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Judge questions whether Arizona Senate GOP audit is protecting voters' privacy

'I am not yet persuaded,' he says at hearing, Meantime, Cyber Ninjas' attorney says mounting stress caused audit executive to pass out.

PHOENIX — The judge hearing a lawsuit that seeks to shut down Arizona Senate Republicans' election audit said Tuesday he had concerns about the privacy of the 2.1 million voters whose personal information and ballots were handed over to auditors.

"I am not yet persuaded that there has been a showing that the rights of the voters in Maricopa County are being protected," Superior Court Judge Daniel Martin said toward the end of a one-hour hearing.

He had said at the start of the hearing that the "heart of this case" was the policies and procedures for handling election materials put in place by Florida-based Cyber Ninjas, and Ken Bennett, the Senate Republicans' audit liaison.

Martin was presiding at his first hearing in the case since Judge Christopher Coury's recusal over the weekend.

The Arizona Democratic Party sued last week to stop the audit. The party contends the hired auditors are violating state elections law in their handling of ballots and other voter information. 

Lawyers for the Senate argued their client's audit wasn't bound by state election laws or regulations.

Bennett said at a news conference Tuesday that the Senate was pursuing the audit because half of all voters don't trust the election results. 

Pew Research polling done in January showed 65% of all voters accepted the results, but most Trump voters didn't.

The audit is being paid for with at least $150,000 in taxpayer money from the Arizona Senate.

At least $150,000 more is coming from undisclosed donors to a fund-raising organization connected to a far-right cable channel that has promoted falsehoods about the election.

The owner of Cyber Ninjas has also promoted false conspiracy theories about the Arizona election.

Here are the three takeaways from Tuesday's hearing:

  • Judge Martin affirmed the Senate's right to stage the unprecedented audit, almost six months after the presidential election.
  • "The Arizona Senate has the constitutional authority to conduct the audit as part of its legislative function," he said.
  • "However, the manner in which that audit is conducted must be balanced against the constitutional rights of voters in Maricopa County."

Stress mounting in days-old audit

We learned that just days into a planned three-week audit, there is already a "monumental race against the clock" to complete the hand recount of all 2.1 million ballots.

The stress was so acute that an executive with the company overseeing the hand count collapse, according to Cyber Ninjas' attorney.

"In order to complete this audit in the limited time remaining," attorney Alexander Kolodin told the court, "Mr. Kern has been working back-to-back 20-hour days … even passing out on the floor." 

Roopali Desai, representing the Arizona Democratic Party, later responded:

"Mr. Kolodin is admitting that the workers are sleep deprived and rushing to meet an artificial deadline. That ... does not instill confidence in the voters of Maricopa County." 

The source of the stress became clearer later in the day, at Bennett's news conference.

The audit has hand-counted almost 100,000 ballots, he told reporters. 

Putting the current rate at 50,000 ballots a day, the audit volunteers would have to count more than 140,000 ballots a day every day through May 14 to finish the hand count.

The Senate's rental of the Veterans Memorial Coliseum audit site ends May 14. The venue is booked for high school graduations the following week. 

Counters are looking at the votes cast in the presidential race between Democrat Joe Biden and Republican Donald Trump, and the U.S. Senate race, between Democrat Mark Kelly and incumbent Republican Martha McSally. 

Biden was the first Democratic presidential nominee to win Maricopa County in 72 years. 

Next hearing Wednesday morning 

Martin set the next hearing for 10:30 a.m. Wednesday. 

On the docket: 

  • Arguments over Cyber Ninjas' request to keep its audit policies and procedures out of the view of the public and the media. Cyber Ninjas also request that any hearing on those policies be closed to the public.
  • Martin's update of the temporary restraining order that Coury put in place. 

Judge Coury was concerned enough about legal questions surrounding the audit that he had ordered a "pause" from Friday afternoon until noon Monday.

In exchange for the pause, Coury required the Democratic Party to post a $1 million bond to cover any costs incurred by the lead auditor as a result of the delay. 

The party declined, saying it didn't trust Cyber Ninjas to honestly account for any financial losses, so the pause was scrapped.

Coury required lawyers for the Senate GOP and Cyber Ninjas to show him that they were abiding by state election laws and rules in conducting the audit.

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