PHOENIX — The attorney for the private firm hired by the Senate to audit the 2020 election is trying to deny public access to the policies and procedures they are using to audit the returns.
And Alexander Kolodin who represents Cyber Ninjas, also contends the firm is not required to ensure that the 2.1 million ballots they have are being reviewed by bipartisan teams.
In new legal filings, Kolodin said he is providing the information demanded last week by Maricopa County Superior Court Judge Christopher Coury after the Arizona Democratic Party filed suit. That ranges from how the company ensures the chain of custody for the 2.1 million ballots it now has as well as the election equipment turned over by Maricopa County to issues of signature verification.
But he contends it is not in the public interest to let Arizonans see them.
“It is no secret that this audit is an emotional issue,’’ Kolodin wrote. “There exists a subset of individuals that might utilize such documents as a roadmap to breach the audit’s security and thereby cause the very harms (the Democratic Party) ostensibly seek to prevent.’’
Anyway, he argued, the documents about the firm’s practices contain “trade secrets.’’
The move is drawing opposition from the First Amendment Coalition which represents various media organizations.
In his own legal filing, attorney Dan Barr said there is a presumption that all records, including those produced in litigation, are public.
He acknowledged there are some exceptions. But Barr said the claim by Cyber Ninjas that all of its policies constitute trade secrets holds no water.
If there are valid concerns, he said, the company could file a redacted version, with all the secrets blacked out, with a full version filed with that court. That, Barr said, would let a judge determine if any of this really needs to be withheld from the public.
“It is difficult to conceive of a case that warrants transparency more than this one,’’ he wrote, noting that Cyber Ninjas is a private firm which has “unfettered access’’ to the ballots and to information about Maricopa County voters.
“The public, especially 2.1 million Maricopa County voters, has a personal stake in knowing how Cyber Ninjas handles their personal information, including names, addresses, and signatures and whether their fundamental right to have their vote remain secret shall be preserved,’’ Barr wrote. “The public also maintains an exceedingly important interest in knowing that the integrity of the election and their votes will not be compromised.’’
And Barr said this is especially critical given that Cyber Ninjas has never conducted an election audit and that Doug Logan, its CEO, has “a history of overt partisanship in favor of the presidential candidate who lost the election.’’
All this comes amid questions about how the audit is being conducted.
The Democratic Party lawsuit contends that the processes being used by Cyber Ninjas to review the ballots and the election equipment violates various election laws. It’s attorney, Roopali Desai, wants a judge to halt the process unless and until the company — and the Senate which hired it — can show there are safeguards in place to protect the security of the ballots and the equipment.
That question of how the audit is being conducted and whether it is fair also figure into Kolodin’s claim that Cyber Ninjas is not required to have bipartisan panels review the ballots they are counting.
Kolodin acknowledged that state law requires the election boards that review ballots to have “as equal as practicable representation of the members of the two largest parties’’ on these review panels.
But Kolodin said that, as far as his client is concerned, that doesn’t apply.
“Cyber Ninjas, however, is not an election board and has not been hired to conduct an election for the purpose of declaring candidates elected or not elected,’’ he wrote. Instead, Kolodin said, the firm was hired to develop a report for the Senate about the conduct of the 2020 election, information he said the Senate can use to decide whether to enact changes to the law.
And Kolodin said, his client can’t make such decisions.
“Unlike a board of elections, Cyber Ninjas, as a government contractor, and like a government in other contexts, does not believe it is required, or even permitted, to make hiring decisions on the basis of political affiliation,’’ he said.
Anyway, Kolodin said, finding Democrats has proven difficult after Raquel Teran, who chairs the party, announced that it would not participate in what it sees as “sham audits.’’
“The Arizona Democratic Party certainly has a First Amendment right to instruct its members not to participate in the audit,’’ he said. Yet at the same time, Kolodin noted, the party filed suit seeking to halt the audit because it was not being conducted in a lawful manner.
“Seeking to have this court compel equal representation of Democrats on the counting floor while working to make that impossible is not good faith litigation conduct,’’ he said, and can’t be used to stop the audit until it meets certain standards.
A hearing had been scheduled on the issues for Monday. But that was before Maricopa County Christopher Coury realized that one of the attorneys working with Kolodin had done some work with his office.
Coury disqualified himself. And the case was reassigned to Judge Daniel Martin who has yet to set a new hearing.