Arizona Democrats won concessions Wednesday in settling their challenge to Republicans' unprecedented audit of 2.1 million ballots cast in the 2020 election, but they failed to block the review as they had sought.
The state Democratic Party had sued the Republican Party and Cyber Ninjas, the Florida-based cybersecurity company it hired to conduct an audit of ballots in Maricopa, the state's most populous county. The audit, which grew out of Arizona GOP lawmakers' efforts to toss out Joe Biden's victory in the state last year, is being led by those who believe, baselessly, that the Arizona vote was stolen from former President Donald Trump.
The agreement orders Arizona Senate Republicans and Cyber Ninjas, which is run by a supporter of Trump, to allow independent elections experts to observe the process, take aggressive measures to secure personal voter information, turn over details about audit policies and procedures and make those documents public. If there is a breach of the agreement, Secretary of State Katie Hobbs, a Democrat, can take the company and the Senate GOP to court for breach of contract.
The agreement does not require either side to admit fault.
"From the beginning of this sham audit, the Arizona Democratic Party demanded transparency and adequate security to preserve the sanctity of the vote, and protect voters' private information," Raquel Terán, chair of the state Democratic Party, said in a statement. "When this sham started, Arizonans had zero assurances that the Senate GOP and the Cyber Ninjas would follow the law, give reporters and elections experts access to observe, or make procedures available to the public, as is standard in any legitimate audit. Our lawsuit changed that."
She added, "Now, as the Arizona Democratic Party has forced the Senate and the Cyber Ninjas to be more transparent, reporters and elections experts are seeing firsthand that this 'audit' is nothing more than an effort to satisfy fringe conspiracy theorists."
Arizona and Maricopa County have already conducted numerous accuracy tests and hired two independent companies to conduct a forensic review of the election results, all of which confirmed that the county's system performed properly.
Republican legislators have said an audit of ballots in Maricopa County would help them write new election laws and restore trust in the state's democratic process, even though all official reviews concluded that the election was secure and that its results were accurate. After Trump lost the state by around 10,000 votes last year, the same legislators spent months questioning the results.
Senate Republicans and Cyber Ninjas have fought in state court over the past few weeks to conceal details about the audit, arguing that they are protected by legislative immunity and the need to preserve trade secrets. Democrats sued last month to block the audit, alleging that the auditors were not protecting voter data and ballots.
The court declined to end the audit, which began late last month, but it ordered the release of more information.
In a letter to GOP Senate President Karen Fann on Wednesday evening, the Justice Department also expressed concern about how the ballots are being secured and potential voter intimidation. The agency also suggested the process may violate federal law requiring ballots to remain in the control of election officials for 22 months.
Pamela Karlan, deputy assistant attorney general, said plans by Cyber Ninjas to directly contact voters could amount to illegal voter intimidation under federal statute.
“Past experience with similar investigative efforts around the country has raised concerns that they can be directed at minority voters, which potentially can implicate the anti-intimidation prohibitions of the Voting Rights Act,” Karlan wrote. “Such investigative efforts can have a significant intimidating effect on qualified voters that can deter them from seeking to vote in the future.”
In a letter released Wednesday, Hobbs, the secretary of state, excoriated Republican Ken Bennett, a former secretary of state who is advising the GOP on the audit, and warned him to bring the review into compliance with state laws and regulations.
"I'm not sure what compelled you to oversee this audit," Hobbs said. "But I'd like to assume you took this role with the best of intentions. It is those intentions I appeal to now: either do it right, or don't do it at all."