This week, when 2020 voting information from Maricopa County, Arizona, was handed over to the FBI, it might have seemed like a replay of the agency’s late January raid in Fulton County, Georgia.
Both are large counties in swing states that voted for Joe Biden in 2020, and both have long been targets of President Donald Trump’s claims that that year’s presidential election was stolen from him.
But the evidence collected from Maricopa County is fundamentally different, in ways that election experts say threaten the accuracy and integrity of the federal government’s investigation.
In Fulton, the FBI took the actual ballots cast in the county’s 2020 election, which had been kept in secure court storage facilities. In Maricopa, a federal grand jury subpoenaed digital data related to a partisan audit of the county’s vote, according to Arizona Senate President Warren Petersen, the subpoena’s recipient.
This material — which may have included scans and photos of ballots — was stored by the Senate, not the county. Maricopa County destroyed the original ballots after two years, as state law requires.
The firm hired by Senate Republican leaders to run the audit, the Cyber Ninjas, was funded by and took direction from Trump allies. Its leader, Doug Logan, privately admitted in text messages obtained by journalists via public records requests that its ballot recounts were “screwy.” County leaders, both Republicans and Democrats, and nonpartisan outside observers documented several ways Logan’s team had failed to follow procedures to prevent tampering. (Logan didn’t respond to a request for comment.)
Several election experts, including some who watched the Arizona audit in person in 2021, said any investigation based on the Cyber Ninja data would be fatally flawed.
“Accessing invalid data will only draw inaccurate conclusions and risk further degradation of public confidence,” said Ryan Macias, a national elections technology consultant who observed the audit on behalf of the Arizona secretary of state’s office.
The Department of Justice and White House did not answer questions from ProPublica on experts’ concerns about the quality of the data and records produced under the subpoena. A spokesperson for the Arizona U.S. attorney’s office declined to respond to questions about whether it was involved in the case, saying it was against policy to comment on grand jury subpoenas or proceedings.
Petersen, a Republican who helped launch the audit in 2021 and handed over the records to the FBI, didn’t say under which court’s authority the grand jury subpoena was issued or respond to a question on its basis. Neither Petersen nor a spokesperson for the Arizona Senate gave details on what exactly the FBI collected. The Senate has not released the subpoena.
The subpoena is the latest salvo in the Trump administration’s unprecedented attempt to reinvestigate purported problems in the 2020 election.
The White House has tasked Kurt Olsen, a lawyer who tried to assist Trump in overturning his loss, with helping to lead the criminal inquiry. Olsen helped initiate the Fulton County case, which is being overseen by Thomas Albus, the U.S. attorney for the Eastern District of Missouri, according to the supporting affidavit. It’s not yet clear whether Olsen or Albus is involved in the Maricopa County investigation.
The Arizona audit began in April 2021, after the Senate’s Republican leadership subpoenaed Maricopa County for scans of all 2.1 million ballots, the county’s voter rolls and other voting system data, such as logs showing who accessed the system. The Senate also had material that the Cyber Ninjas shared from the audit, such as sheets used to tally votes and track anomalies as well as data from the county’s election management system and ballot tabulators.
Cyber Ninjas pulled data from the Dominion Voting Systems machines the county used in 2020, so the FBI presumably has that material. Trump falsely claimed after the election that Dominion voting machines had been hacked, switching votes for him to register as votes for Biden. The Trump administration has been trying to access Dominion machines from other locations since he took office. Fox News and Newsmax settled defamation lawsuits with Dominion after making similar claims, agreeing to pay the company millions.
Arizona Gov. Katie Hobbs, a Democrat who was secretary of state during the 2021 audit, said in an interview with ProPublica that it’s unclear what has happened to the records in the five years they have been out of the county’s hands.
“I don’t think anyone should have confidence in whatever comes out of whatever was turned over to the FBI,” Hobbs said.
Maricopa County’s 2020 election results have been confirmed repeatedly, both by the county’s postelection hand-count and by multiple audits conducted by independent firms commissioned by the county. Courts tossed out several cases filed by lawyers for Trump alleging fraud.
The Cyber Ninjas’ review, which also concluded that Biden won, drew intense criticism from the get-go, both for its methodology and its partisanship.
One of the audit managers was Heather Honey, who now holds a key post in the Trump administration as the Department of Homeland Security’s deputy assistant secretary for election integrity. The contractor conducted its review without county or Senate employees present and only allowed in observers from Hobbs’ office after a court demanded more transparency.
The firm’s workers made errors recounting votes cast in the presidential race, keeping three separate tally sheets for each batch of ballots that often reflected different totals, a secretary of state’s office report found. They also had black and blue pens out as they took photos of ballots, causing concern among observers about the potential for tampering. The contractor sent data collected from ballot tabulators to a Montana cabin for analysis and wouldn’t say how — or if — it had protected the data from hacking.
Arizona Secretary of State Adrian Fontes, a Democrat, said in an interview that the contractor’s sloppy procedures would make it unlikely a court would accept the records handed over to the FBI as evidence proving irregularities in the 2020 vote.
“You can easily poke holes in any of this stuff,” Fontes said.
Cyber Ninjas sometimes mistook routine aspects of the election process as signs of wrongdoing. It announced that 74,000 more mail-in ballots had been cast in Maricopa County than had been sent out. There was a simple explanation for the discrepancy, however: The ballots hadn’t been sent out; they’d been given to the voters by hand at early voting locations.
Ken Bennett, a Republican who was the Arizona Senate’s liaison to the audit and is a former Arizona secretary of state, said in an interview that he thinks the county’s original election results were correct.
“The only evidence I could find of mistakes made by the county were minor errors that had nothing to do with whether or not they came up with the accurate results,” Bennett said.
This story originally appeared on ProPublica
