Public Records – The veil of secrecy is starting to fade

Benny White, JD

August 19, 2021

The Arizona Court of Appeals issued an order this afternoon telling the Arizona Senate that they must deliver documents they have custody of and those held by the agents, i.e., the CyberNinjas and their subcontractors.

Our public records is a bit different than those at issue in the American Oversight and Phoenix Newspapers cases. Those cases involve funding and process questions. Our request is the only request, so far, for the work products of the Ninjas and the Senate hand count and machine count of ballots. Without those counts there is no way to compare anything the Ninjas report to the official results.

It is critical that our requests for the counts be responded to in a timely manner. Otherwise the Ninjas can make any claims they like but there will be no way to check to see if they are valid or not.

We are hopeful the custodian of the Senate records will read the recent court decision in the same way we do and will promptly deliver the records of the counts.

If you want to read the court order it can be found here.

Stay tuned.

Court Actions in AZ Senate’s “forensic audit”

Benny White, JD

August 16, 2021

There are some important court hearings coming up that will decide whether the Senate has to produce records they and their agents have accumulated during their so-called “forensic audit.”

One case involves Phoenix Newspapers Inc. v Arizona State Senate. That case is moving slowly and will be impacted by a different case, Fann v Kemp, being heard this week and a companion case Fann v Kemp and American Oversight, being heard next week in the Arizona Court of Appeals Division One.

Both of these cases are asking for similar records from the Senate. The Senate and their agent, CyberNinjas, have argued that they have legislative immunity and are independent contractors and are therefore not subject to Arizona’s Public Records Law. On August 2, Judge Kemp, in Maricopa County Superior Court decided in the American Oversight case that the records accumulated during the “audit” were public records and the Senate was required to obtain records from their agents if they were not already in possession of the records. That ruling is being appealed.

On Wednesday, August 18, Fann v Kemp, will be heard to decide whether the case can proceed as a Special Action. The Court of Appeals will probably decide that the matter is appropriate for a Special Action since it involves public officers and agencies. But next week on Wednesday, August 25, the important case, Fann v Kemp and American Oversight, will be heard. That case will decide whether Judge Kemp was correct and the requested records must be produced or Senator Fann is correct that they don’t have to tell the public what they have been doing.

We expect a decision after the hearing on the American Oversight case prior to Labor Day. The difference between what the newspapers and American Oversight is asking for is that we are asking for the ballot counts and the vote counts. The other requests don’t cover those and without those counts the public will never know if the reports by the Ninjas and the Senate are correct or not. That is why I submitted a public records request for the records involving the counts of ballots and votes generated by the Ninjas and the Senate machine count of the ballots. Without those records the Ninjas and the Arizona Senators can say anything they want to say and there will be no way for the public to see if they are telling the truth or not.

No matter what the Court of Appeals decides, I expect the losing party to appeal to the Arizona Supreme Court. There are numerous deadlines for filing various pleadings and for the Supreme Court to decide whether or not they want to hear the case. I expect them to take the case because it is an urgent matter of statewide importance. With all of that said election cases are generally expedited through the courts. I anticipate that the Arizona Supreme Court will hear the case and issue an opinion by the end of September. The loser in that case could petition the U.S. Supreme Court to hear the case but I doubt either party will take it that far.

Just how “independent” was the Senate machine count of the ballots????

The Arizona Republic reported that Bryan Blehm, the attorney for the CyberNinjas, was responsible for the machine count of the ballots. He supposedly had an unreported oral contract with the Senate where he received no compensation (a requirement to actually have a contract) for putting ballots into the counting machines for a month. Waiting, and waiting, for the counts.

Why ask for counts from the “forensic audit” being done in Maricopa County?

August 12, 2021

Benny White

I recently submitted a Public Records Request to the Arizona Senate custodian of records. It is essential that someone gets access to the counts of ballots and the votes on the ballots that the CyberNinjas and then the Senate (aka CyberNinjas, disguised as independent contractors) produced during their “forensic audit” of the Maricopa County (AZ) 2020 General Election.

The reason it is essential for someone to get these counts is to have some ability to see if anything the CyberNinjas and the Arizona Senate reports has any credibility at all. If we don’t get these public records then no one will have any ability to challenge anything that comes out of the “forensic audit.” We will just have to take their word for it.

We think that is a real problem. Senator Karen Fann has already told the world that the count by the CyberNinjas does not match the official results. She didn’t tell us how much they differed but it was enough for her to authorize an additional count of the ballots to see how many ballots were really in those boxes. Her liaison, Ken Bennett, didn’t trust the new counts he was seeing so he asked us to check on a few boxes and he gave us the machine counts he had. We found one box that was off by 18 ballots and several that were off by 1 or 2. Close, but in this situation, you have to be exactly correct, 100% accurate. Close is not good enough.

When we get the counts we will compare on a box by box, batch by batch, precinct by precinct or whatever is required to see if the Ninjas got the right ballot count and whether the Senate machine count of ballots can be trusted. If you don’t get the count of ballots correct there is no way the count of votes could be correct. We expect the Senate machine count to be pretty close on most counts except for the problems you have when you are relying on people to write down numbers correctly on several different sheets of paper before they are entered into a computer.

If needed we will be able to compare the results on a ballot by ballot basis by looking at the ballot and comparing that to the ballot image. That assumes the ballots are back in the boxes in the same order they were initially in which is actually a pretty shaky assumption after watching what the Ninjas have done with the ballots.

Right now the courts are deciding whether or not we can get access to these records. Judge Kemp in Maricopa Superior Court issued a decision in a case called American Oversight v Fann et. al to indicate the Senate had to produce these records related to the audit and that they had to produce records generated by their agents and contractors for work they did in the audit. That decision is on appeal and we expect a decision sometime in the next few weeks. We expect a favorable decision and when we get the counts we intend to allow the public to see for themselves whether the audit has produced any useful information. We suspect everyone will see that the official results announced last November were correct after all.