So Much For Any ‘Transparency’ And Any Credibility Of This Sham ‘Fraudit’ (Updated)

The Arizona Senate GQP Sedition Caucus and the comically named Cyber Ninjas company, whose owner Douglas Logan is a “Stop the Steal” conspiracy theorist (no conflict of interest there), have repeatedly publicly assured us this will be “the most transparent” audit ever. We have seen no evidence of this so far. A live videostream provided by the OANN network, a Trump TV fascist propaganda network, in no way is transparency.

And now this. The Arizona Republic reports, Cyber Ninjas, hired by Arizona Senate to recount Maricopa County’s ballots, asks court to keep its procedures secret:

Lawyers for Cyber Ninjas, the Florida-based company the Arizona Senate hired to lead a recount of Maricopa County’s 2.1 million general election ballots, are asking a judge to keep secret its procedures for the recount and shut out the public as well as the press from a hearing in which the documents might be discussed.

Judge Christopher Coury asked the company on Friday to turn over its plans and procedures amid concerns about the security of the county’s ballots and voter privacy.

But the company argued on Sunday that filing the documents in court publicly would compromise the security of its recount. And it argued that the records include protected trade secrets. The company also maintained that the documents are protected by legislative privilege, as it is working on behalf of the state Senate.

Ariz. Const. Article 4 Part 2 Section 6 provides “Members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.” The Legislative Manual explains “The immunity is absolute, and it is personal to the individual legislator. It can only be claimed or waived by the legislator.” “Legislative aides and staff are also entitled to legislative immunity for acts relating to the legislative process such as developing and processing legislation.”

Cyber Ninjas is a third party vendor hired under a contract. It is not a “Legislative aide or staff member.” Legislative immunity in nondelegable. While it is true that the Arizona Senate GQP Sedition Caucus has completely abandoned its oversight function of this sham “fraudit” to Cyber Ninjas, it cannot cloak a third party vendor, Cyber Ninjas, with legislative immunity by contract. While the 16 GQP senators cannot be sued for their crimes against democracy, Cyber Ninjas can be sued for its conduct in this sham “fraudit.” If the court were to recognize such a theory, it would allow the legislature to contract with third parties to engage in all kinds of nefarious and illegal conduct without any legal recourse or accountablity.

The push to keep details of the recount process under wraps comes as part of a lawsuit that the Arizona Democratic Party and County Supervisor Steve Gallardo filed against the state Senate to stop the recount altogether, contending it violates various state election laws.

The prospect that a court might block voters from seeing how their ballots will be handled during the unprecedented undertaking adds to mounting concerns about its transparency, given that its funders remain a mystery and news briefings were immediately placed on an indefinite hiatus.

The lawsuit took another turn Sunday evening when Judge Coury recused himself from the case, noting a lawyer who had recently signed on to represent Cyber Ninjas had worked in his office within the past few years.

Coury previously had scheduled a hearing on the case for Monday morning, but it will have to be reassigned to another Maricopa County Superior Court judge.

Coury ordered, during a hearing on Friday — the first day of the recount — that the process follow all state laws. He even left open the option of stopping the recount until Monday if the Democratic Party could post a $1 million bond to cover any potential costs from the delay.

Responding specifically to information brought to light by an Arizona Republic reporter, he also ordered that all black and blue pens be removed from the facility. The state’s election procedures manual expressly prohibits the use of black or blue pens in areas where hand count audits are conducted because voters use those colors to mark their ballots.

Election workers typically use red ink to safeguard against ballot tampering. But The Republic reporter noted that workers were equipped with blue pens before ballots were brought on the floor and officials seemed unaware that it was a problem.

The Democratic Party opted not to post the bond but is still seeking a stop to the recount, contending there are not adequate policies or procedures in place to protect the county’s ballots or voter privacy.

“This is a simple case that asks for simple relief: that agents of the Arizona Senate who purport to be conducting an ‘audit’ of Maricopa County’s election results follow state law and ensure the safety and security of ballots, voting equipment, and voters’ personal information,” attorney Roopali Desai wrote in a filing Sunday.

Raising concerns about security, lawyers for the party have pointed to reports by journalists that they have entered unimpeded the Veterans Memorial Coliseum, where Maricopa County’s ballots are now stored.

The party’s lawyers also provided the court with a letter Senate President Karen Fann sent to the Maricopa County sheriff as recently as Tuesday asking that he provide deputies to secure the coliseum.

Fann wrote that while the Senate hired some security, it “does not have all the security capability to protect the election equipment and ballots on its own.”

The sheriff declined the request, noting the Senate had signed an indemnification agreement and that the coliseum is state property.

Election experts also have raised concerns about the procedures for the recount, typically a complicated, tedious process.

And while the public can get a glimpse of the coliseum via a live videostream at azaudit.org, reporters have not been allowed to observe the process — unless working six-hour shifts as observers — and daily news briefings are on hold pending the resolution of the lawsuit.

Attorneys for top Senate Republicans, who also are named in the lawsuit, contend the case should be thrown out altogether due to legislative immunity. They maintain lawmakers cannot be sued during the session, pointing to a provision of the state Constitution.

“This command is categorical, unqualified and pellucid: members of the Legislature may not be sued while the Legislature is in session. Period,” attorney Thomas Basile wrote in a filing on Sunday.

Desai argued legislative immunity is not so broad and would not apply to the four companies working on the recount, such as Cyber Ninjas.

“Indeed, the privilege is intended to protect legislators from arrest or legal process that would prevent them from performing their duties during legislative session, so there is no reason it would extend to anyone beyond ‘members,’” she wrote.

Either way, the Senate also contends that policies — such as those in the state’s election procedures manual — do not apply to the recount because it is undertaken by the Legislature to gather information rather than by election officials to determine the outcome of a vote.

And Cyber Ninjas’ policies would be protected as trade secrets under the contract it signed with the Senate, the companies’ lawyers argued.

“Clearly the documents Cyber Ninjas has been ordered to file are Confidential Information for various reasons including that they constitute business information and concepts as well as operational information and records and reflect the know-how of Cyber Ninjas,” Alexander Kolodin, a lawyer for Cyber Ninjas, wrote in a filing on Sunday.

There has been no peer review of its methods and practices to ensure that there is any legitimate scientific basis for what is is claiming is its means of verifying ballots. From what is known in the public record, its sounds like total bullshit to me, and I have been involved in election audits in several states for more than 20 years. I’ve never even heard of Cyber Ninjas until now. What is its track record? What elections have they previously been retained to audit? Do they have any experience at all?

Kolodin added that the company “expects to have similar business opportunities to undertake such work for other governments around the country” and suggested Cyber Ninjas did not want to give information to potential competitors.

The flurry of court filings Sunday came ahead of the third day of the recount.

The filings also seemed to contradict some of the plans and procedures recount organizers outlined to reporters during a news conference on Thursday.

Though Ken Bennett, the Senate’s liaison, told reporters that the process would include verification of the signatures voters included on their ballot envelopes, a lawyer for Cyber Ninjas said in court filings Sunday that signature review is not part of the company’s scope of work.

The Arizona Senate GQP Sedition Caucus and its sham “fraudit” are a national embarrassment to this state.

As I’ve said before, all 16 Republican senators should be facing public demands for their immediate resignation from office. Where are the newspaper editorials demanding their resignations?

UPDATE: And it appears “Q” is involved in this sham “fraudit.”

He's doing what he does best. Very terrible amature detective work. Watching his telegram closely since he makes it easy to find how and when the goalposts move.

— The AZ – abc15 – Data Guru (@Garrett_Archer) April 26, 2021

And the OANN network, a Trump TV fascist propaganda network, is feeding the crazy base:

.@OANN has a history of lying about the election in Arizona https://t.co/9wzZZ90JqN

— Jeremy Duda (@jeremyduda) April 26, 2021

UPDATE: The Arizona First Amendment Coalition argued in a court filing Monday that the public — and particularly the 2.1 million people who cast the ballots now in the Senate’s custody — deserves to know how their ballots are handled and whether their privacy is protected. Arizona news organizations ask court to deny request for secrecy on election audit procedures:

The legal fight comes amid mounting questions about the transparency of the Senate’s recount. The effort’s funders remain a mystery, for example, and reporters have not been allowed inside, except as observers working six-hour shifts, during which time they are not allowed cameras.

“It is difficult to conceive of a case that warrants transparency more than this one,” attorney Dan Barr wrote on behalf of the group.

“Cyber Ninjas, a private entity otherwise unaffiliated with the Arizona government, currently has unfettered access (with apparently little to no oversight from [Senate President Karen] Fann and the Arizona Senate) to the ballots and voter information of every single voter who cast a ballot in Maricopa County in November 2020.”

Dan Barr pointed to the rules for filing documents under seal in court, contending that the company had not shown such restrictions would be “no greater than necessary to preserve confidentiality of the information,” for example. The company could still file documents publicly but just redact what it claims are trade secrets and providing an unredacted copy to the court, he argued.

“The fact that something may contain trade secrets does not provide Cyber Ninjas an unqualified right to have it filed under seal,” Barr wrote.

And while Cyber Ninjas argued the court should be closed to avoid “unscrupulous actors” tampering with election integrity, he countered that is exactly what the lawsuit is trying to prevent.

The First Amendment Coalition includes the Arizona Broadcasters Association, the Arizona Cable Television Association, the Society of Professional Journalists, the Arizona Press Club, and the Arizona Newspapers Association, of which The Arizona Republic is a member.

The case was reassigned Monday to Maricopa County Superior Court Judge Daniel Martin, who scheduled a hearing for 11 a.m. Tuesday.

Roopali Desai, attorney for Arizona Democrats suing to stop the Republican ballot audit stunt, talks with Rachel Maddow about the case against how the audit is being conducted, concerns about transparency in what is, on its face, an agenda-driven endeavor, and concerns, also, about the long term effects on democracy of what Arizona Republicans are attempting to do.