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Arizona justices to decide if public has right to see Cyber Ninja election 'audit' records

Attorneys for American Oversight said 'audit' was an administrative procedure & not a legitimate investigation of a crime

The Arizona Supreme Court heard arguments Tuesday over whether the state Senate has the authority to conceal records from an audit of the 2020 presidential election.

American Oversight, a nonpartisan watchdog group, filed suit in 2021 after Arizona Republicans contracted the private firm Cyber Ninjas to audit the results of the 2020 election. The now-defunct Cyber Ninjas found President Joe Biden was lawfully elected but identified what it considered to be 53,304 questionable ballots. Maricopa County investigated the authenticity of those ballots and determined that only 37 may have been illegally cast.

The case landed before the Arizona Supreme Court after the Arizona Court of Appeals and a trial judge rejected the state Senate’s assertion that legislative privilege granted some documents protection against disclosure. The state’s high court has barred the court-ordered release of the records while it considers the case.

Andy Gaona of Coppersmith Brockelman, representing American Oversight before the court Tuesday, argued that legislative privilege is not a political tool to hide information.

“[Legislative] privilege is not intended to benefit individual legislators; it is not intended to protect them from embarrassment,” Gaona said. “It is not intended to allow them to shield communications as they see fit. What it’s intended to do is to benefit the public by ensuring that their elected representatives — and this is what Appeals says — are not held either criminally or civilly liable for their actions.”

Gaona said the Speech or Debate Clause in the U.S. Constitution protects politicians when they’re legitimately acting in the sphere of the Legislature. The purpose of the clause is to prevent officials or executives from influencing or arresting those they disagree with, and to protect members from civil suits related to their official duties.

American Oversight’s lawsuit questioned the extent of that sphere for the audit leader and president of the Arizona Senate, Karen Fann. American Oversight contends communications between Cyber Ninjas and Fann may not fall into that privilege.

“Text messages re: legislative discussions about the audit that are between President Fann and Doug Logan, I don’t understand how legislative privilege can attach that necessarily,” Gaona said. “There’s not enough information.”

Doug Logan is the former CEO of Cyber Ninjas.

Vice Chief Justice Ann A. Scott Timmer asked Gaona to clarify what level of privacy is required to be revealed without divulging confidential, privileged information.

“[What] if it’s something like a text message between two senators regarding the scope of the audit?” Timmer asked. “Would that be enough to allow you to decide? ‘Oh, scope of the audit, that’s administrative.’ They could say ‘no, it’s not, it’s policy.’”

Gaona responded by illustrating the differences between a criminal investigation and an audit.

“The Jan. 6 Committee is a perfect example,” Gaona said. “That is conducting interviews, and they certainly have administrative staff helping them put together documents. That is a legitimate legislative investigation that is authorized by the entire legislative body that has aspects to it that are wrapped into it. The audit is the audit. The audit is recounting voter ballots and retesting ballot tabulation machines.”

Kory Langhofer, an attorney for Fann and Senate Judiciary Committee Chairman Warren Petersen, argued that the Legislature has broad powers and a duty to safeguard elections.

He cited the Arizona Constitution’s purity of election clause as precedent.

“The purity of elections clause authorized those to determine how much [power] to give or take back from the counties,” Langhofer said. “The Legislature has to understand how well an election was administered.”

In April, a partisan watchdog group released covert audio recordings of Fann stating the audit was to improve future elections. 

In the audio, Fann alludes to the possibility of litigation from the audit. According to Fann, if state Attorney General Mark Brnovich verified the findings of Senate Republicans, he’d be obligated to take the matter to court.

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Brnovich is conducting an investigation into election fraud in conjunction with the state Senate and should release his findings sometime before the 2022 midterm election.

The Arizona Supreme Court did not indicate how or when it would rule.

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Cyber Ninjas CEO Doug Logan (left) testifies to the Senate on July 15, 2021.

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