Maricopa County Superior Court Judge Daniel Martin said he wouldn’t extend a temporary restraining order that would have halted the audit on April 23 if Arizona Democrats had posted a $1 million bond.
“I think this was a very productive and useful hearing. I still have some thinking to do about the requested relief from the plaintiffs. I will do that between now and tomorrow morning,” Martin said.
Democrats last week filed a last-minute lawsuit seeking to block the audit, hours before it was slated to start. They claimed contractors hired by the Arizona Senate, which ordered the election review, were not properly securing ballots and equipment.
The audit of more than 2 million ballots and dozens of electronic tabulators started on April 23.
Arizona’s Senate subpoenaed the election documents and machines in January and a judge the following month ruled the subpoenas were valid and must be obeyed.
Defendants, including the Senate, say that since the process is already underway, along with an alleged lack of standing and substantive claims, means the judge shouldn’t stop the audit.
“An injunction of even a day may derail this audit,” Alexander Kolodin, an attorney for Cyber Ninjas, one of four firms conducting the process, told the court.
Kory Langhofer, an attorney for the Senate, told Martin that the Senate “has always intended to follow the law” but that the case raised the question of what the law requires.
The Senate believes everything plaintiffs want either doesn’t apply or is already being done, he said, adding: “There is no need for an injunction at all.”
Roopali Desai, an attorney for the Arizona Democratic Party, put forth what she said were serious allegations regarding security at Veterans Memorial Coliseum in Phoenix, where the audit is being done. A local news reporter claimed to have been able to walk around the arena where the audit is taking place, on four different days “unbothered,” including getting close to both tabulators and ballots.
Just because the audit started before the parties were prepared to put into place proper security procedures “is simply not a reason we shouldn’t hold, take a pause, for the time being, until we have absolute certainty that the laws are being followed,” Desai argued.
Similar arguments were made in a prehearing memorandum Desai filed. The Senate, meanwhile, had asked the judge to dismiss the case outright because of the alleged lack of “any cognizable legal claim.”
Martin ultimately sided with the defendants, but kept open the possibility of changing his mind at the next hearing, which will take place on April 28.
The next hearing will also include oral arguments on a motion by Cyber Ninjas to keep some of its submissions under seal. The company argues the filings contain sensitive information detailing its security and chain of custody procedures and operations.
Martin also granted motions to intervene by Arizona Secretary of State Katie Hobbs, a Democrat who opposes the audit, and the First Amendment Coalition of Arizona, a nonprofit that represents journalists and is represented by Perkins Coie.
Martin used to work for the law firm Brown & Bain before it merged with Perkins Coie, a heavyweight law firm that often represents Democrats and Democratic groups.