Judge Lets Arizona Audit Continue For Now But With Some Caveats

But the judge also ordered that the auditors file in court by noon local time Thursday —absent intervention from a higher court — their documents outlining plans and procedures for the audit.

By Tierney Sneed, TPM      April 28, 2021 4:07 p.m.

A judge is letting the questionable audit of Arizona’s 2020 election continue while he hears a legal challenge brought by Democrats to its procedures. Judge Daniel Martin of Maricopa County’s superior court denied on Wednesday the request by the state Democratic Party that he impose a temporary restraining order halting the audit.

But the judge also ordered that the auditors file in court by noon local time Thursday —absent intervention from a higher court — their documents outlining plans and procedures for the audit.

Democrats last Thursday sued the Arizona Senate leaders who have ordered the audit, as well as Cyber Ninjas, the company the Senate hired to coordinate the review. Democrats, who are now being backed by Arizona Secretary of State Katie Hobbs (D) in the case, allege that the auditors are failing to follow Arizona policy and law regarding ballot security.

Last week, another judge ordered that Cyber Ninjas submit its plans and procedures for review. Cyber Ninjas then asked that it be allowed to file those documents ex parte and under seal — meaning that neither the public nor the parties bringing the lawsuit would be able to see them. The cybersecurity company, which is led by someone who cozied up to the Trump-aligned effort to overturn the 2020 election results, claimed that the procedure documents contained trade secrets. The Senate Republicans meanwhile backed that request with a claim that the procedure documents were privileged under legislative immunity.

At a hearing on the request Wednesday, the Senate’s lawyer, Kory Langhofer, admitted that the Senate wanted the documents withheld from the public because they believed that if the documents were produced, they would “not be treated fairly by opposing counsel” or “the press.”

Judge Martin rejected both Cyber Ninjas’ and the Senate’s arguments, though he expressed the anticipation that his ruling would be appealed.

In explaining why he was rejected the Democrats’ TRO request, Martin said that they “may” ultimately succeed in the litigation, but that they had not met the required threshold proving a “strong likelihood” of success.

The judge additionally asked that the parties come to agreement by 5 p.m. Wednesday local time on giving Hobbs’ office access to observe the audit.

The Republican-controlled Senate embarked on the audit after Arizona was a target of President Trump’s lies about mass election fraud. The auditors are seeking to hand count the 2.1 million ballots cast in Maricopa County, the largest county in the state, and they are also planning on examining Maricopa County’s election equipment.

The county, including its Republican officials, has resisted the audit, which comes after there have been other reviews of Maricopa’s results. The Democratic lawsuit is the latest example of turbulence the audit has faced as it races to finish its recount by May 14. That is how long the Senate’s lease will last at the Arizona Veterans Memorial Coliseum,  where the audit is taking place because the county refused to host it in its own facilities.

At a hearing in the Democrats’ case on Tuesday, a lawyer for the auditors said that “an injunction of even a day may derail this audit.”

Wednesday’s hearing had a particularly rocky start for Cyber Ninjas. Just before the hearing, they asked that it be postponed for one to two days because the lawyers that had been representing the company were were withdrawing from the case and being replaced by a new legal team. Judge Martin granted the request to let the original lawyers withdraw, but would not grant the delay. Nor would he grant a request made after he denied the delay bid that the original legal team be allowed to argue in Wednesday’s hearing.

The new lawyers for Cyber Ninjas were unprepared to argue the company’s position on the issues being discussed at Wednesday’s hearing. When given an opportunity to speak on those issues by the judge, the lawyer Jordan Wolff said merely that they “stood by the filings” that had been already submitted in the case.

Tierney Sneed (@Tierney_Megan)  is a D.C.-based investigative reporter. She focuses on voting rights and previously covered health care for TPM.