Supervisors, Dominion won’t comply with new Senate subpoenas

By: - August 2, 2021 3:49 pm

A door at the Arizona Senate. Photo by Jerod MacDonald-Evoy | Arizona Mirror

The Maricopa County will not comply with the latest subpoena from Senate President Karen Fann for routers and other materials for her election review, essentially challenging her to enforce it with the knowledge that she doesn’t have the votes to hold the Board of Supervisors in contempt.

Dominion Voting Systems, which provides the county’s ballot tabulation machines, also refused to comply with a subpoena that Fann issued demanding administrative passwords for the devices the company leased to Maricopa County for the 2020 election, asserting that the company is not subject to the Senate’s subpoena authority.

Fann and Senate Judiciary Committee Chairman Warren Petersen ordered the supervisors and representatives of Dominion to appear at the Senate at 1 p.m. Monday to comply with their subpoenas. No one showed up on their behalf. Instead, they informed Fann in a letter that they wouldn’t comply.

Liddy noted that the county has already provided some of the materials Fann sought for her so-called audit of the 2020 election in Maricopa County in response to a previous subpoena. For example, the county recorder’s office already provided digital images of the envelopes used to return early ballots, which contain the affidavits that voters sign to affirm their identities. Other items, such as the passwords that provide administrative access to the ballot tabulation machines, have never been in the county’s possession, Liddy wrote in his letter.

As for the routers and their associated digital logs, the county simply refused to hand them over, echoing the same arguments the supervisors have made to the Senate for months. County officials say the routers, which are used by various county agencies and departments, contain sensitive, confidential information about Maricopa County residents that would be potentially compromised if turned over to the Senate or its election review team. Removing the routers would also “severely disrupt” county operations and cost millions of dollars, Liddy wrote.

The Senate and its audit team have said they want the routers to ensure that the county’s ballot tabulation machines weren’t connected to the internet and that they weren’t sending or receiving information during the election. Liddy explained that a forensic audit conducted by two companies accredited by the U.S. Election Assistance Commission already confirmed that the machines were never connected to the internet. Liddy said other documents and data the county provided to the Senate also confirms that.

“Anyone with sufficient knowledge and understanding of elections is able to confirm, through a review of these logs or through an inspection of the tabulators, that the equipment was not connected to the internet and had no wifi devices installed,” Liddy wrote.

Liddy said the county won’t provide the logs for the same security reasons it won’t turn over the routers.

After the board met in executive session for about four hours, Vice Chairman Bill Gates told reporters that the new subpoenas were nothing more than “political theater” timed to coincide with former President Donald Trump’s July 24 speech in Phoenix, when he aired false claims that the election in Arizona was rigged against him and repeatedly called on Republican state senators to obtain the disputed routers. 

The point of the subpoenas, Gates alleged, is to distract from the mounting problems facing the audit. Just in the past two weeks, Logan and another audit leader made a number of false and unsubstantiated claims in a briefing to Fann and Petersen, and audit liaison Ken Bennett — a former Arizona secretary of state — was banned from the audit site at the state fairgrounds in Phoenix and announced his resignation from the audit team, only to agree to return shortly afterward. 

“This is political theater. This is trying to get the attention off of them and the fact that their whole endeavor is crumbling, and to instead point to Maricopa County and say that we’re the problem,” Gates said. “We’re not the problem. It’s people focused on conspiracy theories that’s the problem.”

Bill Gates subpoenas
Maricopa County Supervisor Bill Gates addresses reporters on Aug. 2, 2021, defending the county’s decision not to comply with a subpoena from the Arizona Senate for various materials related to the “audit” of the 2020 election, including all of the country’s Internet routers. Photo by Jeremy Duda | Arizona Mirror

Gates didn’t question Fann’s legal authority to subpoena the items so much as he questioned how she can force the county to comply. In February, Fann sought to hold Gates and the other county supervisors in contempt, but the effort failed on a 15-15 vote after Sen. Paul Boyer broke ranks with his fellow Republicans and voted against it. Since then, Republican Sen. Michelle Ugenti-Rita has joined Boyer in publicly criticizing the audit, which she calls “botched.”

Boyer defended the county and Dominion’s refusal to comply with the subpoenas, saying they’re “100% in the right.” He added he’d still oppose any attempt to hold them in contempt.

“I’d be a ‘hell no,’” he said.

Even if Fann had 16 votes for a contempt resolution — Republicans have only a one-vote majority in the Senate — there would be no way to introduce or vote on it because the Senate is not in session and won’t return to the Capitol until January.

Gates also said that, even though Maricopa County Superior Court Judge Timothy Thomason ruled that the Senate had the legal authority to subpoena election materials from the county, he never actually ordered the supervisors to comply, leaving enforcement instead to the Senate. Gates indicated that if the two sides end up back in court any time in the near future, it will have to be Fann who initiates it.

“When our people get called out, when they accuse our employees in the elections department of engaging in fraud, we’re going to continue to push back. But having said that, we’re not going to run to the courthouse either. If we have to, we reserve the right to do that. But this is a political issue,” he said.

Dominion told Fann in a letter Monday that her subpoena against the company was invalid and even unconstitutional. Eric Spencer, a Phoenix attorney representing the company, said the request violates Dominion’s due process rights under both the U.S. and Arizona constitutions because the Senate seeks to deprive the company of its property rights, and that the subpoena violates Dominion’s Fourth Amendment right against unreasonable search and seizure, among other arguments.

Furthermore, Spencer wrote, the subpoena is “untethered to any valid legislative purpose,” and he alleged that it is being “used as a tool of harassment.” Spencer noted that the audit team has already returned the tabulation machines to the county, making the Senate’s request for passwords to those machines pointless.

Spencer also objected, as the company has before, to the notion that Dominion should turn over sensitive information to Cyber Ninjas, the company leading Fann’s self-styled audit. The company’s CEO, Doug Logan, was an active promoter of conspiracy theories and false fraud claims about the election. Logan, who designed the election review’s scope and procedures, and other subcontractors have little to no background in elections, as well.

“Releasing Dominion’s intellectual property to an unaccredited, biased, and plainly unreliable actor such as Cyber Ninjas would be reckless, causing irreparable damage to the commercial interests of the company and the election security interests of the country. No company should be compelled to participate in such an irresponsible act,” Spencer wrote.

Fann said she hasn’t yet decided what actions she may take to attempt to force compliance with the subpoenas. 

“We are weighing our options for securing access to the routers and passwords and will make a thoughtful decision in due course after conferring with my staff, counsel, and colleagues. It is unfortunate the noncompliance by the County and Dominion continues to delay the results and breeds distrust,” Fann said in a press statement. 

Fann criticized the county for its “slow-walk” of the Senate’s request for information regarding a hack of publicly available voter registration data, which Liddy said would take more time than the five days the Senate president gave the supervisors to comply. 

Liddy wrote that Maricopa County Recorder Stephen Richer would comply with the Senate if it requested ballot envelopes and voter registration data from his office — the subpoena was only directed at the Board of Supervisors, which does not possess those materials — and Fann said she would “soon secure copies of ballot envelopes and critical voter registration information.”

It’s unclear where the Senate will store those envelopes. The audit team last week cleared out of the facilities at the old state fairgrounds near downtown Phoenix, where it had been counting and analyzing ballots since late April. The audit has finished its counts of the nearly 2.1 million ballots cast in Maricopa in the November election, and Fann’s team has begun working on its report. 

Liddy said Richer will not provide any requested materials until the Senate has a secure place to store them, and that he did not consider the Senate’s facilities at the state Capitol to be secure. The county already provided Fann with digital images of most ballot envelopes, though some, such as envelopes for large print, overseas and Braille ballots, haven’t been digitized.

GOP senators and other prominent Republicans demanded that the county and Dominion be brought to heel for refusing to comply with the subpoenas. 

“I would have arrested all of these people already if I had the power to do so. I vote to arrest. Arrest and put them in solitary,” Sen. Wendy Rogers, R-Flagstaff, wrote on Twitter, referring to Senate contempt resolution’s authorization to have the supervisors arrested. 

Rep. Leo Biasiucci, the House majority whip, tweeted, “The complete disrespect to the Arizona Senate and to the Arizona Voters is disturbing. It’s time people are held accountable for this continued obstruction.”

And Kelli Ward, chairwoman of the Arizona Republican Party, wrote that the county and Dominion “must be held accountable.”
***UPDATED: This story has been updated to include additional 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.”