First day of Arizona Senate election audit nearly stopped before it began. Here’s what happened
By Andrew Oxford | Arizona Republic
The first day of an unprecedented recount of every ballot cast by Maricopa County voters during last year’s general election almost did not happen Friday.
A court battle nearly stopped it. And, as the recount was starting, officials seemed to be figuring out rules and training on the fly. Later, the daily press briefings that were promised were placed on an indefinite hiatus.
What was clear is that the 2.1 million ballots the Republican-controlled state Senate obtained through a subpoena are now fully in the custody of a Florida-based company called Cyber Ninjas. Rows of pallets piled high with boxes were surrounded by a fence on the floor of the Veterans Memorial Coliseum.
Many questions still remain unanswered, among them: Who will do the counting? Who will pay for the process? The head of Cyber Ninjas would not say when he spoke to reporters before the recount began. And, as of now, reporters can’t go back inside to film or photograph the process.
Those uncertainties created a concern about the procedures for a judge, who ordered the Arizona Senate to “pause” its recount but only if the state Democratic Party, which asked for the halt, could post a $1 million bond to cover any costs from the delay.
The party said it would not put up the money to stop the recount, however, after bringing a last-minute lawsuit with County Supervisor Steve Gallardo charging that the process violated state election laws.
During a court hearing on Friday, an attorney for Gallardo and the state Democratic Party argued the Senate and the companies it has hired to run the audit do not have adequate policies or procedures in place to conduct a recount in accordance with Arizona law.
The attorney, Roopali Desai, pointed to security breaches at the coliseum and the use of blue pens by recount workers, even though state election procedures specifically call for using red ink that cannot tamper with ballots.
Superior Court Judge Christopher Coury ordered that the recount fully comply with Arizona law and asked the Senate, as well as its contractors, to provide more information on policies and procedures for a hearing on Monday morning.
“I do not want to micromanage and it is not the posture of this court to micromanage — or even to manage — the process by which another branch of government, the Legislature, the Arizona state Senate, proceeds,” Coury said.
“However, it is the province of the court to ensure voter information and those constitutional protections are held sacrosanct and that also includes the protection of ballots under Arizona law.”
The audit could have stopped until Monday if the state Democratic Party posted the bond Coury set.
Arizona Democratic Party Chair Raquel Terán said she would not risk supporters’ money when the Senate has not disclosed the real cost of the audit. But she said the order still amounted to a victory, as it would require the Senate and its contractors to disclose more about the process for the recount.
“Today’s temporary restraining order required that the Cyber Ninjas turn over all documents regarding their internal procedures, which should have been made immediately available to the public if this were a transparent or credible process,” Terán said in a statement.
Attorney: Senate immune from lawsuit
An attorney representing Cyber Ninjas asked the state Supreme Court on Friday if it could submit these documents to the court under seal, which would keep them private. The court did not rule on that question, but it signaled that the public might not get much insight soon.
Meanwhile, Kory Langhofer, an attorney representing the state Senate, argued the Senate enjoys legislative immunity and cannot be sued over the recount now.
“Because the Legislature is in session, the legislators and their agents are immune from civil process and they’re immune from any civil liability as well for their conduct in furtherance of legislative duties,” he said during the hearing.
And Langhofer argued that the separation of powers prevents the court from telling the Senate how to run the audit.
Coury asked for written briefings on those issues but signaled concerns about how the Senate is handling the audit.
During Friday’s hearing, Desai noted that blue pens were distributed to workers inside the facility. But the state’s election procedures manual allows only red pens. Red ink cannot be read by ballot tabulating machines. Blue ink and black ink can be read by those machines, however.
The existence of the blue pens on the floor was reported by an Arizona Republic reporter who was an observer at the coliseum. Reporters are otherwise not allowed to watch the proceedings in person.
“We need this audit to stop at a minimum until all the blue pens are out of the coliseum so there is no question about whether people are marking ballots as we speak with pens that can be read by tabulation machines,” Desai argued.
A lawyer for Cyber Ninjas later said the blue pens were replaced with other pens.
Desai also pointed to security breaches at the coliseum, at least a few of which were obvious. When officials tried to lock reporters out of a press conference about the recount on Thursday evening, for example, the journalists entered the building through an unlocked door and proceeded to the floor of the coliseum where all of Maricopa County’s ballots are now stored.
And a television crew from CBS 5 reported that it entered the building on several occasions during the week without anyone asking for identification or stopping them.