PHOENIX – An unprecedented audit of ballots from November’s presidential election will continue in Arizona. But the private company hired by the Republican-led state Senate must make public its procedures for guaranteeing the privacy of voters and the secrecy of their choices.
The decision Wednesday by Maricopa County Superior Court Judge Daniel Martin was both a loss and a win for the Arizona Democratic Party, which is challenging the recount in a state Joe Biden won narrowly over Donald Trump.
The Democrats argued the public had a right to know how the count of 2.1 million ballots in the state’s most populous county was being conducted. Their lawyers argued that voter privacy would be irreparably harmed if the process proceeded, at least without knowing how the recount was being conducted.
Martin acknowledged that when he ordered the Senate's contractor — a company led by a Florida man who has shared unfounded conspiracy theories claiming the official 2020 presidential election results are illegitimate and former President Donald Trump actually won — to produce its recount plan. Biden's victory in Arizona was the first for a Democrat since Bill Clinton's 1996 win.
The Senate and its contractor, Cyber Ninjas, had claimed the policies and procedures for recounting the presidential and U.S. Senate votes in Maricopa County were shielded under Legislative immunity and that the documents were trade secrets. Mark Kelly won the Senate seat, sending two Democratic Arizona senators to Washington for the first time since the 1952 election.
Martin batted away both arguments, although he gave the Senate until noon Thursday to ask an appeals court or the state Supreme Court seek to review his ruling.
“The Senate defendants (argue) that Cyber Ninjas' policies and procedures are protected by legislative privilege. The court disagrees,” Martin said. “The court finds that Cyber Ninjas has failed to show that an overriding interest exists that supports filing its policies and procedures under seal and overcomes the right of public access to it."
Wednesday's court hearing is the latest in a series that began when the state Senate subpoenaed Maricopa County's ballots and vote tabulation machines so it could audit the results that showed Biden winning in Arizona. Trump backers alleged without evidence that he lost in Arizona and other battleground states because of fraud.
The county fought the request for the ballots. But Republican Senate President Karen Fann won the right to access them in February. They were delivered to the state fairgrounds in Phoenix last week. Fann said she wants to prove one way or the other whether GOP claims of problems with the vote are valid and use the results of the audit to craft updated election laws.
Senate Democrats call the audit an effort to perpetuate “The Big Lie,” which is what they call Trump’s insistence that he only lost because of election fraud. The Republican-led county Board of Supervisors stands by the election results, which were certified by state officials, including Republican Gov. Doug Ducey, on Nov. 30.
The hand-recount started last Friday, with Cyber Ninjas overseeing the process and former Republican Secretary of State Ken Bennett acting as the Senate's liaison to the effort. Bennett said Tuesday night that voter secrecy was being protected and that fewer than 100,000 ballots had been counted in the previous four days. But he said the recount was on track to finish as scheduled by May 14.
”We are going to be able to tell every Arizonan in a few weeks that they can have complete integrity and trust in their elections, or we have some parts of the election that need to be improved,” Bennett said.
During Thursday's court hearing, Senate attorney Kory Langhofer told Judge Martin that oversight wasn't needed because no personally identifiable information was on the ballots and that the election has been certified so there's no way a recount could overturn it.
“And of those 2.1 million ballots, the number of individuals whose votes have been discarded or not counted as a result of the audit, so far is zero,” Langhofer said. ”And we expect it to remain zero of course. They have already been counted through the authoritative process. They’ve been certified. The winner of the elections have been declared."