to send federal monitors to the audit, citing potential voter intimidation from the in-person canvassing as worrisome.

Unfounded allegations have proliferated since the election among promoters of the baseless claims that the election was rigged against former President Donald Trump through widespread fraud. Some Trump supporters claimed that masses of dead people had voted, that illegitimate voters were registered at vacant lots and that more than 2,000 voters were suspiciously registered at a single address.

Fann told the DOJ previously that if the audit team did decide to resume the canvassing plans, it would follow the Voting Rights Act. 

Allegations and perceptions

Fann opened up Thursday’s hearing by stating that the audit is “not about Trump” and “not about overturning the election.” 

“I just wanted to make sure that everybody was fully aware that this was about election integrity,” Fann said. However, those who gathered outside the hearing and around it had different perceptions, including a tent that sported a sign demanding the arrest of the board, Dominion Voting Systems executives and Secretary of State Katie Hobbs. 

One member of Fann’s caucus, Sen. Wendy Rogers, even tweeted after hearing that evidence from the audit showed that Arizona’s 11 electoral votes for President Joe Biden should be recalled and that a new election should be held. No evidence has shown that fraud existed, much less that it altered the outcome of the state’s election. And there is no provision in the U.S. Constitution that would allow for a new election or the de-certification of Arizona’s electoral votes.

Fann also started the hearing by mentioning that the hearing was being livestreamed by pro-Trump networks One America News and Real America Voice, which hosts Steve Bannon’s show

OAN has also had exclusive access to the audit and one of its anchors, Christina Bobb, has been fundraising for the audit and previously worked with the Trump legal team

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During the hearing, a number of allegations were made about the findings so far, some of which were refuted by Maricopa County on Twitter. 

Logan claimed that Maricopa County stopped verifying signatures on the envelopes used to return early ballots and used this as a basis for asking the Senate to ask the county for more information on envelopes. 

The Maricopa County Recorder’s Office took to Twitter to deny this claim, saying that it never modified the signature verification process and any “suggestion to the contrary is categorically false.” 

Cotton, of CyFir, said that the election review team found that the county did not have up-to-date anti-virus and malware protections on their systems, which makes them vulnerable to a cyber attack. 

But federal Election Administration Commission guidelines say that elections offices cannot update anti-virus and malware protections because the system has to be separated from the internet — known as an “air gap” — to maintain security. Updating those programs would change the system and it would no longer retain its certification to be used in elections.

When election equipment is certified by the EAC, it is certified in a certain “state” that it has to match in order to make sure it has not been tampered with or altered. If the county had updated the antivirus software in the way Cotton had described, the system would not be in the same “state,” de-certifying it.

This de-certification has become a point of contention, as the board of supervisors this week committed to spending $2.8 million to replace machines turned over to Cyber Ninjas. Neither it nor the companies it hired to inspect the machines are certified by the EAC, so Secretary of State Katie Hobbs said in May that the county should no longer use them

Cotton told the Senate that “not a single bit of data was ever changed” on the machines, and he and Fann both expressed confusion as to why the machines needed to be replaced. In May, Hobbs said she consulted with election technology and security experts, including at the U.S. Department of Homeland Security, to reach her conclusion.

The Senate in April agreed to pay any costs associated for replacing equipment subpoenaed for the ballot review.

Search for counterfeits and the return of ‘Sharpiegate’

Logan also confirmed during Thursday’s hearing that the audit is using inventor and treasure hunter Jovan Hutton Pulitzer’s technology on the ballots

“We utilized kinematic artifact detection,” Logan said, referring to the name of the technology Pulitzer claims he has invented to detect fake ballots.

When Pulitzer asserted that Biden’s win in Georgia last year was marred by fraud that only he could detect, Georgia’s Republican secretary of state derided him as a “failed inventor and a failed treasure hunter.” 

Pulitzer, who does not have a background in election work, has claimed his technology can tell if a human or machine marked the ballot, as well as if a ballot is made of the right type of paper. 

He has said that his technology identifies “kinematic markers” that indicate if a piece of paper has been handled, folded or processed in the mail and has claimed to have tested the technology on over 2 million ballots. Pulitzer told the Arizona Mirror that he cannot discuss anything about that work, including where it was done, because it is subject to non-disclosure agreements.

Pulitzer’s most well known invention is the CueCat, a barcode reader which placed number five in Time Magazine’s worst inventions of all time just under Agent Orange and beating out subprime mortgages. 

The invention was popular among hackers due to the ease at which they were able to hack the device and use it for whatever purpose they needed. However, CueCat would also later be the subject of a data breach in which 140,000 CueCat users had their personal information exposed. 

It also appears that the paper examination of the ballots includes the revival of a debunked election conspiracy theory dubbed “Sharpiegate.” 

On Election Day, some voters were surprised when poll workers gave them Sharpie markers to fill out their ballots, and some claimed it was a ploy to disenfranchise Republican voters. It was the first time in Arizona history that the marker could be used safely on ballots — a change necessitated by new ballot-counting machines.

Some had claimed that those who voted with Sharpies had their vote invalidated because the ink bled through the ballot to the other side. However, the ballots were specially printed to account for that bleed-through. 

Logan said further investigation was needed into the Sharpies. Last year, Arizona Attorney General Mark Brnovich conducted such an investigation, and concluded there was no truth to the allegations that the markers affected the counting of ballots.

Sellers, the Republican chairman of the Maricopa County Board of Supervisors, called the allegations “inaccurate” and said Logan, Cotton and their employees are “incompetent.” 

“What we heard today represents an alternate reality that has veered out of control since the November General Election,” Sellers said. “Senate leadership should be ashamed they broadcast the half-baked theories of the ‘Deep Rig’ crowd to the world today.”

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Jerod MacDonald-Evoy
Jerod MacDonald-Evoy

Reporter Jerod MacDonald-Evoy joins the Arizona Mirror from the Arizona Republic, where he spent 4 years covering everything from dark money in politics to Catholic priest sexual abuse scandals. Jerod has also won awards for his documentary films which have covered issues such as religious tolerance and surveillance technology used by police. He brings strong watchdog sensibilities and creative storytelling skills to the Arizona Mirror.

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