PHOENIX — The Senate's audit of Maricopa County election returns will continue, at least for the time being.
Maricopa County Superior Court Judge Christopher Coury on Friday ordered a halt to the process through at least noon Monday. He said there were sufficient questions raised about the procedures being used by Cyber Ninjas, the Florida firm hired by the Senate to do the work, and whether they complied with state law.
But Judge Coury made his order contingent on the Arizona Democratic Party posting a $1 million bond. That would compensate Cyber Ninjas should they need to hire additional help to make up for lost time.
After the hearing, however, attorney Roopali Desai, who represents the party, said her client won't be putting up the cash. She said the amount sought by the judge to cover the cost of the delay of a few days has no bearing on a project that, according to the Senate, was supposed to cost just $150,000.
And then, Ms. Desai said, Cyber Ninjas is "not trustworthy.'' She said there is nothing to prevent the company from claiming it needed the entire $1 million for compensation.
"It's a huge risk for the party to take,'' she said.
But Ms. Desai said Friday's hearing was not a loss or a waste of time.
She pointed out that, separate from the question of halting the work, Judge Coury did order the company to comply with all election laws.
More to the point, the judge wants to see copies of all of their procedures, including hiring and training, to ensure the ballots and the election equipment now at Veterans Memorial Coliseum are protected.
"They're going to have to come to court on Monday and explain that, Ms. Desai said.
Judge Coury's order came despite objections from attorney Kory Langhofer who represents the Senate that the judge really has no authority to intercede.
It starts, Mr. Langhofer said, with the fact that legislators are immune from civil suit while the legislature is in session. The lawsuit by the Arizona Democratic Party and Maricopa County Supervisor Steve Gallardo names Senate President Karen Fann and Sen. Warren Petersen, the chairman of the Judiciary Committee.
And he said Cyber Ninjas, by virtue of having been hired by the Senate, is now an agent of the legislature and entitled to the same immunity.
The larger issue, Mr. Langhofer told Judge Coury, is the constitutional separation of powers.
He noted lawmakers have said the purpose of the audit is to determine if there are weaknesses in state election laws and whether revisions are necessary.
"How the legislature conducts its own investigations in determining whether new legislation is necessary and what that legislation might look like isn't a question on which the judicial branch can opine,'' Langhofer said.
But Judge Coury said his overwhelming concern is the protection of both the integrity of the ballots as well as the secrecy of information turned over to the Senate — and now in the hands of Cyber Ninjas. So he scheduled a hearing to review all that on Monday.
Ms. Desai said the lawsuit, filed late Thursday, is not about the authority of the legislature to subpoena the ballots and equipment to conduct an audit. That, she said was already decided by a different judge.
"The question here that we are raising is that the audit that the Senate and its agents are conducting violate many provisions of state law,'' Ms. Desai said.
She told Judge Coury there need to be procedures in place to ensure the ballots and equipment are protected. There also needs to be a "constant chain of custody of every single ballot and every piece of equipment.''
Then there's the question of who has been hired by Cyber Ninjas to actually do the work.
That, she said, starts with doing background checks on the people handling the ballots and getting access to the equipment, as well as providing sufficient training. To this point, she said, none of that information has been provided.
And there's something else.
"There must be sufficient safeguards in place to ensure the audit is not biased, skewed or subject to tampering,'' Ms. Desai said.
That goes directly to the fact that former Secretary of State Ken Bennett, named by Sen. Fann to be the Senate's liaison with Cyber Ninjas, has admitted the work cannot be done for the $150,000 the Senate has agreed to pay. That in turn has led to Christina Bobb, who works for the conservative One America News Network, announcing she had raised $150,000 through a web site called "Voice for Votes'' to cover the additional costs.
Cyber Ninjas has declined to disclose any outside source of dollars. And the Senate, in response to a public records request by Capitol Media Services, said it has no information on money given directly to the company.
And Voice for Votes, set up as a social welfare organization under federal tax laws, is not required to disclose its donors.
Ms. Desai said if private money is, in fact, going to Cyber Ninjas, "there are serious questions about who is influencing, directing and controlling these workers.''
"The Senate has told us they're running this so-called audit, that they have abdicated their duty entirely to rogue actors who are making a mockery, with all due respect, of our election laws and our procedures,'' she said.
And then there's the question of exactly who Cyber Ninjas has hired, a list that is not public. In fact, Mr. Bennett on Thursday even refused to allow reporters to film the review process at least in part because it would allow the recording of the faces of the workers.
"We continue to have no indication of who's handling the ballots, whether they are known insurgents, representatives of recognized hate groups or on the FBI watch list,'' Ms. Desai said.
That suggestion drew derision from Mr. Langhofer.
"When we start talking about the merits, let's just first of all separate the hyperbole and the political arguments from what is cognizable in this courtroom,'' he told Judge Coury.
"There is no evidence that I have seen, and certainly that's not been presented here, that there are hate groups running this audit,'' Mr. Langhofer said. "And to intimate that, with literally no evidence, is a completely unfair smear and an attempt to prejudice your honor into thinking if you rule for the Senate, the sovereign Senate, the state, you're somehow supporting hate groups.''
But the judge did pay specific attention to a statement from Joseph LaRue, a deputy Maricopa County attorney. He told the judge there was evidence that people conducting the audit were using pens with blue ink -- ink that could be read by ballot scanners and could be used to alter ballots from what the voter intended without necessarily leaving a trail.
The judge seemed convinced and said that only red pens should be used on the floor.