Opinion

Maricopa County Supervisor Steve Gallardo had heard enough. More than a half-hour into the board's January 27 consideration of a "forensic" audit where two outside firms would assess if its voting system used in Arizona's 2020 presidential election had been infiltrated and the results altered, the former state senator said that his vote in favor of the audit "was a tough pill to swallow."

"We had our presidential preference election, not one complaint," Gallardo said. "We had our primary election in August. Not one complaint. Everyone was happy. We had our general election. No complaint, until a day or two after the general election, when some folks in our community and across this country started looking at the results."

"They were not happy with the result," he continued. "That's quite normal in the world of elections. Folks that are not happy with the results generally do complain. This year, they took it a step further. They continue to spread lies and conspiracies about how our elections are conducted, and now our machines are the target."

Arizona had the second-closest presidential election margin in 2020, a difference of about 10,500 votes between the winner, Joe Biden, and Donald Trump. The margin did not trigger a recount under state election laws, which the state's GOP-majority legislature had changed to make the margin that triggers a recount narrower in recent years. But in the months since Election Day, Trump supporters, including state legislators, have ramped up their attacks, raising the question of what proof, if any, will convince them of the outcome.

The supervisors governing Arizona's most populous county unanimously voted to begin an audit to determine if its electronic voting system was "accurate, reliable and secure," as the county's election co-director told the board. Meanwhile, in Arizona's state Senate, Republicans who supported Trump have ramped up their attack on Biden's victory and demanded Maricopa County turn over its voting machines and 2.1 million ballots to Senate investigators.

The county has so far refused, even as Trump supporters are urging the Senate to seize the machinery and ballots. Leaders of Trump's legal team, including Rudy Giuliani, speculated in Arizona testimony that Trump votes were secretly turned into Biden votes. Those allegations, in part, led Dominion Voting Systems, which made the county's voting equipment, to sue Giuliani for $1.3 billion. (Dominion has filed 2,912-pages of exhibits detailing Giuliani's false statements.)

This fight in Arizona centers on what evidence could be used to satisfy voters that election results are accurate and legitimate. But the fight is also part of a pattern in battleground states where perpetuating the myth of a stolen election has become the opening move in what may become major rollbacks of voting options.

"Nothing is going to convince them. They're always going to be casting doubt," said Gallardo. "They're using our system; they're using our audit as justification for doing it. How many times did I hear… the legislature, over the last two weeks now, say, 'We need to do an audit so we can introduce legislation?'… They're using this audit to introduce legislation to make it difficult for other people to vote. It's called voter suppression."

Gallardo's assertion that Trump's supporters will never be convinced underscores that one of the top challenges confronting American democracy is identifying what steps will restore public confidence in elections. Beyond debating how officials might counter propaganda attacking the process is a baseline question for those concerned with presenting the facts: Is the most crucial balloting data to verify results being made public?

Evidence of Accurate Vote Counts

Seen from afar, Arizona is a national leader in transparent elections. As Sambo Dul, Arizona elections director, told the National Association of State Election Directors (NASED) during its recent winter 2021 conference, every step of the process—from programming the voting systems without being connected to the internet, to the use of hand-marked paper ballots, to pre- and post-election testing of machinery and audits of reported results, including verifying results before its certifies winners—is "aimed at ensuring the security and integrity of our system."

"After each voting location is closed down on election night, their materials go to an audit board," Dul said on February 3. "The audit board reviews the election board materials to make sure that all of the numbers [voters, ballots returned, ballots counted] are reconciled prior to the canvass… And as a final check, we require counties to conduct a logic and accuracy test [on counting scanners] after all of the ballots in the counties have been tabulated."

These steps all occurred in 2020's presidential election, including post-Election Day machinery tests and vote count audits that showed no hint that the results were wrong.

As granular as these steps were, Maricopa County's audit will go further, Scott Jarrett, director of Election Day and emergency voting with the Maricopa County Elections Department, told the county supervisors on January 27. "A forensic audit is a process that will review [the election process], to determine and identify whether our electronic equipment is accurate, reliable and secure."

"It's a multilayered, robust process that will review that it's not susceptible to hacking, and that it wasn't hacked during the November 2020 general election," he said, describing the audit. "We'll also review that there's no malicious software or hardware that has been installed on any of our tabulation equipment or devices. It'll also confirm that our tabulation equipment is not connected to the internet and wasn't connected to the internet throughout the November 2020 general election. But we're going to expand that to be even further [and] go back to when the logic and accuracy tests occurred for the August primary election."

These assessments will be technical and likely hard for the public to follow. Given the political landscape, their conclusions will likely be dismissed by Trump's base. But Maricopa County's forensic audit also may surface too much information without getting to the heart of the matter—which would reveal the most direct evidence that the county's 2020 results were accurate.

Why not? The forensic audit will probe whether the county's computers that processed its hand-marked and machine-marked ballots to count votes were accurately reading those ballots—not recalculating or reassigning votes, which is what the pro-Trump witnesses alleged during Senate's hearings in November.

But what the audit will not do is examine what may be the most important part of the vote-counting evidence trail: the computer files, including images of every paper ballot cast, created to count votes, and the activity logs documenting that process. The county will examine the machinery and software used, but not compare the paper ballots, ballot images and the ensuing vote count. That distinction was confirmed by the county election office's spokeswoman.

"The ballot images and the activity logs should be a public record," said John Brakey, an Arizona-based election transparency activist focusing on ballot image audits.

How Paper Ballots Are Counted

The latest voting systems, including those used in Maricopa County, do not count paper ballots directly. Instead, computer scanners create a digital image of every ballot card. Those images are then analyzed by software, which creates a grid that correlates ink marks—votes—with each ballot's choices. The resulting tally, a spreadsheet of sorts, is built into the vote count. Formally, that tally becomes what is called the cast vote record.

In mid-2020, lawyers associated with the Florida Democratic Party sued the eight largest counties in that state seeking to force the counties to preserve ballot images as public election records. Since the 1960 Civil Rights Act, all materials used in federal elections must be preserved for 22 months. However, that federal law, which criminalized the destruction of election materials, was written in an era predating today's paper and electronic voting systems.

The Florida counties agreed to preserve their ballot images if there was a 2020 presidential recount—which did not happen. Meanwhile, in January 2021, a Florida law took effect that allows its counties to use ballot images as part of their recount process. (Recounts are not the same as audits; recounts can change election results.) This seemingly arcane and technical fight revolves around a key question: Is all of the data surrounding vote counts a protected public record?

The short answer is no—even though state and federal election officials have been gradually acknowledging that this data is there and crucial. For several years, the state of Maryland has used ballot image audits to verify its results before certifying winners. The soon-to-be-adopted Voluntary Voting System Guidelines 2.0 from the U.S. Election Assistance Commission, which states used as a best practice standard, refer to ballot images but do not urge states to save them. The massive election reform bill introduced by Democrats in Congress, H.R. 1 and its Senate companion, does not update election records retention requirements for digital data.

But, increasingly, election officials, including Republicans being attacked by pro-Trump factions, have been citing digital evidence generated during ballot-processing and vote-counting to push back on conspiracy theories that their elections were fraudulent and illegitimate.

In Georgia, during its second count of all presidential ballots—an unprecedented hand count of 5 million ballots—Gabriel Sterling, the state election operations manager, told the press that his staff was able to use the activity logs in scanners to identify why several thousand votes for Trump were not counted on election night. Basically, some poll workers, after a 15-hour day, failed to transfer the data from the scanners to their county's tabulation system. Those votes were subsequently added to Trump's totals, although he did not win the state.

A Paper and Digital Evidence Trail

There is no guarantee that providing real evidence to hyperpartisans will change minds when their candidate lost. However, not making public—and preserving—the paper and electronic records, data and evidence trail associated with counting votes will only fan more suspicions. Those doubts will emerge when facts about how ballots are counted are obscured.

For example, when Arizona Trump activist Liz Harris went on Stephen Bannon's "War Room" online radio show on February 3, she gave a laundry list of election files and data that she was hoping the Arizona Senate would seize to prove Biden lost. While the list was a fishing expedition seeking targets to boost their stolen election narrative, much of what she sought was irrelevant to counting votes.

"We're looking for election log files, election settings, accounts and tokens, Windows servers and desktops, Dominion equipment, Dominion network access to the logins for the Dominion records. We're looking for Election Systems and Software [another voting system maker]. We're looking for the voter rolls, and most importantly, and I can't stress this enough, access to all original paper ballots including but not limited to early ballots, Election Day ballots and provisional ballots," Harris said. "I'm very confident based on the work… we will find a minimum of 106,000 fraudulent ballots, and I make that statement with great faith."

What's missing from this list are the specific records and related data that were used to count the presidential election's votes in Maricopa County—in addition to the paper ballots, the digital ballot image files of every paper ballot cast, and activity logs from the scanners processing those ballots and tabulating the votes.

During NASED's winter meeting, countering misinformation was the subject of February 4's presentations. State election directors from states with Republican and Democratic majorities were uniformly confident that the 2020 election results were accurate. They said that election officials had done more than ever before to open their processes to public viewing. But they still felt they were burned by partisan disinformation, despite their efforts at transparency.

"I want to talk a little bit about transparency, which is a positive," said Matt Masterson, a former top-ranking federal official who has worked for various agencies on election technology and voting security. "I want to state over and over again… that the level of transparency that election officials offered in this election was far greater than any election that I've experienced. There were more livestreams or updates, more press conferences, more access to the information than ever before."

"And transparency is a positive, but can also be used as a negative, right?" he continued. "We saw repeatedly the use of video and livestreams to make [false] claims about, 'Oh, did you see what he did there? He switched the ballots out.' 'Did you see what she did there?'… Using the data to create really good-looking but completely misleading and incorrect charts, using voter data to claim, 'I'm not saying something happened. But if you look at this, it doesn't appear right.'"

Masterson came down on the side of more transparency. He urged state election directors to counter disinformation by presenting the facts of their administrative processes "as quickly as possible," to then focus on dispelling rumors, and then to offer more detailed analyses.

In Arizona, Trump activist Liz Harris told Steve Bannon that her state "has this stuff intact," referring to its preservation of the paper and electronic records surrounding voting in the 2020 presidential election. "We would be the perfect state to do the deep dive forensic audit."

On that point, Harris was correct. Jarrett, a co-director of Maricopa County's elections, told the supervisors on January 27 that their ballot-marking devices, scanners, tabulators and their accompanying digital files have been sealed and kept in a vault since the November 3 election—including untouched memory cards containing a backup of all ballot images and their votes.

"Our equipment is ready," Jarrett said, referring to the county's audit. "It has not been tampered with. It's still in the same state it was during the election and then the post-election."

Maricopa County's assessment of its election machinery—but not its presidential ballots and vote count—began on February 2.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.