The Unfolding Disaster in Arizona
The question isn’t whether it can end well, but how exactly it will end badly.
Of all the flaws in the perplexing “audit” of the 2020 election in Maricopa County, Arizona, the hypocrisy shines through most clearly.
As Donald Trump and his allies grasped at straws to cast doubt on the results of last year’s presidential race, they settled on a few common complaints. They said that the election process was tainted by procedures that had been hastily changed in the lead-up to voting, that it was run by partisan hacks, that outside observers were provided insufficient access to oversee the process, and that the election was corrupted by private money given by philanthropists to boards of elections to help them adapt to the pandemic.
Now, more than six months after the election, the circus in Arizona, ordered by the state Senate, has become the last stand of the denialists. The review has attracted the close attention of Trump himself, who has fired off repeated, blustery statements about the count from his Mar-a-Lago exile. But Arizona is committing all the same sins that Trump’s supporters have been denouncing, using a brazenly partisan process run by apparently unqualified parties, with procedures kept secret and subject to change. Observers are being asked to sign nondisclosure agreements, reporters have been kicked out of the site, and the exercise is being largely funded by interested outside parties—even though the Arizona legislature recently passed a law that prevents local boards from accepting outside funding.
If this is what it takes to conduct the count, the cure is worse than the disease—except that there is no disease, because there’s no evidence of widespread fraud in Maricopa County, and this is no cure. The point of election audits is to make voters feel more secure about the state of elections, but this one is certain to leave people feeling less confident about the process.
“The goalposts keep moving,” Tammy Patrick, a senior adviser at the Democracy Fund, told me. “There will never be satisfaction, because the answer is not going to change. Joe Biden won Arizona free and fair and he is our legitimate president. There’s a portion of our electorate that will not believe that, because they continue to be told that the election was stolen.”
The Maricopa exercise is a badly flawed process built atop a fatally flawed premise. The premise is that the 2020 election was tainted by fraud, but despite frantic efforts, Trump and his allies have failed to produce evidence of widespread fraud. (In one of the few proven cases of individual fraud, a Pennsylvania man pleaded guilty this week to voting absentee for Trump in the name of his late mother.)
Arizona, and Maricopa County in particular, has already been under close scrutiny, because narrow victories in the state helped Joe Biden secure the presidency and sent Mark Kelly to the Senate. In November, Maricopa conducted a hand count of a sample of ballots under state law and found no discrepancies in the county. Earlier this year, Maricopa County also ordered a forensic audit of votes, which was conducted by three separate firms, including a certified public accountancy and two voting-systems labs accredited by the federal Election Assistance Commission. The audit searched for hacking of machines, vote-switching, and malicious software, and found none. All of this was done under the law as laid out by the Arizona legislature.
In the absence of evidence of fraud, Trump’s allies launched more theoretical attacks on the election’s integrity. Senator Josh Hawley of Missouri complained on the Senate floor on January 6 that state governments had not followed their own laws in conducting elections. Trump and others argued that there was no evidence of fraud only because Republican election observers had not been given sufficient access to voting centers, a baseless claim—as campaign lawyers had to admit in court cases. In Arizona and Georgia, legislators passed laws preventing county boards of elections from accepting outside money, claiming that this was necessary to avoid the appearance of fraud.
Yet even though there was no evidence of problems with the 2020 election, even after hand counts, audits, and court cases, Arizona state lawmakers couldn’t simply let the matter go. After they’d repeatedly lied to voters and said there might be fraud, voters demanded more. So the state Senate decided to force a recount of the votes in Maricopa County. The county board of supervisors initially resisted, arguing that it was not legally allowed to hand over ballots to the state legislature, and the state Senate toyed with having board members arrested in February. Eventually, the county relented, and the state Senate ordered a new count of all 2.1 million ballots cast in Maricopa County.
Although the process has been called an “audit” or a “recount,” it doesn’t match the procedures laid out in state law for either of those. To conduct the audit, the state hired a Florida software-security firm called Cyber Ninjas. The company refused to tell me whether it has any experience with election audits, and its website, while featuring an impressive array of ninja stock photos, offers no indications that it is qualified to conduct election-security reviews. The only apparent reason for Cyber Ninjas’ selection is that the company’s founder, Doug Logan, was a noisy proponent of “Stop the Steal” theories of fraud in the election. (Logan has not responded to my requests for comment or an interview.)
The state Senate allocated just $150,000 for the audit, far too little to cover all the costs. So despite recently banning boards of elections from using private money, the Senate has turned to private donors to fill the gap. Cyber Ninjas hasn’t disclosed all of its funding sources, though some have emerged. Unsurprisingly, much of it has come from people invested in the idea of fraud. Patrick Byrne, the eccentric former head of Overstock.com, has donated $1 million and set a goal to raise almost $2 million more. Employees of One America News Network, the conspiracist pro-Trump news outlet, have also raised hundreds of thousands of dollars, and the outlet has been given special access as the official broadcast partner of the audit.
The results of this audit so far have been exactly what one might expect from an ill-defined process led by an apparently unqualified and partisan actor. Cyber Ninjas tried to avoid even explaining its putative procedures for the audit, labeling them a trade secret, until a federal judge ordered the company to release them. Not only is the process bad; it’s also likely to run far longer than anticipated. The state Senate initially planned for the count to finish by May 14, but at the current pace, it could take months more.
“We know from day-to-day observation that even the procedures they set forth that they were going to use, they are not following,” said Patrick, who was previously a longtime elections official in Maricopa County.
Usually audits and recounts are conducted with teams of people from different parties to ensure fairness, but most observers are Republicans, and Cyber Ninjas has not made clear the arrangements for reviewing ballots. Some of the tables where counting is occurring aren’t being watched at all. Cyber Ninjas has required observers to sign a nondisclosure agreement, which defeats the purpose of having observers present.
One official told a reporter this week that auditors are examining ballots for bamboo fibers, apparently because of a baseless conspiracy theory about China flying in 40,000 fake ballots. Ken Bennett, a former Arizona secretary of state working with the state Senate, also told the pro-Trump blog Gateway Pundit that workers were using UV lights to examine ballots for watermarks, apparently a nod to a QAnon theory about watermarked fraudulent ballots. (What sort of fraudster watermarks their own misdeeds?)
Predictably, the process has attracted a range of misfits and oddballs. One of the people counting ballots is Anthony Kern, a former state representative who lost his seat in November and was then present at the January 6 demonstration in Washington, D.C., that turned into an insurrection. (Kern has not been charged with breaking any laws that day.) Kern’s own name is on the ballots he’s reviewing. And when a reporter spotted Kern and tweeted a photo, he was ejected.
One reason that Maricopa County was reluctant to turn over the ballots is that supervisors wanted to ensure they were following federal laws requiring that all of the documents be kept safe and secure. Now that it has the ballots, Cyber Ninjas doesn’t seem to be bothering to provide adequate physical security. Reporters have witnessed workers moving boxes around without any obvious scheme, and nothing about Cyber Ninjas suggests that the company is capable of maintaining tight control. In addition, reporters have spotted workers with blue pens, which could irreversibly taint ballots—either inadvertently, or by someone looking to raise doubt or cause problems. Outside groups have also raised questions about whether Cyber Ninjas is taking sufficient steps to protect voters’ personal information.
In late April, several voting-rights groups sent a letter to the U.S. Justice Department complaining that the state Senate and Cyber Ninjas were “violating their duty under federal law to retain and preserve ballots cast in a federal election, which are and have been in danger of being stolen, defaced, or irretrievably damaged.” They also warned that a canvass of Maricopa County voters could be unconstitutional voter intimidation. In a letter to the president of the state Senate on Wednesday, the head of DOJ’s Civil Rights Division echoed these concerns. (Another state senator responded to the letter by apparently threatening to jail DOJ officials.)
Also on Wednesday, the Arizona Democratic Party settled a lawsuit filed about the process, with an agreement requiring better transparency, tighter security protocols, and independent observers. It is tempting to say that the agreement is a good step but too late: The audit has gone on too long without enough protocols and with potential danger to evidence, so there can already be no faith in the result.
But that misses the point. The problem is not that the audit is now not credible, but that it was never credible in the first place. The audit could never have succeeded. If Cyber Ninjas finishes and announces that it has validated the original results in Maricopa County, that result still wouldn’t satisfy angry Trump supporters, for the same reason that the state Senate conducted the audit in the first place: If you lie to some people long enough, they’ll believe you. And if Cyber Ninjas claims it has evidence of widespread fraud, practically no one who didn’t already believe fraud claims is likely to be persuaded, because the company’s qualifications, conduct, and statements give no reason to trust it. (Beyond that, even if the audit were to magically produce evidence of fraud, there’s no process for overturning an election that has already been certified.)
Arizona has long been one of the best states in the country for election administration. If the state Senate had stuck to the principles it had laid out in the law, all of this could have been avoided. Instead, legislators not only threw out their own statutes, but endorsed a process that embodies all of their concerns about the election. As a result, the audit is certain to end badly—even if no one yet knows when or how.