There is virtually ‘no way’ for Senate election audit to violate ballot secrecy




Photo by Jim Small | Arizona Mirror

There’s little risk that the Arizona Senate’s audit of the 2020 general election in Maricopa County will compromise the secrecy of voters’ ballots, according to the county elections department.

After a judge ruled that the Senate has the authority to subpoena the nearly 2.1 million ballots cast in Maricopa County in November, some critics expressed concerns that people’s votes would no longer be secret, a right guaranteed by the Arizona Constitution. The Maricopa County Board of Supervisors cited ballot confidentiality among many arguments it made during litigation attempting to quash the subpoenas.

Megan Gilbertson, a spokeswoman for the Maricopa County Elections Department, said there’s little to worry about.

“For the vast majority of voters, there is no way to identify a ballot back to a voter,” Gilbertson said.

Maricopa County Superior Court Judge Timothy Thomason made similar comments in his ruling, writing that there’s no way to determine which voter cast which ballot. Voters who use early ballots cast them in envelopes that contain their names, signatures and phone numbers, but those envelopes are separated from the ballots before they’re counted.

Adrian Fontes, the former Maricopa County recorder, said there’s no way to trace a ballot back to an individual voter unless the voter made some kind of identifying mark. Voters sometimes put their initials on ballots or drawings on their ballots, Fontes said. But even in those cases, the person looking at the ballot would need some other way to link those things to a particular voter.

Some people also vote for themselves as write-in candidates on ballots. Others write in the names of Avengers superheroes or Disney princesses, Fontes said.

Though the “vast majority” of voters couldn’t be identified through their ballots, Gilbertson said there is still some concern over a small number of people who could potentially be linked to their ballots.

Some voters, for example, write their names on their ballots, which the county’s attorneys noted in some of their court filings as they challenged the Senate’s subpoenas. Kory Langhofer, an attorney for the Senate, wrote in response that “ballot secrecy is a voter’s right, not her obligation,” and that any voters who wrote their names on their ballots have voluntarily given up their right to anonymity. Fontes said that is “not an unreasonable argument.”

The one potential concern Fontes had about voter privacy was in precincts with very small numbers of voters, who could be potentially identified using ballot style and voting preferences. For example, if a precinct with a unique ballot had only six voters, five of whom were registered with one party and one who was registered with another, they could potentially be identified if they voted straight-ticket Democratic or Republican ballots, he said.

“It gets harder and harder as you get more and more voters in a precinct, and there are very few examples like that. But given that they have all of the ballots now, it’s absolutely not just possible but probable that they’d be able to identify at least a few voters and how those folks voted,” he said.

Gilbertson, however, wasn’t nearly as concerned about such occurrences. It’s possible, she said, “but you’re talking about a needle in a haystack.”

It’s unclear what steps the Senate will take to secure the ballots, ensure ballot confidentiality, or ensure that the signatures and phone numbers contained on early ballot envelopes will be kept secret. Spokespeople for the Senate Republicans did not respond to questions from the Arizona Mirror.

The Senate is planning an audit of the election in response to the baseless fraud allegations and conspiracy theories espoused by former President Donald Trump and many of his supporters, including some Senate Republicans, after President Joe Biden won the 2020 presidential election.

Maricopa County has conducted its own audits of the election machines, which are provided by Dominion Voting Systems, the nation’s second largest provider of such equipmentThe audits gave the machines and their software a clean bill of health, finding that they weren’t connected to the internet during the election, weren’t hacked or infected with any malicious software, and hadn’t switched any votes during the counting of ballots.

The Senate at one point looked to hire Allied Systems Operations Group to conduct its audit. The Texas company’s employees had served as witnesses for the Trump campaign during various legislative hearings about the election and have a well-documented history of spreading false claims about election fraud in Arizona and other swing states that voted for Biden. The Senate’s legal counsel told attorneys for Maricopa County that ASOG would serve under another auditor. The Senate drafted a proposed scope of work for ASOG, a step it has not taken for any other prospective auditors.