Fann threatens Maricopa County with more subpoenas

Doug Logan, CEO of Cyber Ninjas, answers questions Tuesday at a hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns.
Doug Logan, CEO of Cyber Ninjas, answers questions Tuesday at a hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns.

Senate President Karen Fann said lawmakers may have to take new steps — including new subpoenas and possibly going back to court — to get information that Maricopa County election officials are refusing to provide about their ballots and equipment.

The move by the Prescott Republican comes after county officials, as promised, refused to show up at a hearing she had called for Tuesday where they were supposed to answer the questions posed by Cyber Ninjas. That’s the firm she hired to conduct a review of the 2020 election returns, including the 2.1 million ballots.

County supervisors did submit written responses on Monday. But they also made it clear they were not going to attend on Tuesday. And they said they were done answering questions related to what several consider a “sham” audit being conducted by a firm run by Doug Logan, who had previously said he does not believe that Donald Trump lost the election.

In the end, that just led to Logan and others involved with the audit telling Fann and Sen. Warren Petersen, R-Gilbert, who chairs the Senate Judiciary Committee, what they still don’t know and why they still believe they need to know it to finish their report.

Tuesday’s hearing did produce one new piece of information.

Ben Cotton, founder of CyFIR, one of the subcontractors hired by Cyber Ninjas, told lawmakers he was able to locate files in election equipment that the auditors initially claimed the county had deleted. He said it turns out there were duplicates in the system.

Less clear is what happens now given the county’s refusal to answer more questions.

Former Arizona Secretary of State Ken Bennett talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate 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)
Former Arizona Secretary of State Ken Bennett talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference Thursday, April 22, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

Ken Bennett, the Senate’s liaison with the auditors, said work will resume Monday at Veterans Memorial Coliseum.

The plan had been to have the audit done by the end of last week. But when that didn’t happen, the auditors needed to pack up all the ballots and equipment and store them in another building at the State Fairgrounds because the coliseum had been promised for high school graduation ceremonies.

Fann said the auditors, denied additional answers from Maricopa County, will proceed as best they can with the information they have.

“At that point we’ll figure it out,” she said.

“We may need to take it to another level and see if we can get them to please sit down with us,” Fann said. That opens the possibility of yet another subpoena beyond the earlier ones that eventually forced the county to surrender the ballots and election equipment.

And that could lead to new litigation, with a judge asked to decide what questions, if any, the county needs to answer so the Senate can complete its examination.

But that’s not the only option.

“Or the auditors will issue a report to say, ‘Here’s what we’ve found and here are the questions that we have but we can’t seem to get answers for them,’ ” Fann said.

In any event, she said, the next step following completion of the audit would be changes in election laws to deal with any issues that senators believe are weak points in the election process. But that may not happen this legislative session as the completion deadline has now moved to June.

One question that neither Fann nor Petersen asked of Logan is where he is getting the money to conduct the review.

Logan has long since acknowledged the audit is costing more than the $150,000 authorized by the Senate. And outside interests tied to efforts to discredit the election results have been engaged in fundraising efforts.

One site, Fundtheaudit.com, claims it already has raised more than $1.7 million towards its $2.8 million goal. That site is being operated by The America Project, started by millionaire Patrick Byrne, the former CEO of Overstock.com, who has said it was “a fraudulent election.”

Fann told Capitol Media Services Tuesday she does not know who is providing the extra cash.

Karen Fann
Karen Fann

“They have told me I will get a list at the end of the audit,” she said. And Fann said once she gets it, she will make that public.

Much of what else emerged Tuesday was already known, such as the refusal of county officials to provide Senate auditors with the password for the highest-level access to the vote tallying machines.

“We cannot give you a password that we do not possess any more than we can give you the formula for Coca Cola,” they wrote Monday in their response. “We do not have it; we have no legal right to acquire it; and so, we cannot give it to you.”

Cotton told Fann and Petersen he has been told those passwords remain in the exclusive custody of Dominion Voting Systems which owns the equipment leased by the county.

Dominion did provide them earlier this year, not to the county but to two firms hired by the county to conduct their own forensic audits. County officials said those firms — unlike Cyber Ninjas — are both certified by the U.S. Election Assistance Commission as voting system testing laboratories.

And county officials said even if they did have the passwords they would not turn them over.

“Your chosen ‘auditors,’ the Cyber Ninjas, are certainly many things,” the supervisors wrote. “But

accredited by the EAC’ is not one of them.”

But Cotton, under questioning from Petersen, said he has been certified as an expert witness in court hearings. And he said he has done highly confidential security work for private corporations.

Cotton also disputed a contention by the county that providing Senate auditors with the highest-level password access would allow them to see Dominion’s proprietary “source code” for how the machine operates.

What it would allow them to do, he said, is determine if any of these tabulators had the capability of being connected to the internet. And Cotton said Pro V & V, one of the companies hired by the county for its own audit, said there was no such connection.

“The county, however, cannot validate or verify that there were or were not Verizon wireless cards inside those tabulators which would have, by definition, touched the internet,” he said. “They can’t validate that their own policies and procedures are being carried out without the ability to validate the configurations of the systems.”

Nothing in Tuesday’s hearing cleared up the questions about access to the routers, essentially the equipment that directs messages and other traffic between computers.

Bennett again insisted that he was told earlier this year by Joseph LaRue, a deputy county attorney, that the routers had been removed from the system and were ready for delivery. The current county position is that providing the routers would provide a “blueprint” of the county computer system which could direct criminals where to stage their hacking attacks to access confidential information and compromise law enforcement.

But Cotton said if that is true, that means the election equipment which was connected to the routers also had to be exposed to the internet.

“That’s certainly something that we need to explore given the inconsistencies in the public statements and reports,” he said.

Tuesday’s event was hardly a hearing, at least in the traditional sense. Only Fann and Petersen got to participate. And Democrats who are members of the Senate Judiciary Committee, on whose behalf the initial subpoenas were issued, were not invited.



Senate says lawmakers not subject to public record laws


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.


Trump backers give $5.6M for Senate audit

Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)
Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)

Groups linked to Donald Trump and conspiracy theories about the 2020 election have put more than $5.6 million into the audit run by a man who himself has touted some of the same rhetoric. 

But it’s unlikely that Arizonans ever will find out who is really behind all that cash. 

Cyber Ninjas CEO Doug Logan disclosed he has taken in more than $5.7 million. That’s on top of the $150,000 contract he has with the Senate to conduct the review of the results of the general election in Maricopa County and see if Joe Biden really outpolled Donald Trump. 

And the lion’s share of that, about $3.25 million, came from The America Project, set up by millionaire Patrick Byrne, the former CEO of “overstock.com.” Byrne already has said he believes what happened was “a fraudulent election.” 

As to who is behind all that money, there’s no legal way to find out. 

The America Project is set up under the Internal Revenue Code as a 501(c)(4) “social welfare organization.” And that precludes it from having to disclose the actual donors. 

Rod Thompson, who handles media for Logan and Cyber Ninjas, said there would be no further details released. 

America’s Future put in an additional $976,000. 

The chairman of the board is Michael Flynn who served as Trump’s national security adviser who was pardoned by Trump after twice pleading guilty to lying to the FBI about his conversations with a Russian diplomat. And its president is Ed Martin who, along with Phyllis Schlafly and Brett Decker, wrote “The Conservative Case for Trump.” 

Its website describes the organization as “the nation’s leader in the fight to preserve American values and ideals, protect the nation’s constitutional republic, promote strong American families, revitalize the role of faith in our society, and advance the virtues of free market capitalism.” 

There also was $605,000 from Voices and Votes, headed by Christina Bobb who used her position as a host on the Trump-oriented One America News Network to both say she was covering the audit as well as raising money for it. 

Other funds include $550,000 from Defending the Republic, a group headed by Trump attorney Sidney Powell, and $280,000 from Election Integrity Fund for the American Republic, a group set up specifically to generate cash for the Arizona audit that is run by Michigan attorney Matt DePerno, who was accused of spreading misinformation in his state about election fraud. 

All of these groups also are set up under federal tax law to allow them to shield the identity of the true donors. 

Thompson said he cannot say how that $5.7 million – plus the $150,000 in taxpayer dollars – compares with the actual cost, as the audit is not yet over. There apparently is nothing that precludes the dollars from being funneled personally to Logan or to pro-Trump causes. 

Senate President Karen Fann said Logan’s list fulfills a promise he made to disclose the source of outside funds which he and others have been soliciting. 

But the Prescott Republican said she is not disturbed by the failure of any of the organizations to break down the individual contributors. And she told Capitol Media Services she will not ask for that. 

“If I ask them for that, then should I ask for names of those to contribute to anti-abortion organizations?” Fann asked. She said that’s why the U.S. Supreme Court has ruled that certain contributions should be protected under the First Amendment. 

That relates to a 1958 ruling where Alabama sought to block the NAACP from operating in that state because it would not provide various records, including membership lists. The justices ruled that the demand for the list was unconstitutional. 

Fann said that makes sense. 

“Caucasians were being threatened by the Ku Klux Klan when they stood up for African Americans with political contributions,” she said. 

Fann has defended having virtually the entire cost of the audit, which she has declared to be an official government function, paid by outsiders, including those who she does not know. 

But that decision also comes on the heels of lawmakers voting to make it a crime for any outside group to provide money to state or local entities to help run elections or conduct voter registration efforts. 

That followed the disclosure that nine Arizona counties got more than $6 million last year from the Center for Tech and Civic Life. Jennifer Marson, executive director of the Arizona Association of Counties, said that helped defray some of the costs of running an election during the Covid pandemic. 

Republicans in the legislature, however, noted that the $400 million CTCL gave out came from Facebook billionaire Mark Zuckerberg and his wife, Priscilla Chan. And Aimee Yentes, a lobbyist for the Arizona Free Enterprise Club, which tends to support GOP causes, said Zuckerberg is a known liberal, accusing him of curating content, filtering conservative messages and banning individuals with opposing political opinions. 

Fann said the audit is costing far more than anticipated, blaming at least some of that on what she said has been the lack of cooperation by Maricopa County. That included a series of legal battles over what, if anything, the Senate is entitled to have, battles that so far have largely gone the Senate’s way. 

She also said there were unanticipated costs, like having to rent space in the Veterans Memorial Coliseum and obtain 24-hour security. Fann said that would not have been necessary had the county allowed Cyber Ninjas to conduct its review at county election offices. 

And a new legal battle may be in the works, with Fann having issued new subpoenas not only to the county but to Dominion Voting Systems, which provides the leased election equipment to the county. Among the things Fann wants for Cyber Ninjas are passwords, security keys and other information necessary to access the programming in the equipment.