Battle of the ballots: The county is auditing November's election. The Arizona Senate wants to. Which should we trust?

Jen Fifield
Arizona Republic

Activity continues at Maricopa County's ballot tabulation center in Phoenix more than three months after the election. 

Two auditors with visitor badges stood next to a giant server in a room with glass walls last week, studying code on a computer screen. Others huddled around computers nearby.

The auditors looked for any abnormalities that might indicate the county’s election system was hacked during the election.

While former President Donald Trump's impeachment trial came to a close this weekend, and much of the country has moved on from the Nov. 3 election, one of the last remaining election battles is playing out here in this swing county that helped put Joe Biden in the White House. 

The county hired outside auditors to try to show the county's election was fair, but many who have doubts about its integrity are calling the effort a charade, even before the findings are announced. 

“The two audits they have are a joke,” state Sen. Warren Petersen, R-Gilbert, said Feb. 8 on the Senate floor. “They aren’t meant to find fraud, even if there is fraud.”

Senate Republicans want to do their own audit, including a hand count of about 26% of mail-in ballots — something that the county's new audit does not do.

The senators nearly held the Maricopa County Board of Supervisors in contempt earlier this month — raising the possibility of one group of elected officials arresting another group of elected officials — for not providing the ballots in response to a Senate-issued subpoena.

Whether another hand count happens is now in the hands of a Maricopa County Superior Court judge, who soon may rule on whether the Senate's subpoenas are valid.

As election consultants from across the country watch the feud play out, they tell The Arizona Republic that county voters should know:

  • The county's new audit is a more thorough, independent double check of the election results. But much of the work already was done by the government as it certified the machines, and in previous audits.
  • Since no irregularities were found in the county's original audits, there is no need for another one. The state and county's auditing process are among the strongest in the country.
  • One consultant believes that, if the county really does want to check its results again, the best way is another hand count of 2020 ballots.

A closer look: Who is auditing Maricopa County's election and why it matters

How county already audited the election 

The county followed a rigorous auditing process after the 2020 general election, much of which is required under state law. That includes:

  • County officials reviewed and released statistics about the ballots cast and counted, such as the number of overvotes and the number of ballots that weren't counted because they were postmarked late. No irregularities were found there, compared with prior elections. 
  • The county conducted a postelection logic and accuracy test on voting machines, as state law requires. That test verified that the machines counted votes properly.
  • And it did a hand count of ballots. State law requires bipartisan teams to review a statistically significant number of ballots, checking how voters marked ballots with the way the machine reads the votes. If problems are found, it triggers a larger count. The hand count in each county must include ballots from at least 2% of vote centers or precincts, and 5,000 mail-in ballots or 1% of mail-in ballots, whichever is less.

Maricopa County's general election hand count looked at 8,082 ballots, as required. The party-appointed reviewers found that the machines counted the votes on these ballots with 100% accuracy.

Along with these accuracy measures, at least seven election challenges brought against the county were dismissed in court.

Three election consultants known nationally for nonpartisan expertise on election audits, technology and security, told The Republic that the county followed best practices and is known for its strong auditing procedures.

The consultants are: 

  • Jennifer Morrell, a partner at The Elections Group, a national elections consulting group and a former election official in Colorado and Utah who specializes in audits.
  • Ben Ptashnik, founder and president of the National Election Defense Coalition, a bipartisan nonprofit that advocates for secure elections.
  • Ryan Macias, a former acting director of the voting systems program at the U.S. Election Assistance Commission, who specializes in election technology and security.

Morrell said it’s best to audit election results in multiple ways, and the county did above and beyond what was required.

“It’s unfortunate there has been so much criticism in your state because they have done things really, really well in both an operations perspective and a security perspective,” she said. “Arizona is at the top.”

Former Maricopa County Recorder Adrian Fontes says the county's standard auditing practices were engineered by national professionals, leaving him with full confidence the election was sound — even without another audit.

By approving the new audit, the county supervisors are undermining the work of the county's election officials, and undermining their earlier vote to certify the election, he said.

"They have chosen the path of political appeasement instead of the path of strength," Fontes said.

What the county's new election audit did

For its new audit, the county supervisors hired Pro V&V of Huntsville, Alabama, and SLI Compliance of Wheat Ridge, Colorado.

The supervisors said the two firms will provide a truly independent look at the county's election.

Yet The Republic found lingering questions about the companies, as well as the risk that hiring anyone else, as the Senate has proposed, could pose a security threat to the county's election system.

Here is what the county-hired auditors did in the two weeks they spent in Phoenix earlier this month:

  • Pro V&V performed another logic and accuracy test on the tabulation machines to see that the “system correctly captures, stores, consolidates, and reports the specific ballot selections, and absence of selections, for each ballot position."
  • Both firms checked to see if the county is using certified hardware and software.
  • The firms examined what's called “hash values” — the code that dictates how the machine functions — to see if they were the same as when the machines were certified. If the hash code is different, that may indicate tampering.
  • The auditors also checked that hackers didn’t install any software or hardware onto the machines by running malware tests and opening up the machines. They also conducted a network analysis to “ensure the network is a ‘closed network’ and can’t reach the internet.”
  • The auditors examined all nine of the large tabulators that count ballots at the election center, a random selection of 20% of the county’s precinct-based tabulators and a random selection of 40% of the county’s adjudication stations.

The audit of voting machines will cost the county about $56,815, according to estimates from both firms. An additional part of the audit, which will examine the county's procurement process to lease Dominion Voting System machines, will cost between $34,000 and $69,000, according to an estimate.

Was the new audit enough?

Since the machines already were certified by the federal and state governments as being secure and working properly, the audit simply checked to make sure the machines are still working how they should.

The county's cybersecurity teams monitor and protect the county's networks and help establish information security practices, but the audit brought in outside professionals to ensure there wasn't any hacking or internet connectivity.

"I trust our staff, but there may be some individuals who do not," said Scott Jarrett, director of election day and emergency voting at the Elections Department.

Having outside firms do the work also allowed a different perspective and approach, Jarrett said.

Jarrett said the county may learn something for future elections from the way this audit is done.

"I'm confident our system is secure, and not vulnerable," he said. "But there's always an opportunity to improve."

County officials disagree with those who say this audit isn't thorough.

"There isn’t anything simple about this audit," said Megan Gilbertson, an Elections Department spokesperson. "These are thorough reviews and tests of the equipment by qualified firms. If there is anything to be found, the tests performed by the auditors should find it. These are invasive tests, but because of the expertise of these firms, it can be done without destroying the equipment."

Few local governments do this detailed of an audit after an election, said Morrell, the elections consultant. Asked if it makes sense to do it, Morrell said, "It certainly doesn't hurt."

But Ptashnik said if the intention is to double-check if the election was fair, the best way is to have another look at the ballots.

National consultant: Best audit is a hand count

Ptashnik does not believe a logic and accuracy test gives a true picture of the way the machine is programmed to count ballots. He also said that it's possible for whoever hacks a voting machine to delete any trace they were there. That makes it impossible to catch them after the fact, he said.

Jarrett said that he disagrees. "I'm not a forensic technician," he said, "But it is my understanding that if you were to get into the system, they do leave traces."

The hand count is the best way to check for inaccuracies, Ptashnik said, "because any electronic system can be hacked and any vendor might be complicit. I don’t know these two companies, but I do know that this country is divided."

While some have called for a complete hand count of all ballots, Ptashnik and Morrell said reviewing a statistically significant sample is enough.

This saves time and money, Morrell said, while also allowing election officials to know the election was fair.

"You want the winner and loser to feel confident about the outcome," Morrell said. "But also want an audit practice that’s reasonable and feasible to carry out."

How the Senate audit would differ from the county's

Two days after the county voted to hire SLI Compliance and Pro V&V, Fann announced she wasn’t satisfied with the county’s audit and the Senate would do its own. The Senate has not yet hired a firm; Fann said she still is researching companies.

Fann said she tried to learn more about the county's audit by reaching out to the companies doing it. She said SLI Compliance refused to provide information when she asked how in-depth its audit would be, and that makes her "very suspect."

Fann said one main component that seems to be missing is a review of actual 2020 ballots, as the Senate wants to pursue. She said this would allow them to see, among other things, whether any ballots were filled out by computers, why there were certain spikes for certain candidates in certain areas, whether there were any false ballots cast.

"There are just so many questions that people have," she said. "Let's try to put this to bed." 

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A proposed scope of work includes a look at about 550,000 mail-in ballots cast in the 2020 general election, which is about 26.3% of the total 2.1 million ballots cast in the county.

Beyond that, there is little detail about how the rest of the Senate's audit would be performed.

The Senate in its subpoenas also asked the county to provide detailed information on voters and county election reports. The auditor, according to the document, would be asked to complete a “forensic examination and analysis” on county voting reports and a “forensic imaging collection and analysis” on electronic devices. There is no explanation of what "forensic" means. 

Ptashnik said he questions "whether the Senate is just trying to put more smoke in the air."

Court case pending

Fann told The Republic this isn't about trying to overturn the election results, or decertify the elections. It's about doing an audit the Senate can trust and learn from.

"Our goal is: We have a lot of our constituents throughout Arizona that have questions about the integrity of our election system," she said. "And as elected officials and the Senate body, that’s what we are supposed to do."

Fann said she hopes and prays the audit doesn't find irregularities.

"It would certainly shake the core of everything we believe in," she said.

Without the ballots and the voting machines, it's impossible for the Senate to go through with its plan.

Senate Republicans issued the subpoenas for the county to turn over ballots and machines, along with comprehensive voter and election information, in December and again in January.

The county says doing so would break state law in two ways. First, they reference a law that requires the ballots to be kept locked up for 24 months after a general presidential election, unless a court order says otherwise. Second, they say that sometimes voters sign their ballots, and handing them over could break the law that requires the secrecy of the ballot.

Fann said the subpoenas are all the authority the county needed to turn over the ballots.

She said at one point the supervisors made it seem they would comply with the subpoenas but then changed course, making her wonder if there is something the county is trying to hide.

"As soon as we reach a deal, they turn around and do something else," she said.

The supervisors have said repeatedly that they attempted to negotiate with the Senate.

"I met personally with the Senate President and understood both sides would work to find a path to success," Chairman Jack Sellers said in a Feb. 3 statement.

Sellers said the Senate should "turn their attention to finding a solution."

"If they truly believe in the legality of their position, they will join us in seeking a solution through the courts," he wrote.

County lawyers asked a judge this week to expedite the case over whether the county must release the ballots, voting machines and other items under dispute. The county needs its voting machines to be available for a local election coming up soon.

Fann and other senators also have said they hope the case will be heard soon.

That includes Republican Sen. Paul Boyer, the one Republican in the Senate who voted against holding the supervisors in contempt for not responding to the Senate's subpoenas, essentially blocking the effort.

"I look forward to a speedy resolution on whether or not the Senate can have access to the ballots," Boyer wrote in a Feb. 11 statement, "and the continued debate on how to ensure our laws can further protect each eligible citizen’s right to a private, secure vote so that trust in our democracy can be restored." 

Republic reporter Andrew Oxford contributed to this article.

Reach the reporter at jen.fifield@azcentral.com or at 602-444-8763. Follow her on Twitter @JenAFifield

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