Senate mulls next step in auditing 2.1M ballots

Pallets of ballots sit on trucks in Phoenix as senators figure out what to do next, three months after they declared they wanted their own audit of the presidential election.

The 28 tons of paper packed in hundreds of neatly stacked boxes with nowhere to go serve as a visual representation of the Senate’s audit attempt, which has been full of setbacks and false starts since it began. Republican senators have alternately plunged ahead — drafting a resolution to arrest the Maricopa County supervisors who blocked their way and announcing they hired an auditor — and fallen back, losing a vote on their contempt resolution and denying they ever selected an auditor after public pressure.

The Senate won a court battle February 26, after a Maricopa County judge found  its subpoenas could be enforced. 

Now, Republican senators are like a dog that caught the car it chased and doesn’t know what to do, said Democratic Sen. Martín Quezada. 

“I think from the very beginning this was all a big soapbox they were standing on just trying to make noise,” he said. “I don’t think they ever expected this was actually going to happen, but now they have it, and they don’t know what to do. And literally what are they gonna do? If I was the Senate president, I wouldn’t know what the hell to do with [2.1 million ballots].”

Subpoenas 

Subpoenas the Senate filed in December and January make clear that the ballots and election equipment must be delivered to the Capitol. Accordingly, the county loaded ballots onto trucks March 1 with the intention of delivering them to the Senate, Maricopa County Board of Supervisors Chairman Jack Sellers wrote in a letter to each senator March 3. 

Instead, Sellers wrote, Senate attorney Kory Langhofer — who also represented the Trump campaign in a lawsuit to challenge the administration of the election — sent the county an email at 5:08 p.m. March 1 saying the Senate was unprepared to receive any of the ballots. The county then learned from a statement the Senate GOP spokesman gave a reporter that the Senate claimed there was an “understanding” that the county would let the audit occur in the county’s election facilities – an understanding the county did not share.

These back-and-forth letters between the clashing parties now raises the question of whether the Senate Republicans will even push forward with its own audit – something they have fought over for nearly four months. Municipal elections are ongoing and the county’s buildings are occupied, Sellers wrote.

“Please advise us when the Senate is ready to receive the subpoenaed materials and where they should be delivered. If the Senate no longer wants the materials delivered, the county stands ready to discuss next steps,” Sellers said. 

Senate President Karen Fann could not be reached for comment, but the Senate said in a press release that the “best way to maintain the security of machines and ballots was to leave them at the county and have the independent auditors come to them, as was done with the first two audits.” 

Of course, the county, not the Senate, conducted those two other audits. And Gilbert Republican Warren Petersen, the Senate Judiciary Committee chairman who signed the subpoenas alongside Fann, disputes whether the county’s audits were even audits.

Hobbs’ Advice

Democratic Secretary of State Katie Hobbs wrote a letter to county election officials and senators on the evening of March 3, instructing them how to best proceed with the audit – should it happen – and reminding them of her concern over this entire debacle. 

“As you know, there is no credible evidence for any of the conspiracy theories that have abounded about the 2020 General Election, including those made by associates of Allied Systems Operations Group,” Hobbs wrote, urging Senate Republicans “not to waste taxpayer resources chasing false claims of fraud that will only further erode public confidence in our election processes and elected officials.”

But she still laid out what she views as a transparent and bipartisan process to audit the 2.1 million ballots from the county. Most of which are related to provisions in the Elections Procedures Manual.

Hobbs wrote that the senators need oversight, potentially from her office, the Governor’s Office or the Attorney General’s Office. Hobbs advised: Make sure the process is open, safe and secure; that senators they follow the law and suggest they only use red pens to mark ballots so as to not alter or add anything that could have the appearance of changing votes. And that should be done with a bipartisan group on live video feed, which should be retained for 24 months. 

She made it clear again that she is not in favor of the audit and disagrees that it will help people “trust” the election results, after all this time.

“I believe we can agree that proceeding without clear procedures for the security of the ballots and election equipment when they are in your custody, and clear procedures to ensure the integrity, independence, and transparency of the audit itself and the auditors selected, will only open the door to more conspiracy theories and further erosion of voters’ confidence in Arizona’s elections processes,” Hobbs wrote.

Not in Our House

Maricopa County spokesman Fields Moseley said supervisors had no intention of allowing senators to use their facilities for an audit they never supported in the first place. 

As Moseley sees it, the February 26 court ruling, which states that the Senate has broad constitutional power to oversee elections, would allow Republican senators to share ballots and equipment with anybody they deem fit – including Rudy Giuliani, as AZGOP Chair Kelli Ward said the Senate plans to do. 

“We have to give them everything,” Moseley said “We don’t have any control.”

Giuliani was former President Donald Trump’s personal attorney and spent the weeks after the election holding unofficial hearings, including in Arizona on November 30, trying to prove Trump won the election. Handing materials over to him would likely mean Trump and his campaign team would have access to millions of Arizonans ballots.

County elections spokeswoman Megan Gilbertson saw it differently. 

“There are many laws around the security and secrecy of ballots. Arizona’s Constitution mandates that the secrecy in voting be preserved,” she said, adding that the Maricopa County Attorney’s Office included some statutes in its legal briefings. 

It’s illegal for anyone other than an election official, postal worker or the voter’s family or caregiver to possess someone else’s early ballot, and it’s illegal to show your completed ballot to anyone else — though “ballot selfies” are allowed. 

Still up in the air are details such as when the Senate will get the materials, where Senate leaders plan to conduct the audit and what, exactly, those auditors will focus on – or who for that matter will even conduct the audit. 

At the end of January, the Senate Republican caucus announced that it had selected an “independent, qualified, forensic auditing firm” to analyze the 2020 election results, but it didn’t name the firm in the announcement.

On February 2, the Senate’s attorney, Langhofer, informed Maricopa County’s attorneys via email that the Senate had selected Allied Special Operations Group, the firm that employs the “military intelligence expert” formerly known as Spyder. 

Allied Special Operations Group has made a host of inaccurate claims, including mixing up voting precincts in Michigan and Minnesota, and pushed debunked conspiracies, such as claiming Detroit had a turnout of 139%.

Fann later said she did not plan to hire the group. She further denied picking an auditor in the first place, even when shown the Senate press release that says she hired one.

Langhofer said he expected the number of vendors with access to the ballots to be “very limited” and that the Senate is still working out logistics of where ballots will be stored and how many of the 2.1 million ballots will be reviewed. He said the Senate wants “a truly independent review of the election results in order to assess how well the processes in Arizona work” – and wasn’t planning to share the materials with Giuliani. 

Langhofer said the Senate is still considering proposals from potential auditors and he had received several calls on the subject March 2.

“I expect they’ll have a firm plan soon, but as of now, nothing’s finalized,” he said.

County officials and Senate Democrats are hesitant to believe there will be a nonpartisan independent audit, saying the best firms have already conducted an audit through the county and came back with no evidence of fraud. 

Sen. Kirsten Engel, D-Tucson, said she had not heard from either Fann or Petersen on whether Senate Democrats, or at least the Judiciary Committee, of which she is a member, would have any involvement in the auditing process. She said she would like to be involved, to make sure ballots and election equipment stay secure and there is oversight of the process. 

“They certainly aren’t conducting themselves in a manner indicating that they have much of a plan,” she said. “But this isn’t a game. What’s at stake is the integrity of the very evidence of how thousands of voters voted in our 2020 election, so we need to take the subpoena seriously and figure out a plan as to how the audit can actually be conducted in a safe, secure and accurate manner.”

Arizona Capitol Times reporter Kyra Haas contributed to this report. 

Correction: A previous version of this story erroneously reported that attorney Kory Langhofer represented President Trump in a lawsuit attempting to prove voter fraud. Actually, they lawsuit did not involve voter fraud.