Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” Follow him on Twitter. The opinions expressed in this commentary are his own. View more opinion on CNN.
It sounds like the plot of a fictional thriller, but it’s the reality of the ongoing Arizona election “audit” – which is the farthest thing from a true audit. It might be comical if it were not so destabilizing for our democracy.
Post-election audits, when done correctly, are a smart idea. But that is not what is occurring in Arizona right now. A traditional post-election audit is conducted by trained election professionals, under the eye of political party representatives of both sides, who compare a percentage of the ballots with the official tally. The goal is to check a set of paper ballots to ensure that the voting equipment counted them correctly.
Arizona law requires this kind of audit, in which county election officials review 2% of the precincts in a county while party representatives of both sides look on. If the audit shows a discrepancy in the count, then the audit is expanded to additional precincts. The secretary of state, the state’s chief election official, oversees the process, promulgating rules in an official manual. It’s a fair, open, transparent and bipartisan process.
Maricopa County, Arizona’s largest county and home to Phoenix, went even further than that due to continuing unfounded allegations by Republicans that something was amiss. After the initial audit, the county engaged in logic and accuracy tests of voting machines. Then they hired two independent auditors to check the machines again to confirm the vote totals. All of these reviews came to the same conclusion: The results were accurate. Joe Biden validly won the most votes in Maricopa County and, ultimately, the state.
But that was not enough for Arizona Senate Republicans, so now they have engaged in their own “audit.” A judge granted them access to the county’s nearly 2.1 million ballots and voting machines, raising questions about the oversight and control of them as evidence. The Department of Justice has warned Arizona Senate President Karen Fann that the audit may be violating federal law – which requires election officials to retain federal election records for 22 months – if the machines and ballots are not under the ultimate control of state or local election officials.
Then the Arizona Senate Republicans hired a cybersecurity firm, Florida-based Cyber Ninjas, to review the ballots. The firm apparently has zero experience in election audits and was not even known to prominent Republicans and election officials in its home state of Florida – a curious fact given recent close elections there. Though the state’s Republicans assert that Cyber Ninjas are qualified, the firm has not explained what election audit experience it has, if any, and its website focuses on software security.
The Cyber Ninja’s process is itself shrouded in secrecy. In court, it attempted to shield its procedures and shut the public out of its audit, but the court refused. It kicked out a reporter who had tweeted a picture of a former state lawmaker who was at the Capitol riot and was examining ballots. Officials claimed they removed the reporter because he had taken a picture that included a ballot, but the reality belied this assertion, especially as the picture he posted, taken from far away, did not reveal any details of the ballot. The lawmaker he photographed, who was reviewing ballots, had lost his 2020 re-election bid – meaning that the ballots he was looking at could potentially have listed his name as a candidate.
Only a few reporters are allowed inside the coliseum where the review is occurring, and that’s only after a lawsuit from media outlets ordered their access. Many individuals conducting the ballot reviews are former President Donald Trump supporters who, when approached by a journalist, said they would talk only to the One America News Network, a right-wing news outlet that has peddled Trump-inspired conspiracy theories about the 2020 election.
In perhaps the wildest allegation surrounding the so-called audit, one official involved in the effort said that they were looking for traces of bamboo based on a claim that 40,000 ballots had arrived from Asia – though he also said he did not believe that conspiracy. But the very allegation shows just how absurd the entire process has become.
Election officials of both sides oppose the Arizona audit, and for good reason: It’s secretive, partisan and contrary to election administration best practices. As Arizona Secretary of State Katie Hobbs explained, the “process being used is a significant departure from standard best practices utilized by jurisdictions and experts across the county, including here in Arizona, and raise serious doubt about the accuracy and reliability of any result of this process.”
This is no way to instill confidence in our elections. Instead, it has a more nefarious purpose: Continue to undermine people’s faith in the outcome of the 2020 election to support ever-stricter voting rules. Simply put, it’s a fishing expedition, with continued lies about election fraud as the catch of the day.
We should celebrate the stellar work of election officials to pull off a fair and secure election with high turnout during a pandemic, not plant seeds of doubt that undermine the public’s confidence in our election system.
Unfortunately, unscrupulous politicians will use the very fact of an audit to peddle wild conspiracy theories and justify stricter voting laws. There is already a proposal to cut back on mail-in voting in Arizona.
An audit is only as good as the transparency, fairness and nonpartisanship behind it. The Arizona Senate Republicans’ “audit” fails on all fronts.