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Maricopa County Senate audit observers forced to sign non-disclosure agreements

Maricopa County election audit
Posted at 9:17 PM, May 04, 2021
and last updated 2021-05-05 13:23:53-04

PHOENIX — Among concerns surrounding transparency in an effort to recount ballots cast in the 2020 election in Maricopa County, ABC15 has learned the company leading the effort is now requiring legal documents be signed by volunteers who want to participate.

Tuesday, an anonymous observer who volunteered to take part in watching the hand recount of ballots, sent ABC15 a copy of an agreement they say Cyber Ninjas is now requiring all observers to sign.

The non-disclosure agreement explains observers must agree to keep information detailing what they saw and experienced while present to themselves, unless given permission by the company.

“The very heart of being an observer is to be able to watch, to observe, to take that information and to share it with others," said Tammy Patrick with the Democracy Fund. Patrick previously worked at the Maricopa County Elections Department from 2003 to 2014.

"To have a non-disclosure agreement is the exact opposite of what the heart of an observation program is supposed to be remedying," she added.

The agreement reads in part:

"I agree that unless I am authorized in writing by Cyber Ninjas, Inc. and the Arizona State Senate, I will not disclose any Confidential Information to any person who is not conducting the Audit... Furthermore, I agree that during the course of the audit to refrain from making any public statements, social media posts, or similar public disclosures about the audit or its findings until such a time as the results from the audit are made public..."

Read full agreement below:

The agreement does not explain what information could be considered confidential.

Ballots cast in Maricopa County are secret ballots, preventing observers, ballot counters or election officials from knowing who cast a specific ballot.

In 2020, several legal challenges, including many filed by the Trump campaign and the Arizona Republican Party, cited statements and affidavits written by observes present during the counting of ballots at Maricopa County's Tabulation Center in November. Some claimed they did not have a fair view of the counting or adjudication process. A judge dismissed those claims, citing lack of evidence.

Still, official observers in November were permitted to speak out during the process regarding their concerns and participate in challenges.

"There’s a lack of transparency here that is again deeply, deeply troubling," said Patrick. "We need to make sure that that same level of transparency is happening anytime you have official ballots that are being reviewed in the way that they are at the coliseum right now and we need to make sure that if there are things that are arise that individuals in the room have the ability and the power to bring it to the attention of the people of Arizona and to quite frankly to the nation.”

ABC15 has previously reported several attempts made by Cyber Ninjas to keep its methods and process hidden from the public. A judge eventually ruled the group must turn over documents showing policies and procedures.

While officials behind the effort cite 24/7 cameras scattered across the floor where the hand counting of ballots is being conducted, Cyber Ninjas previously barred local journalists and news outlets from independently viewing and capturing images inside the coliseum, unless they agreed to sign up to become an official observer.

To become an observer, a person must submit a resume, along with three letters of recommendation, according to the online site accepting applications.

It's not clear what criteria Cyber Ninjas uses to select observers among applicants, but if chosen, a person must sign up for a six-hour shift.

Observers are not allowed to have cell phones, cameras or notebooks with them during their shift, according to Ken Bennett, acting liaison between Arizona Senate Republicans and Cyber Ninjas.

Last week, a judge ruled that because Cyber Ninjas is not an official state or county elections office, they are not required to follow all state elections guidelines, or are at risk of facing felony consequences for not doing so.

For example. Judge Daniel Martin ruled Cyber Ninjas is not required to provide a bi-partisan team of people to recount ballots.

Elections administrators across the nation are worried the actions happening in Arizona could lead to similar, unprecedented efforts in other states and in future elections.

"There’s nothing holding the people conducting this recount accountable, said Kim Wyman, Washington's Republican Secretary of State. "Do you know who’s going to be held accountable if ballots go missing? What is the penalty if ballots are altered or disappear entirely? All of these things are hidden from public view and that is really the crux of my concern is how are any of these players going to be held to account."