PHOENIX — A judge said he has yet to be convinced that the rights of Maricopa County voters are being protected in the audit demanded by Republicans in the state Senate.
In a wide-ranging ruling Tuesday, Judge Daniel Martin affirmed that the Senate has the authority to review the 2.1 million ballots and the machinery used to tabulate them in the November election as part of its legislative function.
But he rejected claims that senators are constitutionally immune from being sued over how the audit is handled by an outside contractor.
“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 and confidentiality of information,’’ Martin said.
The judge acknowledged that not all procedures in state law and the official Election Procedures Manual for handling ballots and protecting security apply in a post-election audit, particularly one with no possibility of overturning the results. Whatever comes out of the audit will not affect the fact that Joe Biden defeated Donald Trump in Arizona.
“Certain of those procedures, however, plainly apply, and require the application of at least minimal safeguards to the audit process,’’ said Martin, who is hearing the Arizona Democratic Party’s legal challenge to the audit.
And that means neither the Senate nor its contractor, Cyber Ninjas, has a free hand to do what it will with the ballots and the equipment, he said.
The Senate sets requirements and, in turn, communicates with Cyber Ninjas through former Secretary of State Ken Bennett, whom Senate President Karen Fann has tasked with being her voluntary liaison with the company.
At the same time, Cyber Ninjas is claiming that Bennett has ultimate responsibility for physical security at Veterans Memorial Coliseum, where the audit is being conducted, as well as the security of the hardware there.
“To date, there has been no showing of how Mr. Bennett intends to achieve these goals,’’ Martin said.
Another issue is whether Cyber Ninjas must share its policies with the challengers — and with the public.
On Tuesday, Martin gave the First Amendment Coalition the right to intercede in the case. That came over the objection of attorneys for both the Senate and Cyber Ninjas. They argued that the policies used to conduct the audit should be kept confidential and that any hearing on them should be closed.
First Amendment Coalition attorney Dan Barr argued that the public has an interest in knowing exactly what is happening at the audit site and how the ballots and equipment are being protected, or not.
“I question whether there are any trade secrets here to begin with,’’ Barr told the judge. “I find that fairly dubious to begin with.’’
Beyond that, he said there is a constitutional right of the public to observe and assess the proceedings.
“I can’t imagine a higher public interest here than the validity of the vote, the care that a private company gives to live ballots, which are protected by the state constitution,’’ Barr said.
The judge put off until Wednesday any ruling on the question of whether the policies and procedures being used by Cyber Ninjas are subject to public disclosure.
Hanging in the balance is whether the hand count and examination of the ballots and equipment will continue, and under what conditions.
Fann, the Senate president, said the audit will help resolve constituents’ concerns about whether the results of the 2020 presidential election were accurate.
The Senate’s legal position, meanwhile, is that it needs the review to determine if there are weaknesses in current election laws to be addressed. It was that argument that resulted in Maricopa County Superior Court Judge Timothy Thomason concluding two months ago that the Senate had the right to enforce its subpoena for the election materials.
But Thomason made it clear that did not overcome his concerns about the confidentiality of the materials.
An attorney representing the Democratic Party, Roopali Desai, said there is enough evidence of problems to bring the process to a halt unless and until questions are answered.
For example, she told Martin that Cyber Ninjas and the people it hired have access to voter files.
“They say that there are qualified people trained to handle the ballots,’’ Desai said. “We’re asking who are these people, how they have been hired, have there been sufficient background checks done, and are they trained?’’
She also said Cyber Ninjas has said it has an earnest desire to comply with the law.
“Well, what steps are they taking to make sure that their desire is a reality?’’ Desai asked.
An attorney representing Cyber Ninjas, Alexander Kolodin, told Martin that an injunction against proceedings, even for a day, “may derail this audit.’’ He pointed out the Senate has possession of Veterans Memorial Coliseum only through May 14.
Anyway, he argued, there’s no basis for a court to intercede, especially on a complaint by the Arizona Democratic Party.
“This audit is the will of the Senate, the people’s elected representative,’’ Kolodin said. “A political party should not get a heckler’s veto by filing a late action to stop the Legislature from carrying out the people’s work.’’
Martin, however, said the Democratic Party has standing to raise the questions about the procedures being used. He also rejected arguments that the lawsuit, filed a week ago, came too late.
