Maricopa County asks judge to strike down Senate subpoenas

By: - February 5, 2021 8:26 pm

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As the Arizona Senate prepares to vote on whether to hold the Maricopa County Board of Supervisors in contempt for refusing to comply with subpoenas for a trove of equipment, data and ballots from the 2020 general election, the county is asking a judge to quash the subpoenas, arguing that they’re unlawful and invalid on several grounds.

In a complaint filed in Maricopa County Superior Court on Friday afternoon, the supervisors argued that the Senate has no legal authority to seek election materials, including 2.1 million ballots, through subpoena. While the Senate does have subpoena power, the county’s lawyers said that authority is limited, and Senate President Karen Fann is far exceeding it with her request.

State law permits the House and Senate to compel witnesses to appear and testify at legislative hearings. That is not what the subpoenas issued last month by Fann and Sen. Warren Petersen, chairman of the Senate Judiciary Committee, seek to do.

“This case is not about whether the Arizona legislature has the power to issue subpoenas: it does,” wrote Stephen Tully, an attorney representing Maricopa County. “In short, this case is about sham legislative subpoenas.”

Tully noted that the Jan. 12 subpoenas actually directed the supervisors to show up at a hearing that did not exist. Tully wrote that several county officials arrived at the Senate the next morning and were told that no hearing had actually been scheduled. 

“The Senators apparently only want access to the data and items listed in the subpoena. But that is not how legislative subpoenas work,” Tully argued.

Furthermore, Tully wrote that the subpoenas seek materials that the county cannot legally provide. He cited several state laws pertaining to the handling of ballots after an election. State law requires county treasurers to keep ballots in a secure facility once an election has been canvassed, and only instructs the treasurer to remove them in the event of a recount or court order.

And state statute strictly governs when a recount can occur. The legislature has no legal authority to conduct recounts or to audit election results, wrote Tully, a former Republican state legislator.

Fann and Petersen are also demanding access to the county’s ballot tabulation machines, which Tully said the county cannot provide. He wrote that allowing auditors who aren’t certified by the U.S. Election Assistance Commission to examine the machines could void the machines’ certification, meaning the county would no longer be able to use them for elections. The county is conducting its own audit using two EAC-certified companies. 

The county’s filing also notes that post-election audits showed a perfect match between the machine count and hand counts of a limited number of ballots. And Tully pointed out that at least seven lawsuits challenging the election results in Maricopa County have failed. 

The county took issue with Fann’s move to hire a firm known for peddling false statements and discredited conspiracy theories in a fruitless attempt to show that the 2020 election was stolen from former President Donald Trump. Documents show Fann is looking to hire Texas-based Allied Security Operations Group, which Tully noted has a rich history of making false, baseless statements about alleged fraud in the 2020 general election.

Phil Waldron, a member of ASOG’s proposed auditing team, told an unofficial legislative hearing in Phoenix that Maricopa County’s tabulation machines were connected to the internet while being used and claimed that election officials don’t verify the signatures on voters’ mail-in ballot envelopes. No evidence supports those claims.

ASOG, Waldron and another of the company’s employees, Russell Ramsland, have also made false allegations about the elections in Michigan and Georgia. In one case, Ramsland made erroneous claims about voter turnout in Michigan after mistakenly using vote totals from Minnesota. In another hearing, Waldron was unable to provide any evidence for a baseless assertion that fraudulent votes were transported to Georgia to rig the election in favor of President Joe Biden.

Tully referred to ASOG as “a team of uncertified laymen who have demonstrated a stunning lack of knowledge about election procedures and election security.”

“Indeed, extensive public reporting since the November 3, 2020 general election indicates that ASOG has peddled debunked conspiracy theories and error-riddled analyses in its quixotic quest to prove that election fraud occurred,” Tully wrote. 

Fann and Petersen announced last week that they had chosen a firm to conduct the election audit, and their attorney informed the county several days later that ASOG would work under another auditor that hadn’t yet been chosen. Among the duties in the proposed scope of work for ASOG would be examining more than 500,000 ballots. Fann later said she hasn’t yet chosen an auditor and that she is still evaluating several firms.

Maricopa County had already challenged the subpoenas in court, and Fann had countersued, but the cases have been dormant since late January. The new challenge was prompted by the introduction of a resolution, co-sponsored by all 16 Republicans in the Senate, to hold the supervisors in contempt.

The Senate can vote on the resolution as early as Monday. If the resolution passes — and all GOP senators have signalled their support — the supervisors could be arrested and charged with misdemeanor offenses.

When asked for comment, Fann said she was not aware of the new court filing.

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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.”