The Manual does not require political party participation in forensic audits not set forth bystatute. Rather, the Manual allows counties to conduct additional logic and accuracy tests not provided by law, “including with participation from representatives of the recognized political parties.” Election Procedures Manual at 86, n. 22. The “including with” language in the Manual is not mandatory. If the Secretary of State, who prepared the Manual, had intended party participation to be mandatory in discretionary post-election audits, she could have made that intention clear. For example, she could have stated that audits shall include party representatives or that no audits, mandatory or discretionary, could take place without party representation. She did not do so.
Michael Kielsky, attorney for the Maricopa County Libertarian Party, tells Arizona's Law that his client has not yet decided whether or not to appeal the dismissal, but that he believes the judge struggled with his decision before accepting the County's strict reading of the statutes and EPM.
The case has some interesting parallels to the current recount/audit currently being conducted by the Republicans in the State Senate and the Cyber Ninjas. Like the County's February audits, the current activities are extra-legal - not anticipated or covered by either statutes (passed by the State Senate, etc) or the Elections Procedures Manual.
*The AZGOP was represented by Chris Viskovic and Alexander Kolodin, the same firm currently representing the Cyber Ninjas at Veterans Memorial Colisseum.
"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.
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