Senate passes subpoena bill as litigation continues in election audit dispute

If a judge rules that the law doesn’t give the legislature the authority to subpoena ballots and tabulation machines from Maricopa County so it can conduct an audit into debunked conspiracy theories that the 2020 election was rigged, the Senate took a big step Thursday to grant that power to itself.

On a party-line 16-14 vote, the Senate passed Senate Bill 1408. The proposal, sponsored by Sen. Warren Petersen, R-Gilbert, would give the legislature the express authority to subpoena ballots, election equipment and information from counties, and explicitly states that the legislature has the authority to investigate any matter — and to ignore all other laws in the process.

Petersen introduced the legislation amid a battle between Republican Senate leaders and Maricopa County over the attempt by GOP senators to audit the 2020 general election. 

Senate President Karen Fann and Petersen, who chairs the Judiciary Committee, have issued subpoenas to Maricopa County demanding that it turn over 2.1 million ballots, ballot tabulation machines and other materials and data from the November election. Those subpoenas came as some Republican senators demanded an audit in response to baseless allegations and discredited conspiracy theories spread by former President Donald Trump and many of his supporters. 

Fann also sought to hire a discredited company that had spread election-related conspiracy theories and disinformation to conduct the audit.

The county is challenging the subpoenas in court, arguing that it would be illegal for it to hand over the ballots, that it can’t allow unauthorized auditors to examine the tabulation machines, and that the Senate generally lacks the authority to demand those materials. A Maricopa County Superior Court judge will hear arguments in the case next week and expects to rule on the matter quickly.

Sen. Martin Quezada, D-Glendale, criticized SB1408, which he said continues to spread disinformation about the election.

“The more we continue down this path, we continue to spread the ‘Big Lie’ that something was wrong with our elections. The more we continue to go after the county board of supervisors and try to subpoena all this information … we are furthering and perpetuating this lie,” Quezada said. 

Some GOP lawmakers have said they support the audit because many of their constituents have expressed concerns about the integrity of the election in Arizona. But Quezada said Republican leaders could restore trust in the election by explaining to people that the election was accurate and secure.

Quezada also rejected arguments from some of his Republican colleagues that this is more about respect for the legislature’s authority than it is about the allegations surrounding the election.

“This is not about a state body battling with a county body because they are not complying with a subpoena. That is not what this is about at all. This is about perpetuating more misinformation,” he said. “It’s irresponsible and it’s damaging to our democracy.”

Republican Sen. J.D. Mesnard, R-Chandler, said many lawmakers believe the legislature has the authority the Senate is trying to exercise to subpoena materials and audit the election, and the bill simply clarifies that in state statute. 

He steered clear of the actual allegations that prompted the subpoenas and the audit demand in the first place.

“This is a much broader statement about the legislature and our subpoena powers, because as of late, it seems those powers are not respected,” Mesnard said. “Our subpoenas are supposed to matter. This is making that very clear.”

Mesnard also argued that SB1408 is about more than just the recent election: It’s about future elections and what authority the legislature has to investigate if the need arises in later years.

“Even if you set aside this election, if something nefarious happens in the future, regardless of whether you believe it happened now, and suddenly you wanted to investigate it, you would find yourself in the very same situation,” he said. 

Thursday’s vote lacked the drama of the last Senate vote related to the subpoenas. Earlier this month, a resolution to hold the Maricopa County Board of Supervisors in contempt for defying the subpoenas, and which authorized Fann to have the supervisors arrested, failed on a 15-15 tie after Republican Sen. Paul Boyer voted with the Democrats against the measure. Boyer said he believed an audit should take place, but that the legal battle should play out before the Senate took such steps. However, Boyer voted in favor of SB1408.

There is no evidence to back up the myriad claims that the election was marred by fraud in Arizona, which President Joe Biden won, making him the first Democrat to win the state’s electoral votes since 1996 and only the second since 1948. More than a half dozen lawsuits alleging fraud or misconduct in Arizona were filed after the election, all of which failed because those challenging the election lacked evidence to back up their claims.