Group running Arizona election audit releases documents it had tried to keep secret

Andrew Oxford
Arizona Republic

The public has received the most detailed explanation yet of the route that every Maricopa County ballot will take through an unprecedented recount ordered by the state Senate.

The private company overseeing the recount released Thursday documents outlining policies and procedures for the audit, as ordered by a judge Wednesday, though one document remained under seal.

The 191 pages detailed a process that departs significantly from Arizona’s election procedures. But the documents leave much unclear.

What exactly are staffers looking for when examining ballots with UV lights?

What are the Senate's contractors doing with election equipment that they obtained from the county government?

"It doesn't make any sense, and I've seen a lot of audits," said Tammy Patrick, a senior adviser of elections at Democracy Fund who previously worked for Maricopa County Elections Department and reviewed the recount procedures on Thursday.

The questions left unanswered by the documents added to those already swirling around the Republican-controlled Senate's efforts to recount two races Democrats won in Maricopa County last year — president and U.S. Senate.

Counting continued at the Arizona Veterans Memorial Coliseum on Thursday for a sixth day. While everyone close to the process has refused to say who is funding the undertaking — beyond the $150,000 that the Senate agreed to pay the Florida-based firm Cyber Ninjas to manage it — a new private organization has sprouted up seeking $2.8 million to pay for the process.

It still remains unclear whether it is even possible to recount all 2.1 million before May 14, when the Senate and its contractors must clear out of the space it has rented for the purpose at the Arizona Veterans Memorial Coliseum.

Ken Bennett, the former secretary of state serving as the Senate's liaison in the process, would not say exactly how many ballots were counted Thursday but has maintained that the process is "on track."

Maricopa County ballots cast in the 2020 general election are being examined and recounted by contractors working for Florida-based company Cyber Ninjas, who was hired by the Arizona State Senate, at Veterans Memorial Coliseum in Phoenix on April 29, 2021.

The policies and procedures filed in Maricopa County Superior Court were submitted as part of a lawsuit that the state Democratic Party and County Supervisor Steve Gallardo filed to stop the recount, arguing it violated election laws and lacked protections to secure the ballots as well as voter privacy.

Judges have not stopped the process but had ordered Cyber Ninjas to submit documents about its handling of ballots and voter information.

The company and lawyers for Senate Republicans fought in court to keep the files under seal, arguing the public release of the documents would compromise security or reveal trade secrets.

A judge rejected those arguments Wednesday.

But one document filed Thursday still remained sealed, available only to the court and lawyers in the case. Dan Barr, an attorney for the First Amendment Coalition of Arizona who has argued for making the documents public, said Cyber Ninjas maintained the file contained what it called sensitive security information.

What was in the audit documents

The 191 pages filed publicly included a pile of manifests for the county's deliveries to the Senate and a policy manual for CyFIR, another company contracted by the Senate, that did not appear to specifically deal with the audit.

The documents detailed the process for scanning each ballot to create an image of it and for inspecting the ink and paper of each. While the procedures called for staff to check for folds in the paper, it was unclear what they were supposed to find by placing the ballots against UV lights.

The documents pointed to some obvious departures from Arizona's procedures for auditing election results.

Under the process for tallying ballots outlined by WAKE TSI, another company hired by the Senate, each ballot is placed on a turntable and rotated for viewing by three different counters. Each counter tallies the vote on a separate sheet of paper.

The tallies are compared after 100 ballots.

A box of Maricopa County ballots cast in the 2020 general election are delivered on April 29, 2021, to be examined and recounted by contractors working for Florida-based company Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum in Phoenix.

If two of three tallies match, the group moves on. If two of three tallies match but the third is off by three votes in any one race, the ballots must be recounted.

"It is absolutely impossible for any one individual to change the results that are here," Cyber Ninjas CEO Doug Logan told reporters last week.

That is not how ballots are counted by hand during audits in Arizona.

In the most common method, three officials sort a batch of ballots by candidate.

That is, the group would sort the votes for former President Donald Trump into two piles — votes for him and votes for someone else. One member of the group would then count each pile in stacks of 10 or 25. Another member would then count it, too. The group would then repeat the process with each candidate to determine the number of votes each candidate received.

It is a very particular process, but Patrick said it is meant to ensure accuracy.

"It always sounds really easy when you think about elections. Just count the ballots," she said.

But policies are designed to deal with everything from humans prone to distraction during repetitive tasks to the spontaneity of voters, Patrick said.

The documents do not delve into the details of how to handle such scenarios as write-in votes, for example.

Maricopa County tallied 7,942 such votes in the presidential race.

But write-in votes are only counted if the voter fills the bubble next to the line on which they write the name of their preferred candidate. If a voter writes a name on that line but does not fill the ballot, it is not read by counting machines and not counted as a write-in vote. The write-in would still be visible to someone counting the ballot by hand, though.

While the documents released on Thursday included several sample forms used in the process, such as for tracking the custody of ballot boxes, the documents did not include a single sample of a tally sheet that counters are using.

A spokesman for Cyber Ninjas did not respond to a request to provide a tally sheet.

Ultimately, Patrick said, the procedures for handling ballots should be more detailed and include more guidance for each step of the process.

Secretary of state sends observers

Meanwhile, more observers will watch the process after the Secretary of State's Office said it reached an agreement with lawyers for the Senate to send observers and an election equipment expert to the facility, starting Thursday afternoon.

A reporter watches the Maricopa County ballots cast in the 2020 general election being examined and recounted on April 29, 2021, by contractors working for Florida-based company Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum.

Three organizations, including the Leadership Conference on Civil and Human Rights, sent a letter to the Department of Justice on Thursday asking it to go even further by dispatching federal monitors.

The groups argued the Senate was violating federal law by not retaining and preserving ballots cast in a federal election, which they contend are in danger of theft, defacement or damage. And the groups argued that plans to canvass voters door-to-door to ask if they voted would amount to unlawful voter intimidation.

In another development, the organizers of the audit are touting a new way to fund it, circulating a link to a new website called FundTheAudit.com.

Bennett and Logan have both said they do not know the cost of the audit beyond the contract signed by Senate President Karen Fann.

But FundTheAudit.com has set a goal of $2.8 million.

The organization's website does not identify its founders or board and its address is listed as a post office box in Naples, Florida. Under tax laws, it would not have to disclose its donors to the public.

Bennett said he does not know who is behind the organization.

"We were made aware that this was a fundraising cause that was legitimate," he said.

The founder may not be much of a mystery, though.

Former Overstock.com CEO Patrick Byrne has said he is the organization's founder and is promoting it widely on his social media accounts.

Byrne has been adamant that he believes there was fraud in the last election and that this new organization will "keep up the fight."

While lawyers for Senate Republicans have defended the audit in court as merely an investigation to help lawmakers draft new laws for future elections, Byrne argued recently that the 2020 election isn't over yet.

"We're not going to let this happen again but don't believe for a minute that 2020 is over yet," he told the conservative outlet NTD Television.

In an appeal to potential supporters, Byrne pointed to lawsuits and legal challenges and boasted: "We have the very sharp, shrewd insiders who are making the moves that you want made."

Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.

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