When the Arizona audit of the 2020 election began, the public had two avenues to receive information – former Arizona Secretary of State Ken Bennett and the Arizona Audit Twitter account. Three months later, it has neither.
Tuesday’s suspension of the account comes a day after Bennett, Senate audit liaison, said he is considering resigning his post after being permanently barred from the building where the audit of Maricopa County 2020 ballots is taking place.
Senate President Karen Fann, R-Prescott, said in a statement Tuesday that Bennett would still “be involved and a vital part of the draft and final reports to ensure their accuracy with his knowledge and contributions throughout the audit process.”
However, Fann said Bennett’s disclosure of “unconfirmed information” led to his removal from the hands-on part of the process.
“It is irresponsible to disclose partial information to the media since they are not ‘confirmed’ facts until the audit is final,” Fann stated. “This only leads to confusion and misinformation with the public.”
Bennett, who has been involved with the Senate’s review of the Maricopa County 2020 ballots since April, was considering calling it quits entirelyafter a few incidents he discussed in radio interviews Monday.
The latest was on July 23, when he arrived at the Wesely Bolin Building – where the ballots are currently housed after leaving Veterans Memorial Coliseum – and was not permitted inside.
The election review is now entering its fourth month. Workers are wrapping up an additional count of ballots and vacating the Wesley Bolin Building at the Arizona State Fairgrounds by the end of this week, said Randy Pullen, audit liaison and former Arizona Republican Party chairman.
Pullen said that Bennett was told Friday he would not be allowed back in the building while counting continued, though that was unclear in Bennett’s public remarks Monday.
The Arizona Senate also issued new subpoenas Monday for more election information from the county, including mail-in ballot envelopes or images of them, voter registration records with change histories, information about security breaches of elections systems, passwords and information for administrator access to tabulation machines, network logs and router information.
Fann andBennett attributed his barring to sharing information about ballot counts in some of the ballot boxes with Larry Moore, the retired founder of Clear Ballot, who, along with Republican analyst Benny White, has conducted his own analyses of the 2020 election.
“I shared some box counts of how many ballots were in each box, and that got leaked to the press,” Bennett said. “I apologized to the Senate, to President (Karen) Fann. I had promised that information would not be leaked to the press, but it indirectly got done. So, that’s how I got barred from the audit.”
Pullen said it was one of many incidents where Bennett “violated his commitment not to release information” and that Bennett, the spokesman, had declined to sign a nondisclosure agreement earlier on in the review.
“Frankly, he was asked to sign an NDA that week they had the hearing, and he refused to sign the NDA,” Pullen said. “Again, it’s unfortunate that that he chose to do that.”
Pullen notably is also the treasurer for the 501(c)(4) nonprofit Guardian Defense Fund, created by Rep. Mark Finchem, R-Oro Valley, to raise money and pay for audit security. The lead security officer known only as “Cowboy Hat Andy” told Bennett he could not speak to a 12 News reporter last week because he was no longer spokesman. Bennett said it was a “power play.”
Pullen said he spoke to Fann Thursday eveningafter becoming aware that Bennett had shared the data with Moore. Pullen said it was the Senate’s decision to bar Bennett.
“Once it became clear that he was the source of the problem, on Thursday, Karen Fann and I agreed that he wouldn’t be let back into the building while counting was going on,” Pullen said, adding that Fann tried to “relay that information” to Bennett Thursday night but was unable to reach him.
Fann wouldn’t confirm or deny that detail Monday evening. She instead sent a general statement.
“Ken is a valuable asset to the senate audit and will continue to be so,” Fann said via text. “The physical work is expected to finish up in the next few days and the auditors will take all the data back to their labs for analysis.”
She would not specify if one of those labs was in Montana where audit subcontractor CyFir founder Ben Cotton took data recently.
Fann also did not address the conversation in her Tuesday comments, but took several shots at Maricopa County for “withhold[ing] vital information from the public and the auditors which has created additional costs, months of delays and a lack of transparency on their part.”
She did maintain that Bennett was still part of the team.
“When the draft report is ready for review, it is planned for Ken, Senator (Warren) Petersen, myself and our legal team will be reviewing the report with the auditors to ensure all information is clearly explained and documented correctly,” Fann continued.
“Regarding access to information: our senate members nor I have access to the numbers of the ongoing audit except for the information we were provided at the public hearing on July 15th,” she said, adding that the media has as much info as the Senate does.
She added that she hired the auditors to do a job and nobody should “be looking over their shoulder telling them how to do their job or asking for premature information.”
That seemed like a swipe at Bennett who was asking questions to which Cyber Ninjas and Pullen would not provide answers.
“I cannot be a part of a process that I am kept out of critical aspects along the way that make the audit legitimate and have integrity when we produce the final report,” Bennett told James T Harris of “The Conservative Circus” on 550 KFYI. “And unfortunately, there have been too many of those situations.”
Bennett was one of the only signs of transparency coming out of the Senate’s audit, helping walk through details for the press corps and answering questions as best he could. He was never willing to admit he was intentionally being left out of the audit’s inner circle.
Fann would not comment on whether she was concerned over Cyber Ninjas and Pullen withholding information from Bennett — the one person involved with extensive election oversight knowledge — or whether she could trust that information since Bennett was hired as her liaison to transmit information between the parties involved. If he wasn’t getting all the information, it’s unclear if she was.
“When the audit is complete then they will need to provide us with all their proof and documentation of their results,” Fann said.
Bennett said via text he has no comment at this time.
Bennett was there to operate as the messenger between the contractors and Fann, so his banning raises more questions than before.
On the radio Monday, Bennett said he’s still fully committed to the audit but called being denied entry “the tip of the iceberg.”
He gave a couple examples of what’s underneath the surface.
Early on, Cyber Ninjas were not forthcoming with how they were counting boxes of duplicate ballots, Bennett told Harris, and he heard the auditors were telling workers, “Don’t share anything with Secretary Bennett.”
Bennett said that when he learned the Senate wanted a third recount of the ballots, he went to Pullen and asked for the procedures because he was concerned about the independence of the count.
“He refused to tell me,” Bennett said.
Bennett said he was concerned there would be “force balancing” to make it match the Cyber Ninja’s count. Harris pointed out that Bennett does not know the Cyber Ninjas’ count because it has not been shared with him.
Now with Bennett’s access kneecapped and the suspension of the “official” Arizona Audit Twitter account, it’s unclear how much information the press and public will receive moving forward — or where that information will come from.
Twitter also banned the Audit War Room account, which was created after the official account was criticized for being inflammatory. (All other state war room accounts were also suspended likely due to one person running them, something Twitter tries to avoid.)
The Audit War Room account has attacked elected officials and the media. In one instance, it mocked an Arizonan whose dog died.
It is still unclear who was posting to the accounts.
Editor’s note: This story has been revised to include a statement from Senate President Karen Fann on Ken Bennett being involved in the final report of the audit.
Republican Maricopa County Supervisors Jack Sellers and Bill Gates testified to Congress October 7 that the county’s 2020 general election was secure and that the months-long review spearheaded by Arizona Senate Republicans undermined democracy.
The Arizona Senate hired Florida-based contractor Cyber Ninjas to audit the county’s election results earlier this year. The contractors and its subcontractors presented its results September 24, finding no widespread fraud but insinuating impropriety on the part of the county.
The Democrat-led U.S. House Committee on Oversight and Reform held the hearing to assess Cyber Ninjas’ review and “how this and similar audits undermine public confidence in elections and threaten our democracy.”
Sellers and Gates spoke out strongly against the audit in their testimony and response to the committee’s questions. Gates told the committee that the 2020 general election was “the best election” ever run in Maricopa County because it was the most scrutinized. He called the efforts to delegitimize or decertify the election “the biggest threat to our democracy” in his lifetime and slammed Cyber Ninjas’ lack of experience and pursuit of conspiracy theories in its review.
“I don’t have a problem with audits. I had concerns with this particular audit,” Gates said.
Sellers said he was “naive” to think he could just sit down with Senate Republican leadership to answer their questions and address their accusations following the election.
“It’s become clearthere are those who don’t care what the facts are — they just want to gain political power and raise money by fostering mistrust of the greatest power an individual can exercise in the United States: their vote,” Sellers said.
David Becker, with the Center for Election Innovation and Research, and Gowri Ramachandran, senior counsel at the Brennan Center for Justice, also testified. The two elections experts said the Cyber Ninjas’ election review has undermined democracy and led to laws that will make elections less secure.
“Tens of millions of Americans, sincerely disappointed that their candidate lost, have been targeted in a scam to keep them angry, divided and donating,” Becker said.
Rep. Cori Bush, D-Missouri, asked Ramachandran if the Cyber Ninjas review has paved the way for more “election subversion laws,” even though it found no widespread fraud.
“Cyber Ninjas’ review has laid the groundwork for these laws because they’ve made insinuations of fraud,” Ramachandran said, noting that “a whole host of laws that make it harder to vote have been popping up all over the country.”
Ramachandran gave the example of an Arizona bill from Rep. Shawnna Bolick, R-Phoenix, that would have given the Legislature the power to pick electors for president that were not the ones voters selected.
Former Secretary of State Ken Bennett, the audit’s liaison, testified as a minority witness, defending the months-long review. In responding to questions, Bennett said Joe Biden was legitimately elected and that alternative interpretations of the audit were incorrect. He said the hand-count results lends legitimacy to the review.
“Despite months of warnings from the county, secretary of state, election experts and most of the media that the auditor’s procedures were imprecise and unreliable, the most significant finding of the audit is that the hand count of the physical ballots very closely matches the county’s official results in the president and U.S. Senate races,” Bennett said.
Cyber Ninjas CEO Doug Logan turned down the committee’s invitation two days before the hearing. Instead of testifying, Logan spoke October 7 on a program hosted by Joe Oltmann, the founder of far-right group FEC United. It was entitled “Cyber Ninjas CEO Tells Congress to Fork Off and Joins Us Instead.”
“Mr. Logan’s refusal to answer questions under oath is just one more sign that the dark money-fueled audit he learned never should have happened in the first place,” Chairwoman Carolyn Maloney, D-New York, said.
Maloney and Subcommittee on Civil Rights and Civil Liberties Chair Jamie Raskin, D-Maryland, first reached out to Logan in July, requesting all documents showing how the Arizona Senate hired Cyber Ninjas, the company’s financial interests and communications related to the audit, among other records.
Cyber Ninjas repeatedly refused to turn over requested information, instead submitting about 330 pages of already public documents. The company’s attorney told Democratic committee leadership that the inquiries were vague and overbroad and carried a “patently partisan and prolix tone.”
Arizona Republican Reps. Paul Gosar and Andy Biggs sit on the committee. They both used their time during the hearing to argue the review was warranted and to allege fraud in the 2020 election. Gosar and Biggs were among the 147 Republicans who voted to overturn the election results on Jan. 6.
Raskin asked Biggs, “Who won the election in Arizona?”
“We don’t know,” Biggs responded.
Biggs repeated the statement later, claiming the audit raised “questions and anomalies” that haven’t been addressed.
“I think there are legitimate concerns; I’m not sure that the audit revealed those,” Biggs said. “But I can tell you that both sides are further entrenched today than they were six, eight, 10 months ago in Arizona.”
Elections experts and the county have refuted many of the Cyber Ninjas claims in their report. Bennett acknowledged in his testimony that the county has said it has “answers and explanations” to the contractors’ findings.
The Arizona Senate has no legal excuse to refuse to publicly produce the records of the firm it hired to audit the 2020 election returns.
In a brief order Tuesday, the Arizona Supreme Court refused to overturn a Court of Appeals ruling that the records of Cyber Ninjas as related to the audit are public.
That leaves intact the finding that the records are the property of the Senate. And that, the appellate judges said, makes them subject to disclosure under the state’s public records law.
The justices also dissolved a stay they had issued to allow the Senate to keep the documents confidential at least for the time being.
But it remains unclear exactly when the public will finally get a look at what has been shielded.
Senate spokesman Mile Philipsen said he knows some of the disputed documents already have been gathered and may be ready for release within days. But with an estimated 60,000 records that have yet to be produced, it may take longer to get the rest of them online for public viewing.
And then there’s the possibility the Senate will try to make new claims about why some of the documents should remain shielded.
That is not speculation. Attorney Kory Langhofer who represents Senate President Karen Fann, told a judge in a parallel case that there may be an argument that communications between senators and the auditors who are under contract could be withheld under the argument that they represent either legislative privilege or attorney-client privilege.
“I will need to confer with our attorneys the best way to comply,” Fann told Capitol Media Services.
But attorney Roopali Desai who represents American Oversight, the organization that filed suit for access, said as far as she is concerned this is the end of the road.
“They need to produce Cyber Ninjas documents,” she told Capitol Media Services. And she dismissed the idea that the Senate could now claim the these are somehow “internal documents” subject to some sort of privilege, given that the Senate all along argued that Cyber Ninjas is not part of the Senate.
Maricopa County Superior Court Judge Michael Kemp has scheduled a hearing for Thursday on what happens next.
American Oversight filed suit in May, more than a month into the audit, demanding all records created, sent and received not only by the Senate but any of the Senate’s agents. Desai said that includes Cyber Ninjas which had a $150,000 contract to review the 2.1 million ballots cast in Maricopa County this past November, compare the results of the presidential race with what was officially reported, and examine the voting equipment used to look for flaws or signs of tampering.
Langhofer said the Senate never disputed its obligation to produce the records it actually has. But he argued there is no requirement to turn over records it does not have, meaning those in the hands of Cyber Ninjas.
That argument didn’t wash with the Court of Appeals.
“Public officials must make and maintain records reasonably necessary to provide knowledge of all activities they undertake in furtherance of their duties,” wrote appellate Judge Maria Elena Cruz. And she said the election audit is both a public function being carried out by the Senate within its constitutional powers as well as an official legislative activity.
Cruz also pointed out that the audit is being conducted with public funds, with Cyber Ninjas and the sub-vendors it hired, acting as agents of the Senate.
“The Senate defendants, as officers and a public body under the public records law, have a duty to maintain and produce public records related to their official duties,” she wrote.
“This includes public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate’s agents,” Cruz continued. “The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”
All that was left undisturbed by Tuesday’s Supreme Court order.
That order comes as Fann along with key senators and staffers are reviewing what is billed to be a three-volume report on its findings. But that report may not be released until next week.
Fann has said repeatedly that the purpose of the audit is not to overturn the results of the presidential election which showed Democrat Joe Biden outpolling incumbent Republican Donald Trump in Maricopa County. The Biden margin was enough in the state’s largest county to counter strong Trump support in some of the rural counties and give the Democrat the state’s 11 electoral votes.
But she said it will prove useful to find out if changes are needed in state laws governing how future elections are conducted.
Senate election auditors provided no evidence of widespread fraud Friday but dangled enough insinuations of impropriety to give Donald Trump supporters an inkling of hope that future investigations will uncover wrongdoing in connection with the 2020 general election in Maricopa County.
The auditors’ presentation did not divert significantly from draft copies of their report obtained by the media the day before the presentation, which showed, among other things, that the Cyber Ninjas’ hand count of Maricopa County’s 2.1 million ballots found Biden won by a slightly larger margin than what is included in the official county canvass. The hand count added 99 votes to Biden’s total and took away 261 Trump votes.
In a statement, however, Trump said the audit “shows incomprehensible fraud at an election changing level.
“Arizona must immediately decertify their 2020 presidential election results,” he said, though no one, including Trump, has explained how that is even a legal possibility.
But the report also highlights various concerns the auditors have with the county’s elections processes, which drew criticism from election experts and Maricopa County officials.
Senate President Karen Fann said she turned over all audit reports to Attorney General Mark Brnovich, and it is now up to him to investigate the auditor’s claims to determine if further actions are necessary.
“He has access to a lot more rolls than we do; access to social security numbers; access to more death certificates,” she said, pointing to the legislature’s decision in recent years to fund the Attorney General’s election integrity unit.
“He’s got the staff; he’s got the money – I want him to do it,” she said.
Fann also did not rule out the possibility of a special session to draft new legislation based on recommendations from the auditors.
She said the Senate’s Judiciary and Government & Ethics committees will review the information and begin drafting legislation “so we can get it done as quickly as possible.”
“If there are some things that we can specifically get done that is reasonable – that we know we’ve got the votes on – we’ll reach out to our governor and say ‘would you mind calling a special session at least to get us the basic things in place before the next elections,’” Fann said.
It does not appear Gov. Doug Ducey, who would have to call the special session, would comply with such a request, though. Fann also does not likely have the votes to support calling a special session without Ducey, which would require the support of two-thirds of both chambers.
In a lengthy Twitter thread, Ducey wrote, “Any meaningful policy recommendations identified should be addressed in the next session of the legislature.”
The governor’s spokesman did not respond to a request to clarify his stance on a potential special session.
In his thread, Ducey said trust in the election system has eroded in recent years, but declared the audit and 2020 election are “over” and “there will be no decertification of the 2020 election…”
The Cyber Ninjas’ report listed one finding as a “critical” concern and two as “high” concerns, but elections experts quickly refuted the claims.
The report’s recommendations, based on its findings, also largely overlap with practices already in use in the state. Amy Chan, Clean Elections commissioner and former elections director under former Republican Secretary of State Ken Bennett, noted the overlaps..
“It’s not that these are bad recommendations; it’s more that they’re telling on themselves that they don’t know we already do them,” Chan said.
The report’s recommendation to compare voter rolls to Electronic Registration Information Center lists, or ERIC lists, for example, is unnecessary because Arizona is already an ERIC member state, Chan said. ERIC is a nonprofit that helps states maintain accurate voter rolls. Thirty states and D.C. are members.
Elections in Arizona also already use paper ballots and create a paper trail for ballots cast by individuals with disabilities in an alternative format.
Cyber Ninjas said its finding regarding mail-in votes from previous addresses was “critical.” The report said they found 23,344 ballots that “may have met this condition.”
They claimed that the only way the correct person could return the ballot was if it was improperly forwarded or if the voter knew the current occupant of their previous address.
That’s not true, the county and elections experts said.
“Cyber Ninjas still don’t understand this is legal under federal election law,” the county’s Twitter posted. “To label it a ‘critical’ concern is either intentionally misleading or staggeringly ignorant. AZ senators should know this too.”
Chan said there are a few reasons someone may vote and the address tied to their registration is different from where they’re currently living. Military and overseas voters can cast federal-only ballots linked to their stateside address, and people move all the time.
The county added that it had 20,933 one-time temporary address requests for the November election. It also noted that snowbirds and college students may have forwarding addresses while they’re out of the county. Ballots are not forwarded.
The Cyber Ninjas came to their previous address voter number and other figures in their report by comparing the final voted file to a commercial database. Tammy Patrick, a former federal compliance officer for the Maricopa County Elections Department, said using commercial databases is problematic and that those products can be “some of the lowest quality” — outdated and inaccurate. Patrick is now a senior adviser to the elections program at the Democracy Fund, a nonpartisan foundation that advocates for the U.S. democratic system.
“One of the most critical, critical pieces of this is they are relying a lot on that commercial addressing service,” Patrick said. “Traditionally, that is not a path that most people go down.”
The Cyber Ninjas also labeled “high” their finding that 9,041 more ballots were returned than were received. But that finding and a finding that the official result totals don’t match the Final Voted File can be explained by protected voters, whose addresses aren’t included in the Final Voted File to protect their safety.
“Standard stuff from this camp,” Maricopa County Recorder Stephen Richer tweeted. “Conveniently ignores the fact that there are protected voters who aren’t produced in these reports. Because, you know, we care about law enforcement, judges, domestic violence victims, etc.”
Logan said his team asked the county about the discrepancy a week or so ago.
“The day before we were to present results, they decided to tell us that those were actually protected voters,” Logan said.
Logan said his team wasn’t able to determine if that was true before presenting its report, and he blamed Maricopa County for not cooperating sooner.
The Cyber Ninjas’ third top finding was that 10,342 voters may have voted in Maricopa County and in other counties because they shared the same full name and birth year as someone who voted elsewhere. The report acknowledged that some people share that information but said it was not common and that the list should be reviewed.
The county and experts disagreed.
“There are dozens of people with the exact same name,” Patrick said. “Every year you see what are the most common baby names this year. Well, in 18 years, that means those people with the common baby names are all going to be registering to vote.”
The county gave an example: There are seven active voters in Maricopa County named Maria Garcia who were born in 1980. There are 12 statewide.
“To identify this as a critical issue is laughable,” the county tweeted.
Despite the county’s criticism, audit supporters appeared elated with the presentation.
They burst into applause on multiple occasions, despite the fact the auditors never once uttered the word “fraud” or made claims the election was stolen from former President Donald Trump.
One of those moments occurred when CyFir CEO Ben Cotton mentioned they had photos of Maricopa County employees at computers when information was supposedly deleted.
Throughout his testimony, which focused on supposed cybersecurity issues with Maricopa County’s elections systems, Cotton alleged tens of thousands of security logs and other files containing election-related data were deleted from county scanners, servers and other machines.
“So, I’m going to assume at this point that it’s not available for us to look at or else they would have turned that over to us,” Cotton said, referring to some of the security logs in question.
He then told Fann and Petersen that the audit team obtained video footage of county workers using the machines at the time the logs and other files were deleted.
While Cotton did not accuse those unknown workers of fraud, the mere insinuation was enough to elicit cheers from most of the non-media attendees packed into the Senate gallery.
The celebrations died down considerably when Cotton said he would not reveal the identity of those individuals.
Maricopa County officials quickly refuted Cotton’s claim on Twitter, explaining that county elections staff archived the data that Cotton thought was deleted.
“Maricopa County strongly denies claims that (elections department) staff intentionally deleted data,” the county posted on its official Twitter account. “As we’ve stated, staff were conducting the March election & compiling info required to comply w/ Senate subpoena. We have backups for all Nov. data & those archives were never subpoenaed.”
Cotton also claimed he found evidence that multiple county elections devices were connected to the Internet – a point of contention for election fraud theorists who believe that connection could have allowed a bad actor to alter vote tallies.
To back up the claim, Cotton cited documentation he included in his presentation showing some devices he examined accessed outside webpages or IP addresses between January 2020 and February 2021.
Again, Maricopa County refuted the claims that those logs proved anything nefarious occurred.
“None of this is the election system. This is all the voter registration system. Sigh. This is so irresponsible,” Maricopa County Recorder Stephen Richer posted on Twitter.
For instance, one of the devices cited by Cotton – named “REWEB1601” – was connected to the Internet, the county said on Twitter, because it is the server for the Maricopa County Recorder’s website.
“Despite what Cotton is saying right now, none of this matters on an air gapped network,” the county posted.
The term “air gapped” refers to a network that is not directly connected to the Internet or any other device that is connected to the Internet.
Throughout the presentations, the audit team, Fann and Petersen repeatedly hedged allegations by pointing to the fact that the county did not cooperate with the audit, withholding items like routers and Splunk logs that the Senate subpoenaed.
The routers would show whether election equipment was connected to the Internet at any point during tabulation.
The Senate and county have since agreed to a settlement under which the county will provide those materials to a special master – former Congressman John Shadegg – and a team of IT professionals, who will then answer the auditor’s questions.
The third major prong of the auditors’ report focused on the validity of signatures on mail-in ballots.
Shiva Ayyadurai, a former Republican U.S. Senate candidate from Massachusetts who claims to have invented email, was hired by the Senate to review signatures on early voting ballots. In his presentation, he said he found numerous discrepancies, including possible duplicate voting, 9,589 ballots that should not have been counted due to missing or scribbled signatures and a too-low rate of ballots being rejected due to signatures. Ayyadurai called for an audit of the county’s signature verification process.
“Amazing report from Dr. Shiva,” tweeted state GOP Chairwoman Kelli Ward. “Many questions for Maricopa County as well as exposure of incompetence & possible malfeasance. A FULL SIGNATURE AUDIT IS ABSOLUTELY NECESSARY!”
Maricopa County officials dismissed Ayyadurai’s conclusions and said there were innocuous explanations for the discrepancies he highlighted.
“Reminder that — under court supervision (where you can’t lie willy nilly) as a part of 1 of 8 unsuccessful court cases — Kelli Ward’s handwriting expert looked at a sample of the signature affidavits and found … 0 signs of inaccuracy or fraud,” Richer tweeted.
In her letter to Brnovich, Fann listed several changes to election administration she would like to see. Much of her letter criticized Maricopa County and its non-cooperation with the audit.
“Laws should require transparency and affirmative cooperation from every elections official,” Fann wrote.
Fann said elections officials must be required to preserve evidence so a “top-to-bottom audit” can be done.
“Arizona voters deserve an unimpeachable electoral process — and the State Senate is already working hard on new legislation to deliver that,” Fann wrote.
At the end of the hearing Sen. Warren Petersen, R-Gilbert, who is the chairman of Senate Judiciary and who presided over the hearing along with Fann, criticized the county for fighting the audit.
“How much money have they spent trying to stop our audit?” he asked. “Has to be in the hundreds of thousands of dollars.”
He listed areas he would like to see investigated further or addressed, such as cybersecurity issues related to election systems, unsigned ballot envelopes and reconciling the numbers in the various counts.
“I look forward to working with my colleagues and with the Attorney General in any way to resolve these issues,” Petersen said.
Fann said, if nothing else, the audit has taught us that we need more audits.
“We need to do audits to some extent, we need to do bigger audits on every election just to make sure people are following the rules,” Fann said.
Maricopa County Board of Supervisors Chairman Jack Sellers issued a statement after the presentation, noting that “the auditors buried this fact: their ballot recount was nearly identical to the County’s count, and the official results stand.”
He criticized the auditors and Senate leadership for “falsely” and “recklessly” accusing county workers and officials of potential crimes.
“Today’s hearing was irresponsible and dangerous,” he wrote.
Followers of Arizona Sen. Wendy Rogers on the alternative social media site Gab made death threats against county officials during the presentation.
“Drag them from their houses to the town square and hang them on every lamp post!!” user Jeffrey DeYoung wrote.
House Minority Leader Reginald Bolding, D-Laveen, said the audit was meant to “allow for really radical right, extreme members of the (Republican) Party to use as a fundraising tool,” to rally Trump supporters and to provide justification for more legislation in 2022 that, Bolding fears, would make it more difficult to vote.
“I imagine there’s a long list of pieces of legislation they’ll look at to make it actually more difficult for people to participate in democracy,” said Bolding, who is running for Secretary of State.
Rep. Mark Finchem, R-Oro Valley, who has been a loud proponent of stolen election conspiracy theories and who is one of three sitting GOP lawmakers running for Secretary of State, has been calling for a door-to-door audit of the voter rolls.
Bolding said he considers this voter intimidation and would be strongly opposed to it.
“When you look at the Voter Rights Act, when you look at our Constitution, when you also look at what we should be doing as elected officials, one thing is we should not be intimidating voters by having third-party individuals knock on people’s doors to intimidate them,” Bolding said.
Capitol Media Services contributed to this report.
As the first reports of the Arizona Senate’s review of 2020 general election results in Maricopa County are released, progressive voting rights groups worry about how the findings will be used as the basis for legislation next session.
Emily Kirkland, executive director of Progress Arizona, said she expects Republicans to use the reports as justification to introduce a slew of voter suppression bills next year.
“We’re in a place now where we can be confident that the Cyber Ninjas’ report is going to be the starting point for a whole series of bills, such that we are just making law based on the right-wing conspiracy fever dream that is the Cyber Ninjas report,” Kirkland said.
Cyber Ninjas’ report is set to come out Friday – five months after the Arizona Senate’s review began at Veterans Memorial Coliseum. Some Senate leaders are scheduled to meet Friday with contractors and others involved in the audit in public on the Senate floor.
Kirkland said that while she has seen some Republicans look to restrict voting rights in the past – even before former President Trump won in 2016 – the 2021 legislative session was different. She expects much of the same in 2022.
“Now, it is the attempt to make elections illegitimate after they have happened and to overturn the results of elections that trusted local officials have conducted and have verified after they have happened,” she said.
Kirkland said the review wasn’t a one-time thing, but “a new reality” in terms of how elections are viewed in the future.
From the beginning, Senate President Karen Fann has said that the audit was “all about” checking to see if election officials are following current law and determining whether new legislation is needed.
“Do they (the laws) need to be tightened up? Do they need to be tweaked?” Fann asked. “Or, do we need to add some new laws because we’ve got things falling through the cracks?”
Alex Gulotta, Arizona state director for All Voting Is Local, characterized the Cyber Ninjas review as part of a bigger strategy to preserve political power, noting the Senate’s style of election review has been exported to other states.
“It’s a cancer,” Gulotta said.
He said that the best recourse is for audit critics – both Republicans and Democrats – to take “affirmative and serious action” to treat it, namely by voting out those promoting the idea the election was stolen.
“We need to think about, once the people who are in control change, how do we fix this? This can never happen again,” Gulotta said. “How do we fix our systems so that this arbitrary exercise of power can’t ever be allowed to flourish, the way it has been after this election?”
Kirkland said she doesn’t plan to go point-by-point through the report because she said it’s already known that Cyber Ninjas’ conclusions are based off a partisan process that didn’t follow “any kind of best practices.”
Gulotta said that when he looks at the report, his attention will be limited to what claims it makes that could be used in drafting legislation next year.
“Those will be the things that we will want to take a look at to be able to say, ‘Well, actually, this is not real, and this is why this is not real,’ ‘Maricopa County has already established that this is not real,’ etc., etc.,” he said. “We’re going to want to do those things to the degree they’re trying to take negative action that can impact people’s ability to vote.”
The Friday reveal doesn’t mark the end of Cyber Ninjas’ involvement.
The Florida-based contractor will also participate in the Senate’s review of Maricopa County’s routers and Splunk logs, though they won’t physically possess the county materials under a settlement reached between the Senate and the Maricopa County Board of Supervisors on September 17.
Instead, Cyber Ninjas and the Senate will pose questions about the routers and logs to be answered by former U.S. Rep. John Shadegg and a team of up to three computer experts he hires to assist him.
The county and Senate agreed to designate Shadegg, a Republican, as special master as part of their settlement.
As of September 23, there was no timeline or cost estimate for Shadegg’s work, a sore point for Supervisor Steve Gallardo, the board’s lone Democrat and the only one who voted against the agreement.
Under the settlement, the Board of Supervisors agreed to foot the bill for Shadegg’s services, whatever it turns outs to be.
“Normally when you agree to a contract, you know how much it’s going to cost you — you know the how, you know the length, the scope,” Gallardo said. “This is an open-ended contract where John Shadegg will be able to tell us what he is going to charge us versus the other way around.”
Supporters of the settlement noted that it keeps the routers and Splunk logs out of Cyber Ninjas’ possession – alleviating the security concerns the county brought up when the Senate subpoenaed the materials in January and July – and helps the county keep the roughly $700 million in future state-shared revenues it risked losing by ignoring those subpoenas.
Fann said that additional review will check and confirm the work of one of Cyber Ninjas’ subcontractors, CyFIR. Afterward, she said they will likely issue a supplemental report.
“We know that there’s no way we can get all that information from the routers and the Splunk logs by Friday,” Fann said.
Additionally, a couple of the subcontractors working under Cyber Ninjas have not completed their work, Fann said, so more information will trickle in from them as well.
“We finally just had to draw a line,” Fann said. “We have a lot of people that are just anxious to get this report out; they’ve been patient for a long time. To delay it another month waiting for the subcontractors to finish up the last bit on their reports, we just couldn’t do it.”
Cyber Ninjas’ report will come after months of delay. The company’s original statement of work said the final report would be delivered shortly after the completion of the other phases, originally expected to wrap up in May.
A handful of audit insiders received a final draft report on September 20, former secretary of state and audit liaison Ken Bennett told conservative radio host John Fredericks.
That group included Bennett, Fann, Sen. Warren Petersen, R-Gilbert, a group of attorneys and former Arizona Republican Party Chairman Randy Pullen, the audit laison.
Bennett said the group received bits and pieces of the final report over the past few weeks.
“We are vetting that to make sure that everything adds up, and we’re not withholding anything,” Bennett told Fredericks.
In addition to Cyber Ninjas CEO Doug Logan, subcontractor CyFIR CEO Ben Cotton was also scheduled to present the report on Friday.
Bennett said Pullen would discuss the Senate’s third count of 2.1 million ballots, which took place in the Wesley Bolin Building at the state fairgrounds this summer.
“Essentially we came up with the same number,” Pullen said.
Bennett said he would discuss instances in which he believes Maricopa County didn’t comply with state statutes and elections procedures.
Shiva Ayyadurai, who was hired by the Senate to review ballot envelope signatures, is also set to present.
Bennet also said Fann has requested to review the report that came from unsuccessful LD17 House candidate Liz Harris’ months-long “independent” canvassing effort. The report, quickly debunked by elections experts, claimed large numbers of “ghost” and “lost” votes affected the election results.
Canvassing was initially part of the plan for the Senate’s review, but Fann nixed the effort after the U.S. Department of Justice warned it may violate federal laws.
Fann said the Senate will turn over information from the review to the Arizona Attorney General’s Office.
Capitol Media Services contributed to this report.
The attorney for the Senate is asking a judge to delay any move to force lawmakers to immediately surrender some audit documents.
In new court filings, Thomas Basile told Maricopa County Superior Court Judge Michael Kemp he is convinced that an appellate court ultimately will conclude that the Senate is entitled to shield about 720 disputed documents from public view.
More immediately, Basile said that if the Senate is forced to surrender the documents now, it won’t matter if it turns out that the Supreme Court concludes that Kemp’s ruling was in error. That’s because it instantly would open them to inspection by anyone.
“In other words, it is impossible for the Senate to comply with the court’s order but still preserve and maintain any right to meaningful review of its privilege claims,” he said. And Basile pointed out to Kemp that even he said that the issue of legislative privilege “will likely be resolved by the higher courts.”
“A stay will ensure that the appellate courts are afforded an opportunity to do precisely that,” the attorney said.
The move is drawing derision from American Oversight, the proclaimed nonpartisan watchdog group that sued for the documents and, to date, has won at every round.
“Time and time again, the Senate has refused to comply with our public records requests,” the organization said in a Twitter post. “But the law is on our side.”
And American Oversight also pointed out that Kemp, in last week’s order directing production, underlined the importance of prompt action.
“The stakes could not be higher and transparency, which is at the heart of the public records law, substantially outweighs any concern regarding chilling future legislative deliberations,” the judge wrote.
At the heart of Basile’s request to Kemp is his belief that the judge, in ordering production of the documents, committed several errors.
That first error, he told Kemp, was his rejection of the idea that “legislative privilege” is absolute. Instead, Basile said, the judge appears to have adopted the belief that such privilege can be overruled based on a balancing test.
“No Arizona court has ever suggested that the legislative privilege is a qualified one,” Basile wrote. And he warned of the kind of precedent that a balancing test might set.
“If in fact the public records act can curtail otherwise cognizable privileges in furtherance of some ostensible public interest, then it is not clear why the same principle would not extend to, for example, the attorney-client privilege,” Basile said.
The Senate’s attorney also told the judge he was wrong to conclude that the only time lawmakers can claim the privilege to keep documents and communications secret is when they are discussing pending legislation.
“Legislative fact-finding investigations, such as the audit, are themselves an integral part of the deliberative and communicative process because they are necessary antecedents to the task of formulating and debating legislation,” Basile said.
And the attorney also took a swat at Kemp’s conclusion that the Senate, by having a public hearing to question its consultants about what they found – the judge called it “more akin to a press conference” – effectively waived any right to claim that the documents behind those findings were confidential.
“The Senate is aware of no authority for the notion that legislators’ questioning of third-party witnesses in the Senate chamber is anything other than a legislative function, let alone a ‘political’ act akin to a ‘press conference,’ ” Basile said.
And even assuming that the Senate has waived privilege to certain documents – a point Basile stressed he is not conceding – there is no authority to say that action waives any legislative privilege to any other documents.
But the main argument concerns the harm he said that would occur if the Senate were forced to disclose the documents now even as it seeks review of Kemp’s ruling. Put simply, Basile said, if the appellate courts determine that the disputed documents are privileged, then the compelled disclosure would, by definition, “irreparably injury the Senate.”
He said it would be one thing if the status of the records were at issue in a different kind of lawsuit, where lawyers from one side are seeking what the other side possesses. In that case, Basile said, a court could enter a protective order forbidding the receiving attorneys from sharing the documents with anyone else.
That isn’t the case here. Basile said if the Senate is forced to surrender the documents now, the whole appeal effectively becomes moot because it would be too late to undo the damage he said the Senate will incur.
The attorney said he understands the claim by American Oversight for “transparency.”
“But the Senate already has made what is likely the largest production of public records in Arizona history,” Basile told Kemp.
“The approximately 720 documents that remain withheld solely on legislative privilege grounds equal to only around 3% of the total universe of audit-related public records released to date,” he continued. “And a large number of them already have been produced in redacted form.”
Even American Oversight acknowledges what has been done so far, though its numbers are different. It says that its lawsuit already forced the release of more than 80,000 pages of records, including emails.
One of the most high-profile committee chairmanships in the Legislature is up for grabs.
Senate Government Committee Chairwoman Michelle Ugenti-Rita, R-Scottsdale, created the vacancy when she resigned from the committee September 30. She has a record of sponsoring Republican election legislation, but she has also publicly criticized the Senate’s partisan audit of the 2020 election results in Maricopa County, and it’s the committee that will likely be taking up legislation arising from the audit.
As of October 7, Senate President Karen Fann had yet to announce who she will appoint to the committee in Ugenti-Rita’s place and who the next chairman will be. Whoever it is, they will be in the spotlight in 2022. With some GOP lawmakers calling for changes to voting laws and election procedures in response to the audit report, next year’s session, like this year’s, could be marked by bitter partisan battles over measures that Republicans say will help safeguard against fraud, but Democrats view as attempts to make it harder to vote and put the Legislature’s thumb on the scale in the wake of President Biden’s narrow win in Arizona.
Some conservatives who want to see the Legislature take a harder line on these issues are hoping Sen. Kelly Townsend, R-Mesa, who is the Government Committee’s vice chairwoman, be appointed to lead it, and pro-audit social media accounts have been urging their followers to email Fann to support Townsend.
“Sen. Kelly Townsend has the most experience in election integrity and the most knowledgeable in Arizona’s election procedures,” said a message on the Telegram account of EZAZ, a conservative group founded by former Phoenix mayoral candidate Merissa Hamilton. “She has a great relationship with the County Recorders and is best positioned to serve the people as Chair of the Government and Elections Committee.”
Townsend didn’t directly answer when asked if she wants the job.
“I honestly haven’t heard anything about who is going to be filling that position,” she said in a text message. “I am sure Senate President Fann will find the appropriate person.”
Sen. T.J. Shope, R-Coolidge, said he hasn’t heard anything about who will be appointed in Ugenti-Rita’s place or who the next chairman might be. He said he isn’t interested in a spot on the committee, and doesn’t know why Ugenti-Rita stepped down, beyond what was in her two-paragraph letter.
And while Ugenti-Rita gave no reasons in writing to Fann for her departure from the committee, her views on the audit could make her a lightning rod of controversy as she runs for the GOP nomination for secretary of state. Supporters of former President Trump, who typically support the audit, also booed her off the stage at a July 24 Trump rally. The other GOP candidates for secretary of state include Reps. Shawnna Bolick, R-Phoenix, and Mark Finchem, R-Oro Valley, both of whom supported the audit. Trump has endorsed Finchem for the position.
“My longstanding commitment to advancing real election integrity legislation is what drives me,” Ugenti-Rita wrote to Fann. “As always, I stand ready and committed to achieving success in reforming our election system and having a productive 2022 legislative session.”
Ugenti-Rita was the chairwoman of the House Elections and Government committees during much of her tenure in that chamber, prior to her election to the Senate in 2018. This year, she was the lead sponsor of Senate Bill 1485, a bill to remove some voters from the Active (formerly called the Permanent) Early Voting List. Democrats strongly opposed SB1485, which ended up being one of the few major pieces of election-related legislation to pass this year.
Townsend has criticized Ugenti-Rita for blocking some of her election bills this year, and the session ended with Townsend and Ugenti-Rita killing bills of each other’s that the rest of the Senate’s Republicans supported.
A judge on Thursday said he’s not ready to cite the Arizona Senate and Karen Fann, its president, for contempt of court.
Maricopa County Superior Court Judge Michael Kemp heard arguments by Keith Beauchamp, the attorney for American Oversight, that little has been done since the judge in early August ordered the Senate immediately produce the records it has related to the audit of the 2020 election. That specifically includes those in the hands of Cyber Ninjas Inc., the private firm Fann hired to conduct the review.
Kemp, however, noted that his order was stayed while appellate courts weighed the issue. And that stay, he said, was not dissolved until Sept. 14.
But Beauchamp who represents the self-described nonpartisan watchdog group said little has been done since then other than Fann sending a letter to Cyber Ninjas asking for the records. And he told Kemp that the company has pretty much told the Senate it doesn’t intend to comply.
“That letter to Cyber Ninjas in no way constitutes sufficiently reasonable steps by the Senate to meet their obligations to provide documents on behalf of their various respective agents,” he told the judge. “And given that we don’t have compliance with the court’s order yet, I think the burden is on the Senate to show they have taken all reasonable steps within their power to comply with the court’s order.”
But there’s an even larger fight looming.
Kory Langhofer, attorney for Fann and the Senate, contends that some of what American Oversight wants is protected by “legislative privilege.” That includes not just what may yet be produced by Cyber Ninjas but about 1,000 records the Senate already has but is refusing to surrender.
Beauchamp, for his part, wants Kemp to rule that the privilege — to the extent it exists — covers only communications which are part of the process of lawmakers to craft legislation.
In this case, he said, what is sought relates to how the audit was conducted and the documents that led up to the three-volume report released late last month. And Beauchamp told Kemp none of that relates to the act of legislating.
What Kemp ultimately rules could set the bar for future cases of how much — or how little — lawmakers can shield from public view.
Hanging in the balance is Kemp’s order that the records of Cyber Ninjas are public.
That was affirmed by the Court of Appeals which said the company was performing a core governmental function. And that made its records related to the audit as public as if they were produced by the Senate itself.
Nor was the court impressed by arguments by the Senate that it did not have the records.
“The requested records are no less public records simply because they are in the possession of a third party,” wrote appellate judge Maria Elena Cruz.
That was upheld by the Supreme Court.
The trick now is actually getting them: Beauchamp told the judge the company is balking.
“Cyber Ninjas is not going to give to the Senate all of the documents that the Senate is obligated to produce pursuant to the Court of Appeals order and pursuant to this court’s order,” he said. So he wants Kemp to order the Senate to do more than simply send a letter.
If and when that happens, that still leaves Langhofer with his argument that some of what American Oversight wants is protected by legislative privilege. He said there’s a reason to keep certain documents secret, including things that lawmakers — and, in particular, Fann as Senate president — get from outside contractors like Cyber Ninjas.
“The quality of discussion inside the legislature, the advice that consultants and staffers give to the president will be muted,” Langhofer said. “If what you have to say, particularly when it goes against your own party’s base, is immediately available for public inspection … it will do lasting damage to the quality of discussion and argument behind closed doors of the legislature.”
Kemp, however, suggested that the privilege is not as broad as Langhofer claims.
He said it would be one thing if lawmakers were deliberating on a specific piece of legislation.
“This is an audit, this is kind of an investigation,” the judge said.
“And there isn’t any proposed legislation or anything that they’re deliberating about,” he continued. “So how would the procedures and policies and the way that the audit was conducted, how would that chill deliberations?”
Langhofer argued the judge is looking at it from too narrow a perspective.
For example, he said, there might be communications over whether the audit itself is a good idea or whether the scope of the audit should be expanded. Langhofer said lawmakers need a “safe space” to have those discussions.
And he rejected the idea that the privilege applies only after a bill is proposed.
“What we want the legislature to do is figure out the facts before introducing legislation,” Langhofer said. “That’s the legislature we want, right?”
“The Senate must demonstrate that the disclosure of the record that they’re withholding would impair legislative deliberation,” he said. “Well, they haven’t made that showing. And there aren’t any deliberations.”
Kemp has other issues he needs to decide.
One is whether to consolidate this lawsuit with a separate one brought by Phoenix Newspapers, owners of the Arizona Republic. It filed its own public records lawsuit.
In that case Maricopa County Superior Court Judge John Hannah already has rebuffed a claim by Cyber Ninjas that, as a private entity, it cannot be sued under the state’s public records law. Hannah essentially reached the same conclusion as Kemp that the audit the company performed is a government function, making its activities and records public.
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