Maricopa County will fight legislature’s election subpoenas in court

By: - December 18, 2020 3:29 pm

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The Maricopa County Board of Supervisors will go to court to fight subpoenas issued by the Senate Judiciary Committee instead of turning over the election records and equipment that Republican lawmakers are demanding.

Just hours before the 5 p.m. deadline set by Senate Judiciary Committee Chairman Eddie Farnsworth, R-Gilbert, and Senate President Karen Fann, R-Prescott, the supervisors on Friday voted 4-1 to file a complaint in Superior Court to challenge the subpoenas. All five supervisors questioned whether they are legally able to turn over personal voter information the subpoenas seek. There is also an open legal question as to whether the legislature even has the authority to issue such broad subpoenas.

The Senate Judiciary Committee wants to conduct an audit of Maricopa County’s ballot tabulation machines, and issued two subpoenas for the machines, as well as software, records and the nearly 2.1 million ballots cast in the county for the Nov. 3 general election. 

The subpoena, issued after a six-hour committee hearing on the integrity of the election, comes amid widespread but baseless allegations and conspiracy theories asserting that former Vice President Joe Biden’s victory over President Donald Trump, both in Arizona and in the Electoral College, was the result of election fraud. Many of those invented claims involve Dominion Voting Systems, the vendor that provides Maricopa County’s voting equipment.

All five supervisors said they support a third-party audit of the voting machines, a sentiment several had expressed well before the Senate Judiciary Committee met. But they said that an audit must wait until after election-related litigation wraps up because those machines could be considered evidence. They also expressed concerns about releasing private voter information, such as addresses and dates of birth.

Board Chairman Clint Hickman, a Republican, said he, members of the county’s legal team and Scott Jarrett, Maricopa County’s director of Election Day voting, went to the Senate Judiciary Committee hearing and answered all of the lawmakers’ questions. But he felt that the subpoenas were predetermined, no matter what any of them said.

Hickman said the subpoenas could be considered “a slap in the face.”

“These subpoenas are unrealistic in their timeframes, an intrusion into the privacy of our voters, and want us to disregard the statutes that they’ve created,” he said.

Hickman said all five supervisors have expressed support for a third-party audit, “but that’s not what this is about right now. There are real constitutional issues with these subpoenas.”

Supervisor Steve Gallardo, the board’s only Democratic member, praised the members of the county’s legal and election teams who testified at the hearing, where “any type of allegation of fraud or election tampering was debunked and knocked down.” 

Gallardo, who worked for the county’s election department before entering politics, said the election was safe and secure, and that everyone’s vote counted. He voiced his support for an audit of the voting machines, noting that they’ve already passed pre- and post-election accuracy tests. But he said the county won’t conduct the audit amid ongoing election litigation, and said the county would conduct the audit on its terms, not the legislature’s.

“I’m not interested in playing games. I’m not interested in this political theater. I’m not interested in trying to satisfy a small group of loud participants,” Gallardo said. “I want to be able to conduct an audit just to continue to prove faith in our election system. But we don’t do it in the middle of a political circus.”

Gallardo, a former state lawmaker himself, said he was disappointed with the legislature, and especially with his former colleague Farnsworth for issuing subpoenas that he described as “out of bounds.”

“He’s an attorney. He’s a very experienced lawmaker. He has been there for a very long time. And he is very smart,” Gallardo said of Farnsworth. “He knows better.”

The only supervisor to vote against the motion was Steve Chucri. He shared his colleagues’ concerns about sharing voters’ private data and questioned whether the county could legally turn over the information that the Senate Judiciary Committee wants. But he said he couldn’t vote to fight the subpoenas unless the board also took action to begin preparing for an audit, though he agreed that such an audit couldn’t begin until litigation over the election comes to an end.

“I do not think it can be done in isolation,” Chucri said of the plan to fight the subpoenas in Maricopa County Superior Court. “I’ve said that several times, and that we simply do what is before us today without coupling that with at least directing our team to start the beginnings of what an audit would look like, making sure that an independent, certified election auditor is available.”

Farnsworth said the subpoenas weren’t predetermined. He said he told Hickman before the hearing that they were an option, but didn’t make the decision until after hearing testimony. He said he was concerned by county officials’ assertions that election fraud could not have occurred without their knowledge.

Farnsworth said he doesn’t believe the subpoenas show any disrespect for the county. He noted that the county is a political subdivision of the state, and that the legislature has plenary authority over elections.

“When we have the kind of broad concern in this state over the integrity of elections, whether that’s justified or not, I think it’s a very legitimate position to take by the legislature to say we want to do an audit and we want to be able to say … either there were problems and we need to figure out how to fix them or no, there weren’t problems, and it was run perfectly,” Farnsworth said.

If the county wants to conduct an audit of the election, Farnsworth said it could have asked the courts to allow it to do so. But he’s seen no movement in that direction, only repeated comments that the county will conduct an audit at some point in the future. And if the audit is contingent on the end of litigation, Farnsworth said there could be more lawsuits coming that would hold things up.

Farnsworth said the information and equipment that he subpoenaed would be kept secure with a forensic audit team, and there would be a chain of custody for any materials the county turned over.

Fann said she took the supervisors at their word that they support an audit and understands their concerns about auditing the voting machines while litigation continues. She said she hoped that the supervisors would take action to approve an audit after some future trigger point. But because that didn’t happen, the committee issued its subpoenas.

“This is not personal. This is business. And it is our responsibility to make sure that we can reinstall trust into our election system in Arizona,” Fann said.

Some GOP lawmakers have spent weeks promoting bogus, discredited and groundless allegations about election fraud in Arizona and other swing states that Biden won. Some have gone so far as to demand that the legislature or Congress reject the voters’ decision and attempt to reinstall Trump for a second term, despite his loss.

Fann said she and Farnsworth will meet soon to determine their course of action. 

After the board’s vote, several Republican legislators voiced their displeasure on social media.

These lawless tyrants do not want us to look at their corruption. The more they hide the more we are determined to know the truth,” Wendy Rogers, a senator-elect from District 6 in northern Arizona, said on Twitter.

Sen. Michelle Ugenti-Rita, R-Scottsdale, who temporarily served on the Senate Judiciary Committee for the elections hearing, tweeted that it was the supervisors’ decision that was a “slap in the face.”

The Arizona Republican Party tweeted more than a half dozen times about the board’s vote in the hour after they adjourned, calling it a “travesty of epic proportions.” 

One of the remaining pieces of election litigation in Arizona is a case brought by state GOP Chairwoman Kelli Ward. Ward asked a judge to overturn President-elect Joe Biden’s win in Arizona on the basis of fraud, misconduct or miscounted votes. She presented no evidence of such issues and instead asked a judge to allow her to inspect ballots so she could look for it. 

Ward found several errors, but a Maricopa County Superior Court judge and all seven Arizona Supreme Court justices found that she failed to show that such errors could have cost Trump more than about 150 votes in an election he lost by about 10,500. Ward has appealed her case to the U.S. Supreme Court.

Another case that has been appealed to the U.S. Supreme Court is the so-called “kraken” lawsuit brought by election attorney and Trump ally Sidney Powell, which a federal judge dismissed after finding, among other deficiencies, that the plaintiffs provided no evidence of the implausible claims they made, including that the election fraud they alleged was the result of foreign espionage. 

A Pinal County woman filed a lawsuit which largely copied and pasted allegations from Powell’s case, which a judge rejected because she wasn’t registered to vote in the Nov. 3 election. The statute that Staci Burk sued under requires that the plaintiff be a qualified elector. Burk has appealed to the Arizona Supreme Court.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”