BREAKING: Judge Dismisses Libertarian Case, Says Maricopa County's Bonus Election Audits In February Did NOT Require Parties' Presence

Maricopa County conducted two extra election audits in February, but did not need to invite the political parties to observe them. That was today's ruling by Maricopa County Superior Court Judge Joseph Mikitish, throwing out the Libertarian Party's lawsuit against the County.

In the statutorily-required election audits and tests - both before and after the election, the County does invite observers from the Democratic Party, the Republican Party and the Libertarian Party. However, in January, under political pressure from Republicans claiming that there was fraud in November's election, the Board of Supervisors approved additional audits to again try to convince the conspiracy theorists that the election was fraud-free.

The Libertarians filed the lawsuit during the February "bonus" audits, and the County moved to dismiss. (The Arizona Republican Party* tried to join in on the Libertarians' side.) In today's Minute Entry, Mikitish granted the Motion.

Mikitish explained his reasoning:

The Manual does not require political party participation in forensic audits not set forth by

statute. 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.

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