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.
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 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's recusal canceled a hearing he had scheduled for Monday morning. The case was reassigned to Judge Daniel Martin, who set a hearing for 11 a.m. Tuesday.
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.
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 Arizona First Amendment Coalition, a coalition of journalists and newsrooms, filed a brief Monday urging a judge to keep the court's records and proceedings open to the public.
“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.”
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 flurry of filings came as the audit entered its third day on Monday and 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.
Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.
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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.
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.
