A judge denied a request by Arizona Democrats to halt a Republican-backed 2020 election audit in Maricopa County.
Maricopa County Superior Court Judge Daniel Martin, who was assigned to the case on Monday after the first judge recused himself, also rejected on Wednesday a motion by Cyber Ninjas, the Florida-based consulting firm hired by the GOP-led Arizona Senate, to keep its audit policies and procedures under seal. During a livestream hearing, the judge ordered that the documents be made public by noon on Thursday, barring action by a higher court.
The Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo, the sole Democrat on the board, sued to stop the audit last week, raising concerns about adherence to state election laws and regulations. The review, which includes 2.1 million ballots cast, a forensic audit of the voting machines, and follow-up interviews with voters, has been subject to intense scrutiny for other issues too, including media access and questions raised about who is funding the effort on top of the $150,000 being doled out by the state Senate.
But, so far, Martin determined that there is no reason to stop the audit from proceeding.
“The record presented by plaintiffs, including a number of sworn declarations, contain instances of concerning conduct and expert opinion as to whether the audit complies with law and best practices but no substantive evidence of any breaches or threatened breaches of voter privacy,” Martin said Wednesday.
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The judge who recused himself, Christopher Coury, ordered a temporary halt on Friday of the audit that was supposed to span over the weekend, but the Democrats refused to pay a $1 million bond, and so far, the review has been able to proceed as planned. He also ordered Cyber Ninjas to share details about its procedures and policies with the court.
Attorneys for the Senate and Cyber Ninjas, whose CEO, Doug Logan, has been subject to scrutiny over his promotion of voter fraud allegations and “Stop the Steal” posts on social media, argue that state election regulations don’t apply to the Legislature and the audit and are asking the court to keep the audit’s methods under seal as trade secrets.
“As we sit here now, we have no meaningful way to evaluate these unsupported claims,” one attorney for the plaintiffs argued on Wednesday. “We’ve not seen the documents, and Cyber Ninjas have given the court nothing other than vague generalities about what those concerns would be.”
Lawyers for the Democratic Party argued on Wednesday that not having readily available access to Cyber Ninjas’s documents makes it more difficult to argue for a temporary restraining order over the audit. The judge rejected the request for injunctive relief, but that could change once the plaintiffs gain access to the firm’s procedures on Thursday.
“As everyone present well knows, a party seeking a temporary restraining order must demonstrate, one: a strong likelihood of success on the merits. Two: the possibility irreparable injury now, remediable by damages. If the requested relief is not granted. Three: the balance of the hardships favors the plaintiffs. And four: public policy favors the injunction … On the question of the sufficiency of Cyber Ninjas, policies and procedures, the court finds on the present record that plaintiffs have have not met their burden to obtain a temporary restraining order,” the judge said. “Setting aside the prescription on the use of black or blue pens, which is a requirement of law and to which there is no genuine dispute between the parties, plaintiffs advance five substantive arguments in support of their request for review relief. In brief, these are that Cyber Ninjas personnel are not permitted access to voter registration records and ballots. That Cyber Ninjas personnel should not have been or have not been appointed in writing or taken an oath that staff performing signature verification must be properly trained. That Cyber Ninjas has not developed and implemented a training plan to comply with security procedures applicable to electronic voting systems. And that Cyber Ninjas has not adopted and implemented valid security measures.”
“This factor requires a balancing between the Arizona Senate’s constitutional authority to conduct the audit on the one hand and the constitutional rights of voters in Maricopa County to secrecy and confidentiality of information on the other,” Martin added. “Given these competing interests, the court cannot say on the present record that one outweighs the other. Accordingly, public policy does not favor the entry of a temporary restraining order. Considering all of the factors together, it is the court’s judgment that a temporary restraining order should not issue.”
The audit started on Friday, and the state Senate has possession of Veterans Memorial Coliseum through May 14. Alexander Kolodin, an attorney who represents Cyber Ninjas, told the judge on Tuesday that an injunction against the proceedings “may derail this audit,” according to the Arizona Capitol Times.
A new attorney for Cyber Ninjas stepped in on Wednesday to replace Alexander Caladan, who was representing the firm’s defense. Jordan Wolff, from Wilenchik & Bartness, asked the judge to delay the hearing on a request to seal Cyber Ninjas’s documents and prepare his argument, but Martin had the hearing proceed.
Martin also ordered lawyers for the Senate Republicans and Secretary of State Katie Hobbs, a critic of the audit who intervened as a plaintiff, to reach a deal by 5 p.m. Wednesday for Hobbs to inspect the audit site at the Veterans Memorial Coliseum. If a deal is not made, the decision will be settled at the next court hearing on Thursday.
Former President Donald Trump has fixated on the audit, releasing multiple tweemails, and on Tuesday insisted it will show Arizona was a “scam election” state.
“BIG victory today in Arizona,” he said in a Wednesday statement. “A highly respected Judge has just ruled that the Forensic Audit being done by the Arizona State Senate can and will continue. Over 100 Democrat lawyers were sent to fight against this audit. The results will be very interesting for the USA and the World to see! Why are the Democrats fighting so hard to hide the facts? I know why, and so does everyone else!”
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The audit will not change the results of the presidential election, as officials in the state have already certified President Joe Biden’s victory, but Arizona Senate President Karen Fann insisted in a radio interview that the audit is meant to restore trust in the system and influence potential changes to the law.
