Ballots are pulled aside for a hand audit by Maricopa County Elections Department on Oct. 31, 2020. Early voting lasted from Oct. 7 through Oct. 30. Nearly 92% of the county’s voters in the 2020 general election cast early ballots. Photo by Courtney Pedroza | Getty Images
The Republican senator who issued subpoenas for 2.1 million Maricopa County ballots and all of the county’s election equipment is pushing legislation that would require counties to turn those things over to lawmakers.
The measure comes as the county is suing to block the subpoenas issued last month by Sen. Warren Petersen and Senate President Karen Fann. The subpoenas sought all ballots, ballot-counting machines and myriad other election equipment and security information so that the Senate could audit the results, amid unfounded claims from former President Donald Trump and prominent Arizona Republicans — including some lawmakers — that the election was rife with fraud.
Petersen’s bill would make explicit that ballots and other election equipment and information is subject to a legislative subpoena, and is aimed at the heart of the county’s legal challenge, which argues that the Legislature has no authority under state law to access ballots or conduct an audit of election equipment.
Senate Bill 1408 also puts legislative investigations above state law, and says that the legislature’s ability to conduct an investigation “on any matter may not be infringed by any other law.”
“This can resolve our pending litigation and can give the county comfort in handing over what we know they can already do,” Petersen said while defending his bill during a Senate Judiciary Committee meeting Thursday morning.
The supervisors have argued in court that state law strictly governs the possession of ballots after an election, and that it would be illegal to turn them over to the Senate. Further, the Senate had planned to hire auditors who aren’t certified to examine ballot-counting machines, which would lead to the machines being decertified and force the county to lease or purchase new ones.
Petersen, who chairs the Judiciary Committee, has argued that turning over the ballots is not illegal saying that state law grants the supervisors immunity for responding to a subpoena. He has been critical of two audits that the county is conducting on its machines.
Maricopa County Recorder Stephen Richer, a Republican, said Petersen’s criticism of the audits is unfounded.
Petersen’s bill would be retroactive to Jan. 1, 2020.
Sen. Martin Quezada, a Phoenix Democrat, said the bill seemed like an admission that the Senate didn’t actually have the authority for its subpoenas, and wondered why Republicans couldn’t let the courts settle the dispute.
“Why would we not let the court make a ruling on what the law is now?” he said.
“This is the insurance policy,” Petersen responded. “If (the courts) come out and say the law doesn’t allow it, this makes sure that it does.”
Though Petersen contended that the bill didn’t undercut the Senate’s legal arguments that it already has the authority to demand ballots and election equipment to audit the election, Maricopa County Supervisor Steve Gallardo — the lone Democrat on the five-person board — said the legislation wouldn’t be needed if the Senate really believed that. ”
“If you already have that authority you don’t need an ‘insurance policy,’” he wrote on Twitter. “Stop undermining our democracy.”
A resolution that held the supervisor in contempt for not responding to the subpoenas and would have had the Sergeant at Arms arrest them failed when one GOP member of the senate broke rank and voted against the measure.
The bill passed out of the Senate Judiciary Committee along party lines and will next be considered by the full Senate.
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