Arizona Senate will subpoena Maricopa County for election audit

By: and - December 14, 2020 7:31 pm
election audit sign

A protester holds a sign outside the Executive Tower in Phoenix on Dec. 14, 2020. The protesters believe Donald Trump won re-election in 2020 and objected to the state casting its electoral votes for Joe Biden. Photo by Jerod MacDonald-Evoy | Arizona Mirror

Amid false claims of election fraud spread by President Donald Trump and Arizona Republican leaders, the Arizona Senate will issue subpoenas to inspect and audit ballot counting machines in Maricopa County, a top Republican senator announced Monday at the conclusion of a six-hour-long legislative hearing into the November election. 

During the Senate Judiciary Committee hearing, senators heard testimony from the county’s elections director, the chair of its board of supervisors, one of its chief attorneys about the 2020 election and two officials with the Arizona Attorney General’s Election Integrity Unit. They all testified that there was no evidence that President-elect Joe Biden’s win was achieved by fraud, manipulation or tampering, and repeatedly shot down questions from senators based on conspiracy theories. 

“I want voters to be 100% confident, to be as confident as I am in this process,” said Scott Jarrett, the county’s elections director. He noted that the county’s vote-counting machines aced every test in all three elections in 2020 — the presidential primary in March, the primary in August and the general in November.

Still, Chairman Eddie Farnsworth, R-Gilbert, said he would issue subpoenas requiring the machines — and the software that powers them — be audited. The subpoenas will “ensure that at least the legislature has a process in place” to vet the “veracity” of the 2020 election, he said.

“There is evidence of tampering, there is evidence of fraud,” Farnsworth said, despite the testimony to the contrary from state and county officials. He added that the legislative subpoenas will help restore confidence that the election was held free of “tampering, manipulation and fraud.” 

Whether Farnsworth can use the legislative’s subpoena power to compel such an audit is unclear. State law allows legislative committees to issue subpoena for witness testimony and related documents, but it does not appear to give committee chairmen the power to compel another governmental entity to perform an action.

Jim Barton, an attorney who primarily works with Democrats, said it’s questionable whether state law gives chairs of legislative committees authority to compel voting equipment to be inspected.

“It doesn’t seem squarely in the statute,” Barton said. “I think it’s questionable that it’s in the power of the legislature.” 

But one Senate Republican official, who was not authorized to speak to the media, said state law allows subpoenas for “evidence” and includes a penalty for a witness failing to “produce…and material” related to the subpoena. 

“The legislative subpoena power is clearly not limited to compelling testimony only,” the Republican official said.

The subpoena may prove moot, anyway, as county officials testified that they are likely to perform a forensic audit on the machines on their own. Clint Hickman, the chair of the Maricopa County Board of Supervisors, told the committee that he had been prepared to ask his fellow board members to approve just such an audit — and a hand-recount of all 2.1 million ballots cast — but was forced to shelve such plans because a case challenging the election results that was dismissed last week for a lack of evidence was immediately appealed to the U.S. Supreme Court.

Jarrett said that an audit and recount of the ballots cannot be completed while the litigation is ongoing, as the machines and ballots are potential evidence. Tom Liddy, a deputy county attorney who serves as legal counsel to the board of supervisors, said it’s possible that litigation could all be finished by the end of the week, clearing the path for the supervisors to approve an audit and recount.

“We have to wait for this litigation to be over, once it’s over, and the election is over, the board has much more freedom,” Liddy said.  

Hickman said Maricopa County wants to work with the legislature in addressing concerns about the election, but it is hard to communicate in a charged environment. For weeks, Republican legislators and the Arizona Republican Party have elevated baseless voting fraud allegations.

“We want to work together when it comes to transparency and confidence in this election,” Hickam said. “We want to work together.”

Republicans aired conspiracy theories, discounted explanations

Throughout the hearing, Republican senators posed questions exploring a variety of conspiracy theories that have circulated on social media and even in some of the legal challenges that sought to overturn the results of the election.

Time and again, Jarrett explained why those allegations of malfeasance either weren’t possible or were ignorant of the actual protocols in place.

For instance, Jarrett countered claims that Republican election observers were shut out of the process by noting that there were more election observers from both the Democratic and Republican parties watching every part of the election — from early voting through the counting of all the ballots — than ever before. The observers went with elections officials to pick up early ballots from drop boxes and verified that tamper-evident seals were intact at dozens of drop-boxes across the county, they sat in on the verification of signatures on early ballots and they watched early ballots be counted.

Jarrett also faced lengthy questioning about employees from Dominion Voting Systems, a company at the center of a prominent false theory that claims the election outcome was rigged. Two of the company’s employees were embedded with county elections officials, and some Trump supporters have accused them of altering election results or secretly programming election machines to change votes in Biden’s favor.

But Jarrett said those allegations are hogwash, and that there’s not a shred of evidence that any malfeasance took place — evidence that Arizona’s election system and the county’s procedures are designed to shine a light on if it exists.

The voting machines aren’t connected to the internet, and are designed so they must have two identical memory cards — both programmed at the exact same time — in order to operate. (The physical devices also have tamper-evident seals over the memory card slots to ensure they aren’t removed or altered.) If one of the memory cards is removed or changed, the machine won’t scan any ballots, Jarrett explained.

And the machines are under 24/7 video surveillance that is streamed online. Plus, each machine needs a physical security fob, an administrative password and a unique PIN for someone to access it. 

“There’s no possible way for the program to be changed during the course of the election,” he told the senators. 

And if any machines were tampered with and it somehow wasn’t discovered before the election, the malfeasance would have been discovered in the post-election hand-count audit and accuracy testing, Jarrett said. All of those audits and accuracy tests came back perfect in all three elections this year.

But that wasn’t good enough for Sen. Rick Gray, R-Sun City, who suggested without evidence that Dominion installed “backdoors” into its software to allow votes to be manipulated. 

Likewise, Sen. Sonny Borrelli, R-Lake Havasu City, didn’t believe that the county-issued computers the Dominion employees used in their workspace couldn’t access the election system, as Jarrett said, because “nothing electronic is going to be secure.”

“If people want to cheat, they’re going to cheat,” he told Jarrett, offering up no evidence. “Any computer can be programmed to do all kinds of stuff. I find your statement that this is secure and 100% accurate hard to believe.”

Jennifer Wright, an assistant state’s attorney general who works with the Election Integrity Unit, said the AG’s office has received thousands of complaints about the election through an online form. But most of those are not specific enough to pinpoint who committed fraud or broke Arizona law. 

She said the Election Integrity Unit is currently reviewing an allegation that 38 people “unlawfully or illegally voted” in Arizona. She said the office received a list of names and more details on this allegation on Dec. 8. 

“The number of illegal votes we are investigating based on referral will not change the outcome of the election,” Wright said.

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Jim Small
Jim Small

Jim Small is a native Arizonan and has covered state government, policy and politics since 2004, with a focus on investigative and in-depth policy reporting, first as a reporter for the Arizona Capitol Times, then as editor of the paper and its prestigious sister publications. He has also served as the editor and executive director of the Arizona Center for Investigative Reporting.

Laura Gómez
Laura Gómez

Laura Gómez Rodriguez previously covered state politics and immigration for the Arizona Mirror.