Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona senate, June 21, 2021, at the Veterans Memorial Coliseum. Photo by Mark Henle | The Arizona Republic/pool photo
“The most transparent election audit in American history” — or so it was dubbed by the biased contractors running it — is fighting tooth and nail to keep its records hidden from the public.
Right now, the Arizona Senate is gearing up to release the findings of its so-called audit of Maricopa County’s 2020 election. Based on the actions of the Senate and its contractors, Arizonans already have ample reason to dismiss the results.
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But the recent aggressive attempts to block transparency should be the final straw. In multiple lawsuits, the Senate is not only refusing to comply with longstanding Arizona public records laws; it is arguing that the law does not even apply to it. It has gone from attacking faith in Arizona elections to assailing a core tenet of representative democracy: that government officials work for the public.
In the spring, my organization, American Oversight, filed routine public records requests with the Senate about its audit. When faced with noncompliance, we filed a lawsuit to enforce the public’s right to know. The Senate tried to dismiss our case and has refused to comply with two court orders rejecting its arguments. Just last week, the Arizona Court of Appeals soundly rejected the Senate’s arguments that it had no obligation to release records in the physical possession of contractor Cyber Ninjas, finding that those records “are no less public records simply because they are in the possession of a third party.”
But dubious legal arguments have not stopped the Senate in its goal of slowing down transparency so it can complete its “audit” and disinformation campaign on its own terms. Immediately after losing in the appeals court, the Senate filed a motion for an emergency stay in the state Supreme Court, which last week granted a hold on the release of Cyber Ninjas’ records, with a conference not scheduled until Sept. 14.
The Senate’s determination to shield information about the sham process from the same public it purports to be working to reassure is reason enough to doubt both its commitment to the public interest and the credibility of the audit itself. In recent court filings, the Senate has evinced a startling disdain for basic government transparency. It has characterized the request for the records of contractors and subcontractors — who, on behalf of the legislature, are engaged in a public function — “invasive and sweeping,” and has referred to calls for transparency as “generalized bromides” and “pleasant-sounding platitudes” while rejecting the demand that it show its work as “partisan.”
(The Senate) has gone from attacking faith in Arizona elections to assailing a core tenet of representative democracy: that government officials work for the public.
– Austin Evers
Such rebukes are nonsense: Transparency is in the public’s interest and is a core part of Arizona law. Perhaps the Senate’s objection reveals something about the audit — that the contents of their documents would harm leaders politically. That doesn’t make the record requests partisan; it makes the Senate partisan for obstructing them.
It shouldn’t be surprising that the Senate wants to avoid transparency at all costs. As delays have stretched the audit’s timeline from weeks into months, stories about embarrassing security issues and other errors have demonstrated the consequences of the contractors’ lack of qualifications. An independent evaluation conducted by the States United Democracy Center found that the process “does not meet the standards of a proper election recount or audit,” citing error-prone methodology and problematic contracting, among other major issues. Just last month, Doug Logan, the CEO of lead contractor Cyber Ninjas, unleashed a new wave of misinformation with an outlandish claim of 70,000 extra mail-in ballots. It was easily revealed as false — but not before it took hold online.
Moreover, public reporting as well as records uncovered by American Oversight in our own investigation have shown the involvement of disreputable election conspiracists and have provided a glimpse of problematic direct contact with voters. Our investigation has revealed that top officials undertook the “audit” with predetermined conclusions in their sights and a blatant disregard for the harm it would inflict on our democracy, deferring to lies about voter fraud and the desire of former President Trump to overturn the results of the 2020 election.
In July, Maricopa County Superior Court Judge Michael Kemp ruled that releasing records was a matter of “compelling public interest demanding public disclosure and public scrutiny.” The Senate asserted that it does not have custody of contractors’ records, while failing to address the fact that those records are of vital public interest. At the same time, it has released a few hundred pages of documents, including communications of Senate President Karen Fann and audit spokesperson Ken Bennett, exhibiting an apparent belief that it can pick and choose which items to show to the public. The week before Kemp’s ruling, the Senate even said it was reviewing more than 15,000 additional documents for voluntary release; during the hearing in the appeals court, that number rose to 22,000. None have been produced.
Given what has been released — from text messages with conspiracy theorists to boasts from Fann of having been thanked by Trump personally for “pushing to prove any fraud” — that obfuscation should worry not just the Arizonans whose ballots have been examined and handled by inexperienced contractors, but also Americans across the country who have seen their own state legislators adopt the same incendiary rhetoric to push for more election-undermining investigations and unnecessary reviews.
As we wait for the Senate to share its biased and non-credible “findings,” what we have already learned about the audit’s biased origins and its deleterious effect on faith in our elections represents a grave threat to U.S. democracy. The amount we have yet to learn about its operations is just as alarming.
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