Citing concerns about security and procedures, a judge ordered the Arizona Senate to “pause” its recount of Maricopa County’s general election ballots, effective at 5 p.m. Friday, but only if the state Democratic Party could post a $1 million bond to cover any costs from the delay.
The party, which sought the halt, said it would not put up the money to stop the unprecedented recount, however, even after bringing the last-minute lawsuit with County Supervisor Steve Gallardo charging that the process violated state election laws.
During a hearing on Friday, a lawyer for Gallardo and the state party pointed to security breaches at the Veterans Memorial Coliseum, where the Senate is storing the ballots, and the use of blue pens by recount workers, even though state election procedures specifically call for using red ink that cannot be used to tamper with ballots.
Superior Court Judge Christopher Coury said during a hearing Friday that he wants to ensure the recount fully complies with Arizona law and asked the Senate, as well as its contractors, to provide more information by Monday morning on their policies and procedures.
“I do not want to micromanage and it is not the posture of this court to micromanage — or even to manage — the process by which another branch of government, the Legislature, the Arizona state senate, proceeds,” Coury said.
“However, it is the province of the court to ensure voter information and those constitutional protections are held sacrosanct and that also includes the protection of ballots under Arizona law.”
The audit could be stopped until noon on Monday if the plaintiffs posted the bond.
Roopali Desai, a lawyer for the party, said a few hours later that the party would not put up the money. She noted the stop would be temporary, but she argued the case has still provided some new oversight of the opaque recount.
“Requiring them to produce policies and training procedures is a huge victory,” she said.
Kory Langhofer, an attorney representing the state Senate, argued the Senate enjoys legislative immunity and cannot be sued over the recount now.
“Because the Legislature is in session, the legislators and their agents are immune from civil process and they’re immune from any civil liability as well for their conduct in furtherance of legislative duties,” he said during the hearing.
And Langhofer argued that the separation of powers prevents the court from telling the Senate how to run the audit.
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Coury asked for written briefings on those issues but signaled concerns about how the Senate is handling the audit.
During Friday’s hearing, Desai noted that blue pens have been distributed to workers inside the facility because the audit firms said blue marks could not be read by ballot processing machines. But that is not true. Blue ink can be used to mark a ballot. The state’s election procedures manual requires only red pens are used to ensure ballots are not tampered with.
The existence of the blue pens on the floor was reported by an Arizona Republic reporter who was an observer at the coliseum. Reporters are otherwise allowed to watch the proceedings in person.
Desai also pointed to an episode the previous evening when officials tried to lock some reporters out of a press conference about the recount. Those reporters looked for a way into the building and found an unlocked door into the building where all of Maricopa County’s ballots are now stored.
“There are no safeguards in place. There is no proper training,” Desai argued.
This is a developing story. Check back with azcentral.com for updates.