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Audit attorney asks for secrecy of policies, procedures

Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, and former Arizona Secretary of State Ken Bennett, right, talk about overseeing a 2020 election ballot audit at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)
Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, and former Arizona Secretary of State Ken Bennett, right, talk about overseeing a 2020 election ballot audit at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden’s victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)

The attorney for the private firm hired by the Senate to audit the 2020 election is trying to deny public access to the policies and procedures they are using to audit the returns.

And Alexander Kolodin, who represents Cyber Ninjas, also contends the firm is not required to ensure that the 2.1 million ballots they have are being reviewed by bipartisan teams.

In new legal filings, Kolodin said he is providing the information demanded last week by Maricopa County Superior Court Judge Christopher Coury after the Arizona Democratic Party filed suit. That ranges from how the company ensures the chain of custody for the 2.1 million ballots it now has as well as the election equipment turned over by Maricopa County to issues of signature verification.

But he contends it is not in the public interest to let Arizonans see them.

“It is no secret that this audit is an emotional issue,” Kolodin wrote. “There exists a subset of individuals that might utilize such documents as a roadmap to breach the audit’s security and thereby cause the very harms (the Democratic Party) ostensibly seek to prevent.”

Anyway, he argued, the documents about the firm’s practices contain “trade secrets.”

The move is drawing opposition from the First Amendment Coalition, which represents various media organizations.

In his own legal filing, attorney Dan Barr said there is a presumption that all records, including those produced in litigation, are public.

He acknowledged there are some exceptions. But Barr said the claim by Cyber Ninjas that all of its policies constitute trade secrets holds no water.

If there are valid concerns, he said, the company could file a redacted version, with all the secrets blacked out, with a full version filed with that court. That, Barr said, would let a judge determine if any of this really needs to be withheld from the public.

“It is difficult to conceive of a case that warrants transparency more than this one,” he wrote, noting that Cyber Ninjas is a private firm which has “unfettered access” to the ballots and to information about Maricopa County voters.

“The public, especially 2.1 million Maricopa County voters, has a personal stake in knowing how Cyber Ninjas handles their personal information, including names, addresses, and signatures and whether their fundamental right to have their vote remain secret shall be preserved,” Barr wrote. “The public also maintains an exceedingly important interest in knowing that the integrity of the election and their votes will not be compromised.”

And Barr said this is especially critical given that Cyber Ninjas has never conducted an election audit and that Doug Logan, its CEO, has “a history of overt partisanship in favor of the presidential candidate who lost the election.”

All this comes amid questions about how the audit is being conducted.

The Democratic Party lawsuit contends that the processes being used by Cyber Ninjas to review the ballots and the election equipment violates various election laws. It’s attorney, Roopali Desai, wants a judge to halt the process unless and until the company — and the Senate which hired it — can show there are safeguards in place to protect the security of the ballots and the equipment.

That question of how the audit is being conducted and whether it is fair also figure into Kolodin’s claim that Cyber Ninjas is not required to have bipartisan panels review the ballots they are counting.

Kolodin acknowledged that state law requires the election boards that review ballots to have “as equal as practicable representation of the members of the two largest parties” on these review panels.

But Kolodin said that, as far as his client is concerned, that doesn’t apply.

“Cyber Ninjas, however, is not an election board and has not been hired to conduct an election for the purpose of declaring candidates elected or not elected,” he wrote. Instead, Kolodin said, the firm was hired to develop a report for the Senate about the conduct of the 2020 election, information he said the Senate can use to decide whether to enact changes to the law.

And Kolodin said, his client can’t make such decisions.

“Unlike a board of elections, Cyber Ninjas, as a government contractor, and like a government in other contexts, does not believe it is required, or even permitted, to make hiring decisions on the basis of political affiliation,” he said.

Anyway, Kolodin said, finding Democrats has proven difficult after Raquel Teran, who chairs the party, announced that it would not participate in what it sees as “sham audits.”

“The Arizona Democratic Party certainly has a First Amendment right to instruct its members not to participate in the audit,” he said. Yet at the same time, Kolodin noted, the party filed suit seeking to halt the audit because it was not being conducted in a lawful manner.

“Seeking to have this court compel equal representation of Democrats on the counting floor while working to make that impossible is not good faith litigation conduct,” he said, and can’t be used to stop the audit until it meets certain standards.

A hearing had been scheduled on the issues for Monday. But that was before Maricopa County Christopher Coury, a 2010 appointee of Republican Gov. Jan Brewer, realized that one of the attorneys working with Kolodin had done some work with his office.

Coury disqualified himself, and the case was reassigned to Judge Daniel Martin, a 2007 appointee of Gov. Janet Napolitano, who has yet to set a new hearing.

 

Media to get day in court over Senate election audit

Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)
Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden’s victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)

A judge on Tuesday said he has yet to be convinced that the rights of Maricopa County voters are being protected in the audit being conducted at the demand of the state Senate.

In a wide-ranging ruling, Judge Daniel Martin affirmed that the Senate has the authority to review the 2.1 million ballots and the machinery used to tabulate them as part of its legislative function. But he rejected claims by attorneys for the Senate that its members are constitutionally immune from being sued over how the audit is being 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 confidentiality of information,” he said.

Martin acknowledged that not all the procedures in state law and the official Election Procedures Manual for handling the ballots and protecting the security apply in a post-election audit, particularly one that has no possibility of overturning the results. Whatever comes out of the audit will not affect the fact that President Biden outpolled President Trump in Arizona.

“Certain of those procedures, however, plainly apply, and require the application of at least minimal safeguards to the audit process,” the judge said. And that means neither the Senate nor Cyber Ninjas have a free hand to do what they will with the ballots and the equipment.

All that, Martin said, means the outcome of the challenge by the Arizona Democratic Party will depend on what kinds of policies and procedures have been implemented.

It starts, the judge said, with what is required by the Senate which, in turn, communicates with Cyber Ninjas through former Secretary of State Ken Bennett who Senate President Karen Fann has tasked with being her voluntary liaison with Cyber Ninjas.

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.

Daniel Martin
Daniel Martin

“To date, there has been no showing of how Mr. Bennett intends to achieve these goals,” Martin said.

All that, in turn, goes to the question of whether Cyber Ninjas has to share with challengers — and with the public — its policies.

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 who argued not only that the policies used to conduct the audit should be kept confidential but that any hearing on them should be closed.

That ruling allows attorney Dan Barr to argue that the public has an interest in knowing exactly what is happening at the audit site and, more to the point, 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.

But the judge put off until Wednesday any ruling the question of whether the policies and procedures that are being used by Cyber Ninjas are subject to public disclosure.

Hanging in the balance is whether the hand count and examination of both the ballots and equipment will continue, and under what conditions.

Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, and former Arizona Secretary of State Ken Bennett, right, talk about overseeing a 2020 election ballot audit at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin)
Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, and former Arizona Secretary of State Ken Bennett, right, talk about overseeing a 2020 election ballot audit at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix.  (AP Photo/Ross D. Franklin)

Fann said the audit will help resolve concerns by constituents about whether the results of the 2020 election — and the vote for Biden — were accurate. But the legal position of the Senate is that it needs the review to determine if there are weaknesses in current election laws that need 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.

But Thomason made it clear that did not overcome his concerns about the confidentiality of the materials. And attorney Roopali Desai who represents the challengers 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 said.

But Alexander Kolodin who represents Cyber Ninjas 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 to review the ballots and equipment. And he rejected arguments that the lawsuit, filed just a week ago, came too late.

Public’s right to know about executions limited to official record

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Arizonans have no legal right to know where the state obtains drugs to execute inmates, the 9th Circuit Court of Appeals Tuesday.

But the judges said people do have the right, through official witnesses, to hear what is happening in the death chamber to better monitor how the state puts people to death.

The judges acknowledged claims by attorneys for both prisoners on death row and the First Amendment Coalition that knowing who made the drugs and things like the expiration dates would help the public better monitor whether the state is acting constitutionally in how it puts people to death. But Judge Paul Watford, a President Obama appointee writing the majority ruling, said this information is not part of any official record of the execution proceeding, material to which the public is entitled.

Paul Watford
Paul Watford

“It is simply information in the government’s possession that would enhance understanding of executions,” he wrote. That, however, does not grant a public right of access.

Dale Baich, the federal public defender for Arizona, said the problem is that state officials have been less than transparent − and less than truthful − in obtaining execution drugs in the past.

For example, he said the Department of Corrections claimed that it had obtained lethal drugs legally in 2010 and 2011.

“We now know as a result of litigation and other disclosures that the state wasn’t being forthright,” said Baich whose office handles most death penalty appeals in the state.

And in 2015 the state tried to import sodium thiopental from India despite the fact that there was a federal injunction in place prohibiting that action. That resulted in the U.S. Food and Drug Administration seizing a $27,000 shipment ordered by the state at Sky Harbor Airport.

It isn’t just Baich who has concluded that the state has been less than honest.

Appellate Judge Marsha Berzon, a President Clinton appointee writing separately, cited the botched 2014 execution of Joseph Wood.

She said state officials said that “nearly every detail” of its execution protocol had been made public. Yet the state administered 13 more doses of lethal drugs than the protocol authorized. And it took Wood two hours to die.

Marsha Berzon
Marsha Berzon

“These deviations in protocol are not isolated,” Berzon wrote. “In other executions, Arizona has obtained its legal drugs illegally or administered them in unauthorized dosages.”

For the moment, the question of execution protocols, including information on the drugs used and audio access, remains an academic question.

Arizona halted executions in 2014 after the botched Wood execution.

The moratorium, including one issued by a federal judge, has since been lifted. But any drugs the state had on hand have since expired.

Meanwhile the state agreed as part of the lawsuit not to use midazolam, one of the drugs used to put Wood to death, as part of any future execution.

More to the point, manufacturers of various other medications that legally can be used in executions have refused to sell them to the state to be used for lethal injections. That leaves 14 people on death row who have exhausted all their appeals.

In July, Attorney General Mark Brnovich sent a letter to Gov. Doug Ducey, offering his help in the governor ordering a new supply of lethal drugs.

Ducey told Capitol Media Services at the time he was studying the letter and remains a believer in capital punishment. But, to date, Ducey has yet to respond and the state still has no drugs that can be used for an execution.

“This is a very serious and complex issue,” gubernatorial press aide Patrick Ptak said Tuesday, saying he has nothing new to report.

Brnovich, for his part, is not letting up on the pressure.

On Tuesday he noted that the 9th Circuit ruling comes on the 35th anniversary of the murder of Vicki Lynne Hoskinson, a 7-year-old Tucson girl who disappeared while riding her pink bicycle at De Anza Park.

Frank Jarvis Atwood
Frank Jarvis Atwood

Police eventually arrested Frank Jarvis Atwood who had been released on parole in California in 1984 after serving his second prison term for sex acts with children. He initially was charged with kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.

“Now is the time to resume executions in Arizona,” Brnovich said Tuesday.

“Justice must be done for the victims of these heinous crimes,” he continued. “Their families have waited long enough.”

It isn’t just Brnovich pressuring Ducey.

In a letter to the governor obtained by Capitol Media Services, George and Debbie Carlson, Vicki’s parents, asked him to order pentobarbital to resume executions of federal inmates. They noted that Brnovich has said the federal government apparently is able to get the drug, making him believe Ducey could too if he pursues the matter.

“We have come to a point of questioning where the rights of the victims come into the criminal justice system,” the couple wrote to the governor urging him to order the drug. “We are proof it does not!

While refusing to require the state to provide more information on what drugs it eventually hopes to use for executions, the judges reached a different conclusion on the legal question of whether the right to witness executions also includes the right to hear the sounds the inmate is making as he or she is being put to death.

“The public has a First Amendment right to view executions in their entirety,” Watford wrote. And he said the current practice of the Department of Corrections to put inmates to death behind sound-proof glass does not meet that requirement.

That issue of sound has become an issue since the botched 2014 execution of Wood.

Witnesses said while there was evidence of choking and coughing − and that it took 13 more doses of lethal drugs than the Department of Corrections protocols authorized − they could not hear anything other than the few moments when the microphone in the death chamber was turned on so the execution team could provide updates.

“Lifting Arizona’s restriction on the witnesses’ ability to hear would ensure more comprehensive coverage of executions in the state,” Watford wrote.

The judge said that conclusion was really setting no new precedent.

“Executions have historically been open to the press and the general public,” he said, going back to the days of public hangings. “The crowds that gathered to watch those executions could, no doubt, hear the sounds of the entire execution process, even if not with perfect clarity.”

Senate says lawmakers not subject to public record laws

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Senate President Karen Fann is taking the position that Arizona courts cannot force her or any other member of the Arizona Legislature to comply with the state’s Public Records Act.

In a new court filing, attorney Kory Langhofer who represents the Prescott Republican and the entire Senate, is asking Maricopa County Superior Court Judge Michael Kemp to throw out a claim by a self-described nonpartisan watchdog group to get access to all documents and materials related to the Senate’s audit of the 2020 election results.

Langhofer said the Senate has or will produce documents in its possession. Ditto with those in the possession of Ken Bennett who was tapped by Fann to be her liaison with Cyber Ninjas, the private company hired to conduct the audit.

The only exception, Langhofer said, are those which are protected as privileged or confidential.

He said, though, what American Oversight wants are documents that are in the hands of Cyber Ninjas or other companies it has, in turn, hired as subcontractors.

Langhofer said the Public Records Act does not apply to private companies. And he rejected arguments by attorney Roopali Desai that the records are public because the only reason Cyber Ninjas got the materials in the first place was because they were subpoenaed by the Senate.

But Langhofer has a backup legal argument just in case the judge does not read the scope of the Public Records Act as narrowly as he does. He told Kemp he has no jurisdiction in the fight.

The Arizona law spells out that public records and other matters in the custody of any officers “shall be open to inspection by any person at all times during office hours.”

Langhofer concedes that the Senate is a “public body” and lawmakers are “public officers” who, in any other circumstance, would be covered by the law.

Only thing is, he said, they are not subject to it.

“The Arizona Constitution entrusts each house of the Legislature plenary power to order its own internal procedures and affairs,” Langhofer wrote.

More to the point, he said even if there is a question — a point he is not conceding — courts are powerless to determine if lawmakers need to comply with the laws they enacted.

“Statutory measures (such as the Public Records Act) necessarily subordinate to this constitutional function,” Langhofer wrote. “Allegations concerning the legislature’s compliance with them present nonjusticiable political questions.”

If the courts agree, that would do more than leave American Oversight without a legal remedy. It also could set the stage for setting a new precedent which could leave all Arizonans powerless to use the Public Records Act to demand everything from legislative documents to letters sent to lawmakers and texts they send and receive.

But Dan Barr, attorney for the First Amendment Coalition, said he believes courts will reject any effort by Fann and her legal adviser to rule that lawmakers need not comply with the Public Records Act. He said they are clearly public officers.

“I don’t buy this notion that even though the state legislature, passing the public records law, didn’t have the power to bind itself to the law,” he said. “That’s sort of nuts.”

And Barr said that while Langhofer is relying on the constitutional provisions allowing lawmakers to set their own rules, the laws on public records actually predate the 1912 Arizona Constitution.

He also brushed aside claims that courts have no right to tell another co-equal branch of government how they have to behave.

“The (U.S.) Supreme Court decided years ago … about courts having authority to tell other branches of government what they can and can’t do,” Barr said.

“Courts strike down statutes all the time,” he said. “Courts rule on actions taken by the governor all the time.”

The lawsuit, filed last month, does not seek access to the ballot themselves.

Maricopa County turned them over under subpoena. And they are not public records.

And Fann already has made public the contract documents between the Senate and Cyber Ninjas.

But the lawsuit says at least part of what is missing are any contracts involving third-party vendors that the Senate directly or indirectly retained through Cyber Ninjas.

Desai also wants any records reflecting the audit’s budget and any external funding that may have been received.

Fann has told Capitol Media Services the only thing she knows about is the $150,000 that the Senate has agreed to pay.

That clearly is not covering the cost of the audit which has now been going on for months. And the America Project, started by a millionaire who says the election results were fraudulent, is trying to raise $2.8 million “to support and pay for expenses of the Maricopa Audit.”

It was founded earlier this year by Patrick Byrne, the former CEO of overstock.com. Byrne, in an interview earlier this year with ntd.com, said he was setting up the organization to continue the fight over the 2020 election results.

“It was a fraudulent election,” he told the television network. “It didn’t end for us on Jan. 20.”

So far the group, operating a site at “fundtheaudit.com,” says it has raised more than $1.9 million.

Fann said she has been promised there will be an accounting at the end of the audit. But questions remain as to how much will be made public.

The American Project was set up under a section of the Internal Revenue Code as a “social welfare organization.” That means it is not legally required to disclose the names of the people who donate.

Desai said her contention that the records being sought from Cyber Ninjas and the other contractors are public are buttressed by statements made by Fann.

The Senate president has said that the purpose of the audit is not to overturn the election results that showed Joe Biden defeating Donald Trump. Instead, Fann said, senators want to examine how the balloting process was handled, at least in Maricopa county, giving information to senators to decide whether changes need to be made in laws governing the conduct of future elections.

That, Desai said, makes everything the Senate — and its contractors — are doing to accomplish that goal a matter of public records.

Langhofer, however, said Kemp has no choice but to dismiss the case.

“When adjudication of a claim will entail incursions into the internal domain of the legislature or executive, respect for those coequal branches necessitates dismissal,” he said. And Langhofer said if there are questions, then they have to be resolved within the branch of government itself or, ultimately, by the people who elect them.

A hearing on the issue is set for next month.