PHOENIX — Arizonans will finally get to see on Sept. 24 what auditors have concluded about whether there was fraud, misconduct, mistakes or anything else in the conduct of the 2020 election in Maricopa County that denied a Donald Trump victory in the state.
Senate President Karen Fann, R-Prescott, said there will be an open session at 1 p.m. that day on the Senate floor so that Doug Logan, CEO of Cyber Ninjas, can present the findings to her and Sen. Warren Petersen, R-Gilbert, who chairs the Judiciary Committee.
Cyber Ninjas, hired by Fann to conduct the review, was given possession of about 2.1 million ballots plus voting equipment and charged with determining the accuracy of the official results that Joe Biden won.
There also will be a presentation via video from Shiva Ayyadurai, who has been linked to various election conspiracy theories. The Senate separately hired Ayyadurai to review voter signatures on mail-in ballots.
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At that point, Fann said, electronic copies of the report will be made available. But she said the findings will not be discussed until a future, not-yet-scheduled meeting of Petersen’s committee.
All this comes as the attorney for the Senate was in court on Thursday explaining to Maricopa County Superior Court Judge Michael Kemp why his client has not yet disclosed all of the documents it already has in its possession about the audit.
The attorney, Kory Langhofer, said thousands of pages already have been turned over to American Oversight, the self-proclaimed watchdog organization that filed suit seeking everything relating to the audit. But he said there are documents, including texts, that the Senate believes are shielded from public disclosure under the concept of “legislative privilege.”
Fann told Capitol Media Services the number of withheld documents is about 2,700.
And that doesn’t even count perhaps 60,000 other documents still in the possession of Cyber Ninjas that have not yet been turned over to the Senate, despite a ruling Tuesday from the Arizona Supreme Court that they must be made public. Langhofer said once the Senate gets those documents there may be claims that some also are confidential.
That’s not the only legal dispute. Attorney Keith Beauchamp, who represents American Oversight, argues that his client — and the public — are entitled to see not just the final report but also draft versions.
Those drafts could prove crucial in determining what changes were made between the time Cyber Ninjas submits its findings to the Senate and what is released as the final conclusion. Any changes are bound to raise questions about why the alterations were made.
“We ought to receive that today if it’s in their possession and it’s a public document,” Beauchamp told the judge.
Fann, however, said the Senate does not yet have the draft report. But Langhofer conceded in court that there’s a caveat to that.
“I believe the Senate or its agents are in possession of a draft report, but not from Cyber Ninjas,” he told the judge.
“There were some ancillary reports,” Langhofer said. “But the main one, the Senate does not have yet.”
Fann said some of the issues outside the formal audit come from Shelby Busch, co-founder of We The People Arizona Alliance, who has raised questions about the accuracy of the election results. The Senate president said Busch worked with “some grass-roots people who worked the polls.”
“They put a document together of things that they observed at the polls, things that went on,” Fann said. “They went through all of the recordings and videos of MCTEC (Maricopa County Tabulation and Election Center) about some things.”
Fann also said there are people who have filled out affidavits “documenting things when they were working at the polls, what they observed.”
Whatever Fann has, American Oversight wants that, too.
As to the draft report, Langhofer said the Senate is under no legal obligation to make it public, either before or after the promised Sept. 24 release of the final version.
“There are reasons that drafts shouldn’t be made public because there are things about them that need to be rethought or refined,” he said. Langhofer said that’s why the public does not get draft court opinions or police reports.
Beauchamp called the comparison invalid.
“It’s an audit,” he said. “It’s nothing like a draft judicial report or a draft criminal investigatory report.”
There is also the legal question about a potentially large trove of documents that the Senate says are protected by legislative privilege and are none of the public’s business. One batch in dispute involves texts between Fann and Logan.
Roopali Desai, another attorney for American Oversight, said the Senate is stretching the definition of what is privileged.
“We believe records they are withholding that are ancillary to the audit — procedures, hiring, fundraising, those kinds of things — those don’t come under the legislative privilege and should be produced,” she said.
How and why Cyber Ninjas got hired has been a big question, given that the company has no experience with this kind of review. There also is the fact that Logan made public statements questioning the election results even before his firm was retained.
The issue of fundraising also has been a point of public concern.
Officially the audit is costing the Senate $150,000 — not counting what the Senate is paying Langhofer for the court challenges.
But Logan disclosed in July he had taken in $5.6 million from outside sources, much of that from groups linked to Trump and conspiracy theories about the 2020 audit.
The lion’s share, about $3.25 million, came from The America Project, set up by millionaire Patrick Byrne, the former Overstock.com CEO. Bryne has said he believes it was a “fraudulent election.”
The texts between Fann and Logan could show what the Senate president knew about outside fundraising activities.
The planned release of the report comes although the Senate has not yet received some of what it subpoenaed from Maricopa County. That specifically includes computer routers, which Cyber Ninjas claims are necessary to determine if the tallying equipment was connected to the internet, which would allow for results to be remotely altered.
County officials say it could expose confidential informants and uncover operations in public safety to release the information in the routers.
Attorney General Mark Brnovich has ordered the county to surrender the routers or forfeit its state-shared revenues.