Arizona's Election Review Must Be Transparent, Judge Rules

U.S.|Records of Arizona’s review of the 2020 election must be made public, a judge rules.

• July 15, 2021, 5:07 p.m. ET

Republican state senators overseeing a review of the 2020 election in Arizona’s most populous county must make public the records of private companies hired to conduct the audit, a county judge ruled on Thursday, emphatically rejecting a bid by the senators to keep the documents secret.

“It is difficult to conceive of a case with a more compelling public interest demanding public disclosure and public scrutiny,” Judge Michael W. Kemp of Maricopa County Superior Court wrote in the ruling. Any company documents with a “substantial nexus” to the review must be made public, he wrote.

The decision came one day after a House committee announced an investigation into the widely ridiculed recount of 2.1 million ballots in Arizona’s most populous county. And it was quickly followed on Thursday by a livestreamed State Senate hearing that heaped praise on the exercise, including an infomercial-style video that cast it as the gold standard for postelection audits.

In fact, the review — which covers only the presidential election and two U.S. Senate races won by Democrats — has been derided by experts as an organizational shambles that is all but destined to produce an inaccurate tally of the vote. The Florida firm hired to supervise the process, Cyber Ninjas, is run by a chief executive who used his Twitter feed this winter to spread false allegations that Arizona voting machines were rigged against President Donald J. Trump last fall.

Leaders of the so-called audit originally said it would end by May, and later by mid-June. But officials indicated on Thursday that still more work remains before a report on its results can be issued.

On Wednesday, the chairwoman of the House Oversight and Reform Committee and the chairman of its civil rights subcommittee asked Cyber Ninjas officials to turn over a sheaf of documents related to the company’s work on the Arizona review.

In a letter to the company’s chief executive, Doug Logan, two Democratic representatives said the committee was seeking to determine whether the review was legitimate or “instead an effort to promote baseless conspiracy theories, undermine confidence in America’s elections, and reverse the result of a free and fair election for partisan gain.”

The letter gave the company two weeks to produce documents relating to almost every aspect of its work on the Arizona project, from training manuals to information on the company’s “direct or indirect” owners to records of contacts with Mr. Trump, his lawyers and groups supporting him.

Despite the sustained criticism of the Senate review, the exercise has gained a large and vocal following among Mr. Trump’s supporters nationwide, and support for it has become a test of loyalty for many in the Republican Party. Thursday’s hearing drew a throng of internet viewers, slowing connections on the State Senate’s website, and was livestreamed on several right-wing websites.

State Senator Karen Fann, a Republican and the president of the Arizona State Senate, again defended the review at the hearing, denying charges that the audit was politically motivated or was intended to overturn the election. “This has never been about anything other than election integrity,” she said.

At Thursday’s hearing, which was led by Ms. Fann and Senator Warren Petersen, the chairman of the Senate Judiciary Committee, Mr. Logan and others involved in the review insisted that their work met high standards and that they had uncovered sloppy work by county election officials.

Among other criticisms of the county’s work, they said that antivirus software on voting equipment had not been updated since it was installed in 2019, and that a server containing voter registration data had been breached on Election Day last November.

Maricopa County officials, who have long opposed the review and defended the accuracy of their election work, mounted a rebuttal on Twitter, explaining that antivirus updates were not applied to voting software because they would alter its official certification for use.

The officials also said the breach of registration data involved only public information such as voters’ names and addresses and was taken from a website that voters use to create or change registrations. The official database of registered voters was never broken into, they said.

In a written statement, Jack Sellers, the chairman of the Maricopa County Board of Supervisors that oversees all county operations, said the Senate hearing “represents an alternate reality that has veered out of control since the November general election.”

The court ruling on Thursday was in response to a lawsuit filed in May by the watchdog group American Oversight, which complained that the Republican-controlled Senate had not adequately responded to requests for records of the companies conducting the review. Lawyers for the senators said that the State Senate did not have the records and that companies were exempt from the state’s open-records law because they were private entities.

But Judge Kemp called those arguments irrelevant. He wrote that allowing the senators to circumvent the public records law by retaining private companies to perform legislative or constitutional functions “would be an absurd result and undermine Arizona’s strong policy in favor of permitting access to records reflecting governmental activity.”

He ruled that the State Senate had to provide any records related to the planning, execution and financing of the audit, whether or not they were in private hands.

The State Senate appropriated $150,000 for the review, but the exercise, now in its third month, appears to have far exceeded that cost. The senators have not disclosed who has contributed to a number of fund-raising drives to underwrite the effort, run by right-wing groups supporting Mr. Trump.