PHOENIX — Political parties have no legal right to observe extra audits that counties perform on election equipment beyond those required by state law, a judge has ruled.
In a decision published Tuesday, Maricopa County Superior Court Judge Joseph Mikitish said the Arizona Libertarian Party was invited to oversee the four audits that are required by state law. That includes two before each election and two afterwards, including the random hand count.
This year, the judge said, county supervisors agreed to two additional "forensic audits'' following complaints by some, including Republican state legislators, who questioned the outcome that saw Joe Biden get 45,109 more votes in the county than Donald Trump. That enabled the Democratic challenger to win Arizona and its 11 electoral votes by 10,457.
But in both cases, the county declined to have party observers. Instead, it invited the League of Women Voters and deputy registrars, arguing the space restrictions at the county offices due to COVID-19 precluded party participation.
The Libertarian Party sued, contending its exclusion violated the law. And the Arizona Republican Party filing arguments in support, arguing that keeping out the political parties "aggravates the atmosphere of distrust that the county has fostered over the past year through their own misconduct and lack of transparency.''
Judge Mikitish, however, said there's one major flaw to all of this: There's no basis for the argument in state law.
He said the record shows what the county wanted — and conducted — was an examination of its hardware and software to analyze its vulnerability to being hacked, verify there was no malicious software installed, test to ensure that tabulators were not sending or receiving information from the internet, and conduct a logic and accuracy test to confirm that there was no vote switching.
Judge Mikitish said both Arizona laws and the state Election Procedures Manual do have specific requirements for political party participation or observation of these. But what the county conducted, the judge said, is separate from these and not legally required.
He also also said there are procedures about who is entitled to watch the official counting of ballots. But that's not what occurred here, Judge Mikitish said.
"The forensic audits did not count or audit ballots from the November 2020 general election,'' he wrote. "Because the audits at issue in this case did not related to the counting of ballots, the statutes do not require that they include observation or participation by political parties.''
Judge Mikitish acknowledged nothing prohibited the county from including parties in the special audits. But he said it's not up to judges to decide whether they should have done so.
"Such policy decisions are left to other branches of government,'' the judge wrote.
Tuesday's ruling does not affect a separate audit of Maricopa County election results being conducted at Veterans Memorial Coliseum.
But there are links. Most notably, Republican senators ordered that audit after they said the county's audits — the ones at issue here — were insufficient.
And attorney Michael Kielsky, who represents the Libertarian Party, said there's a bit of irony in the county using the results of its own audits to boast of the accuracy of the 2020 general election and then criticizing the Senate for following up with one of its own.
"The fact is, what they did is everything they're complaining about now that the Senate is doing, which is just an audit with a pre-determined outcome,'' he said of the county.
"They hand picked who they wanted to do what they wanted to do,'' Mr. Kielsky continued. "And they didn't want anybody to look too closely.''
Mr. Kielsky also noted that the Republican-controlled Senate, unlike the county, invited members of other political parties to observe the process at Veterans Memorial Coliseum.