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Judge Not Convinced Private Firms Are Protecting Rights Of Maricopa County Voters

Published: Tuesday, April 27, 2021 - 5:48pm
Updated: Wednesday, April 28, 2021 - 11:11am
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A judge said he’s not convinced private firms are protecting the rights of Maricopa County voters while conducting a review of the 2020 election ordered by the Republican-led Arizona state Senate.

But Judge Daniel Martin is letting the audit and recount at Veterans Memorial Coliseum continue, at least for now.

Martin took over the case after Judge Christopher Coury recused himself Sunday afternoon. An attorney working for the firm Cyber Ninjas, a defendant in the case, used to work in Coury’s office.

During a Tuesday morning hearing, Martin reiterated a legal position previously stated by Coury — that Republican senators have the authority to conduct a review of the election. However, Martin stated that authority must be weighed against constitutional provisions and Arizona laws that protect ballot privacy and confidential voter information. 

“I will share with you all, I am not yet persuaded that there has been a showing that the rights of the voters in Maricopa County are being protected,” Martin concluded at the end of the hearing. 

Whether or not Senate Republicans, Cyber Ninjas and three other subcontracting firms are following Arizona election law and procedures will be determined after more hearings. For now, Martin is weighing a request by the Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo, who jointly filed the complaint on Thursday, to temporarily halt the audit while arguments are made in court.

Coury previously ordered a pause in the audit, but that was contingent on the plaintiffs posting a $1 million bond. The state Democratic Party declined, so the audit continued through the weekend.

Martin said he’s considering the request, and may make an order as early as Wednesday morning, when he’s scheduled another hearing on a separate matter at stake — whether or not Cyber Ninjas can keep hidden from the public documents that would allegedly prove the firm is following state election laws and procedures. 

Kory Langhofer, attorney for Senate Republicans, argued those records are protected by legislative privilege, a provision in the Arizona Constitution that says members of the Legislature “shall not be subject to any civil process during the session of the Legislature.” In this circumstance, Langhofer said Cyber Ninjas is acting as an arm of the state Senate.

If that argument fails, attorneys for Cyber Ninjas argued those records should be protected as private business and operational information — akin to trade secrets, which they argued could be jeopardized and used by other companies were they made public. In briefings to the court, attorney Alexander Kolodin wrote that Cyber Ninjas plans to use the Maricopa County audit as a business model, and “expects to have similar business opportunities to undertake such work for other governments around the country.”

Critics have warned that the GOP-led audit sets a precedent for partisan election reviews that could be replicated in future Arizona elections and elsewhere.

Martin granted a motion to intervene specific to the issue of document secrecy to the First Amendment Coalition, a group of media organizations that advocate for open government. 

“I can’t imagine a higher public interest here than the validity of the vote and the care that a public company gives to live ballots, which are protected by the state constitution,” Dan Barr, an attorney for the coalition, said in court.

Roopali Desai, an attorney for the Democratic Party and Gallardo, agreed those records should be made publicly available. In briefs filed with the court, Desai argued that refusing to do so undermines claims by Republican senators and Cyber Ninjas that the election review will be transparent and trustworthy. The Florida-based firm has been criticized for a lack of qualification to review the election and for the apparent bias of its CEO, Doug Logan, who’s promoted conspiracies of election fraud on social media.

“Instead of fostering transparency and allowing all to review the policies and procedures under which that ‘audit’ is proceeding, they refuse to produce those documents even to plaintiffs under the guise of legislative privilege,” Desai wrote.

Langhofer argued against opening documents to the public. Fundamentally, Langhofer also made the argument that courts have no right to intervene in the Senate's work — an intervention Langhofer described in briefs as an “improper incursion into the sovereign affairs of a coequal branch” of government.

In a series of statements, Martin made it clear at the outset of Tuesday’s hearing that he’s skeptical of that argument.

“Legislative immunity does not shield the defendants from plaintiffs claims. The Arizona Senate has the constitutional authority to conduct the audit as part of its legislative function,” Martin said. “However, the manner in which that audit is conducted must be balanced against the constitutional rights of the voters in Maricopa County, including the rights to secrecy and confidentiality of information.”

If Martin is troubled enough by the audit to order a halt in the process, it’s possible such an order would no longer be contingent on a bond. The judge granted a request by Secretary of State Katie Hobbs, a fierce critic of the Senate’s decision to conduct the review, to intervene in the case. Her attorney, Josh Bendor, said now that a state official is a party to the case, the court can’t order a bond be posted.

For more on the audit's proceedings, The Show spoke with KJZZ's Ben Giles.

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