Sham GOP Election ‘Auditors’ Want to See Your Ballot — But Hide Their Own Work

·7 min read
Election 2020 Arizona Audit - Credit: Matt York/AP
Election 2020 Arizona Audit - Credit: Matt York/AP

Robin Vos was defiant. The state Assembly had launched its own investigation into “election integrity” and the 2020 vote count in their state, and Vos, the speaker and Republican leader of the Assembly, had been asked when he would release documents related to the taxpayer-funded audit then underway.

Doing so, Vos shot back, would be like a district attorney disclosing sensitive information about an ongoing murder investigation. It would give “an advantage to the people who actually committed the crime to avoid prosecution,” Vos said. “That’s exactly what would happen if we decided to put all the documents out.”

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Vos’s comparison was farcical on its face, likening alleged election-related fraud with the search for a killer. But it also revealed a key dynamic of Wisconsin’s GOP-driven audit, showing how the same lawmakers signing off on subpoenas and demanding extraordinary access to election records sought to keep the public in the dark about the inner workings of their “audit.”

In the aftermath of the last election, a coalition of political activists, lawyers, and self-proclaimed forensic experts has embraced their own version of an audit — unscientific, unregulated, sometimes privately funded — to cast doubt on elections, voting machines, and public servants who make our democracy work. These partisan-led “audits” have become a tool of choice for a Republican Party that has increasingly embraced the baseless claim of widespread fraud in U.S. elections. Arizona, Wisconsin, Texas, and Pennsylvania have all seen audits since the 2020 election.

Yet as they’ve pushed these “audits,” Republican lawmakers and their lawyers have made one argument after another in courtrooms and in the media about why they won’t or can’t hand over documents that provide much needed transparency on how the “audit” originated, how much taxpayer money was spent to carry out on the “audit,” what tactics and contractors were used, and if private donors funded them.

Lawmakers have claimed legislative immunity, arguing that a legislature can’t be sued for their audit-related records. They’ve insisted that by outsourcing the audit work to third-party contractors, the records in question aren’t theirs and there’s nothing they can do to provide them to the public. They’ve ignored records requests, blown past court-issued deadlines, and dared outside groups to hold them in contempt.

Election-law experts and Democratic secretaries of state say they fear that these self-styled audits pose a threat to democracy by further eroding some voters’ faith in free and fair elections. “These efforts in Arizona and other states aren’t about the truth,” says Colorado Secretary of State Jena Griswold, who chairs the Democratic Association of Secretaries of State. “Not only have they been seriously flawed and cost taxpayers millions, but they have also done the damage of creating more distrust in our elections … This is about a continued coordinated attack on our democracy, all to justify future attacks on the right to vote.”

Transparency groups have resorted to suing state officials to pry loose documents about the “audits,” leading to drawn-out legal battles and delays in the release of potentially valuable information about the “audits.” “We’re very worried not only about these so-called audits popping up, but also at the degree to which government officials are working to keep them secret,” Austin Evers, executive director of the nonpartisan group American Oversight, tells Rolling Stone.

The largest so-called audit so far was the Arizona state senate’s recounting of millions of 2020 ballots cast in Maricopa County, the state’s largest municipality. That supposed audit dragged on for months, with costs reportedly soaring past $9 million. It also spawned multiple far-fetched conspiracy theories including that some ballots might contain bamboo shoots — evidence of Chinese tampering with the election.

Arizona offers the starkest example of how, at the same time Republicans demanded unprecedented access to ballots for a discredited audit, they fought transparency about every aspect of their questionable activities.

When American Oversight, the transparency group that was founded in 2017 by alums of the Obama administration, first asked for documents in April from the Arizona state senate about its “audit,” the Senate’s lawyers replied that since they had outsourced its “audit” to a digital forensics firm, Cyber Ninjas, the legislature didn’t possess most of the documents requested by American Oversight as well as other groups seeking them and thus couldn’t hand them over. A month, American Oversight sued the Arizona state senate, the opening shot in a months-long legal battle to obtain records about Arizona’s “audit.”

Lawyers for the state senate gradually turned over thousands of pages of documents but also continued to insist they couldn’t hand over key records related to Cyber Ninjas, the third-party contractor helping run the “audit.” “Turned over everything we have numerous times,” Karen Fann, the state Senate leader, tweeted. “Liberal media asking for record an [sic] not in our possession.”

Lawyers for the Arizona senate also tried to argue that the senate itself couldn’t be sued related to a records request, citing “legislative immunity.” Yet court after court took a dim view of this argument, and ruled that Arizona Republicans comply with the records requests related to the audit.

The legal fight reached all the way to the Arizona supreme court, which sided with the transparency group. “Allowing the legislature to disregard the clear mandate of the (records law) would undermine the integrity of the legislative process and discourage transparency, which contradicts the purpose of both the immunity doctrine and the (law),” acting presiding Judge Maria Elena Cruz wrote in her opinion.

And in yet another ploy to keep the documents secret, Arizona Republicans have sought to shield the documents by claiming legislative privilege, which means they shouldn’t be disclosed in a records request. Last week, another judge ruled ruled against this claim. “This is not a confidential process,” said Maricopa County Superior Court Judge John Hannah. “This is a highly, highly public process.”

Austin Evers of American Oversight points out that this third claim conflicts with the Arizona Senate’s earlier defense that only third-party companies held the documents, not the Senate, but he adds that the overall aim in all of these attempted deflections is the same. “The throughline is they just do not want transparency and they’re willing to mount contradictory arguments to prevent giving us the documents,” Evers says.

Oversight groups have faced the similar delaying and obfuscatory tactics in Wisconsin. There, Republicans have tapped a former state supreme court justice named Michael Gableman to run their own version of a partisan audit.

Wisconsin Republicans, like their counterparts in Arizona, have argued that they can’t provide documents about the audit until it’s completed, as seen by Speaker Robin Vos’s homicide-themed argument. They’ve also contended that since former justice Gableman is leading the audit, they don’t have any documents in their possession and thus can’t provide any of those records.

But so far, courts aren’t buying those arguments. At a recent hearing, a Wisconsin county judge accused Republicans of engaging in a “shell game,” saying they couldn’t use the argument that the hiring of an outside contractor to run their audit meant they didn’t have to be transparent. The documents in question “need to be produced unless there is a darn good reason why not and I don’t see one at this point,” said Judge Valerie Bailey-Rihn on Nov. 6.

Yet the Nov. 19 deadline to release those documents passed without the Wisconsin Assembly providing all the records sought by American Oversight, according to the transparency group. Last Friday, lawyers for American Oversight moved to hold Speaker Vos and the state Assembly in contempt for failing to comply with the court’s deadline.

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