As the Senate-authorized audit of 2.1 million Maricopa County ballots continues, a judge announced Thursday he will hear arguments in a lawsuit about whether communications, reports, and other documents between Senators, their contracted auditors, and volunteers are public records.
Judge Michael Kemp of the Maricopa County Superior Court has set July 7 for oral arguments in the case filed earlier this month by American Oversight, a Washington DC-based nonprofit which has been trying since April to obtain records related to planning, procedures, costs, and payments for the election audit.
Several audit-related documents have been turned over to American Oversight by Norm Moore, the Senate’s public records attorney, before and after the May 20 lawsuit was filed. However, Moore has also responded that the Senate “does not have in its possession, custody or control” many of the documents American Oversight wants.
Those records are reportedly in the possession, custody, and control of Florida-based Cyber Ninjas, the company Senate President Karen Fann selected back in March to conduct the audit “on behalf of the Senate.” Cyber Ninjas is being paid through public funds, and is also believed to be receiving “donations” to cover the costs of its work as well as that of various subcontractors.
Other records are believed to be under the control of subcontractors as well as Ken Bennett, a former Arizona Secretary of State serving as the Senate’s liaison with the auditors.
The legal issue for Kemp is whether the companies and non-government employees involved in the audit are subject to Arizona Revised Statute 39-121, the state’s public records law. Attorneys for American Oversight contend the Senate’s position goes against the spirit and the letter of Arizona’s public records law which is based on a presumption of public access.
In an April 6 letter to Fann, the company noted access to the requested records “would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.”
The defendants in American Oversight’s lawsuit include the Senate as a public body, as well as Fann and Sen. Warren Petersen. It was Petersen, as chair of the Senate Judiciary Committee, who joined Fann in signing a subpoena served on Maricopa County in January to obtain access to the county’s voting system equipment, election records, and original ballots.
Judge Kemp also set a June 9 deadline for the Senate to file for dismissal of the lawsuit which, if filed, would be heard July 7 before the other arguments.
An executive order issued by Gov. Doug Ducey is temporarily protecting Arizonans from having to reveal their COVID-19 vaccination status in order to shop, attend public events, or receive government benefits. But Ducey’s executive orders issued under the state’s emergency powers laws cannot last forever, so Rep. Bret Roberts is pushing his fellow legislators to provide ensure permanent protections.
On Thursday, Roberts will be watching as the Senate considers HB2190. The bill started out as criminal justice legislation sponsored by Roberts but later became the subject of a strike-everything amendment by Sen. Kelly Townsend to prohibit businesses and government agencies in Arizona from demanding citizens provide proof, or what is referred to as a vaccine passport, of their vaccination status.
Many communities across the country are supporting the use of a vaccine passport policy, despite what Roberts called the risk of creating “a second-class society” of people who will not -or cannot- receive the COVID-19 vaccine. HB2190 seeks to protect the rights and private medical data of Arizonans while ensuring citizens are not forced to prove their vaccine status in order to shop for groceries, enter a bank, or visit their child’s school.
According to Roberts, the bill would also prohibits the government or private businesses from seeking information about a person’s post-transmission recovery if they ever fell ill from COVID-19.
Under HB2190, a business entity, a ticket issuer, or the state, a county, or local government entity or official is prohibited from basing access to a good or service or benefit on whether a person has received a vaccine. The bill also prohibits the state, a county or local government entity or official from requiring a person to receive a vaccine.
One thing Ducey’s temporary executive order and HB2190 do not address is the employee – employer relationship. That means a boss could possibly terminate an employee who won’t, or can’t, take the COVID-19 vaccine. Another thing HB2190 does not do is interfere with healthcare professionals who need to ask a patient’s vaccination status as a matter of public health concern.
Roberts has waited several weeks to see HB2190 get on the Senate calendar. He tweeted Wednesday evening that anyone seeking office should “give serious thought to their position” on vaccine passports.
“I could be wrong but I don’t think this…one will be forgotten,” he tweeted.
If HB2190 passes, it would make a violation of the new law a Class 3 misdemeanor. It would also allow a state court to suspend any state or local business license, permit, or certification for up to 30 days if the business violates the statute. The bill must receive at least 16 ayes from the 30 senators.
After months of being spoken for by attorneys or just typing brief comments on Twitter, the two state senators at the heart of the legislative audit into Maricopa County’s 2020 General Election were finally front and center Tuesday during a livestreamed status meeting.
Senate President Karen Fann had hoped various Maricopa County officials would attend the meeting in order to address several questions put forth earlier this month by Fann on behalf of the audit team. But county officials announced they would not accept Fann’s invitation to meet in person and instead answered some of the questions via a letter on Monday.
In an effort to not let the scheduled meeting time go to waste, Fann and Sen. Warren Petersen of the Senate Judiciary Committee were joined by three top audit officials to hear how audit activities are going and what concerns have been identified so far. But first, Fann provided an opening statement downplaying talk of rampant fraud with Maricopa County’s election.
After months of being spoken for by attorneys or just typing brief comments on Twitter, the two state senators at the heart of the legislative audit into Maricopa County’s 2020 General Election were finally front and center Tuesday during a livestreamed status meeting.
“I have said from the get-go I’m relatively sure we’re not going to find anything of any magnitude that would imply that any intentional wrongdoing was going [on]; I believe that we were going to find what we’ve known all along in some of the things is that we could probably do a little better job with chain of custody and all the things we’ve talked about,” said Fann.
In January, Fann co-signed a legislative subpoena with Petersen which demanded the county turn over its voting systems, elections records, and nearly 2.1 million ballots cast in last fall’s election. She said again Tuesday the purpose of the audit “has nothing to do with overturning the election or decertifying electors or anything else.”
Instead, she said, lawmakers must ensure Arizona’s elections are done “properly, accurately, safely, with full election integrity.”
Conversation between officials with the Senate and Maricopa County about the 2020 General Election began shortly after polls closed on Nov. 3. There was an initial subpoena issued in December which was replaced with one in January.
Once the second subpoena was issued, “it has nothing but delays, delays, delays,” Fann recounted during the meeting, noting Maricopa County’s decision to sue the Senate in an effort to quash the subpoena.
County officials lost that challenge in February and eventually delivered 385 tabulator machines, several other voting equipment, and 1,681 boxes of ballots on 46 pallets to Veterans Memorial Coliseum last month. Missing from the county’s delivery are two items which Doug Logan, the CEO of audit contractor Cyber Ninjas said are necessary to complete the audit.
The first is the administrative access code or password to the Dominion Voting Systems ballot tabulator machines. In Monday’s letter, Board Chair Jack Sellers informed Fann that county officials do not have the access code. “We do not have it; we have no legal right to acquire it; and so, we cannot give it to you,” the letter states.
The second missing item is the election department’s computer routers which would show the department’s internet activity before and during the election. Earlier this month, Sellers announced neither the routers nor virtual images of the routers would be released, citing concerns by Maricopa County Sheriff Paul Penzone that allowing outsiders access to the routers could put law enforcement officials at risk.
Among other questions raised by Fann in her letter to Maricopa County included concern that ballots were not in sealed bags nor in boxes secured with tamper-resistant tape when turned over to the audit team. Another concern was that a review of computer data files appeared to show one elections database had been deleted and another was missing.
Logan told Fann on Tuesday that upon further review there was no problem with how the ballots were packaged by the county. And CyFIR CEO Ben Cotton said during the meeting he has located the files that were previously the subject of concern.
The audit team’s hand count of the 2.1 million ballots is scheduled to resume May 24 at the Coliseum. Fann has not been shy about floating the idea of issuing new subpoenas in an effort to ensure auditors have all information needed to conduct a full review of how Maricopa County conducted the election.
Virtually since it was first announced, the effort by the Arizona State Senate to audit the results of the November general election in Arizona’s largest County has been mocked or vilified by members of the media and assorted partisan figures. There is little doubt that their initial attacks were designed to thwart an audit, and there is little doubt that most of the effort since then has been to discredit the process and its participants to the maximum degree possible. When I talk to political people, there is a consensus that this has been a deliberate sabotage in an effort to discredit any potential findings before they are disclosed. “Convince the voters in advance that the whole thing is a joke, and they won’t believe it if something real is turned up by the audit.” said one to me recently.
The entire state would be well served if everyone would take a deep breath, refrain from turning the effort into a partisan circus, and waited for any findings and supporting evidence.
In the meantime, let’s give credit where credit is due, to Senate President Karen Fann and State Senator Warren Petersen, both of whom continue to make themselves available to a media that is looking to undercut them, while providing reasoned answers in measured tones.
As someone who has dealt with a hostile media, I know how difficult it is to not get sucked into the insults and childish behavior. But that is often a tactic used by reporters who know that their own behavior will not be a part of the story, only the responses to their behavior. So they goad and wait, and too many elected officials fall for it. As a result we have the public spectacle of Republicans firing away at other Republicans in an increasingly personal way, just like the media wants.
Fann and Petersen know when to respond and how, and the points they make are generally fair and on target. The Senate has a responsibility and is acting on that responsibility. Opposition is largely partisan in origin and passionate objections to legitimate concerns come mostly from those who spent years insisting that Congress spends tens of millions of dollars investigating a Russia hoax that they got daily updates on from their MSNBC shows. Fann and Petersen recognize this hypocrisy and have kept focused on the audit itself, the need to do it right, and the importance of getting as many facts gathered as possible before conclusions are reached.
The audit will show that everything was largely done right, or it will show meaningful problems or weaknesses in systems that need to be corrected. Both outcomes are victories for Arizona voters, even though some will claim victory and insist it is a defeat for others. If all was well then that’s obviously good news. If corrections need to be made, then the fact that they were identified and can be fixed for future elections is also good news. We all benefit from a system that strives for perfection and is checked for improvements.
If you want Election Integrity, accurate and legitimate elections, and a process that every voter can largely trust, then you’re on the side of an accurate and professionally done audit that produces verifiable results. I for one, am more than willing to patiently wait for the process to work, and I’d encourage every Arizonan to do the same.
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Sergio Arellano was born and raised in Tucson, AZ. He joined the Army at the age of 17 and served his country honorably as an Infantryman and Human Resources Specialist for a total of 10 and a half years before retiring from the military due to combat sustained injuries.
Sergio is a founding member of the Arizona International Consortium, the Santa Cruz County Elections Integrity Committee, and the first ever AZGOP Latino Coalition. Sergio is also credited with establishing Arizona’s first ever cultural exchange agreements between the Arizona Republican Party and some of Mexico’s prominent political parties.
With the legislature expected to take up the budget package sooner than later, three high-profile bills appear to have been shelved by Senate President Karen Fann, despite growing calls for her to calendar them for a vote before the session ends.
HB2190, also known as the Vaccine Passport bill, along with SB1074 and SB1532 cleared the House and were transmitted to the Senate. But none have appeared on a Senate calendar, which is controlled by Fann.
SB1074 would prohibit state government entities, including cities and counties, from forcing employees to engage in orientation, training, or therapy that is based on a theory of blame or judgment on the basis of race, ethnicity, or gender. SB1532 bans Arizona’s public schools and community colleges from discussing controversial issues unless presented in a way which addresses diverse or opposing perspectives. Both are commonly referred to as anti-Critical Race Theory legislation.
Meanwhile, HB2190 seeks to protect the rights and private medical data of Arizonans against efforts to force consumers to prove their COVID-19 vaccine status or disclose their status in order to receive government benefits. The current version was introduced in February by Sen. Kelly Townsend and cleared the House through efforts by Rep. Bret Roberts, who has expressed frustration at the lack of action in the Senate.
“Let the Senators that want to be on the record, be on the record on this important issue!” he tweeted last week. In response, Sen. Michelle Ugenti-Rita responded by publicly supporting a vote on HB2190.
“I would like an opportunity to cast a yes vote for this bill. Put it on the board of truth!” tweeted Ugenti-Rita, who chairs the Senate’s Government Committee.
Behind the scenes, some members of the Republican caucus point to the fact Fann allowed SCR1044 -which deals with in-state tuition for DREAMERS and others without U.S. citizenship- to go to a floor vote but has dug in her heels on bills which seek to protect Arizona workers and students.
Bills which Fann has placed on Monday’s Senate calendar involve election deadlines, instruction of the Holocaust, the impounding of vehicles by law enforcement, and advertising rules for political action committees.
