Democrats settle lawsuit with Arizona Senate, Cyber Ninjas on Maricopa County election audit

Andrew Oxford
Arizona Republic

The Arizona Democratic Party and other critics of the state Senate’s audit of Maricopa County election results reached a settlement Wednesday in a lawsuit with top Republican legislators, guaranteeing certain measures for ballot security and voter privacy as well as access for observers and reporters to witness the process.

But Secretary of State Katie Hobbs said initial reports from observers raise concerns that the procedures in place are inadequate to ensure an accurate recount of ballots and that other measures — or the lack thereof — compromise security as well as the integrity of the effort.

“I’m not sure what compelled you to oversee this audit," Hobbs, a Democrat, wrote to former Secretary of State Ken Bennett, a Republican who is acting as the Senate’s liaison in the process. "But I’d like to assume you took this role with the best of intentions. It is those intentions I appeal to now: either do it right, or don’t do it at all."

Bennett argued Wednesday most of the issues Hobbs raised were not really problems.

"We think most of their concerns are unfounded and the ones that have some substance to them we're going to do something about," he said, but declined to discuss details while drafting a formal response.

Though the state Democratic Party and County Supervisor Steve Gallardo initially sought a restraining order to stop the audit, arguing it did not include adequate measures to protect ballots or voter privacy, the settlement allows the audit to continue.

Still, the party touted the settlement as a victory. And it adds to orders a judge has already issued requiring that voter privacy is maintained and ballots protected. It also gives force to agreements the Senate has hashed out during the process to allow access.

The settlement stipulates that written procedures made public following a judge’s order last week will remain in place throughout the process. That comes after observers raised concerns that officials overseeing the audit were making changes on the fly.

What else is in settlement

The settlement requires, too, that the Senate will ensure voting systems, voter information and ballots are secured to prevent unauthorized access. And under the agreement, images of ballots that the Senate has obtained and images that its contractors are currently making at the coliseum will not be released without a court order.

Doug Logan, CEO of Cyber Ninjas, the Florida-based firm hired to manage the process, told reporters last month he would ideally like images of all ballots released.

Ruled out in the settlement, at least for now, is any work to match the signatures voters signed on ballot envelopes with signatures on file with the county — a process election workers undertake when processing mail-in ballots. The settlement leaves open the possibility for the Senate’s contractors to perform such work if they provide a few days notice.

Black and blue pens are expressly verboten anywhere ballots are handled, according to the settlement. A judge previously ordered Cyber Ninjas and other companies involved to remove black and blue pens from the counting area after the writing instruments were spotted by a Republic reporter shortly before counting began.

Voters typically mark ballots using black or blue pens, as those colors are read by tabulation machines. In turn, black and blue pens are banned in areas where election workers handle ballots as a basic security measure to prevent tampering and fraud.

The settlement also includes a written agreement that the Senate will allow the news media to observe and report on the audit. The Republic and other news outlets had previously secured access, but not through an agreement formalized in court.

On Friday, workers at the coliseum revoked the access of a Republic reporter, arguing he violated policies by posting online a photo of former state Rep. Anthony Kern, R-Glendale, tabulating ballots.

The Senate's contractors argued the photo allegedly violated policies because it included a ballot, though markings on the ballot were not legible. The settlement says news media are free to take still and video photography, “except of ballots where the ballot markings can be ascertained by the naked eye or a zoom lens.”

Concerns from audit observers

The settlement also ensures access for up to three observers at a time from the Secretary of State’s Office.

The office first got permission to send observers last week, under an agreement reached with the Senate at a judge’s direction.

Even that appeared limited. Hobbs said Wednesday that one observer, a former U.S. Election Assistance Commission official who is a national expert on election equipment, was not allowed to view the area where the Senate's contractors were handling machines obtained from Maricopa County. That area is also not included in the Senate's online video feed of the audit.

But Hobbs said what observers were able to view has “not been reassuring.”

In her letter to Bennett, Hobbs argued security was inadequate, the procedures in place are vague and that procedures are frequently violated. Changing rules cause confusion and counting errors, she argued.

"'Audit' workers appear to be violating the procedures and there is an inexplicable disregard for best security practices," she wrote.

A spokesman for Cyber Ninjas said Wednesday afternoon it was working on a response to Hobbs' letter.

In what she described as a partial list of incidents observed, she said ballots were left unattended on tables, counters received training on the fly at counting tables, workers intermixed ballots from separate stacks and cell phones were used on the counting floor.

The process that the Senate’s contractors are using to count ballots differs significantly from the practices for hand-count audits detailed in Arizona’s election procedures manual.

The acceptable error rate for the audit would be significantly larger than the margin of victory in the presidential race and observers from the Secretary of State’s Office witnessed much confusion about the process among recount workers, Hobbs wrote.

Observers got little explanation of how the tallies created by those workers are later combined and observers reported that a single person was responsible for entering tallies into a spreadsheet, “leaving wide open the opportunity for error inadvertent or otherwise,” Hobbs wrote.

The secretary of state argued some of the procedures “appear better suited for chasing conspiracy theories than as part of a professional audit,” referring to the examination of ballots with UV lights to search for nonexistent watermarks.

Meanwhile, Hobbs said observers noticed computers left on and unattended at tables used for forensic analysis, a violation of elementary security protocols.

And Hobbs raised concerns about hiring, pointing to Kern’s selection to apparently handle ballots despite the fact he is also on the ballot as well as present at the U.S. Capitol on Jan. 6 when it was overrun by a mob and previously fired for dishonesty from a job as a code enforcement officer.

Contact Andrew Oxford at or on Twitter at @andrewboxford.

Support local journalism. Subscribe to today.