Arizona Senate audit gets off to shaky start, with rules finalized on the fly

Jen Fifield
Arizona Republic

The Arizona Senate Republicans' hand count of all 2.1 million Maricopa County ballots cast in November's presidential election got off to a shaky start on Friday morning.

Procedures seemed to be finalized on the spot, and a few significant changes were made during the day as the Senate's contractors started the recount at the Arizona Veterans Memorial Coliseum.

The changes included:

  • What color ink pens are allowed on the audit floor as ballots are being counted, which matters because a counter using blue ink could alter a ballot, confusing the voter's intent.
  • How the ballots were tracked after being taken out of their secure holding area on the floor, which could affect the chain of custody.
  • And how the counters and observers communicated throughout the process.

The audit got off to a late start after the morning was spent seeing that the computer software was programmed correctly to review the ballots, that forms had the correct fields for ballot trackers to fill out, and that the ballot counters and supervisors were trained.

Counters had made it through about 150 ballots by about 1 p.m. and were still working on their first box. There are 46 pallets of boxes and 1,691 boxes of ballots, although some of the boxes do not have ballots in them, said Megan Gilbertson, spokesperson for the Maricopa County Elections Department.

The Senate only has so long to complete the complete recount — they have rented the coliseum until May 14. Along with the recount, auditors are examining voting machines and attempting to verify voter information.

Ken Bennett, the Senate's appointed liaison for the audit and former secretary of state, said on the audit floor that he saw a few ways to improve the process, but that he was not in charge. He said that Cyber Ninjas, the group the Senate hired to perform the work, and their contractors had decided on how the audit would be run.

No county staff was on hand to explain how ballots were stored or how voting machines were programmed.

Journalists were denied specific access to report or record the process, although The Arizona Republic and other media outlets have joined together seeking their reporters’ immediate access to the coliseum to observe the audit of the ballots and tabulating equipment. For now, this reporter signed up as a volunteer observer to gain at least that access, working a six-hour shift on Friday.

Lack of procedures concerns Democratic Party

The lack of clear procedures and controls on Friday caused even more concern from the Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo, who had filed a last-minute lawsuit in Maricopa County Superior Court on Thursday night attempting to stop the audit.

Former Arizona Secretary of State Ken Bennett (left) takes custody of a pallet of ballots before an audit of the 2.1 million election ballots at Veterans Memorial Coliseum in Phoenix on April 22, 2021.

"The Senate has told us that they're running this so-called audit," Roopali Desai, a lawyer for the Democratic Party, and Gallardo told the judge on Friday. "They have abdicated their duty entirely to rogue actors who are making a mockery, with all due respect, of our election laws and procedures and there are no safeguards in place. There's no proper training. No procedures. No rules."

The concerns prompted a Maricopa County Superior Court judge to issue an injunction stopping the audit until Monday, but only if the Democratic Party would post a $1 million bond to cover the potential costs of the delay. The party said Friday it would not pay and the recount continued.

The lawsuit is the latest attempt to try to stop the Senate from conducting the audit after the Senate finally had taken control of the ballots and voting machines after a months-long fight with the Maricopa County Board of Supervisors.

The county already had done multiple audits of the election results, including a hand count of a statistically significant number of ballots and multiple audits of voting machines. All of the audits came back clean, showing that votes were counted correctly.

Procedures under scrutiny

One major issue came up as the contractors began to unpack the boxes: The Senate's contractors had programmed its software and developed its procedures believing that they would be dealing with batches of a certain amount of ballots and that boxes would be grouped in a certain way.

Gilbertson said that while early ballots are delivered in batches, Election Day ballots are not, and the number of ballots in each batch differs.

A few other procedures stuck out as differing from the way that Maricopa County completes its audit and the way that is outlined in Arizona state election law.

The first was regarding the color of pens on the audit floor.

Blue ink, black ink, red ink: Why ink color matters when handling Arizona ballots

Pallets of election ballots wait to be moved to respective areas before an audit of the 2.1 million election ballots at Veterans Memorial Coliseum in Phoenix on April 22, 2021.

State election law says that ballot counters may not bring any black pens or blue pens into the designated location of the hand count. But when counters arrived on Friday, a blue and red pen was waiting at each of their spots, and other blue pens were seen throughout the auditing floor, including near where the ballots would be scanned.

The Republic questioned Doug Logan, the CEO of Cyber Ninjas, who initially said his understanding was that blue ink was fine. After checking further, Logan had the blue pens removed and replaced them with green pens before any real ballots were taken out of the boxes.

Logan also said before the audit began that they did not ensure that each counting board of three people had bipartisan representation. This is a practice with Maricopa County hand counts, which are run by the political parties themselves.

He told volunteer observers that he was counting on them to watch closely to ensure that the counters were counting ballots correctly.

Another practice that differed was the communication among the counters.

Three counters reviewed each ballot. As the first box of ballots was being counted, the counters were sometimes saying out loud which candidates they were marking votes for. They were also comparing the number of ballots that they had counted at certain times during the count.

Under Arizona election law, tallies should be documented independently and not compared until the end of each batch.

Bennett also questioned the way that the boxes of ballots were being tracked after they left their secure holding area. He said he thought there should have to be someone to sign off when a box reaches a certain table, and at every step of the process.

It's unclear what the final decisions were on some of the changes being made.

Access issues by observers

Access issues also occurred Friday.

Observers were told to arrive at 7:30 a.m. but then did not get let through the coliseum gates until after 8 a.m., and some were turned away.

The people working at the gates said that because the Senate's observer sign-up sheet was disabled by Google, they lost some of the names of those who had volunteered.

And unlike at county election offices, where journalists are invited to photograph and film an audit process, reporters can't go inside unless they sign up to work six-hour shifts as observers. And observers can't have cameras or notepads of their own.

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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