PHOENIX — Arizonans are entitled to see the policies and procedures being used in the Senate’s audit of 2020 election returns, a judge ruled.
At a hearing Wednesday, Maricopa County Superior Court Judge Daniel Martin ordered the documents be made public.
He effectively rejected arguments by Cyber Ninjas, the private firm hired by Senate President Karen Fann to conduct the audit, that the policies and procedures contain trade secrets.
However, Martin gave the Senate and Cyber Ninjas until noon Thursday to try to get an appellate judge to overturn or stay his disclosure order. Absent that, he said, the policies will become public.
Martin declined to put the audit on hold or otherwise restrict how it is being conducted. He said there was not enough evidence at this point to support such a move.
But he did leave the door open to that issue depending on what the Arizona Democratic Party finds in the policies. The party has sued to halt the audit of 2.1 million Maricopa County ballots and the equipment used to tabulate them.
“The manner in which that audit is being conducted must be balanced against the constitutional rights of the voters in Maricopa County, including the rights to secrecy and confidentiality of information,’’ Martin had said a day earlier.
Evidence must be public
An attorney for the Democratic Party, Andy Gaona, argued what is occurring is leaving the election equipment, the ballots and files with personally identifying information “to an audit that is being done by a known conspiracy theorist.”
Doug Logan, Cyber Ninjas’ chief executive officer, previously tweeted messages linking him to conspiracy theories that the presidential election was stolen.
Martin, for his part, did not get into the issue of statements made by Logan questioning whether Joe Biden really won the election in Arizona.
Instead, he said, this is a simple question of law. And, absent a clear showing of harm, Arizona court rules require pretty much everything introduced as evidence to be public, he said.
That also means any hearing into the adequacy of the company’s policies to protect the ballots and personal voter information will not be closed to the public, as Cyber Ninjas had asked.
The ruling is a setback for the Senate, whose attorney Kory Langhofer argued that much of what it lawmakers do, including this audit, is beyond the scope of the judicial branch to review.
Langhofer argued at Wednesday’s hearing that constitutional provisions protect lawmakers from being sued. He argued these extend to work being done on behalf of the Senate by Cyber Ninjas.
Legislative trust
Even if there are questions about the how the audit is being conducted, there is no need for judicial intervention, Langhofer said.
“The Legislature can be trusted to handle its affairs responsibly,’’ he told Martin. “We have to trust the Legislature will act responsibly.’’
Gaona countered: “I think that ship has long since sailed. There is no trust currently in the Legislature. And if the idea here is, as President Fann has repeatedly urged, is that this was to be a transparent process, one that would be fair and that we could all trust of the results of, then the simple thing for them to do is to release these policies and procedures for public scrutiny.’’
The taxpayer-funded audit, and the promised protections of ballot security, should not be shielded from public scrutiny, he added.
Judge’s finding
The judge said there’s no legal basis for Langhofer’s arguments.
He said one constitutional provision cited by Langhofer does protect lawmakers from “civil process’’ — having to be hauled into court — during the legislative session. But that does not extend to others, even if they are working under contract for the Senate, Martin said.
There is another clause that spells out that no member of the Legislature can be liable in any civil or criminal prosecution for words spoken in debate. Martin said that might even apply to communications between lawmakers and their contractors. But this, he said, isn’t that.
“The policies and procedures presently in issue cannot fairly be characterized as communications for that purpose,’’ Martin said. “And even if they could, they would not meet the standard (under Arizona case law) as matters that constitute an integral part of the legislative deliberative process.’’
Cyber Ninjas needs to complete its review by May 14, the day its temporary lease of Veterans Memorial Coliseum in Phoenix runs out. The audit is being conducted at the coliseum.
