Maricopa County rejects Senate election subpoena demands, spawning contempt charges

By: - February 2, 2021 3:49 pm

Supporters of President Donald Trump demonstrate at a “Stop the Steal” rally in front of the Maricopa County Elections Department office on Nov. 7, 2020. The protesters believed unfounded allegations pushed by Trump and other Republican officials and activists that Joe Biden was elected president through cheating or malfeasance, assertions that have been rejected by elections officials in Arizona and across the country, and also by the U.S. Department of Homeland Security, which concluded that there “is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” Photo by Mario Tama | Getty Images

The Maricopa County Board of Supervisors did not comply with the Arizona Senate’s request to set a date for turning over materials that Republican lawmakers subpoenaed for a proposed audit of the 2020 general election.

And that could land them in jail for contempt, if one of the Senate Republicans who issued the subpoenas has his way.

The Senate had given the county supervisors a deadline of noon Tuesday to say when they would comply with the disputed subpoenas, which Maricopa County has challenged in court and says are outside the purview of the Senate’s legal authority. After conferring with legal counsel on Tuesday morning, the supervisors again refused the Senate’s demand for ballot tabulation machines, software, data and more than 2 million paper ballots.

Fields Moseley, a spokesman for the county, said the supervisors have turned over some data sought by the Senate, such as publicly available voter registration information. But it legally can’t and has no intention to provide other items requested in the subpoenas.

“The board has no interest in turning over 2.1 million ballots that are under seal, per state law. There is no mechanism other than a court order to compel the release of those ballots,” Moseley said.

The county began its own audit of its ballot tabulation machines on Tuesday, which it expects to wrap up by the end of the week. But even after that audit is complete, Moseley said the county wouldn’t agree to turn the machines over to the Senate without knowing who will examine them or what scope of work they’ll undertake.

Moseley said the machines are critical infrastructure, and that giving them to people who aren’t certified or qualified to examine them would “create an inherent security risk” and might violate the county’s contract with Dominion Voting Systems, which the county leased the machines from in 2019.

Senate President Karen Fann, R-Prescott, said Senate Republicans will meet on Wednesday to determine how to respond to the county’s refusal.

Sen. Warren Petersen, who chairs the Senate Judiciary Committee and jointly issued the subpoenas with Fann, wrote on Twitter that it was “truly unfortunate” that the county refused to comply with the subpoenas. Petersen said the Senate was drafting a contempt resolution, which could subject the supervisors to arrest and misdemeanor charges. 

“There is no legal consequence if they allow us access to the machines and ballots,” the Gilbert Republican wrote on Tuesday. “However there are serious legal consequences for failing to comply with the subpoena.”

The Senate can vote to hold a witness in contempt for refusing to comply with a legislative subpoena, and refusal to comply with a legislative subpoena is a class two misdemeanor. It’s unclear how many Senate Republicans would vote to hold the supervisors in contempt. There are only 16 Republicans in the Senate, meaning a single defection — the Democrats would likely vote unanimously against contempt — could derail a contempt vote.

A judge in the county’s lawsuit has not yet ruled on whether the Senate is actually entitled to the materials it sought with its subpoenas or whether the Senate has the legal authority to conduct an audit of the election.

Fann has refused to say who will conduct the audit if the county complies with the subpoenas. Fann and Petersen announced Jan. 29 that they had hired a firm, but Fann told the Arizona Mirror on Monday that the statement had been in error. Though the Senate has chosen a firm, the decision is not final, and two other companies are under consideration as well. Fann declined to identify any of the firms.

Editor’s Thought Bubble: What’s up with the Senate audit?

The conflict began in December when then-Sen. Eddie Farnsworth, Petersen’s predecessor as judiciary committee chairman, issued subpoenas with Fann for Maricopa County’s election materials. The subpoenas came as former President Donald Trump and many of his supporters, including some members of the Arizona legislature, spread false and baseless claims that the election had been rigged in favor of President Joe Biden. Fann and Farnsworth issued the subpoenas despite a lack of any evidence of fraud, wrongdoing or misconduct in the election in Maricopa County.

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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.”