PHOENIX — The Senate’s audit of Maricopa County election returns will continue, at least for now, despite a judge’s concerns about security and privacy as 2.1 million ballots are reviewed.
Maricopa County Superior Court Judge Christopher Coury on Friday ordered a halt to the process through at least noon Monday. He said there were sufficient questions raised about the procedures being used by Cyber Ninjas, a Florida firm hired by the Senate to do the work, and whether they complied with state law.
But Coury made his order contingent on the Arizona Democratic Party — which filed suit against the audit — posting a $1 million bond. That would compensate Cyber Ninjas should they need to hire additional help to make up for lost time in the audit of the November general election returns.
After the hearing, however, the Democratic Party’s attorney Roopali Desai said her client won’t put up the bond. She said the amount sought by the judge to cover the cost of the delay of a few days has no bearing on a project that, according to the Senate, was supposed to cost just $150,000.
Desai also said Cyber Ninjas is “not trustworthy.’’ She said there is nothing to prevent the company from claiming it needed the entire $1 million for compensation.
“It’s a huge risk for the party to take,’’ she said.
But Desai said Friday’s hearing was not a loss or a waste of time.
She pointed out that, separate from the question of halting the work, Coury ordered the company to comply with all election laws. The judge wants to see copies of all its procedures, including hiring and training, to ensure that the ballots and the election equipment now at Veterans Memorial Coliseum for the audit are protected.
“They’re going to have to come to court on Monday and explain that,” Desai said.
Also, Coury paid specific attention to a statement from Joseph LaRue, a deputy Maricopa County attorney. LaRue told the judge there was evidence that people conducting the audit were using pens with blue ink — ink that could be read by ballot scanners and could be used to alter ballots from what the voter intended without necessarily leaving a trail.
The judge seemed convinced and said that only red pens should be used.
Senate lawyer argues judge can’t intercede
Coury’s order came despite objections from attorney Kory Langhofer, who represents the Senate, that the judge has no authority to intercede.
Langhofer said legislators are immune from civil suits while the Legislature is in session. The lawsuit by the Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo names Senate President Karen Fann and Sen. Warren Petersen, the chairman of the Judiciary Committee.
The attorney said Cyber Ninjas, by virtue of having been hired by the Senate, is now an agent of the Legislature and entitled to the same immunity.
The larger issue is the constitutional separation of powers, Langhofer told Coury.
He noted that lawmakers have said the purpose of the audit is to determine if there are weaknesses in state election laws and whether revisions are necessary.
“How the Legislature conducts its own investigations in determining whether new legislation is necessary and what that legislation might look like isn’t a question on which the judicial branch can opine,’’ Langhofer said.
But Coury said his overwhelming concern is the protection of the integrity of the ballots as well as the secrecy of information turned over to the Senate — and now in the hands of Cyber Ninjas. So he scheduled a hearing to review all that on Monday.
High court declines to get involved
Dissatisfied, Langhofer late Friday asked Arizona Supreme Court Justice Clint Bolick to overturn Coury’s order. But Bolick, who is the duty justice, said he saw no reason to second-guess the order to produce documents about hiring and training.
“I think that Judge Coury was overtly mindful of the fact that courts have to tread very carefully in this area,’’ Bolick said. “And I do not see anything in the order that makes me think that we ought to intervene at this point.’’
However, Bolick said he and his colleagues may be forced to take up the issue later of whether Coury ultimately has any power to intercede in the audit.
Desai said the Democratic Party’s lawsuit, filed late Thursday, is not about the authority of the Legislature to subpoena the ballots and equipment to conduct an audit. That, she said, was already decided by a different judge.
“The question here that we are raising is that the audit that the Senate and its agents are conducting violate many provisions of state law,’’ Desai said.
Protection of ballots, election equipment
She told Coury that there must be procedures in place to ensure that the ballots and equipment are protected. There also needs to be a “constant chain of custody of every single ballot and every piece of equipment.’’
Another issue is who has been hired by Cyber Ninjas to do the work, she said.
She said no information has been provided on whether background checks were done on the people who will handle the ballots and get access to the equipment, nor about their training.
“There must be sufficient safeguards in place to ensure the audit is not biased, skewed or subject to tampering,’’ Desai said.
That goes directly to the fact that former Secretary of State Ken Bennett, named by Fann to be the Senate’s liaison with Cyber Ninjas, has said the work cannot be done for the $150,000 the Senate has agreed to pay.
That in turn has led to Christina Bobb, who works for the conservative One America News Network, announcing she had raised $150,000 through a website called “Voice for Votes’’ to cover the additional costs.
Cyber Ninjas has declined to disclose any outside source of dollars. And the Senate, in response to a public records request by Capitol Media Services, said it has no information on money given directly to the company.
Voice for Votes, set up as a social welfare organization under federal tax laws, is not required to disclose its donors.
Desai said if private money is, in fact, going to Cyber Ninjas, “there are serious questions about who is influencing, directing and controlling these workers.’’
“The Senate has told us they’re running this so-called audit, that they have abdicated their duty entirely to rogue actors who are making a mockery, with all due respect, of our election laws and our procedures,’’ she said.
The list of who Cyber Ninjas has hired is not public. In fact, Bennett on Thursday refused to allow reporters to film the review process at least in part because it would allow the recording of the workers’ faces.
“We continue to have no indication of who’s handling the ballots, whether they are known insurgents, representatives of recognized hate groups or on the FBI watch list,’’ Desai said.
‘Hyperbole and political arguments’
That suggestion drew derision from Langhofer.
“When we start talking about the merits, let’s just first of all separate the hyperbole and the political arguments from what is cognizable in this courtroom,’’ he told the judge.
“There is no evidence that I have seen, and certainly that’s not been presented here, that there are hate groups running this audit,’’ Langhofer said. “And to intimate that, with literally no evidence, is a completely unfair smear and an attempt to prejudice your honor into thinking if you rule for the Senate, the sovereign Senate, the state, you’re somehow supporting hate groups.’’
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