Public Records Lawsuit Involving Senate’s Election Audit Set For Oral Arguments

Public Records Lawsuit Involving Senate’s Election Audit Set For Oral Arguments

By Terri Jo Neff |

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.

Letters Outline Objections To DOJ Comments About Senate Audit

Letters Outline Objections To DOJ Comments About Senate Audit

By Terri Jo Neff |

Four members of the U.S. Congress -including two from Arizona- sent a letter this week to the U.S. Department of Justice (DOJ) criticizing one of its deputies for “unnecessarily” weighing in on the Arizona State Senate’s ongoing audit of Maricopa County’s election process.

Representatives Andy Biggs and Paul Gosar, both Republicans from Arizona, and Reps. Matt Gaetz (R-Florida) and Marjorie Taylor Greene (R-Georgia) call a May 5 letter from DOJ attorney Pamela Karlan to Senate President Karen Fann “an attempt at intimidation, with the goal of convoluting this important audit.”

Fann is one of two state senators who signed a subpoena in January which led to Maricopa County officials being required to turn over election department records, hundreds of voting machines, and the nearly 2.1 million ballots cast by Maricopa County voters in the 2020 General Election. Karlan’s letter suggested either the Senate or the auditors may be in noncompliance with federal law, and that the elections records and the ballots “are at risk of damage or loss.”

According to Biggs, Gaetz, Gosar, and Taylor Greene, many of Karlan’s comments were previously expressed by what the four representatives call “three left-leaning organizations,” suggesting the DOJ is “more concerns with your political fellow-travelers than election integrity.”  The May 17 letter signed by the four representatives also told Karlan they are “confident in the integrity” of the ongoing audit which is set to run through the end of June.

“In a constitutional republic, the most important thing you can do is make sure the integrity of our election system is protected, free, transparent, and open,” their letter states.

That letter to Fann is not the first received by the senate president in connection to Karlan’s concerns about the audit. On May 7, the Public Interest Legal Foundation (PILF) sent a letter to Fann urging her to push back on Karlan’s concerns, which PILF President J. Christian Adams and PILF Litigation Counsel Maureen Riordan characterize as threats.

Adams and Riordan told Fann that Karlan “is doing the bidding of, and acting as a surrogate for, the Democratic Party, not as an objective law enforcement official and representative of the U.S. Department of Justice.”  They added that Karlan “is engaging in a partisan abuse of power well outside the traditions of the Department as well as the delegation of power under federal statutes and the controlling legal authority governing those statutes.”

PIFL, a 501(c)(3) public interest law firm, urged the Senate President to resist responding to Karlan’s “inappropriate and unjustified letter” and offered to share additional insights into the DOJ’s alleged politically motivated effort if Fann is interested. As of press time Fann had not replied to the PIFL letter, according to the group’s spokesperson.

Senate To Vote On Whether Arizonans Can Be Forced To Prove Vaccination Status

Senate To Vote On Whether Arizonans Can Be Forced To Prove Vaccination Status

By Terri Jo Neff

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.


Senate President Reaffirms That Election Audit Is About Ensuring Integrity Of Future Elections

Senate President Reaffirms That Election Audit Is About Ensuring Integrity Of Future Elections

By Terri Jo Neff |

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.

Senate Election Audit May Not Include Promised Early Ballot Signature Verification

Senate Election Audit May Not Include Promised Early Ballot Signature Verification

By Terri Jo Neff |

Since shortly after Nov. 3, 2020, some of the most serious allegations about Maricopa County’s handling of the General Election has included not only fake ballots and switched voter counts, but also that some employees did not follow proper protocols when verifying voter signatures on the 1.9 million early ballot affidavits.

There was even testimony in at least one election challenge lawsuit about the amount of discretion employees of the Maricopa County Recorder’s Office had in deciding which of the early ballots to accept during the signature verification phase.

Since then, one selling point for the Senate’s current audit of Maricopa County’s election process has been the chance for a “full forensic audit” that would include comparing affidavit signatures to the voters’ registration files. AZ Free News has verified that the Senate subpoenas commanded county officials to turn over images of the early ballot envelopes.

“I can confirm that we complied and the Senate is in possession of those images,” said Megan Gilbertson, Communications Director for the Maricopa County Elections Department.

But questions are now being raised about whether Senate President Karen Fann included an audit of Maricopa County’s early ballot signature verification process in her deal with audit contractor Cyber Ninjas or its three subcontractors.

Last Thursday, the Senate’s audit liaison, Ken Bennett, said the plan is to audit at least “some” of the early ballot signatures. However, others close to the audit contend that looking at those signatures is beyond the scope of what the contractors have been asked to do.

Which raises the question of who has the 1.9 million envelope images which Maricopa County turned over in compliance with the subpoena. And who else has access to those images in light of signature confidentiality requirements in state law and the fact those signatures are quite valuable to identity thieves.

Even if Bennett ensures a sampling of signatures are audited, he will be under a time crunch, as an attorney for Cyber Ninjas told a judge last week that audit operations must be done at Veterans Memorial Coliseum on May 14.

Another problem for Bennett and the auditors is figuring out a sufficient sample size to provide a reliable result. Previous testimony about the signature verification process noted that it is important to look at ballot envelopes received by the recorder’s office on various days and to have envelopes which were verified by a variety of employees.

Bennett is currently in a self-imposed media blackout with local journalists, although he did find time Monday to record an interview for the Arizona Republican Party.

A lawsuit filed last week by the Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo (in his personal capacity as a registered voter) will go before Judge Daniel Martin of the Maricopa County Superior Court on Tuesday. The lawsuit seeks to stop the audit until the Senate promises its contractors will comply with state law and the Arizona Elections Procedures Manual.

Meanwhile, a petition for special action filed with the Arizona Supreme Court by Fann and the other defendants is a second track for their attempts to have the Dems’ legal challenge dismissed.