Steven Rosenfeld

Inside observers say the Arizona 'auditors' are backtracking — and the reality only supports Biden's win

The "big lie" that President Joe Biden was not legitimately elected is not going away. One reason is Americans who care about their democracy are not learning how votes for president in 2020 were counted and verified — neither from the big lie's promoters nor from most of its fact-driven critics.

Most visibly, the absence of a clear and accurate explanation can be found among former President Donald Trump's ardent supporters. As seen in a July 15 briefing in Arizona's legislature, the contractors hired by the state Senate to assess the 2020 election's results unleashed a new thicket of finger-pointing and innuendo that fans doubts about Maricopa County's election administration and votes for Biden.

Critics of the big lie, who range from state officials (including Republicans) to voting rights advocates — and, of course, Democrats— have mostly emphasized that the Arizona Senate's inquiry and copycat efforts in other states are bad faith exercises led by Trump supporters who lack election auditing experience.

These competing narratives lack clear explanations of what matters when counting and verifying votes, and, by extension, what does not matter and is a sideshow. With few exceptions, easily understood explanations of how 2020's votes are counted and verified have been missing in the election's volatile aftermath.

Most of the arguments used by those trying to dispel 2020 election myths focus on labeling the big lie a propaganda narrative, or sweepingly dismissing Arizona's audit as a partisan-led hoax. But these don't seem to be nearly as effective as a different approach—one that focuses on demystifying the wonky details of the voting and vote-counting processes.

Two examples of the latter, more rigorous and successful approach stand out: the post-Election Day daily briefings by the Georgia Secretary of State office's Gabriel Sterling, which were widely covered by the media and attested to Biden's victory in that state and the victory by Democrats in its U.S. Senate runoffs; and ongoing efforts by a self-funded team of experienced election auditors in Arizona, which have attracted some coverage by using hard evidence from public data sources.

The team of experienced auditors includes a longtime Arizona Republican Party election observer; the retired CEO of Clear Ballot, a federally certified auditing firm; and the retired chief technology officer of Clear Ballot. They have drawn on Maricopa County's official 2020 election records to provide a baseline to assess the accuracy of its presidential election. Their nuts-and-bolts approach has been missing from almost every other report criticizing the state Senate's inquest.

Among their early findings were tens of thousands of ballots where most of the votes were cast for Republicans, but not for Trump — and many were cast for Biden, which provided a factual explanation for Trump's loss. More recently, the auditors' documentation of 2020 ballot inventories and vote count subtotals has pushed the Senate's contractors to start a new recount of Maricopa County's 2020 ballots.

Sources with access to the contractors' operations have told Voting Booth that the contractors now know that their hand count of 2.1 million ballots was initially sloppy, and cannot account for thousands of ballots in the official results. (Hence, a new count.) But what the contractors are doing in private, behind locked doors in a Phoenix warehouse, is the opposite of what they have been saying in public, which is pedaling vote-theft conspiracies.

Because the public's picture of the Senate's inquiry has a notable absence of clear descriptions articulating the building blocks of counting votes, there is a void that keeps being filled with misinformation, as exemplified by the contractors' July 15 briefing for Senate Republicans in Arizona's capitol.

Their statements, not given under oath, exemplified this charade. The contractors repeatedly spoke with indignation and bluster about technicalities in the corners of Maricopa County's election infrastructure, suggesting that the county's handling of the presidential election was deeply amiss. Not only were these technicalities hard for almost everyone, including the senators, to follow, but their presentation and tone supported conspiracy theories (which dominated pro-Trump media). In reality, the issues raised have little to do with validating voters, ballots and votes.

The contractors said, for example, that Maricopa County's central tabulators could have been hacked because key passwords and antivirus software had not been updated. They implied that officials had covered up their Election Day actions because activity logs on the tabulators were erased in March 2021. The lead contractor, Cyber Ninjas' Doug Logan, said there were several categories of suspicious ballots, all involving volumes of votes that exceeded Biden's statewide margin.

It is no surprise that fervent Trump supporters are invested in perpetuating doubts about his loss while their investigators fan diversions that hide their incompetence. Mostly, the Arizona Senate's contractors have discovered Maricopa County could have done better with managing some aspects of conducting the 2020 election. It is not headline news that election administration is complex, that officials do make mistakes, and — crucially — that the process usually catches and corrects them.

But what is going on here is far more cynical and intentionally dishonest.

In April, the Senate's contractors were told what was needed to conduct a credible audit, but they rejected that accounting-style approach. They were urged to compare the starting and finish lines of the vote-counting process to see if the figures matched. That involves three sets of records: the hand-marked votes for president on 2.1 million ballots; the digital images of every ballot immediately created by the scanners to start the electronic counting process; and the official results spreadsheet that lists every vote cast on every ballot. If the starting and finish line votes and totals matched, the election's outcome is legitimate.

Instead, the Arizona Senate's agents raced ahead with a hand count that did not even try to compare its step-by-step results with the building blocks of the official results. Now, inside observers have told Voting Booth that the Senate's contractors are backtracking in private to make more specific comparisons. (They also are trying to figure out if the hand count missed thousands of votes, which is why they are recounting the number of ballots but not the presidential votes.) But, publicly, the Senate contractors are not telling anyone what is going on. Instead, they are suggesting with bluster that they are hot on the election theft evidence trail.

The Senate Republican leaders are either falling for this masquerade or helping to perpetuate it. Not once during the July 15 hearing did senators ask their contractors why the Senate had to spend additional thousands to rent machinery to reconfirm the volume of ballots. The contractors urged the Senate to subpoena more data from the county, including voter signatures, in that briefing.

A new subpoena could lengthen the Senate's inquest, and, if some records are not released, it would provide a pretext for the contractors to claim that they cannot conclude their inquiry because evidence was withheld. Arizona Senate Judiciary Committee Chairman Warren Petersen telegraphed this scenario in his closing remarks, saying, "it [the inquiry] will be incomplete if we don't have those items."

The session ended with Arizona state Senate President Karen Fann reciting her oft-stated disclaimer that the inquiry was not about overturning her state's 2020 presidential results, but merely addressing the doubts of Republican voters. "At no time have we ever implied or inferred that there is any intentional misdoings here in any way whatsoever, and, in fact, we certainly hope not," she said. "But we do need to have this information and answer these questions."

After the briefing, Trump issued three statements falsely claiming election fraud. And several days later, another Arizona Senate subcontractor, Jovan Pulitzer, who has led its inquiry into forged ballots, said the same thing without evidence—that election fraud had deprived Trump of Arizona's 2020 Electoral College votes.

"Finally, you get to see the truth that there is such a thing as election fraud," he told Arizona pro-Trump activist Liz Harris on her July 19 podcast. Pulitzer was interviewed while on a private jet en route to Arizona to meet other funders and organizers (those featured in the new pro-Trump film, "The Deep Rig"). Pulitzer praised the patriotism of the donors who have funded the inquiry and the 1,500 volunteers who "made this happen," saying, "The Arizona Senate only paid $150,000 for what ends up being a $9 million audit."

But inside the Phoenix warehouse where the Senate contractors are continuing their work, people know that the documentation and methodology provided by the independent outside auditors have not only unmasked their hand count's flaws; they also keep pointing toward the conclusion that Biden won Arizona's presidential election, and that Maricopa County's administration of that election, while not perfect, was not fraudulent.

There are Arizona Republicans who know what is going on inside the Senate's investigation, but whether they are willing to stand up to Trump's supporters is another question. That task would be easier if the public knew more about the building blocks of counting votes.

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Justice Alito's voting rights ruling is plunging the Supreme Court back to the segregation era

In recent decades, voting rights progress has consisted of expanding access to a ballot and the ways to cast it—such as online registration, voting from home with mailed-out ballots and other options to vote before Election Day. Those innovations have been widely embraced, especially during the 2020 election in response to health concerns during a pandemic. In the general election, 56 million people voted in a different manner than they had in 2016.

But the Supreme Court's latest major decision on the Voting Rights Act of 1965 has imposed new standards that election law scholars say are hostile to the more expansive and convenient voting options that have surfaced in recent years. Even more troubling, the court's conservative majority has done so in a way that is reminiscent of the arguments put forth by last century's opponents of equal voting opportunities for racial minorities.

In Brnovich v. Democratic National Committee, the court eviscerated the strongest remaining section of the Voting Rights Act of 1965 (VRA), Section 2, which held that election laws and voting rules that had a racially discriminatory impact could be blocked. (In 2013, the court, in Shelby v. Holder, neutered the VRA's sections that allowed federal authorities to block regressive new election laws or voting rules in jurisdictions with histories of discrimination.) Perhaps most alarmingly in Brnovich, Justice Samuel Alito's majority opinion resurrected a legal strategy embraced by the opponents of last century's major civil rights reforms.

Brnovich held that some discriminatory impacts of an election law do not alone invalidate that law. That standard, put forth in "guideposts" laid out by Alito, means that suits challenging laws and rules that make voting harder must go beyond showing a discriminatory result. Those challenging a law must prove that its authors intended to discriminate—making it much harder to sue and win. Shifting the burden of proof from the result or effect of a law to its authors' intent was a tactic of 1970s anti-civil rights litigants.

But Brnovich went even further by also reviving the states' rights strategy cited by mid-20th-century segregationists. It held that state legislatures could cite an interest in policing voter fraud—which, factually, barely exists—as a pretext to pass stricter new election laws. And the ruling said that it didn't matter if a new law advantaged the party that authored the law.

"Effectively, most of the VRA is now dead," David Schultz, a Hamline University scholar specializing in elections and democracy, wrote in an email.

"The proof issue is critical," he continued. "[First, t]he court gives the benefit of the doubt to states that their laws are valid. Second, the court dismisses mere inconveniences as proof of creating less opportunity. It also dismisses small disparities as minor. And it also imposes a difficult burden on statistical evidence. Finally, even if someone can surmount all this, the court seems to dismiss some burdens by saying in the totality of the circumstances the overall voting system may be fine. In effect, despite the fact that voting is a fundamental constitutional right which is supposed to force the state to prove why its restrictions are valid, it shifts the burden to challengers with a near-impossible argument to make."

Other legal scholars have also written that Brnovich's dark implications are sinking in.

"[E]ach time I read Justice Samuel Alito's majority opinion in Brnovich v. Democratic National Committee, the angrier I become," Rick Hasen, a University of California, Irvine election law scholar, wrote on July 8 for Slate. "I'm angry not only about what the court did but also about how much of the public does not realize what a hit American democracy has taken."

Segregationist Revival

In strict terms, Hasen noted that the Brnovich ruling rolls back "the clock on voting rights to 1982," a date cited by Alito's majority opinion. That date is legally and politically significant. In fact, Brnovich cannot be seen as apolitical. As Schultz noted, "What makes this so bad is that the decision does not look neutral, and it makes the court look even more like a political institution where justices are simply partisan politicians with robes."

The early 1980s were the heyday of Ronald Reagan's presidency. At that time, both Alito and Chief Justice John Roberts held senior positions in the Justice Department, where the Reagan administration not only resisted enforcing federal voting rights law but also sought to weaken the same section of the VRA that is the focus of 2021's Brnovich decision. Today, few may recall that candidate Reagan gave a reactionary states' rights speech in August 1980 at the Neshoba County Fair in Mississippi—near where three civil rights workers were murdered in 1964. The murders were one of many events that propelled passage of the Voting Rights Act of 1965.

Southern states' rights advocates and their conservative descendants have long resisted broad voting rights—today, during Reagan's day, in the 1960s, and in the earlier Jim Crow era. Congress passed other civil rights laws by the late 1960s, such as in housing and employment. After the VRA's passage, its advocates' early focus was registering voters for 1968's presidential election and dealing with the legacy of exclusion. Richard Nixon, who won that election, ran on a states' rights "Southern strategy" that conveyed his support for segregationist values. Once in office, Nixon appointed judges vetted by South Carolina's Republican Senator Strom Thurmond, a white supremacist, in exchange for his endorsement over segregationist Alabama Governor George Wallace, said Chris Sautter, an election lawyer and American University adjunct professor.

By the mid-1970s, Nixon had resigned. But the impact of his judicial appointments was being seen. In civil rights litigation outside the voting sphere, civil rights opponents and conservative judges chipped away at new civil rights laws by changing the burden of proof required by those suing to enforce those laws. The cudgel concerned altering the burden of proof from showing a law's discriminatory effect to proving discriminatory intent. In short, the prosecutorial burdens that Alito revived in Brnovich didn't come out of thin air but were used by segregationists in his formative years as a young Reagan administration lawyer.

By 1980, the reactionary push to alter the burden of proof in new civil rights laws reached the voting sphere. In City of Mobile v. Bolden, the Supreme Court held that Section 2 challenges required proving discriminatory intent—a ruling that contradicted the law's text. At that time, race-based electioneering was returning to GOP circles. In New Jersey's 1981 elections, the Republican National Committee used Jim Crow-like thuggish tactics to try to intimidate Black and Hispanic voters. The Democratic National Committee sued and won a now expired court order that restrained the RNC. (Election lawyers point to the RNC's tactics as foreshadowing the modern Republican Party's voter suppression playbook.)

Some of that backlash also was due to Jimmy Carter's presidency (1977-1981), Sautter said, which enforced another part of the VRA: its preclearance provisions. These sections required states and counties with histories of discriminatory elections to get federal approval before implementing any new election law or rule. (In 2013, the court, in Shelby v. Holder, a majority opinion written by Roberts, gutted the VRA's preclearance provisions.)

In 1982, the 97th Congress reacted to the Supreme Court's Mobile ruling by restoring Section 2's original burden of proof—those who sued only needed to show that a new law's effect was discriminatory. The VRA's 1982 amendments said that courts should consider the "totality of the circumstances" to protect voting rights. The Reagan administration opposed reviving the law's original standard, an effort led by Roberts, as Hasen noted in his recent Slate piece.

"Congress disagreed with the Supreme Court's [1980] interpretation of Section 2, and in 1982 Congress passed a revised Section 2. This revision came despite fierce opposition from the Reagan administration and the president's point person on the issue, John Roberts, who now happens to be the chief justice of the Supreme Court," Hasen writes. At that time, Alito worked in the solicitor general's office, arguing for the Reagan administration in federal court.

In Brnovich, Alito laid out five "guideposts" for courts to judge Section 2 claims, including the harder burden of proof.

"In truth, these are less guideposts and more roadblocks looking to stop plaintiffs at every turn when they assert their Section 2 claims," Hasen writes. "One of the guideposts specifically tells courts to compare the voting restrictions being challenged in a Section 2 case to the burdens of voting as they existed in 1982."

Back to 1982?

What does it mean when a big slice of voting rights law is rolled back to 1982? The first take by scholars like Hasen is that recent voting options—such as allowing early voting on Sundays to accommodate "souls to the polls" drives led by clergy—have little basis for federal protection.

"[I]magine a state passes a law barring early voting on the Sunday before Election Day, because white Republican legislators know that reliably Democratic Black voters often run 'souls to the polls' events to take church-going voters straight to vote after services," he writes. "While a challenge to such a rollback under Section 2 had a good chance of going forward before, how could it survive the 1982 benchmark now, when Sunday voting, and early voting as a whole, was rare?"

Consider the Texas legislature's current machinations to ban the expanded voting options that Harris County—home to Houston—implemented in 2020 to make voting more accessible in the pandemic, such as 24-hour voting centers and mailing out absentee ballot applications. These GOP-led reforms are unfolding despite the statewide victories in fall 2020 elections by Texas Republicans.

"States are [now] mostly free to do what they want with voting and there appears to be little federal remedies or help to protect voting rights," said Schultz. "More than a decade ago, I said we were in the middle of a Second Great Disenfranchisement in America (the first was after the Civil War Reconstruction ended). This decision [Brnovich] is confirmation that the Second Great Disenfranchisement is in full swing, and we can expect more restrictions on voting rights in the years to come."

Brnovich's reach may be even bigger. The way that Americans vote today is completely different from 1982. What is called convenience voting—such as decades of mailing out ballots to every voter in some states, and the options to vote from home or in person before Election Day—did not exist in 1982. Neither did the voting technology and related election rules in wide use today.

"The expansion of voting rights since the 1980s has repeatedly been met with conservative resistance, first in the form of Republican Party initiated so-called ballot security programs and eventually with extreme voter suppression laws," said Sautter. "But the strategy to eviscerate voting rights with an ultra-conservative controlled judiciary goes back to Nixon and the presidential election of 1968. Until the makeup of the Supreme Court changes, progressives will have a difficult time winning these battles."

In the meantime, the best progressives might hope for is passage of the John Lewis Voting Rights Act, which restores and fortifies the VRA, which Sautter said would "seriously undermine the rationale of Alito's opinion." That scenario hinges on all Senate Democrats voting to create a voting-right exception to the filibuster rule.

On July 13, President Biden gave a passionate speech where he decried the Brnovich ruling and called Republican efforts to subvert voting rights and election results "21st-century Jim Crow." Biden called on Congress to pass sweeping federal voting rights legislation, including the John Lewis Voting Rights Act, but he did not mention the Senate filibuster.

"Just weeks ago, the Supreme Court yet again weakened the Voting Rights Act and upheld what Justice Kagan called, quote, 'a significant race-based disparity in voting opportunities,'" Biden said. "The court's decision, as harmful as it is, does not limit the Congress' ability to repair the damage done. That's the important point. It puts the burden back on Congress to restore the Voting Rights Act to its intended strength."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

'They didn't know what they were doing': The Arizona election results fight reaches a dramatic turning point

Two competing efforts to assess the accuracy of Arizona's 2020 presidential election results have reached dramatic turning points as July began. An effort led by Republican state senators and pro-Trump activists has erupted in a new wave of false claims about the presidential election results. Meanwhile, an outside effort led by experienced election auditors was poised to release the most detailed factual data yet by which the integrity of the election could be assessed.

The counterpoint was a stunning reflection of the most dysfunctional aspects of contemporary American politics. On one side are Trump supporters, whose endlessly high-minded descriptions of their patriotism and zeal to seek "the truth" are followed by the lowest of tactics—making false claims, hurling accusations and innuendo, and presenting no facts that can be independently replicated. Their vanities, tactics and anger are as old as Shakespeare's depictions of ancient Rome, and reveal something about the dark underbelly of political life.

On the other side is a different and more credible kind of truth-seeker; those who have spent years learning the intricacies of a complex public process that few people study—in this case, how elections are run—and have gathered factual evidence, which can be hard to parse, but presents replicable conclusions. In essence, their goal is to find a factual trail about who won, not opinions and smears.

"[Arizona Senate President] Karen Fann, at some point, has to say that what they're doing is going to produce an accurate result, and so far she's provided absolutely no proof of that," said Tucson's Benny White, a longtime election observer for the Arizona Republican Party who has led a team—not on anybody's payroll—that has continued to release analyses of Trump's loss in Arizona based on the actual building blocks of the official 2020 election results.

Facts and Fantasy

On the eve of the July 4th weekend, White's three-member team of retired election auditors—with decades of collective experience—are finalizing their latest report. Its focus and content are precisely what the Arizona Senate's pro-Trump contractors had failed to produce in the preceding two months: ballot inventories and presidential vote-counting totals from each of the hundreds of ballot storage boxes in Maricopa County, home to Phoenix, where 2.1 million ballots were cast and had been tallied and stored in 10,341 batches.

"They [the Senate contractors] did not understand the structure of the data that is involved in the public records of an election… how all of those things relate to each other and have to be reconciled," White said. "They went down this path of doing what they did [at the end of 2020] in Fulton County, Pennsylvania, with [reviewing] 1,000 ballots; you know, let's pull the ballots out of the boxes and start [hand-]counting the [voters' ink] marks. Well, that doesn't get it done."

"They're doing a hand count, and the hand count needs an audit. They don't have the mechanism to do an audit—and that's where we come in," said Larry Moore, who founded Clear Ballot, a federally certified firm that helps local and state governments to count and verify election results, and who has helped White. "Our goal is to produce an independently generated result that matches the way that they collected the data… they didn't know what they were doing."

But the pro-Trump side has had a different agenda. It was seen on Saturday, June 26, in Phoenix, where the leading private funders of the state Senate's review, their lead contractor and key advisers premiered a film called "The Deep Rig."

The film, predictably, concluded that the presidential election in Arizona—and in five other states: Nevada, Wisconsin, Pennsylvania, Michigan and Georgia—was fraud-ridden and stolen from Trump. But it offered no new evidence. Instead, it proclaimed the great patriotism of their cause and quickly resurrected stolen election claims that had been rejected months ago, not just by election officials and academics, but by more than 60 state and federal courts that rejected lawsuits from the Trump campaign and its allies for lack of evidence.

Perhaps the most eyebrow-raising aspect of the premiere followed the film's showing when a panel discussion unmasked the identity of an on-screen cybersecurity expert whose voice had been altered and image concealed while speaking of conspiracies to steal a second term from Trump. The voice turned out to belong to the Arizona Senate's lead contractor, Cyber Ninjas CEO Doug Logan, whose inquiries costing several million dollars have been assailed as amateurish and partisan.

"The Deep Rig video featured Doug Logan, CEO of CyberNinjas, the prime contractor in the hand count in Maricopa," wrote Raymond Lutz, executive director of Citizens' Oversight, an election auditing nonprofit that had been negotiating with the Arizona Senate to conduct an audit that compared digital images of every 2020 ballot to the officially certified results, in a June 29 letter to Fann. "Throughout the video, he was shown with voice altered and with his image concealed. Patrick Byrne, the producer of the video tried to connect the fraud they were investigating to human and child trafficking or molestation, with the CIA and it appears this was an effort to make it appear Doug Logan may actually be the anonymous 'Q' that is behind the Q-anon movement."

"Worse, you [Fann] were recognized at the start of the event to a standing ovation [even though she was not present], and Arizona State Sen. Sonny Borrelli, chair of the Senate Government Committee, was in attendance," Lutz's letter said. "Senate Liaison Ken Bennett appeared in it [the film]. It was funded by the same group that is funding millions of dollars of expenses in the hand count. We have deep concerns about these events and this video, as it is filled with false, debunked claims, and yet finishes with the statement that we can't let this sort of thing happen 'again'—meaning it already happened once, and that it occurred in Maricopa County."

Lutz's letter underscored that the film and panel discussion that followed "will be regarded as the report" of the state Senate investigation, even though neither the film nor the Cyber Ninjas-supervised hand count of Maricopa County's ballots provided any evidence that the 2020 results were not accurate. His letter was followed by a nine-page summary that listed and refuted the film's most odious claims: that election night vote counts are not reliable; that voting machines in Antrim County, Michigan, had been hacked; that the CIA and domestic hate groups were behind (unproven) election fraud; that Maricopa County would have 300,000 to 800,000 fraudulent votes; that ballots were tied to phantom voters and counted; that Arizona ballots were forged overseas; that vote-by-mail envelopes were destroyed; and that voting machines overwrote votes cast on paper ballots and secretly paired with legal voters who did not vote last fall.

The inaccuracy of the claims made in "The Deep Rig" underscored how facts about the ways in which elections are run—despite all high-minded verbiage about truth-seeking—would not deter the partisan agenda of the film's producers, its funders, those featured in the film or on stage in the Phoenix auditorium where it premiered. As Joseph Flynn, the younger brother of Trump loyalist and ex-General Mike Flynn told the crowd, "From our perspective, very simply, this is the hill that we are going to die on."

Also attending the premiere of "The Deep Rig" was Patrick Byrne, the former CEO of Overstock.com, whose book of the same title was the basis of the film, and who bankrolled the film. Byrne is also among the top private donors to the Arizona Senate's inquiry and in the film claimed that the election was stolen from Trump.

"You do it with narrow deep fraud in six cities," he said in the film, listing Las Vegas, Phoenix, Detroit, Milwaukee, Philadelphia and Atlanta. "As I explained earlier, to steal the nation, you don't really need to cheat across the nation."

A New Worry: Forged Evidence?

In short, the inquiries led by Cyber Ninjas have not attempted to assess the administration of the election in Arizona's most populous county. But in a possibly troubling new development, the pro-Trump activists who are funding and leading the Arizona Senate's review have been dropping hints that they may be tweaking the evidence that they collected to boost their false claim that Trump won.

The hints center on one of the processes that just ended at Phoenix's Veterans Memorial Coliseum—photographing and examining the 2.1 million paper ballots cast last fall in Maricopa County. Their widely ridiculed "paper examination" was not exclusively looking for bamboo fibers to confirm that ballots had been printed in Asia and smuggled into Phoenix's vote-counting centers, a conspiracy theory that has circulated since Trump's 10,457-vote statewide loss to Biden.

Instead, the inquiry, which used high-definition digital cameras to photograph every ballot, could set the stage for the cutting-and-pasting of votes—replacing images of votes with marked ovals for Joe Biden with votes for Trump—and then inserting the altered images into their underlying data used to tally results.

That scenario might sound far-fetched; however, it comes from "The Deep Rig." Among the film's claims is a series of diagrams that purportedly show how votes were stolen. The sequence is that fake ballots were fabricated, smuggled into the official vote-counting data, paired with legal voters who did not vote last fall, and end up being counted—where they lay hidden like needles in a haystack.

"The above statements [made in the film following the diagrams] are false," wrote Lutz in his letter to Fann. "In actuality, the adjudication process does NOT replace the original [ballot] image nor does it overwrite the [official] cast-vote-record."

However, that scenario could be used by Cyber Ninjas to forge digital ballot images with Trump votes—in their secretive post-scanning process—and then pad Cyber Ninjas' privately compiled vote count, Lutz said.

"What is even more concerning is that this scenario looks like a scheme that could be employed by the Cyber Ninjas to insert ballots into the system," he continued. "This is one more reason we [Citizens' Oversight] must perform a ballot image audit using the [county's] original [ballot] images to thwart this possibility."

Lutz's letter was not the first indication that Cyber Ninjas is preparing an analysis and vote count of ballot images that it recorded—which is not the same data as the ballot images produced by Maricopa County's voting system. John Brakey, an Arizona-based election transparency activist who has been an adviser to Ken Bennett, the state Senate's liaison to the 2020 review, said that Logan did not want to hire Lutz's firm for an independent ballot image audit, and bragged he could use artificial intelligence to parse the images that they had created.

After the movie's premiere, a post-showing panel discussion with people featured in the film revealed that Cyber Ninjas and one of their partners had been using other software to analyze the Cyber Ninjas team-created ballot images.

"We scan the ballot," said Bob Hughes, who said that he worked for 16 years for the firm that printed Maricopa County's ballots before retiring and helping Cyber Ninjas. "We then used, and we're doing right now, optical character recognition. We're looking at what's in place on that ballot, based on who that ballot [style] is [for; its local contests vary with the voter's address]. How many [ballots] should there be? Can there be this many?"

"When the details come out, I can't say much. I know Karen Fann is going to release a lot of this on Monday [June 28]," he continued, to cheers (she didn't). "What I can tell you is you now will have the most authentic count of every legal authentic ballot you could possibly have."

Hyperbole aside, Brakey said that he would not be surprised if Logan and Cyber Ninjas tried to forge digital images of ballots "on their system," which he said was not the county's system or the actual data used to tally the 2020 vote. But Brakey, who has had backstage access, also said that he heard the Cyber Ninjas did not save every image they created because they were using new equipment.

Meanwhile, as the July 4th weekend neared, Brakey said the Cyber Ninjas were scurrying to find what they thought were missing ballots. They were weighing storage boxes—an imprecise way to estimate the volume of ballots inside. He said that the Cyber Ninjas planned to start using a counting machine to more precisely count the ballots on Tuesday, July 6. When told of that development, Moore replied, "It's not likely they're missing ballots. It's likely they've miscounted."

'So incredibly corrosive': GOP senators block election reform — while the real damage happens in the states

For now, the U.S. Senate Republicans have blocked sweeping election reform. They argued that America's elections are not in crisis and are best run by rules set by states. Meanwhile, in capitals across battleground states, numerous Republican legislators have been claiming elections face numerous threats and have passed dozens of laws, the most aggressive of which curtail voting options, newly police the process, and empower party loyalists at post-Election Day counting stages.

"The Republican leader flatly stated that no matter what the states do to undermine our democracy—voter suppression laws, phony 'audits,' or partisan takeovers of local election boards—the Senate should not act," said Sen. Chuck Schumer, Democrat of New York, and majority leader, referring to Kentucky's Sen. Mitch McConnell and a Republican filibuster that blocked the election reform bill.

"Republican state legislatures across the country are engaged in the most sweeping voter suppression in 80 years," Schumer said. "Capitalizing on, and catalyzed by, Donald Trump's big lie [that he won in 2020], these state governments are making it harder for younger, poorer, urban and non-white Americans to vote."

The deepening divide over voting in America is larger than the For the People Act, the Democrat-sponsored bill that addresses presidential ethics, campaign finance, partisan redistricting and voting rights. Both major parties are vying to change who votes in America and how they cast ballots. Republicans often are seeking a more limited franchise. Democrats are seeking the opposite.

In the Senate on June 22, the GOP argument often reverted to states' rights, which had permitted a litany of voting rights abuses and violence for decades until the passage of strong federal civil and voting rights laws in the 1960s.

"You are imposing a federal mandate and a one-size-fits-all approach that just might not fit well," said Sen. Lisa Murkowski, Republican of Alaska, in a speech opposing the reform bill. "We don't know everything best back here [in Washington]."

Voting rights battles are not new, but new ground is being broken in 2021. Seen nationally, Republicans, whose base is aging and shrinking, have been raising the bar for access to a ballot and seeking to segregate voters by party for much of the 21st century. This is especially true in increasingly purple states where the party holds gerrymander-created legislative majorities and dominates the courts.

Democrats, in turn, have been left in more defensive postures where they have railed against the immorality of complicating the process for voters, which can suppress turnout; have sued to blunt new laws that can impede voters; and have worked to increase voter turnout, especially in high-profile contests. On balance, Republicans have been more proactive, and Democrats' responses have been less effective, leaving Republicans with the upper hand in shaping America's strictest voting rules.

That dynamic and history led to congressional Democrats teeing up a massive reform bill comprised of proposals that have languished for years. It also gave congressional Republicans a single target. As GOP senators attacked a handful of progressive voting rights reforms in the For the People Act, they drew upon a strategy that has long been part of their party's "election integrity" messaging.

They criticized the bill's loosening of strict voter ID rules, creating public financing for candidates, and so-called ballot harvesting, the GOP's term for activists and party workers who provide assistance to voters by collecting ballots mailed to and filled out by voters and delivering them to election offices. Senate Republicans recited these objections as talking points and more broadly defended states' rights, despite Democrats' rebuttals that the senators were reviving last century's segregationist arguments.

"Republican leaders say that they like this rigged system… taking us back to the racist efforts that existed before the 1965 Voting Rights Act," said Sen. Jeff Merkley, Democrat of Oregon, in one such floor speech. "A violent mob storming the Capitol isn't the only way to attack Democracy."

A Widening Attack on American Democracy

It would be a mistake to characterize the Senate gridlock as just another phase in America's endless partisan battles. Starting in Trump's presidency, many Republicans have widened this playbook to not just attack expanded access to voting but now also to target election administrators and voting systems. That development, whose rhetoric is filled with false claims about stolen votes, is serious because it rattles several foundations of American democracy.

American elections have largely relied on the good faith of election officials. In most cases, these civil servants place public service and overseeing a reputable process before personal and partisan gain. But many career election officials are leaving the field due to the partisan attacks and threats of violence that followed the 2020 election. In addition, the conspiratorial thinking has led many supporters of Trump to believe that the 2020 election is not over. No finality in elections, in turn, delegitimizes representative government and the ability to govern.

"We are watching, once again, the devolution of democracy in the United States," said Stacey Abrams, one of the Democratic Party's foremost voting rights activists, speaking on a June 22 Zoom briefing to promote her new book, Our Time Is Now: Power, Purpose, and the Fight for a Fair America.

But the problems facing American democracy are bigger than Trump, she said.

"Yes, there's a guy who wanted to win, and he didn't win, and he told a big lie, and there are those who use him as their proxy," Abrams said. "But let's be clear, their [Trump supporters'] anger is about who made the choice; their anger is about who showed up to vote—who did not vote before. Because of COVID-19, we saw… a confrontation with voter suppression the likes of which we have not seen in a generation in the United States. Because of that [response], 50 million people voted by mail because it was too dangerous to go outside."

In election administration circles, the pandemic was historically disruptive. Once 2020's primaries resumed, many states struggled to accommodate voters due to health precautions, poll worker shortages and last-minute logistical challenges. By the fall's general election, however, public officials made extraordinary efforts to offer more options for voters to get a ballot and ways to cast it.

According to the U.S. Elections Project, which tracks voter turnout, 56 million people voted in a different manner in the 2020 presidential election than they had in the 2016 presidential election. Many Republicans in the U.S. Senate and in state legislatures have said the expanded voting options were not normal and must be reeled in (despite the fact that many Republican candidates won 2020 state and federal races).

But Trump's stolen election rhetoric has not just endured in right-wing circles. It has led many red-run states to pass new laws to make voting harder, targeting the early and mail options that Democrats embraced in the 2020 election. And in some states, legislators expanded the power of their party's observers and curtailed the authority of local officials to maintain order during the final vote-counting phase. Simply put, the GOP attack on voting has widened its targets.

"And so we are watching as, state by state, the insurrection that we saw happen on January 6 takes root in our state governments, and state by state, we are watching anti-voter legislation putting up new barriers or tearing down access," Abrams said. "We are watching additional harms being put in place to challenge election workers—people whose only job is to make the administration of elections work. They are being attacked. They are being criminalized. We are watching the subversion of democracy through legislation."

These anti-voting trends can be seen in 10 states that tend to have a large impact on national politics, said Abrams, citing Texas, Georgia, Florida, Arizona, Iowa, Ohio, Pennsylvania, Michigan, Kansas and Oklahoma. "We've had more than 22 states in this year alone adopt more restrictive language," she said.

Post-2020 Impacts Coming Into View

Like all political decisions, new legislation can have unforeseen or overlooked consequences once the white-hot debates subside and laws are implemented.

That dynamic can be seen in Georgia, for example, where Republicans are using little-noticed language from bills passed earlier this year to remove Democrats from county boards of election.

These unseated officials—who, in Georgia, include several Black women who have spent years learning the details of running elections—decide on matters such as weekend polling place hours, ballot drop box locations and other details that affect whether voting is easier or harder. This is an attack on voters by targeting the referees of the process, whereas previously, bipartisan election administration lent credibility and legitimacy to the election outcomes.

A related under-the-radar dynamic has been simmering in Arizona, where the state Senate Republicans have sanctioned a post-election review of ballots from Maricopa County, home to Phoenix and 60 percent of the statewide electorate. In recent weeks, Voting Booth has reported on the accuracy-related shortcomings of that exercise, especially its hand count of 2.1 million ballots.

A June 22 report co-authored by Trey Grayson, a Republican and Kentucky's former secretary of state, and Barry Burden, a University of Wisconsin political scientist, affirmed these observations, saying the Arizona Senate review was run by "inexperienced, unqualified" private firms that are "ill-equipped to conduct it successfully and produce meaningful findings."

But the hundreds of paid workers—mostly middle-aged and older Maricopa County voters who supported Trump—employed in the Arizona state Senate's inquiry think that they are taking part in a process that is patriotic and saving American democracy, as Voting Booth has repeatedly been told in interviews while reporting from Phoenix. But election auditors have challenged this assumption, pointing out that the Senate review's contractors have not performed crucial comparisons of the hand count of ballots against the building blocks of the official results, which would be essential to the meaningfulness of the inquiry. Moreover, many of these workers are suspicious of the voting process and distrustful of election officials. One hand-count employee was overheard saying, "I hope they are fake ballots, because there are so many [for] Biden."

While it is unclear what kind of report or claims will emerge from the Arizona Senate's review, it is not expected to be anything like a June 23 report by the Michigan Senate Oversight Committee, a Republican-led body, that inventoried and debunked the stolen election accusations made in that state. Nor is anything produced by the Arizona Senate's contractors expected to put doubts about 2020 to rest.

"If the election lives on forever, and the doubt in the electorate grows, the whole institution of election administration is undermined, and the norms that are associated with that [institution] are undermined," said Larry Moore, the retired CEO of Clear Ballot, an election auditing firm, and critic of the Arizona review.

"If you keep discussing [the process] as though you'll end up with a different outcome, you rob the government—the people who won—with the ability to govern. And that is so incredibly corrosive."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Tensions flare among Republicans in Arizona as factions split over the future of the 2020 'audit'

The same split that is dividing Republicans nationally, whether to embrace or reject the fiction that the 2020 presidential election was illegitimate, is now reverberating backstage at the Veterans Memorial Coliseum in Arizona, where pro-Trump contractors are leading a state-sponsored inquiry into the vote in Maricopa County, home to Phoenix and 60 percent of Arizona voters.

The state Senate's lead contractor, Florida-based Cyber Ninjas, whose CEO Doug Logan had said that Joe Biden's victory was illegitimate, has been opposing an effort to widen the Arizona Senate's inquiry—via another assessment that vets the 2020 vote more thoroughly. Logan also has sought to muzzle and even oust the lead proponent of that more detailed inquiry, former Arizona Secretary of State Ken Bennett, a Republican. Senate President Karen Fann asked Bennett to take the role of Senate audit liaison after she hired Cyber Ninjas. He is not taking any compensation for his role, unlike Cyber Ninjas and the subcontractors.

Beyond the personality clashes involved, which Voting Booth heard about while reporting from Phoenix as a hand count of 2.1 million paper ballots was nearing completion, is an emerging bottom line: Cyber Ninjas has spent several million dollars and two months conducting inquiries that are not poised to present sufficient analyses that can legitimately assess the presidential results.

Cyber Ninjas' inquiries, which include a hand count of all paper ballots and looking for forged ballots based on high-resolution and microscopic examination of the ballot paper and ink marks, are generating reams of information that could be cited in partisan propaganda—which is how pro-Trump media outlets have covered the audit from its inception.

Crucially, the data Cyber Ninjas is accumulating has not been compared to the building blocks of the state-certified vote count. At best, it is conducting a loosely constructed recount, which is not an audit—which is based on comparisons.

"There must be comparable results in sufficient detail, or else it is not an audit," said Larry Moore, the retired founder and CEO of Clear Ballot, a federally certified audit firm. "It is unacceptable to put out anything less."

Moore is not an unbiased observer in Phoenix. He has criticized the inquiries and is part of a team of seasoned election auditors that has parsed the same official records given to Cyber Ninjas after a Senate subpoena. The team's early analysis confirmed that Joe Biden won in Arizona and offered an explanation why. The official records revealed voting patterns showing that tens of thousands of voters supported most Republicans on their ballots—but did not vote for Trump.

Moore's team, which is locally led by Tucson's Benny White, who is a longtime Republican Party observer in state and local elections, has shared its findings with news organizations in Phoenix, whose coverage is beginning to reframe how the Senate's exercise should be evaluated.

The team has gone further in recent days. They challenged Cyber Ninjas to take their subtotals (gleaned from the official election data) and compare it to the subtotals in a sealed box of ballots. By June 11, there were several dozen boxes of ballots that had not yet been opened and hand-counted. Cyber Ninjas did not take up the challenge.

The auditors then gave their data to the press, including reporters who have observed Cyber Ninjas revising their procedures repeatedly in recent weeks. The evaluation pushed by Moore and White would directly compare the paper ballots marked by voters, the starting line, to the official election results, the finish line, to attest to the election's accuracy. Cyber Ninjas' process isn't making this comparison.

Growing Pressure Inside and Out

That fundamental procedural flaw, meanwhile, has bothered Bennett, the former Arizona secretary of state who says he volunteered to be Senate liaison because he felt that doubts about the election's legitimacy had to be put to rest. Since April, he has expressed interest in expanding the Senate's audit's inquiries to parse the electronic records that detect votes on the paper ballots and then compile the overall results.

Bennett has been pushing for a so-called ballot image audit to do this assessment, which would compare the digital images of every ballot created by vote-counting scanners to the electronically compiled vote totals. Bennett has attempted to hire a California nonprofit, Citizens Oversight, that happens to be run by a Democrat for that specialized assessment. But that prospect has been attacked in right-wing media and on social media, including by the audit's contractors led by Logan.

Inside the Phoenix arena, there are reports that Logan has told Bennett—who also is a former Arizona Senate president—not to talk to the press. Logan has reportedly bad-mouthed Bennett in closed meetings with pro-Trump activists and legislators visiting from out of state—who are seeking to bring similar privatized partisan assessments to their states (after Trump also lost there). It is clear, according to interviews by Voting Booth with witnesses to these incidents, that Logan's allies fear that more investigations would expose their shortcomings and undermine whatever report they issue.

Thus, among other things, pushing Bennett out of the inquiry would seem advantageous to pro-Trump Republicans' efforts to discredit the integrity of the 2020 election. In response, Bennett said that he is committed to examining Maricopa County's 2020 ballots and vote counts as thoroughly as possible, because he said that he is still a trusted messenger to enough Arizona Republicans who are awaiting his verdict.

"It's not what evidence is presented to most people, it's who it is presented to them by," Bennett said. He added that he wants to look at what Cyber Ninjas' analysis, the analysis by Moore and White, and what Citizens Oversight may do, and then present his judgment, and, if necessary, the details leading to his evaluation, to dispel any doubts.

"I believe that we can convince 90 percent of the people that are questioning the election [of its legitimacy], because it was the opposite party that was questioning the results in 2016. Ninety percent can understand that if Trump lost the election, it was Trump that lost the election," Bennett said. He mentioned several debunked conspiracy theories about the 2020 election in Arizona, saying, "It wasn't ballots flown in at midnight from China. It wasn't any fractional counting of votes on voting machines. It wasn't because Dominion [Voting Systems] was owned by China or Russia, or I don't know who… And similarly, when the Democrats lose, maybe it's because Hillary Clinton just wasn't what the American people wanted in 2016."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

New analysis reveals one key reason Trump lost Arizona — and deflates his claim of 'rigging'

About 75,000 Republican-leaning voters in Arizona's two most populous counties did not vote to re-elect President Donald Trump in the 2020 election, according to an analysis of every vote cast by a longtime Arizona Republican Party election observer and election technologists familiar with vote-counting data.

The analysis from Maricopa and Pima Counties underscored that the Arizona state Senate's ongoing audit of 2.1 million ballots from Maricopa County's November 2020 election was based on a false premise—that Democrats stole Arizona's election where Trump lost statewide to Joe Biden by 10,457 votes.

"I am continuing my analysis of why Trump lost in Arizona," Benny White, a former military and commercial pilot who has been a Republican election observer for years in Pima County and was part of the research team, said in a May 10 Facebook post. "Bottom line: Republicans and non-partisans who voted for other Republicans on the ballot did not vote for Trump, some voted for Biden and some simply did not cast an effective vote for President."

The analysis, whose methodology is similar to academic research by political scientists, offers a counternarrative to Trump's continuing claims that he lost a rigged election. It also underscores that election experts can extract records from voting systems to affirm and explain the results, such as showing that at least 75,000 Arizonans voted for many other GOP candidates but not for Trump.

Maricopa County and Pima County accounted for 76 percent of Arizona's 2020 presidential election ballots.

"The data is all there to form a justified belief that there wasn't anything amiss, and you should be looking at that [data] before you turn ballots over to partisan third parties," said Larry Moore, who founded Clear Ballot, a federally certified firm that helps local and state governments to count and verify election results, and helped White analyze to fall 2020's vote patterns from the two counties.

"This needs to be treated like a giant accounting problem where everything has to add up," Moore said. "We have been working on this nonstop for days. The [state] Senate's auditors don't know what they are doing… The county election officials and their attorneys also don't realize the power of the [data] tools that they have."

The analysis was based on the "cast-vote record" of every vote on every ballot in the two counties, which White obtained in a public records request and analyzed. The state Senate's auditors, led by the pro-Trump contractor Cyber Ninjas, were given the same data in February, but have not used it to cross-reference the subtotals in their hand count of Maricopa County's presidential and U.S. Senate votes, audit officials told Voting Booth. Cyber Ninjas has not yet issued any findings about several audits it is supervising.

"I want voters to decide the results of the election, not lawyers and judges, which is what is occurring in Maricopa County with this [Senate-led] audit that is extremely disruptive," said White in an interview. "It is really undermining the public's confidence in our election systems, and it's completely unnecessary."

Bryan Blehm, an Arizona attorney representing Cyber Ninjas, replied to White's post on Facebook—without identifying that relationship—by saying that White was not working with reliable data and was angling for a job with Arizona's Secretary of State Katie Hobbs, a Democrat.

"Of course data facts matter," Blehm wrote on May 10. "That is why Mr. White relies on data supplied to him by government buearocrats [sic] rather than the actual real data. Hence, he questions anyone actually working with the underlying real data. I think Mr. White is pushing for a job with the Secretary of State."

However, a handful of political scientists who study voter turnout confirmed that using cast-vote records to analyze voting patterns, including voters who split their votes between major party candidates, was a standard research methodology.

"Yes, political scientists have done research using cast-vote records," said Charles Stewart III, who directs the Caltech/MIT Voting Technology Project. "Last year, I published a co-authored article that looked at the 2016 election, and we concluded that Republicans were much more likely to abstain in that election than Democrats—and the Republicans who did abstain had been anti-Trump in the primary."

"This approach is similar to research we have done," said Matthew Thornburg, a University of South Carolina Aiken assistant professor of political science. "What we find in political science research is that voters are more likely to defect in races they know more about. In presidential races, everyone knows the candidates well by November and can be persuaded by factors other than partisanship."

"Given that you have the data, you can make all kinds of analyses," said Duncan Buell, chair emeritus of the Computer Science and Engineering Department at the University of South Carolina, who has analyzed public election records in a half-dozen states. "This is not rocket science, and it is not partisan."

A Political Science Analysis

The approach that White and Moore used echoed what political scientists do when analyzing split-ticket voting patterns (when voters diverge between different parties' candidates as they fill out a ballot) or partisan voting patterns based on a precinct's demographics.

To start, White obtained the cast-vote record from the counties, both of which saw more voters support Biden than Trump in the 2020 election. This public document is a series of elaborate computer files that contain every vote cast in every race. Those records are organized as individual folders each containing batches of several hundred ballots. Maricopa's data was in 10,300 folders, White said.

White reached out to Moore, who enlisted Tim Halvorsen, Clear Ballot's former CTO. The Boston-based firm's expertise is based on analyzing digital images of every scanned paper ballot to double-check election results. After obtaining the cast-vote records, the researchers had to identify Republican-leaning voters.

General election ballots don't identify voters or list their party affiliation. White's team noted that there were 15 contests with Republican candidates for county or higher offices in Maricopa County in the 2020 election. There were 13 such contests in Pima County.

To identify Republican-inclined voters, Halvorsen created a search tool to identify the ballots where half or more of the votes in these contests were for Republicans. That meant at least eight votes for Republican candidates in Maricopa County and seven Republicans in Pima County.

The search tool also identified how many ballots contained a majority of votes for Republicans—but not for Trump. It found about 60,000 such ballots in Maricopa County and slightly more than 15,000 ballots in Pima County. White said that he needed an experienced voting system programmer to help process the data.

"I don't want to trivialize this analysis because it is very difficult," White said. "You have to have knowledge of the election administration process. You have to have knowledge of the way voting machines work. You have to have knowledge of what might be available to you in all of the public records… It takes actual expertise to be able to do that."

The finding that some number of Republican voters were turned off by Trump and did not vote for him in 2020's general election is not unique.

Michael McDonald, a University of Florida political science professor who tracks voter turnout patterns nationally, said "it seems consistent with what we've seen elsewhere concerning the suburban shift toward Biden."

"The upshot is that voters defect more the higher up the ballot the race is and the more information they have," said Thornburg, citing published research about this pattern. "This result does not surprise me."

"Fifty-nine thousand votes in Maricopa County amounts to only approximately 2.8 percent of the votes that were cast there," he continued. "Assuming (generously) that loyal Republicans made up just 45 percent of Maricopa's 2020 voters, that's only about 6.3 percent of loyal Republicans (which is in line with national exit poll results that show approximately 6 percent of Republicans and 5 percent of Democrats voted for the other party's presidential candidate)."

There was also a drop-off in Republican voter turnout in Georgia between its November 2020 election, which Trump also lost, and the turnout in early January's U.S. Senate runoffs, which Trump repeatedly said would be fraudulent and where the Democrats prevailed—returning the majority to Democrats. Trump's rhetoric has been seen as suppressing his party's turnout in the Senate runoffs.

Arizona Investigation Continues

The investigation by White and Moore was also using other public records to debunk another conspiratorial claim about Maricopa County's election: that 40,000 ballots were smuggled into vote-counting centers after midnight on November 4.

Using Arizona's public voter history file and eligible voter file, White found there were no unusual spikes in precinct-level turnout patterns (Maricopa County's turnout was 80.5 percent), Moore said. White also verified the identities of all but 720 voters out of the 2.1 million people who voted in the 2020 election in Maricopa, Moore said, adding the exceptions were people whose identities were protected as crime victims, law enforcement officers or public officials like judges.

"It completely checked out—all 2.1 million voters," Moore said. "There were no unknown names except for those 720… And the tool we used to explain all this [assertion] was mapping. We show by precinct the percentage turnout and the actual numbers of turnout. There's no [conspiratorial] there, there."

On May 17, Blehm, Cyber Ninjas' attorney, also commented on Facebook, again criticizing White for this line of inquiry. "Pretty map," he wrote. "And it shows you are up on the data they give you. So much for reality because you apparently only need what they feed you."

Ken Bennett, a Republican and former Arizona secretary of state who is serving as a liaison for the Senate's audit of Maricopa County's 2020 election, declined to comment on the research by White and Moore. Previously, Bennett has said that he hopes to oversee several audit procedures to address the persistent belief among Trump supporters that Arizona's 2020 presidential election was dishonest.

"The power of this [cast-vote record] analysis is dealing with the complete record of all votes and not just statistical estimates," Moore said. "This is not based on estimates. There are no confidence intervals. These numbers are based on 100 percent of all the voters voting."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

From the floor of Arizona's audit: The process has key flaws — and they will taint the outcome

The Arizona Senate's audit of 2.1 million fall 2020 ballots has been extremely controversial since its inception. As recently retired Arizona Republican U.S. Senator Jeff Flake reiterated on May 11, its premise is based on "the 'big lie' that the 2020 election was stolen from Donald Trump."

The audit's lead contractor, Cyber Ninjas, is a data security firm whose CEO is pro-Trump and has not been certified by federal election administration regulators. The firm has no prior experience vetting vote counts. Its main subcontractor, Wake TSI, took part in a controversial election audit last fall in a tiny rural Pennsylvania county. The auditors have been fighting with Democrats and Republican officials who oversaw Arizona's 2020 general election about access to voting machinery, computer systems, paper ballots, procedures, transparency, security and more.

But the audit has proceeded at Phoenix's Veterans Memorial Coliseum. As details emerge from the arena's floor, it appears its hand count of presidential and U.S. Senate votes from Maricopa County will likely produce results that diverge from the county's official 2020 results, where Joe Biden beat Donald Trump by 45,109 votes or 2.16 percent. (Statewide, Biden won by 10,457 votes.) The reason for the probable discrepancy is not the hyperpartisanship surrounding the Senate's audit, but because the hand count is imprecise at key junctures.

Voting Booth's assessment is based on its role as a floor observer on May 6 and 7, which included strict limits on interviews (for instance, only being allowed to speak with Cyber Ninjas' attorney or designated technicians). Voting Booth's conclusion is also based on its review of state and county election procedure rules and guidelines, and consultations with outside lawyers specializing in post-election procedures and other observers allowed in the tightly watched coliseum.

"Proper recount procedure and protocol contain several indispensable components and requirements that must be rigorously adhered to. If any are missing, a manual recount could become inherently flawed. As a result, inexperienced people overseeing the count might not even be aware of errors or be able to correct mistakes," said Chris Sautter, a veteran recount attorney and co-author of The Recount Primer, a guide to post-election disputes.

The Senate's Hand Count

There are two different audits underway at the Phoenix arena. (Both inquiries had to pause and pack up before the weekend of May 15-16 because the coliseum was used for high school graduations. They are expected to resume afterward. A third audit, examining the digital ballot images created by the county's vote-counting scanners and not associated with Cyber Ninjas, has yet to begin.)

The audit drawing the most attention, and derision, by career election officials including Republicans, is a camera- and microscope-centered examination of returned paper ballots to detect forgeries. This process examines folds and fibers in the ballots, as well as ink markings, and was sparked by unproven allegations that thousands of paper ballots were printed in Asia and smuggled into Maricopa County, according to other audit observers. Even the audit's liaison, former Arizona Secretary of State Ken Bennett, a Republican, who says the exercise is needed to quell concerns about untrustworthy elections, told Voting Booth that scenario was "crazy."

But there is another audit going on, a hand count of Maricopa County's presidential and U.S. senatorial votes. This process is more visible—via video feeds—and is spread out across most of the coliseum's floor. Seen from afar, the optics resemble recounts in other states. Yet the hand count is not being run by government election officials. Nor is it following Arizona's Elections Procedures Manual, or using all of the 2020 election records and data that Maricopa County provided to the state Senate (after a court's February order that the county needed to comply with a subpoena). Instead, it is following procedures set up by Cyber Ninjas.

As a result, the hand count omits key accounting controls at important intervals where discrepancies with the official results can be identified and investigated, and any mistakes related to the hand count can be corrected. Three decision points stood out in this regard. For example, the hand count team was not setting aside problematic individual paper ballots after counting teams used their judgment to interpret a voter's intent on a sloppily marked ballot.

Nor was Cyber Ninjas' hand count looking for differences with 2020's official results based on cross-referencing its subtotals with the county's data. Notably, it has not reviewed the subtotals from so-called poll tapes on each of the voting machines used on Election Day (when 168,000 people voted). Nor was it using the subtotals from 9,600 batches of early ballots processed before November 3 but counted on Election Day.

(Those subtotals would have to be extracted by Cyber Ninjas from data given to the Senate, which experienced election auditors know how to do. However, as of mid-May, Cyber Ninjas' team had not examined all of the Senate's data, according to observers who are familiar with that aspect of the operation. Arizona Senate President Karen Fann, a Republican, wrote a May 12 letter to Maricopa Board of Supervisors Chairman Jack Sellers, a moderate Republican, expressing frustrations that the county's data was not readily accessible. A legislative hearing has been scheduled for Tuesday, May 18.)

Regardless of these frustrations, Cyber Ninjas' hand count has proceeded without comparing its step-by-step results to the key baseline of the county's subtotals. Additionally, as of Friday, May 7, when about 250,000 ballots had been hand-counted, the Senate's contractors had not begun to copy the thousands of individual tally sheets from the hand count, nor had they begun to look for, and fix, possibly data-entry errors when those subtotals were entered into a spreadsheet to compile the overall vote totals. (The next week, however, video feeds appeared to show tally sheets being scanned.)

Blurry Process Where Precision Matters

Politics aside, verifying election results can be seen as a big accounting problem, where all the figures have to add up. Election audits typically are laborious and mind-numbing. When precise records are not created and cross-referenced with underlying data in manageable steps, it becomes harder to find and trace errors, and mistakes by the auditors can become embedded and taint the process's conclusions. Arizona's hand count audit is being run by a lead contractor with no prior election experience, which means that controls at key comparison and procedural points were not instituted, or were added after the audit began.

The audit's first soft spot concerns tagging individual ballots where a voter's intent is not clear. The hand count starts by counting paper ballots in the order in which they were batched and stacked in the county's storage boxes. The audits count 50 ballots at a time. A table manager puts the paper ballot on a rotating stand. The three counters view and write down the presidential and U.S. Senate choices on a tally sheet. A supervisor from Wake TSI, a subcontractor, oversees this process. Using green pens, the counters record each vote as a single pen stroke. Five votes are recorded on each line of the tally sheet. After 50 ballots are counted, their slash marks are manually subtotaled. The process is repeated until votes from 100 ballots fill each tally sheet page. The arena floor had 40-plus counting tables.

The counters initial and write the ballot batch number at the top of the tally sheet. If a dispute arises between the counters over a voter's intent on a single ballot, the vote is assigned to whomever two of the three counters agree upon. A red pen is used to correct the prior green ink mark. Once the hand counting round is finished, the counters' math is checked by the table manager. A cover sheet is prepared and a runner takes it to a tabulation station.

Cyber Ninjas' process, which has been fine-tuned as the audit proceeded, differs from the county's process in several ways, starting with adjudicating voter intent, according to Maricopa County Elections Department documents and the state's 2019 Elections Procedures Manual. These procedures, which were approved by Arizona's Republican governor and attorney general, include bipartisan audit boards with members appointed by political parties, specific voter intent standards, and adjudication logs for individual ballots.

The Senate's hand count lacked bipartisan representation, as Arizona Democrats have boycotted the audit. Counters at each table are using their own judgment about how to count questionable votes. Problematic ballots are not set aside for later review. In addition, stepping back, the audit is not producing a crisp record that can rapidly trace disputes to the originally questioned ballot. Whether this omission will create future issues is unknown, but it is a weakness.

More specifically, the hand count tables are not comparing their subtotals to the county's subtotals at key vote counting intervals, starting with the voting machines (or their memory cards) used on Election Day when 168,000 residents voted. Comparing the hand count tallies to these cashier-like poll tapes (or the same information on the machinery's memory cards) would be the most direct way to cross-check the official results in precise intervals, recount experts said. This baseline comparison was not being done.

Nor were the hand count teams comparing their subtotals to the subtotals for the rest of the 2020 general election ballots, which mostly were bundled in numbered batches of 200 ballots each. (In Arizona, these are called early ballots—as they are cast before Election Day. In other states, these ballots are called absentee ballots and in-person early ballots.) Generating those batch subtotals requires extra work, Maricopa County officials said; but they emphasized that these batch subtotals could be extracted and compiled from the data turned over to the Senate.

The Cyber Ninjas' team also discovered what many election auditors face: ballot inventories are sometimes in less-than-perfect condition. For example, not every storage box has paper dividers between the batches packed inside, Fann's May 12 letter to the Maricopa County Board of Supervisors chair said. Some batches do not contain precisely 200 ballots, the letter said, citing issues with "handling, organization, and storage of ballots."

Nonetheless, the subtotals used by the Maricopa County Elections Department to tally its 2020 election results are not the same as the subtotals being created by Cyber Ninjas' hand count team. Comparing these records before generating a final total is akin to comparing apples to oranges—it is inherently imprecise and lacks cross-referencing.

Not Yet Tracing Data Entry Errors

These procedural steps are technical. But they are the building blocks and evidence upon which vote totals are created, and upon which accusations of stolen elections are proven or disproven—if accusatory partisans want to heed the facts.

There was another omission in Cyber Ninjas' procedures closer to the hand count's finish line that is simpler to follow and could be consequential. This gap is where the results from dozens of counting tables have been entered into a single overall database to compile the audit's presidential and senatorial results.

Stepping back, the completed tally sheets, which record 100 ballots on each page, are taken by a runner to a line of tables at one end of the arena. There, the sheet's subtotals are re-checked by a Wake TSI employee, who, in turn, passes the forms and chain of custody cover sheet to other Wake TSI employees. They, in turn, input the subtotals into an Excel spreadsheet.

The individual tally sheets are not dated. Nor, as of May 7, when Voting Booth had observed floor operations for two days, were they copied before their totals were entered into the overall results spreadsheet. By then, about 250,000 ballots had been hand-counted. That meant there were at least 7,500 tally sheets (three per ballot) and possibly 1,000 or more "chain of custody" cover sheets awaiting backup and data-entry verification.

When asked about this omission on May 6 and 7, Cyber Ninjas' attorney, Bryan Blehm of Phoenix, pointed to unused computers on tables that he said would eventually copy the tally sheets and check if that data was correctly entered into the results spreadsheet. A week later, when 330,000 ballots reportedly had been hand-counted, it appeared that tally sheets were being scanned, according to video feeds. A line of plastic storage bins could be seen near this operation.

The Likely Outcome

Blehm defended Cyber Ninjas' process as carefully constructed. It is a determined effort to conduct a massive hand count, even though its procedures, despite being sanctioned by legislators, are not following Arizona's Elections Procedures Manual. But Cyber Ninjas did not appear to know what inventory and accounting controls its process, said to cost more than $3 million, lacked. Or perhaps it did not care.

For example, after 2020's Election Day, Maricopa County was required to conduct a hand count of 52 batches of early ballots—which Bennett said was insufficient to attest to the county's results, where Biden beat Trump by 45,109 votes. That audit was conducted by "ballot boards" where political parties independently appointed the boards' members, state-issued voter intent standards were followed, and the public could attend—unlike the coliseum audit. That neutral approach, common to most states, guards against partisan favoritism and legitimizes the election's outcome.

Cyber Ninja's hand count process anticipated such an adjudication board, Blehm said. But he said that no voter intent disputes necessitated convening that panel. With Democrats boycotting the hand count, there were fewer disagreements. On the other hand, Voting Booth observed table managers and Wake TSI staffers asking about handling ballots and related issues, such as what to do with food-stained ballots.

The Senate's audit will not change the legal outcome of the state's 2020 election. Overcoming a 10,457-vote statewide lead is unheard of, according to recount lawyers. At most, recounts alter outcomes when margins are several hundred votes or fewer, and sloppily marked ballots are fought over—one by one—in lengthy public proceedings.

While it is unclear what results will emerge from the hand count in the coliseum, it is unlikely to mirror Maricopa County's certified results—and may not be poised to present precise evidence for apparent discrepancies. Where that leaves the public and partisans is an open question. As one floor observer was overheard saying to another observer during a break from counting ballots cast in late October, it appeared many of these early ballots were overwhelmingly for Biden.

"I hope they are fake ballots," she said, "because I am seeing so many Biden."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Republicans want to expand the Arizona audit — but DOJ may shut it down

Arizona's Republican-led Senate is looking to expand its post-election audit of 2.1 million ballots in the state's most populous county, while Arizona's Democratic secretary of state and the U.S. Department of Justice appeared headed to federal court to shut down the post-election exercise.

On Wednesday, May 5, the Senate's liaison to the audit, former Arizona Secretary of State Ken Bennett, a Republican, confirmed that the GOP-led Senate is negotiating with a California nonprofit to conduct a new and separate audit of Maricopa County's 2020 fall election votes.

The nonprofit, Citizens Oversight, would conduct an audit based on analyzing the digital images of every paper ballot that is created at the start of the vote-counting process, when election system software reads hand- or machine-marked paper ballots and tallies the vote counts. The nonprofit has been developing its Audit Engine tool for several years and has tested it in a handful of counties in California and Florida and is now using it in Georgia.

"I know our election procedures and overall processes are good enough to prove to somebody if they really lost an election by more than one percent or more, but not by one-third of one percent," Bennett said. "But that's not good enough because that's not precise enough."

Bennett noted that Donald Trump, statewide, lost to Joe Biden by 10,457 votes and 33,359 ballots contained no vote for president. In addition to the ballot image audit, which would reveal marked ballot ovals skipped by scanners—such as voters who circle ovals instead of filling them in—Bennett said that he wanted to hire a firm to review the digital images of absentee ballot return envelopes to see if any lacked a voter's signature.

"I think we can exponentially magnify the level of trust in our elections by doing exactly what we're doing, and even a few things that haven't even been talked about yet," he said, adding he expected that this entire exercise would take "two to three months" to conclude.

An expanded and prolonged audit appears to be on a collision course with the U.S. Department of Justice, which, along with Arizona Secretary of State Katie Hobbs, is on the verge of going into federal court to try to shut down the unprecedented post-election audit led by partisans and conducted by private firms that have not been certified by federal election agencies.

On Wednesday, May 5, Hobbs sent a letter to Bennett saying that the audit's procedures were inconsistent with the protocols laid out in the state's election procedures, were not being done by "qualified, unbiased counters," and failed "to adequately protect and document chain of custody of ballots." These conclusions came from observers sent by Hobbs, who only were allowed into the site after a court ordered the Senate to allow their presence.

At the same time, the Justice Department weighed in on two fronts. In a letter to the Arizona Senate, Kristen Clarke, the head of the Civil Rights Division, said the use of private contractors could violate federal law requiring ballots to remain in the control of elections officials for 22 months, the Associated Press reported. And the principal deputy assistant attorney general, Pamela S. Karlan, said that the Senate's plans to directly contact voters by knocking on their doors and interviewing them could be illegal voter intimidation.

"If Justice can find a federal judge who agrees, they can shut it down," said Chris Sautter, a Washington-based lawyer specializing in recounts and post-Election Day procedures.

The Eye of a Growing Storm

The AP reported that the DOJ's "letter came six days after [a coalition of] voting rights groups asked federal officials to intervene or send monitors to the Veterans Memorial Coliseum in Phoenix," where the audit is occurring under tight security by state police. The groups, led by the Brennan Center for Justice at New York University School of Law, have been very critical of Republican-led efforts across the county to pass new laws curtailing voting options and access to a ballot following the 2020 election.

Inside the arena, two recounting procedures could be seen on Wednesday. The first was a hand recount of ballots, where teams of four or five people would put each ballot on an easel-like rotating stand, mark down which candidate (if any) the vote was for—or whether the voter's intent was not clear—and then compile a tally sheet. Bennett said that this process was following Arizona's election procedures manual. However, Hobbs' letter to the Senate president said that this operation "departs from best practices for accurate hand tallying of ballots."

"[A]lthough the aggregate totals of at least two tally sheets must match, there is no guarantee that the counters counted all 100 ballots the same way nor is there a reliable process for ensuring consistency and resolving discrepancies," the letter said.

The second process underway Wednesday was a novel process created by a "failed treasure hunter," as Georgia Republican Secretary of State Brad Raffensperger's office put it in January, who has positioned himself as an adviser to Trump-supporting Republicans. Each ballot card is first placed on a tray below a camera, where a high-resolution photograph is taken. Then the same ballot is placed on a second tray where cameras attached to four microscopes take photographs of printer alignment marks, the marked oval, and borders of the ballot card.

John Brakey, an Arizona-based election transparency activist who is a progressive Democrat but has positioned himself as an adviser to Bennett and has been a spokesperson for the audit, said that operation was counting ballots that had been folded as one way to detect forgeries. It was also looking for "bamboo fibers" to prove that 40,000 ballots had been printed in Asia and smuggled into Maricopa County in an elaborate ballot-box stuffing operation—which Brakey said was absurd and lacked evidence, but needed to be disproven.

"The only way you're going to persuade people on changing [their minds] is having facts, and we're on a mission for facts," he said.

In a Tuesday media briefing organized by the National Task Force on Election Crises—a group comprised of 50 experts in election law, administration, security and civil rights—Tammy Patrick, a senior adviser for elections at the Democracy Fund and former Maricopa County election federal compliance officer, said that this line of inquiry was baseless and indicative of an amateur partisan operation.

"There's an assumption [by the audit contractors] that all vote-by-mail ballots would have a fold, but they don't," Patrick said, saying that ballots that are spoiled, such as being torn or stained by coffee, are copied. "That's also not true for provisional ballots or for someone who votes in person."

Ballots also are printed on various paper stock and not all at the same time, she said. "There can be some slight variation in the paper, some slight variation in the ink used. But when it comes down to laying forth a narrative to continue to perpetuate all of the [stolen election] falsehoods and [purportedly] missing information, this is where it gets particularly problematic."

On Wednesday, Bennett said that he joined the audit team after the Arizona Senate president—a position he previously held—hired the initial contractors conducting the audit. He said that he heard and investigated similar conspiracy theories when he was secretary of state, such as false allegations of massive illegal voting by Mexicans crossing the border into Yuma.

"If I, as a public servant, don't go out and address concerns like that, even some that are crazy—if somebody says there's bamboo in these ballots, I may think that's crazy—but if I don't verify, yes or no, I'm just allowing that [narrative to fester]," he said. "I respectfully disagree with people [whom] I trust or respect [who say] that this process lacks credibility, because, to me, it's the exact process that we have to go through to rebuild trust in the minds of the half of the people, this year, [who] think the 2020 election was stolen or a fraud."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

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Will new voting laws crush turnout — or backfire? Here's what the research says

In the 2020 presidential election, 66 million Americans voted with a mailed-out ballot after most states loosened restrictions on qualifications to vote by mail to make voting safer in the pandemic. Another 36 million people voted in person at an early voting site before Election Day after many states expanded this option.

Together, more than 56 million voters cast a ballot in a different way than in 2016, which was "extraordinary," as one recent scholarly study said. North Carolina's increase in using mailed-out ballots, alone, was fivefold. Georgia's was sixfold. Wisconsin's was fifteenfold.

The presidential election set a turnout record and has since led to a record number of election administration bills in state legislatures, some preserving last fall's expanded voting options and others rolling back those choices. Those state-by-state fights have led to some of the highest-profile voting rights battles since the early 1960s. Both parties are claiming that their vision for political representation faces existential threats.

In recent weeks, an influential voice, election scholars, who rely on "observed facts and data," have begun to weigh in on what was most important, less so, and not at all important with helping 159 million Americans vote last fall. Their findings, while preliminary and sometimes contradictory, provide an important counterpoint to the partisan claims in the state-by-state voting rights battles.

An examination of a half-dozen academic draft papers, policy institute reports, and scholarly articles finds some consensus on which voting options boosted 2020's turnout. These options include mailing every registered voter in a state or county a ballot and allowing voters to register or update their registration information and then vote. But there were also conflicting data and assessments over specific voting regimes and rules that were suspended to help voters get a ballot into their hands.

Last year, 29 states and the District of Columbia passed 79 laws to institute a grab bag of options centered around using mailed-out ballots and early in-person voting. While lawmakers were concerned about making voting safer, these steps also made voting more convenient and accessible by cutting bureaucracy and extending deadlines.

In many respects, 2020 was an unprecedented and successful experiment in making voting more convenient. While broad findings about these trends are coming in—including some work that has been misreported in the media—further research will explore what options were embraced by voting blocs with historically low turnout rates, such as communities of color and younger voters.

"We are at the very beginning of a period in which academic researchers can study the 2020 election," said Rutgers University's Lorraine Minnite, a political scientist who has studied voter turnout issues for more than a decade. "What's coming out right now is preliminary. A fuller picture has yet to emerge, which is why you are seeing such disparate research designs and findings."

Contours of Voting in 2020

Nationally, 2020 saw the highest presidential election turnout in 116 years. Almost nobody expected that result last spring, when state and local election officials pivoted to more flexible methods of casting ballots that protected the health of all involved. Notably, 159.7 million Americans or 67 percent of registered voters cast ballots, 23.8 million more voters than in 2016.

The biggest-picture contours of voting options and turnout in 2020's general election—voting last fall—was the "America Goes to the Polls" report from Nonprofit VOTE and the U.S. Elections Project. Nonprofit VOTE works to increase participation. The U.S. Elections Project, founded by the University of Florida's Michael McDonald, created a national repository of early voting and vote-by-mail data.

In 2020, 45 percent of Americans voted with mailed-out ballots, they reported. Twenty-five percent of Americans voted early at an in-person voting site. The final 30 percent voted in person on Election Day. In 2016, in contrast, 21 percent of the presidential electorate voted with a mailed-out ballot and 60 percent voted at an Election Day poll. The highest and lowest turnout states in 2020 reflected different regimens—from the starting line of voter registration to the finish line of getting and casting a ballot.

"All of the top 10 turnout states either sent all their voters a mail ballot, have same-day registration that allows voters to register or update their registration when they vote, or both," the Nonprofit VOTE/U.S. Elections Project report said. "Eight of the bottom 10 turnout states cut off voter registration four weeks before the election or required an excuse [on a separate application] to use a mail ballot."

Other policy reports and draft academic papers offered more detail on where there was a consensus about what voting options had the biggest impact on 2020's voter turnout. There was agreement that the states offering a same-day voter registration and voting option, which 24 states and the District of Columbia did in 2020, boosted turnout by 5 percent, as noted in the Nonprofit VOTE/U.S. Elections Project report.

There also was an affirmation of prior research that mailing a ballot to every registered voter in a state or county boosts turnout. In 2020, the increase, reported by the Public Policy Institute of California (PPIC), averaged 3.9 percent nationwide in the 10 states and the District of Columbia that mailed registered voters a ballot. Of those, the six states and the District of Columbia that did this for the first time in 2020 saw voter turnout increase 4.6 percent.

PPIC's top finding—based on a working academic paper—was that mailing every Californian voter a ballot led to a 12 percent increase in statewide turnout compared to 2016. Their paper noted that California did other things to encourage turnout, such as offering more choices on how and where to return ballots, adding the ability for voters to track their ballot's whereabouts and launching an extensive public education effort about the new voting regimen.

Another working paper, from a team at the University of California, Berkeley; Stanford University; and the University of Washington, noted that its Colorado research, conducted prior to 2020's presidential election, found turnout increases among several low-propensity voting cohorts: young voters (16.6 percent increase in turnout), blue-collar voters (10.0 percent), voters without a high school diploma (9.6 percent), and all low-income voters (8.1 percent). The turnout increase among Democrats and Republicans was 8 percent, but it was 12 percent among independents.

Inconsistent Data, Methods, Findings

But there were differences in preliminary research over other absentee voting regimes and their more specific rules—bureaucratic details that are now being removed or revived by some state legislatures. In general, there are four absentee voting regimes, according to the U.S. Election Assistance Commission: every voter receives a mailed-out ballot; voters must first apply and satisfy an excuse to get a ballot; voters must apply for a ballot but no excuse is required; and voters can sign up once to be on a permanent absentee list, which typically is for seniors and people with disabilities.

The fine print of these absentee voting regimes, many of which were suspended in 2020, is now being reinstated or toughened in Republican-majority legislatures. These reforms include stricter voter ID requirements and shorter filing timetables.

In most states, registered voters must apply to receive a mailed-out ballot. In 2020, 15 states mailed voters an application, as opposed to leaving that task to voters. Fourteen states suspended their requirement that voters had to satisfy a predetermined "excuse" that they could not vote on Election Day, such as age, infirmity or travel. Four states kept their excuse requirement.

Consider the excuse requirement that 14 states suspended. A Stanford University team found that suspending the excuse led to a 0.8 percent increase in turnout. But the PPIC report found that suspending the excuse led to a 2.7 percent drop in turnout nationwide. This apparent conflict is an example of where different methodologies yield different results. PPIC's report offered no explanation for the turnout drop other than a footnote, which academics said was common in preliminary papers. In a follow-up phone call, Eric McGhee, a coauthor of the PPIC report, said that his team's research and Stanford's were different. As for the 2.7 percent drop, he said that states made many changes in the voting rules to help voters—some of which voters embraced; others that they apparently did not.

"If some jurisdictions were anticipating a bad outcome [with accommodating voters] and they adopted a particular reform to get ahead of that, and the reform had no effect on it, that could make it appear it was causing a decline," he said. PPIC's methodology did not allow his team to delve into this more nuanced scenario, he said.

On another absentee balloting issue, PPIC reported that directly sending voters an application to receive a ballot by mail led to a 1.7 percent turnout increase, which it called "modest." That turnout increase might seem small to the public or "modest" to cautious scholars, but it was larger than Joe Biden's presidential victory margin in the states of Georgia (0.23 percent), Arizona (0.30 percent) and Wisconsin (0.63 percent).

Another area where there was disagreement concerned whether voters choose their method of voting based more on convenience—what was more accessible—or more based on coronavirus fears. In 2020, 29 states and the District of Columbia changed their laws to allow people to vote by mail or early due to public health concerns, as noted in an April article in the Journal of Democracy coauthored by Nathaniel Persily, a Stanford Law School professor, and Charles Stewart III, an MIT political scientist who oversees a research lab known for its parsing of U.S. Census data of voters. (In 2020, they created the Stanford-MIT Healthy Elections Project, a resource for election officials.)

The Nonprofit VOTE/U.S. Elections Project team said that 66 percent of voters chose what was "most convenient" when deciding when and where to vote, while 24 percent cited "concerns about coronavirus" as a major influence on their decision. It drew on a Pew Research Center survey of about 12,000 voters in November 2020 asking why those individuals chose to vote early or via a mailed-out ballot. On the other hand, the Persily-Stewart article cited post-election census data and found the opposite response.

"Postelection responses to the SPAE [Survey of the Performance of American Elections] describe the reasons behind the shift to mail balloting," they wrote. "Overall, 59 percent of respondents who stated that they were very worried about family members catching covid reported having voted by mail, compared to 28 percent who said they had no covid worries."

Blinders or Not?

Academics have long played an important role in shaping election law and voting rules. Their facts and findings are a counterweight to partisan arguments. But insightful work is not always ready when lawmakers are reforming voting laws. Moreover, the push by some academics and the press to report findings that defy conventional wisdom can lead to premature, if not mistaken, reporting with high political stakes.

A recent episode of high-profile press coverage offers a cautionary tale about the perils of overclaiming about preliminary research and omitting important contexts, and other factors that affect the topic at hand, such as whether turnout alone is the best metric of what contributes to a more representative electorate. In this case, the focus was on which voting options and their associated bureaucracy did or did not boost overall turnout.

In an April 4 analysis, Nate Cohn, a New York Times data journalist and analyst of political trends, sparked a storm in election circles when he wrote that Democrats and Republicans were both mistaken "about whether making it easier or harder to vote, especially by mail, has a significant effect on turnout or electoral outcomes." He continued, "The evidence suggests it does not."

Cohn's blanket assertion mostly relied on a preliminary paper that focused on one bureaucratic hurdle in one version of voting with mailed-out ballots, in 2020. The Stanford study that Cohn drew on mostly looked at Texas, but said that its findings were applicable to 14 states that suspended their rule that voters declare why they cannot vote at the polls.

The researchers reported that removing the excuse, alone, boosted turnout by 0.8 percent. But they concluded that increase could be "statistical noise" that did not prove anything about making voting easier and boosting turnout. Cohn's conclusion, pinned on the preliminary study and older, pre-2020 research—before 45 percent of the electorate voted with mailed-out ballots—struck several nerves.

"The idea that making voting easier *won't* improve turnout is one of political science's worst takes," immediately tweeted Charlotte Hill, a University of California, Berkeley, PhD candidate and coauthor of a 2020 working paper finding otherwise under Colorado's universal vote-by-mail system. "And to be clear, many political scientists don't buy it."

Cohn did not discuss other versions of mail-based voting where 2020 turnout went up—such as the 10 states that mailed every voter a ballot to minimize the health risks. But he cited older research—from before voting with mailed-out ballots more than doubled nationally in 2020—that found, as he wrote, that "[a]lmost everyone who cares enough to vote will brave the inconveniences of in-person voting to do so."

That assertion offended advocates who applauded election officials' extraordinary efforts to expand voting options. And it was seen as immoral by organizers who strove to help millions of voters who used these options for the first time, despite ex-President Donald Trump's attacks on 2020's expanded options and on the voters using them.

"Voters are more than just numbers on a @Nate_Cohn spreadsheet," tweeted Fair Fight, a Georgia-based group founded by Democrat Stacey Abrams. "They are people. Implying [that] 12-hour lines are not that bad because voters will find a way to make up for lost wages or they'll vote after they faint is cruel and racist. Turnout would be even higher if not for barriers."

Cohn, notably, had defenders. Rice University's Robert Stein, who has studied elections for decades and worked in Texas and elsewhere to expand 2020's voting options, said that Cohn's report stayed within the boundaries of the academic research that he cited.

"Nate Cohn did not write what I will call 'fake news,'" Stein said. "He wrote the right article based on much of the literature on convenience voting… What Nate was writing about was one form of vote by mail, and that is excuse or no-excuse mail-in voting."

But Cohn's critics countered that voting in 2020 was so different from prior presidential elections—with 56 million people casting ballots in a new way for the first time—that it was premature to overly rely on new research or on pre-pandemic literature. (The 56 million figure is based on U.S. Elections Project data from 2016 and 2020, and its recent report comparing turnout differences for early and mail voting.)

"The assumption of a continuity in the research findings from studies of absentee voting and the like in the past and this election could be incorrect, certainly at the margins," said Minnite. "But it is at the margins that elections are won or lost."

What Doesn't Turnout Measure?

Voter turnout is the "most basic measure of the success of an election," Persily and Stewart noted in the Journal of Democracy. But in 2020 that metric "does not inventory the ways in which the Trump administration, allied election administrators and outside groups undermined the execution of the election," another data scientist commented in his private newsletter. Nor does turnout, alone, address another core issue: if specific voting options helped historically infrequent or low-propensity voters.

"There is an assumption that the more people are participating, then the closer we have gotten to the goal of the electorate being the same as the overall population," PPIC's McGhee said. "I think it is true that turnout level and the representativeness [are] certainly likely to be correlated with each other, but they are not the same thing. We have to be really careful about that. And the follow-on question of 'how does this voting method affect that representativeness?' is a super important one."

The equity, or representativeness question, is what researchers like McGhee are now delving into next as they keep studying 2020's voting options and voter turnout. But in the meantime, other data, including from nonacademics such as political data firms, about the impacts of certain voting options is filtering into 2021's political fights.

Harris County, Texas, where Houston is located and an election jurisdiction larger than 25 states, operated eight 24-hour voting centers last fall to accommodate voters who could not leave their work or family obligations. It was one of many innovations to make voting more accessible, including drive-through voting sites and mailing voters absentee ballot applications.

A New York Times report in late April said that a majority of those who used late-night voting were people of color, and that the voting hours expansion was targeted by a bill in Texas' GOP legislature to be barred from future elections. The Times linked to a tweet thread from the Texas Civil Rights Project, which said "56% of voters who voted during late-night hours were Black, Hispanic, or Asian. … Data proves these options offered by @HarrisVotes were popular with voters AND made voting more accessible for everyone."

How reliable is this claim, which is drawn from data from TargetSmart, a Democratic political data firm, according to an attribution on the Texas Civil Rights Project's tweets? Their raw data is one source among many that is being compared and studied by academics, said Stein, whose students are working on papers about Harris County's voting using data from TargetSmart and other data firms. But that research will not be done before Texas' legislature likely passes its 2021 voting reforms, he said.

The 2020 election shows that if politicians give voters more accessible options, some of those options will be used. But beyond the broad trends, the scale and impact may not be quickly known as they pertain to deregulating specific prior mail-based and early voting regimes, and newer accessible options.

That absence of definitive research has not stopped partisan Republicans bent on rolling back last fall's array of voting options. But it has given a few Republicans pause and led to some of the most draconian proposed rollbacks to be deleted from bills. Many GOP legislators know that their party's impulse could backfire, as their base, not just Democrats, took advantage of various voting options.

"Once you give voters opportunities to do things, you can't pull them back," Stein said. "Their concern is not whether Democrats will vote with [reinstated] voter ID or [more limited] early voting, but whether their voters will show up."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

Inside the vexed fight over online voting

National disability rights organizations are urging the Senate to revise the massive House-passed election reform bill to allow an internet-based voting option for their constituents, who represent one-sixth of the national electorate, and to recognize online voting as a federally sanctioned and regulated voting technology.

Their concerns and online voting remedy have come into focus in recent months as upwards of 20 organizations representing voters with hearing, visual, cognitive and mobility impairments and sometimes requiring assistive technologies have formed a national coalition to press for more flexible voting options as Congress considers the most sweeping reforms in years.

The push for congressional approval of online voting could pose one of the most significant challenges yet for passage of the Democrat-drafted package. It pits two core constituencies—disability rights groups and cybersecurity advocates—against each other. These two cadres have clashed in the past when disability advocates successfully pressed Congress to spend billions on paperless voting machines in the early 2000s, the very systems that most states replaced after Russian interference in 2016's election due to cybersecurity threats.

"This has been a vexing problem for a long time," said Ion Sancho, who served for 28 years as supervisor of elections of Leon County, Florida, and retired after the 2016 election. "It's been a touchy and difficult issue for elections administrators for as long as I can remember."

The Push for Accessible Voting

The National Coalition for Accessible Voting's concerns begin with the mandate in the For the People Act of 2021 requiring that voters use a paper ballot. For most voters, that means hand-marking a ballot or using a touch screen computer that prints a filled-out ballot. Every poll also has at least one additional console specially designed for people with disabilities, which the disability rights advocates say draws unwanted attention and does not assist all of these voters.

In recent months, as the Democrats' major election reform bill has moved through Congress, the disability rights advocates have supported the bill's broad goals while also sharpening their critique and specifying proposed solutions, including calling for the option to vote online. Initially, their critique focused on the legislation's paper-ballot mandate.

"Paper-based ballot voting options have become the preferred voting system to many who believe mandating the use of paper ballots is necessary to ensure the security of our elections," said a January 29 statement by the National Disability Rights Network and other groups. "However, it must be made abundantly clear, that the ability to privately and independently hand mark, verify, and cast a paper ballot is simply not, and will never be, an option for all voters."

As the Senate Rules Committee began its review of the legislation in March, Curtis L. Decker, the National Disability Rights Network's executive director, wrote to the panel and said that current federal law did not ensure sufficient voting options for Americans with disabilities,—a group that includes "up to 56.7 million people," or "one-sixth of the total American electorate, during the 2020 elections."

"No paper ballot voting system today, ready for widespread use, is fully accessible. Even BMDs [computerized ballot-marking devices] require voters with disabilities to verify and cast a paper-based ballot, which does not ensure a private and independent vote," Decker said. "A fully accessible voting system by Federal law must ensure the voter can receive, mark, verify, and cast the ballot without having to directly visually inspect or handle paper. Most, if not all, market-ready voting systems cannot do this."

The national coalition's remedy is to amend the reform bill to allow people with disabilities—as well as overseas civilians and military personnel (who are covered under a different federal law)—to vote remotely on an accessible device, which means a computer or smartphone. In addition, Congress should include online voting among the voting systems that are federally sanctioned, regulated, studied and funded.

"The option to vote remotely is necessary for some voters with disabilities and improves access for voters to cast their ballot because they do not have to travel to a polling place, which can be a barrier for some voters," the coalition said. "Unfortunately, remote voting is inaccessible when a voter-verified paper ballot is mandatory, even though accessibility is a legal right."

There have been news reports about the difficulties of Democrats potentially breaking rank and threatening the chance to pass the massive election reform bill. However, the emerging demands by disability rights advocates could add a new hurdle. It revives an old divide in election circles, pitting disability advocates against cybersecurity advocates.

Nearly two decades ago, these two factions deeply disagreed over what kind of technology should replace the paper punch cards that led to Florida's presidential election meltdown in 2000. Today, with technologists such as Apple CEO Tim Cook telling the New York Times that people should be able to use their smartphones to vote, the disability advocates are not just seeking an exception from the For the People Act's paper-ballot mandate; they are seeking to prevent Congress from stifling hoped-for innovation—developments that the election world's cybersecurity experts say are not possible with today's internet.

"Understandably, confusion still exists as to why any paper-ballot mandate is harmful to some voters," said Erika Hudson, a National Disability Rights Network policy analyst. "We share with folks all the time that we simply do not know what technology will look like in five, 10 years… If in a couple of years, when experts develop new, more secure, and accessible voting technology, we should not be bound by a paper ballot mandate."

An Old Debate Resurfaces

The disability rights organizations' push for paperless voting is not new. After Florida's 2000 election, where paper punch-card ballots failed to clearly register voter intent and threw the results into disarray—leading the U.S. Supreme Court to intervene—some disability advocates teamed up with a major voting system manufacturer to lobby for paperless voting machines.

Back then, as today, the advocates' priority was using machinery with minimal-to-no assistance, which preserves their voters' privacy, dignity and equality with other voters. The organizations were persuasive in the congressional response to Florida's meltdown. When the Help America Vote Act (HAVA) was passed in 2002, it included several billion dollars to help states to acquire all-electronic voting systems, called DREs or direct-recording electronic machines. HAVA also required that all polls had at least one station to assist voters with disabilities, with specialized features to help visually impaired people. For years after HAVA's passage, top-ranking House Democrats like Maryland Rep. Steny Hoyer lauded HAVA's benefits for this community.

Typically, voting systems are replaced once a generation. During the HAVA debate and since, computer scientists criticized paperless voting systems as problematic. They largely have been proven right. The DREs offered no way to recover lost votes when memory cards failed. They offered no meaningful way to conduct recounts. Their off-the-shelf parts offered little security protection. This cadre of academic critics, which created the advocacy group Verified Voting, initially called for returning to paper-based voting systems. But neither Congress nor states were willing to spend the billions to do so. That status quo changed in 2016 with Russia's hacking of the Democratic National Committee, penetration into Illinois' state voter registration database and a Florida contractor who programmed voting machines. Suddenly, an insider debate was transformed into a national security threat demanding action.

Even though federal officials have since repeatedly said that no votes were altered in 2016's election, Russia's actions had consequences. They led the federal government to designate voting systems as critical infrastructure. They expanded cybersecurity assistance to help states. And most states installed a new generation of paper ballot-based systems before 2020's elections.

The academics who opposed all-electronic voting systems also turned their attention to online voting, which was drawing venture capitalists' interest. The critics worked with government panels assessing voting system technology and helped draft reports saying that online voting would not be secure for the foreseeable future and should be avoided.

At the same time, however, a handful of state and county governments began working with startups and testing using a smartphone as a ballot-marking device. The first pilots were with military voters and then people with disabilities. Those pilots—in West Virginia, Utah, and elsewhere—involved dozens, then hundreds of voters, not millions. They were well-received by voters and were not hacked.

Still, the opposition to online voting is as fervent as the push for remote voting by the disability rights community. Knowing this history and the emotional stakes of this debate, several longtime members of the cybersecurity cadre did not want to be directly quoted. But one cybersecurity expert said, attesting to how deep-seated this divide is, that online voting can never be secured.

"It's not going to happen in a couple of years. And it's not going to happen in 10 years," the expert said. "We have been saying this for 20 years now, and it's been true all along: if anything, the situation [with online threats] is getting worse, and we have to get that message across. The internet is a more toxic place than it has ever been before."

Republican Support for Online Voting?

Whether online voting can ever be sanctioned by federal law is one question. At the Senate Rules Committee's March 24 hearing, the first Republican witness to testify, West Virginia Secretary of State Mac Warner, began his remarks by touting his state's smartphone pilot for overseas troops, which he later expanded to voters with disabilities.

"My most vehement objection to this [S. 1] is that by prohibiting the electronic transmission of ballots, it strips the most efficient and secure form of voting for our military, the people who put their very lives on the line for our democracy and way of life," Warner said. "When I was deployed, as were my two sons, my two daughters, my two sons-in-law, all of whom served in the U.S. Army… they have had difficulty voting. Therefore, when I became secretary of state, I was determined to fix this, and we did it through electronic transmission of ballots, using mobile devices. We proved the technology with our military, and then we extended it to voters with disabilities, giving them not just the right to vote but the opportunity to vote."

When Sen. Shelley Moore Capito, R-West Virginia, asked questions about an hour later, she returned to how the state "pioneered" efforts to offer mobile voting.

"The specific thing I would like to talk about is your mobile voting app," Capito said, turning to Warner. "You've talked about your overseas service members with electronic voting. But I think it's also important to know that you've expanded the use of—with the help of the legislature, I believe—online voting for disabled individuals. And I've heard from our deaf and blind community in West Virginia, about what S. 1 would do to prevent them from using this tremendous increased accessibility voting option that you've pioneered."

When considering the politics surrounding the Senate passage of S. 1, West Virginia's other senator, Democrat Joe Manchin, will have outsized influence. Not only has he opposed any change in the Senate rules to pass the bill—namely modifying the filibuster—but he also has called on fellow Democrats to work with Republicans to pass bipartisan election reform in an April 7 commentary in the Washington Post. "I have always said, 'If I can't go home and explain it, I can't vote for it,'" he wrote, underscoring his fealty to his state's election officials.

The disability rights community's proposals to fix the For the People Act include creating a "carve out," which is a legal exception, to allow their constituents—and overseas civilian and military voters—to use remote devices to receive, mark and cast ballots, which is internet voting. How many voters would actually seek this option, at least initially, has been the subject of research that was recently published by the U.S. Election Assistance Commission (EAC).

In the February report, "Disability and Voting Accessibility in the 2020 Elections," from Rutgers University professors Lisa Schur and Douglas Kruse, "1,782 citizens with disabilities and 787 citizens without disabilities" were asked about voting last year and about their preferred methods of voting in 2020 and for the future.

About three-fourths of voters with disabilities either voted early in person or by mail in 2020, a slightly higher percentage than other voters. Overall, turnout for voters with disabilities was about 7 percent lower than other voters, with the largest gap among visually impaired (11.6 percent) and cognitively impaired (10.3 percent) voters.

"About one in nine voters with disabilities encountered difficulties voting in 2020," the EAC's key findings said. "This is double the rate of people without disabilities, but a sizeable drop from 2012… During a general election that experienced a shift to mail and absentee voting, 5 percent of voters with disabilities had difficulties using a mail ballot, compared to 2 percent of voters without disabilities."

Deep in the report, on Table 24, voters were asked how they wanted to vote in the next election. Among voters with disabilities, 7.8 percent wanted to "vote fully online, using personal computer or smartphone," and 4.1 percent wanted to "fill out [a] ballot online, print it and mail." Among voters with no disability, 12.2 percent wanted to vote fully online and 3 percent wanted to fill out the ballot online and return it.

How the disability rights' community's push for an online voting option plays out is an open question, as is the fate of the Democrats' massive election reform bill. But these advocates have signaled they will be standing up for their constituents and pressing lawmakers who oppose expanded accessibility, including an online voting option.

"It is vital that voters with disabilities, who require technology to exercise their right to vote, must be afforded that opportunity," said the National Disability Rights Network's Erika Hudson. "If not, we must all be prepared to explain to some voters with disabilities why a paper-ballot mandate outweighs their right to a private and independent vote."

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.

This article was produced by Voting Booth, a project of the Independent Media Institute.

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