Senate issues subpoenas for all ballots, voting machines to audit Maricopa County election

The Arizona Senate is ordering the Maricopa County Board of Supervisors to turn over its ballot-counting machines, software, security logs, administrative passwords and all of the 2,089,563 ballots cast in the November election so lawmakers can conduct their own forensic audit.

The county, which was given until the end of business Friday to comply, did not immediately respond to a request for comment. Fields Moseley, a Maricopa County spokesman, said the Board of Supervisors will convene on Wednesday to receive legal advice on the subpoenas.

It is unclear if legislative committee chairs have the power to compel another governmental entity to perform an action through a legislative subpoena. State law allows legislative committees to issue subpoena for witness testimony and related documents, though it seemingly is limited to individual witnesses whose “attendance … is desired” before a legislative committee.

And subpoenas must include certain things to be considered “sufficient” under the law, including being addressed to the witness and requiring attendance “at a certain time and place.” The subpoenas issued by Senate Judiciary Committee Chairman Eddie Farnsworth and Senate President Karen Fann are addressed to the board of supervisors and do not require attendance at either a time or place. Instead, the subpoenas demand that the materials requested be turned over “for inspection, testing or sampling” at a later date.

Phoenix elections attorney Jim Barton said the subpoenas extend far beyond what is allowed by law.

“Looking at (the laws), there is no way to interpret this power as extending to producing physical evidence for testing,” he said. “So, yeah, they can ask for these things, but the County Recorder cannot be compelled or sanctioned for non-compliance.”

Farnsworth, a Gilbert Republican, held on Monday a six-hour hearing on the November election and announced at the end that he would issue legislative subpoenas. 

Farnsworth’s announcement Monday earned the praise of the Arizona Republican Party and other GOP leaders who have spread claims of the election being rigged against President Donald Trump, but have failed to prove in several courtrooms that there was evidence of fraud or misconduct that affected the outcome of the election in Arizona. 

Supervisor Clint Hickman, a Republican who chairs the Maricopa County Board of Supervisors, told the Judiciary Committee on Monday that he will work with the other supervisors to perform an audit of voting machines. Thomas Liddy, a county attorney who represents the board, told the committee no audit can occur until election lawsuits are resolved. 

Election results were officially canvassed in Maricopa County on Nov. 20. Gov. Doug Ducey, Attorney General Mark Brnovich and Secretary of State Katie Hobbss canvassed the state election results on Nov. 30. 

On Monday, the Arizona presidential electors cast their Electoral College votes for President-elect Joe Biden and Vice President-elect Kamala Harris.