Judge dismisses subpoena lawsuit but says senators can refile

By: - December 23, 2020 7:41 pm

Senate President Karen Fann. Photo by Gage Skidmore | Flickr/CC BY-SA 2.0

The Senate president and a powerful committee chairman made the wrong argument in their lawsuit attempting to force the Maricopa County Board of Supervisors to comply with subpoenas related to the 2020 election, but they’re welcome to try again with another, more “plausible” claim, a judge ruled Wednesday evening.

Maricopa County Superior Court Judge Randall Warner dismissed a lawsuit filed by Senate President Karen Fann and Sen. Eddie Farnsworth, who chairs the Senate Judiciary Committee, ruling that the remedy they asked him for is inapplicable. 

The two lawmakers asked Warner for what’s known as a writ of mandamus, which requires public officers to perform an official act required of their positions. The supervisors are challenging two subpoenas demanding that they turn over voting machines, ballots, voter data, access to software and other materials from the general election to the Senate Judiciary Committee, which wants to conduct a full forensic audit.

In his ruling on Wednesday, several hours after hearing arguments in the case, Warner said the senators’ request was not appropriate because the supervisors’ duty to comply with the subpoenas stems from the subpoenas themselves, not from their elected positions.

“There is no basis in Arizona statute for treating the subject of a subpoena differently because they are a public official,” Warner wrote.

But that is likely to be far from the end of the case.

Warner said the senators could amend their original complaint to include a new argument that their attorney raised in court filings on Wednesday. Attorney Kory Langhofer, who represents Fann and Farnsworth, argued that the court has the authority to force compliance under a statute pertaining to subpoenas issued by a “public officer.”

“This is a plausible argument,” Warner wrote, but Fann and Farnsworth only made it on Wednesday in a memorandum regarding jurisdictional issues in the case, and the supervisors have not yet had an opportunity to respond to it.

Fann, a Prescott Republican, said they will amend the complaint to include the new arguments.

“The Senate is committed to ensure the elections were accurate to instill voter confidence,” Fann told Arizona Mirror.

Even if the senators were to abandon the complaint altogether, that’s not the end of the case. The supervisors filed a separate lawsuit challenging the subpoenas, arguing that they are illegal and outside the scope of the legislature’s powers.

Earlier in the day, Langhofer argued in court that the legislature had no authority to disregard the subpoenas.

“There is no discretion to thumb your nose at the legislature in the face of a duly issued subpoena,” he said.

Warner pushed back on Langhofer’s description of the supervisors’ description to challenge the subpoenas.

“Filing a motion to quash a subpoena is generally not considered thumbing your nose. It’s considered submitting the matter to the court. And it seems to be exactly what the county did,” the judge said.

The supervisors’ attorney, Steve Tully, a former member of the legislature, countered that it’s an “absurd notion” that any committee chairman can simply seize any documents, machinery and information he wants through subpoena, turn those materials over to an unknown third party, all so the findings can be turned over to Congress. 

“It’s something that I’m quite certain that the courts … will soundly reject,” Tully said. But the appropriate place for Fann and Farnsworth to make those arguments is in the other complaint filed by the supervisors, he said.

Langhofer said it was important for the committee to complete its findings before the Congress meets on Jan. 6 to certify the results of the Electoral College — a date which some supporters of President Donald Trump believe Congress might overturn President-elect Joe Biden’s win in the general election — and because lawmakers might need that information to guide election-related legislation they’re considering for the upcoming legislative session, which begins on Jan. 11.

Clint Hickman, the chairman of the Board of Supervisors, praised Warner’s ruling as a win for the county “as we work to protect both voter privacy and the integrity of our elections.”

Hickman noted that all five supervisors have expressed support for an audit of the county’s ballot tabulation machines — but only after several ongoing lawsuits conclude because the equipment could be considered evidence.

Dominion Voting Systems, the second-largest provider of voting equipment in the United States and Maricopa County’s provider for the past decade, has become the subject of unfounded conspiracy theories promoted by Trump and some of his supporters, who claim, without evidence, that the election was rigged against him. The claims about Dominion are part of a broader set of invented allegations, for which there is no evidence, that Biden won Arizona and the Electoral College through election fraud.

Hickman noted that Maricopa County has already won other legal challenges questioning the integrity of the election.

“The false accusations keep coming, yet the accusers have not produced any evidence to prove their accusations in eight different courtrooms. Maricopa County has shown the 2020 General Election was transparent and the results were free from fraud,” Hickman said in a press statement.

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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.”