Judge sides with Senate, says Maricopa must turn over election materials for audit

By: - February 26, 2021 10:22 am

Photo by Jerod MacDonald-Evoy | Arizona Mirror

The Maricopa County Board of Supervisors must turn over ballots and tabulation machines to Senate Republican leaders so they can conduct an audit of the 2020 general election, a judge ruled.

Maricopa County Superior Court Judge Timothy Thomason ruled on Friday that it was within the Senate’s authority to subpoena the materials and equipment so it can audit the election. The ruling brings a potential conclusion to the months-long battle between the supervisors and the Senate.

“The Court finds that the Subpoenas are legal and enforceable,” Thomason wrote in his ruling

After meeting with their attorneys, the supervisors decided to not appeal the ruling. Supervisor Jack Sellers, the board’s chairman, said the ruling “brings clarity to whether Senate subpoenas apply to ballots that, per state law, must be kept private following an election.”

“We respect his legal opinion and will immediately start working to provide the Arizona Senate with the ballots and other materials,” Sellers said in a press statement. “We hope senators will show the same respect and care we have for the 2.1 million private ballots and use them in service of their legislative duties.”

Senate President Karen Fann and two successive Senate Judiciary Committee chairmen issued subpoenas for nearly 2.1 million ballots, around 300 tabulation machines and a trove of other data and materials. They sought to conduct an audit of the election in response to the baseless fraud allegations and conspiracy theories espoused by former President Donald Trump and many of his supporters, including some Senate Republicans, after President Joe Biden won the 2020 presidential election.

“We are very, very thrilled and grateful for the judge to look at the big picture and recognize that this was never about overturning any election. This was always about voter integrity and the integrity of the voting system itself,” Fann, a Prescott Republican, told the Arizona Mirror.

The dispute began in December, when then-Senate Judiciary Chairman Eddie Farnsworth held a six-hour hearing to question county officials about the conduct of the election. Even though the hearing turned up no evidence of any fraud, malfeasance or misconduct in the way Maricopa County conducted the election, Farnsworth and Fann issued the first round of subpoenas, prompting a lawsuit from the supervisors. Sen. Warren Petersen re-issued the subpoenas in January after he succeeded Farnsworth as the committee’s chairman.

Maricopa County challenged the subpoenas in court, arguing that it would be illegal to turn over the ballots to anyone, citing state laws requiring ballots to go under lock and key for two years once an election is canvassed. And the supervisors said it would jeopardize the certification of its ballot tabulation machines to allow an unaccredited or unqualified auditor to examine them.

Thomason rejected the county’s arguments that the ballots must be kept secured after the election and cannot be released, and said confidentiality laws clearly weren’t intended to prevent government officials from doing their jobs. The fact that state law requires the county treasurer to keep the ballots for 24 months suggests that they may be subject to subpoenas or investigations, the judge wrote. Thomason also noted that, under the county’s logic, it would be violating the law because the Board of Supervisors is holding onto the ballots rather than turning them over to the county treasurer while the litigation proceeds.

And the judge said the right to a secret ballot, enshrined in the Arizona Constitution, isn’t jeopardized by the subpoenas because there is no way to determine which voter is tied to any given ballot.

As for the tabulation machines, Thomas said confidentiality laws don’t apply to them and provide no justification for withholding the equipment and machinery.

Thomason also found that the Senate had a valid legislative purpose in demanding the ballots. The Arizona Constitution empowers the legislature to pass “laws to secure the purity of elections and guard against abuses of the elective franchise,” and it’s a valid legislative purpose for lawmakers to issue the subpoenas to gauge the “accuracy and efficacy of existing vote tabulation systems and competence of county officials in performing their election duties, with an eye to introducing possible reform proposals,” the judge wrote.

Even if one of the initial purposes of the subpoenas was to determine whether the results of the election could be challenged, as the county alleged, other legitimate purposes exist, Thomason ruled. And because Biden has already been sworn into office, the results of the election cannot be overturned.

All 16 Senate Republicans co-sponsored a resolution to find the supervisors in contempt for defying the subpoenas, which authorized Fann to have all five of them arrested and could have potentially led to misdemeanor charges. But the resolution fell one vote short when Sen. Paul Boyer, R-Glendale, opposed it, saying he wanted to give the county more time to sort out the legal issues. 

Petersen, a Gilbert Republican, later introduced legislation that would expressly authorize legislative chambers and committees to subpoena ballots and other election equipment and materials, and specifies that the legislature has the right to investigate any matter it wants. The Senate has approved the legislation, which now awaits action in the House of Representatives. 

While the legal battle ensued, the Board of Supervisors conducted its own audits of the election machines. Maricopa County’s ballot tabulation machines are provided by Dominion Voting Systems, the nation’s second largest provider of such equipment, which has been the subject of many conspiracy theories and false allegations since Trump lost the election. 

The audits gave the machines and their software a clean bill of health, finding that they weren’t connected to the internet during the election, weren’t hacked or infected with any malicious software, and hadn’t switched any votes during the counting of ballots. The audits were conducted by SLI Compliance and Pro V&V Laboratories, the only two companies accredited by the U.S. Election Assistance Commission to certify and examine tabulation machines.

Fann has taken issue with the two companies because they had previously certified Dominion’s machines and software. She had looked to hire Allied Systems Operations Group, a Texas company whose employees had served as witnesses for the Trump campaign during various legislative hearings about the election and have a well-documented history of spreading false claims about election fraud in Arizona and other swing states that voted for Biden.

The Senate’s legal counsel told attorneys for Maricopa County that ASOG would serve under another auditor. The Senate drafted a proposed scope of work for ASOG, a step it has not taken for any other prospective auditors.

Fann told the Mirror that she is considering several potential auditors, though she said ASOG likely will not be one of them because some people believe it would not be independent.

“I think that would be difficult for anyone to select them at that point, just because of the perception out there. However, I do believe they’re fully qualified. However, there’s a perception that they would not be fully independent,” Fann said.

Phil Waldron, an ASOG employee and member of its proposed auditing team in Arizona, falsely alleged during a November meeting in Phoenix that Maricopa County election workers don’t verify the signatures on early ballot envelopes, and claimed, without evidence and despite not having inspected the tabulation machines, that the machines were connected to the internet during the vote count.

Waldron claimed, without evidence, during a recent report by right-wing cable channel One America News Network that hundreds of thousands of ballots cast in-person in Maricopa County on Election Day were “shifted” to become “absentee ballots” as ballots were counted in the days after the election.

During a legislative hearing in Georgia, Waldron claimed fraudulent ballots were trucked into the state to rig the vote for Biden, though he was unable to provide any evidence under questioning to back up his assertion. 

***UPDATED: This story has been updated with additional information and comments.

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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.”