PHOENIX — Tactics planned by election auditors hired by the Arizona Senate to verify the outcome of the 2020 race are illegal and even criminal, attorneys for various voter rights issues contend.
And they may go to court to bring them to a halt.
In a letter Tuesday to Doug Logan, the CEO of Cyber Ninjas, the lawyers said the plans that include knocking on doors and contacting people "constitute voter intimidation.'' And they said it's irrelevant whether that is the intent — and even whether that's part of the contract Mr. Logan signed late last month with Senate President Karen Fann.
That contract involves having his firm and others knock on doors to determine if people actually live at that address and validate that they did in fact cast a ballot in November.
In fact, a copy of the scope of work obtained by Capitol Media Services shows Cyber Ninjas already has done some of that in-person contact even before the contract was signed. And the document claims that it has "brought forth a number of significant anomalies suggesting significant problems in the voter rolls.''
But it doesn't stop there.
That same document says Cyber Ninjas and others working with the Florida firm will be auditing at least three voting precincts they have decided have "a high number of anomalies,'' to "conduct an audit of voting history related to all members of the voter rolls.''
"A combination of phone calls and physical canvassing may be utilized to collect information of whether the individual voted in the election,'' the scope of work says, though it promises voters will not be asked to disclose who they supported.
Jared Davidson, counsel for Project Democracy, said there is a crucial — and legal difference — between what is done by political interest groups and what Cyber Ninjas is doing here.
"Political canvassing, encouraging people to go out and vote in your community, that is not intimidating,'' he said. "But having an arm of the government, in this case a contractor with the Senate, going out and interrogating voters under the implication that there's somehow been illegality is absolutely intimidating.''
Attorney Roopali Desai said the original reason the Senate decided to pursue its own audit was to verify the results. She said that is something that can be done simply by doing a hand count of the 2.1 million ballots cast in Maricopa County which county officials say they are ready to turn over to lawmakers.
What makes it worse, Ms. Desai said, is that the company is doing this at the direction of the Senate.
"So you have a group that's acting under color of state law ... going door to door, interrogating voters about their voting conduct,'' she told Capitol Media Services. And that, she said, can have no purpose or effect other than to intimidate voters by having them believe that they are somehow being investigated for their actions in casting a ballot, deterring them from going to the polls in the future.
There was no immediate response from either Mr. Logan or Sen. Fann.
But Sen. Fann, in prior conversations with Capitol Media Services, said going beyond a simple hand count is necessary to determine not just that the results were accurate but that the systems set up to run elections are proper.
For example, she said, there were people who filled out affidavits about getting multiple ballots at their home.
"They're going to take those affidavits and they're going to go to those people and they're going to say, 'You signed an affidavit that said that this happened. Is this true? Give us a little information so we can verify this and track it down,' '' she said.
And Sen. Fann said there is a need to contact voters to look for "inconsistencies'' between the historical turnout and what happened in 2020.
But the attorneys for the challengers say all that is irrelevant as it violates federal and state laws.
"Intimidating voters is illegal regardless of whether someone acts with an intent to intimidate,'' they said, quoting from federal law.
"To be sure, your companies' plan to directly question voters about their past voting activities — particularly in the context of a so-called 'audit' of the election — reasonably could deter people from voting in the future for fear of reprisals or further harassment,'' the lawyers wrote not only to Mr. Logan but also officials of the other three firms which will be working under Cyber Ninjas: CyFir, Digital Discovery and Wake Technology Services.
And that, the attorneys said, is particularly true where, as in this case "there have already been multiple post-election audits that have confirmed the election's integrity.''
Ms. Desai said the next step will be to wait to see whether the Senate-hired firms go ahead with that in-person voter contact. She said that would lead to seeking an injunction to stop that.
There already are moves in that direction.
The letter to Mr. Logan and the other company officials demands that they preserve for future litigation any and all records of the audit, ranging from negotiations and bidding to communications they have had with legislators and their staff.
"Failure to preserve records — as well as any alteration or improper disclosure — may also result in additional criminal liability,'' they are warning the companies.
All this comes on top of questions raised about whether Mr. Logan is biased. That is based on several Twitter posts he crafted or retweeted saying he questions the accuracy of the 2020 returns.
But in a written statement Tuesday detailing his audit plans, Mr. Logan sidestepped the question.
"The big question should not be, 'Am I biased,' but 'Will this audit be transparent, truthful and accurate?' '' he wrote. "The answer to that latter question is a resounding, 'Yes.' ''