PHOENIX — Arizona's top election official is threatening to go to court unless the procedures being used by the Senate in its special ballot audit are changed.
In a letter Wednesday to Ken Bennett, the Senate's audit liaison, Secretary of State Katie Hobbs detailed a series of "concerns" ranging from the the lack of safeguards to protect the ballots to the apparent failure to provide standards to determine exactly for whom someone intended to vote.
Hobbs also said the method being used to count the votes is flawed.
That's critical since one purpose of the Senate review is to determine the accuracy of the results reported by Maricopa County. But she said the procedures being used here could result in a higher error rate than the margin of victory for Joe Biden in the presidential race.
The secretary of state is doing more than informing Bennett of what she sees as shortfalls.
She pointed out that an agreement to settle the lawsuit over the access by the Senate to the Maricopa County ballots requires that certain procedures be followed. That agreement, signed by Bennett, Senate President Karen Fann and Cyber Ninjas CEO Doug Logan, includes requirements that ballots are secured in a manner to prevent unauthorized access and protect information from unauthorized copying or transfer
It gives them 48 hours to address any issues raised. And that agreement says if the issues can't be resolved, the plaintiffs in that case, which now include Hobbs, are entitled to go back to court to seek compliance.
Bennett dismissed her complaint as no big deal.
"I think that most of the things in her letter are completely unfounded,'' he said. "And the ones that have a little bit of legitimacy can be dealt with pretty easily.''
Bennett did not identify which complaints fall into that category.
But if Hobbs succeeds in sending the case back to court, it could bring to at least a temporary halt the counting process that Bennett already has admitted won't be done by the May 14 deadline.
But sending the case back to court could bring to at least a temporary halt the counting process that Bennett already has admitted won't be done by the May 14 deadline.
It also could potentially force a discussion in open court of the practices being used by the controversial Florida firm hired by the Senate to review the ballots.
There already have been questions about Logan, its CEO, who said even before he was hired that he questions whether Biden actually won the election. And an open hearing also would expose to questioning some of the tactics being used, like using ultraviolet lights to search for watermarks, measuring the thickness of ballots and search for folds in ballots.
Hobbs said there no credible reason for any of this.
"Though conspiracy theorists are undoubtedly cheering on these types of inspections — and perhaps providing financial support because of their use — they do little other than further marginalize the professionalism and intent of this 'audit,' " she wrote.
In prior rulings, judges have said that only some of the procedures set out in state law for handling ballots must be followed. That is because this audit is not to determine who won the race — that already is decided — but instead is based on the claim by the Senate that it needs to review the election to determine if changes are needed in state election laws.
So, for example, there is no requirement that ballots be reviewed by bipartisan boards.
But Hobbs said there are things that should be followed if the intent is to determine if the outcome as reported by Maricopa County was accurate.
One, she said, deals with voter intent.
"Voters don't always mark their ballots cleanly or consistently," Hobbs wrote. She said someone may fill in two "bubbles" on the ballot and circle only one of the names.
"How do you count that vote?" she asked Bennett.
And then there's the counting process itself.
Rather than looking at each individual ballot, they are divided into batches of 100, each of which is given to three separate counters at a table. Then each counter reports his or her total for that race.
The tally is then only recorded if just two reach the same total and the third is not off by more than three votes — an error rate greater than the fraction of a percent margin of victory for Biden.
Then there's the reporting of all this.
"It appears that a single person enters the totals from the tally sheet into an electronic spreadsheet, leaving wide open the opportunity for error, inadvertent or otherwise," Hobbs wrote. "At a minimum, a bipartisan team of at least two individuals should aggregate the tally sheets or otherwise confirm that data is entered accurately."
Hobbs cited other problems.
She acknowledged that observers have been able to watch the counting process at the Veterans Memorial Coliseum. And there also has been a livestream video of that.
But Hobbs noted that none of that occurred when the county's election equipment was examined elsewhere in the building.
In her letter to Bennett, Hobbs reminded him that he at one time was secretary of state and is familiar with laws and procedures designed to ensure accuracy, security and transparency in the election process.
"You also must therefore know that the procedures governing this audit ensure none of these," she wrote.
Hobbs told Bennett she's not sure why he agreed to be the Senate liaison.
"But I'd like to assume you took this role with the best of intentions," she continued. "It is those intentions I appeal to now: Either do it right, or don't do it at all."
