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New twists in Arizona GOP election audit as judge drops out, auditor wants public barred from court hearing

Uncertainty surrounds the Democratic Party's lawsuit to shut down audit.

PHOENIX — Editor's note: The video above is from an evening newscast on Friday April 23. 

A widely watched court case challenging Arizona Senate Republicans' presidential election audit was thrown into turmoil Sunday evening after the judge hearing the case withdrew, less than 24 hours before a scheduled hearing at 11 a.m. Monday.

Judge Christopher Coury, a Republican appointee, said in a court filing that a lawyer for the firm representing Senate Republicans' lead auditor had worked as a extern in his office within the last five years. The judicial code of conduct compelled him to step aside, Coury said.

A new judge will be assigned to the case. A court spokesman said Sunday that more information should be available Monday morning on whether the hearing will proceed.

This is just the latest twist in the case since the Arizona Democratic Party's filing of a lawsuit Thursday to stop the unprecedented election audit. The lawsuit's path could take more turns with the Arizona Supreme Court also involved. 

This all comes as the audit enters its first full week of operations Monday at Veterans Memorial Coliseum, its home for the next 19 days.

The audit is a hand recount of all 2.1 million ballots cast in 2020, an examination of the ballot-counting machines, and follow-up interviews with voters.

The audit grew out of Arizona Republican lawmakers' effort late last year to toss out Joe Biden's victory in the state. The audit won't change the certified election results.

The audit is being led, funded and supported by people with documented records of promoting the falsehood that the Arizona vote was stolen from former President Donald Trump.

Senate Republicans are spending at least $150,000 in taxpayer money for the audit, according to audit documents. 

A private fund-raiser reports bringing in another $150,000 in donations from undisclosed sources. That fund raising continues.

The Senate also agreed to assume any financial or legal risks for equipment damage or lawsuits resulting from the audit.

Here are the latest developments:

Ninjas' lawyer: Keep public, media out

If Monday's hearing does proceed, the attorney for Florida-based Cyber Ninjas, the lead election auditor, is demanding that the public and media be excluded from the courtroom. 

Cyber Ninjas has asked the court to put its filings under a protective seal - in other words - keep them from the public's view. 

The company's lawyers argue the court filings contain "trade secrets" as a well as information that outsiders might use to harm the audit.

Bennett speaks to supporters

Late Friday, Senate audit liaison Ken Bennett scrubbed his planned afternoon updates for reporters after the first one the day before. Bennett cited the lawsuit filed Friday.

That didn't prevent Bennett from doing a live video chat with audit supporters from all over the country Saturday evening on Telegram, an instant messaging app that touts its security. 

"This was a group of citizens, not media, who have been trying to get an update from me for several days," Bennett said via text message to 12 News. 

"They had not been able to participate in the multiple exchanges I've had with media, so I addressed their group last night when I had a few minutes to do so."

One of the most influential voices in the running "Arizona Audit Live Feeds Chat" on Telegram has been that of Ron Watkins, the alleged prophet of the extremist conspiracy movement QAnon.

Bennett declined to answer any other questions. "I have no further comments until the litigation is resolved," he said.

Last-minute security request

Emails filed in the court record by Democratic Party attorneys reveal that the day before the ballots were to be delivered to the Coliseum, Senate President President Karen Fann was asking Maricopa County Sheriff Paul Penzone to provide six deputies for around-the-clock security.

Penzone turned her down: "Any security needs on state property must be supplied...(by) the state."

Slow start for audit

A reporter allowed to observe the ballot hand count Friday, the audit's first day, said it got off to a slow start and raised questions about whether Senate Republicans are the ones in charge. 

No information has been made public about the audit's progress Friday and Saturday. The audit took the day off Sunday.

Next steps in court case 

Judge Coury was concerned enough about legal questions surrounding the audit that he ordered a "pause" from Friday afternoon until 12 p.m. 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 the auditor - a Florida company called Cyber Ninjas - to honestly account for any financial losses. The pause was scrapped.

Both side filed briefs for Monday's hearing by the 4 p.m. Sunday deadline set by Coury.

The judge required lawyers for the Senate GOP and the lead auditor, Florida-based Cyber Ninjas, to show him that they were abiding by state election laws and rules in conducting the audit.

Audit lawyers: Regulations don't apply

The Senate Republicans' lawyers argue those regulations don't apply to the Senate audit. The regulations' provisions, they say, don't mention "the Legislature" or a "post-election audit."

Furthermore, they tell the judge, the judiciary has no business getting involved in a political dispute.

Cyber Ninjas' attorney wants all information on its election procedures filed under seal, or, kept from public view. 

The audit has been plagued by transparency issues. The Senate teams refuses to disclose the names of contributors to a private fund-raiser that is helping to pay for the audit. Journalists are allowed to view the audit in person only if they sign up for a six-hour "observer" shift.

Attorneys for the Democratic Party say Bennett and Cyber Ninjas are "making it up as they go along." They want the Senate team to show they're complying with state regulations for handling and securing the 2.1 million general election ballots.

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