Maricopa County, Senate reach agreement to end subpoena fight over routers

By: - September 17, 2021 9:34 pm

Bill Gates, vice chairman of the Maricopa County Board of Supervisors, discusses the details of an agreement that ends between the county and the Arizona Senate over a Senate subpoena for routers and digital logs. Photo by Jerod MacDonald-Evoy | Arizona Mirror

The Maricopa County Board of Supervisors reached an agreement with the Senate over subpoenas issued for routers and digital logs, heading off a fight in the Arizona Supreme Court that could have potentially cost the county hundreds of millions of dollars.

The agreement reached Friday will allow the county to keep its routers out of the hands of the Florida-based firm Cyber Ninjas, which Senate President Karen Fann hired to conduct an “audit” of the county’s 2020 election results, and instead appoints a special master to answer any questions the Senate has related to the routers and related data.

Both sides agreed to hire former Republican Congressman John Shadegg, who will hire between one and three computer technology experts to help him respond to the Senate’s questions. 

The Maricopa County Board of Supervisors also agreed to retract a claim made by the county against the Senate for $2.8 million to replace ballot tabulation machines it’s decommissioning because Fann’s subcontractors, who aren’t accredited to examine such voting equipment, accessed them. 

“Is it perfect? Probably not,” Board of Supervisors Chairman Jack Sellers said to the press about the agreement. “But it gets us a step in the right direction.” 

Fann and Senate Judiciary Committee Chairman Warren Petersen subpoenaed the county’s routers, splunk logs and a host of other materials in January for their review of the 2020 general election in Maricopa County. While the county provided nearly 2.1 million ballots, hundreds of ballot tabulation machines and other materials, they withheld the routers and Splunk logs. The supervisors have argued that taking the routers offline would be expensive, would hinder county operations and could jeopardize law enforcement operations and confidential information. 

The supervisors again refused to turn over the routers in August, after Fann and Petersen reissued their subpoenas. The audit team said it wanted the routers to determine whether the Elections Department’s tabulation machines were connected to the internet, though the machines themselves would contain any evidence of online connections. An audit the supervisors commissioned earlier in the year showed that the machines weren’t connected to the internet, and that they didn’t send or receive any digital information during the election.

The special master will have the sole authority to hire the team that will answer the Senate’s questions. The appointment of the special master and the agreement also means that the county has complied with the subpoena for passwords and security tokens, which the county did not possess to begin with as they were in the possession of Dominion Voting Systems, the vendor that provides the county’s voting machines.

The agreement also states that the special master’s scope of work will be limited to the routers and Splunk logs in relation to the November 3, 2020 general election and for the time period between October 7, 2020 to November 20, 2020. 

A Splunk log refers to a set of data created by software known as Splunk that creates logs of events and tasks that occur over a network in order to monitor security, troubleshoot issues or detect threats. 

The special master and his team will not have internet connectivity when conducting searches of the county computer systems, and no copies will be made of any information they observe or review during the course of their work. 

The county will also pay for any and all costs for employing the special master and his staff for their work. 

If the supervisors had chosen to continue defying the subpoena, that decision could have had a substantial financial cost to the county. 

Attorney General Mark Brnovich opined that the Board of Supervisors were violating state law by refusing to comply with the subpoenas. He issued the opinion under a 2016 law, Senate Bill 1487, which permits any member of the legislature to seek a ruling from the attorney general on whether an action by a city or town violates state law or the Arizona Constitution. Sen. Sonny Borrelli, R-Lake Havasu City, filed a complaint against the supervisors in August after they announced that they wouldn’t comply with the latest Senate subpoena. 

The supervisors could have appealed Brnovich’s conclusion to the Arizona Supreme Court. If the Supreme Court sided with Brnovich and the county still refused to comply, it would have lost an estimated $676 million in shared tax revenue from the state, which would account for about 42% of the county’s budget for the current fiscal year. During the last fiscal year, the county received more than $700 million in shared revenue. 

Simply to appeal, the county would have had to post a bond equal to the past six months’ worth of shared revenue payments from the state, which the county estimates could be about $350 million. If the court ruled in the county’s favor, or if it agreed with Brnovich and the county subsequently complied with the subpoena, it would have gotten the money back. 

Maricopa County Sheriff Paul Penzone railed against the agreement saying it did not “represent a healthy outcome.” 

“The failed leadership and agenda based politics have not promoted transparency, they have only deteriorated the democratic process,” Penzone said in a statement. “It sets a precedent that will cause us to pay dearly due to political agendas and a lack of courage and conviction by a few.” 

Penzone had threatened to go to court if the supervisors agreed to hand over the routers. Under the agreement, Shadegg and his team will not disclose any non-public information related to the Maricopa County Sheriff’s Office, other law enforcement agencies or the Maricopa County Superior Court.

However, this agreement does not apply to any possible future subpoenas the Senate could issue, according to Supervisor Bill Gates. 

The Board of Supervisors has clashed repeatedly with the Senate over the past 10 months over the self-styled audit, battling Fann in court over the subpoenas and repeatedly criticizing the election review as unnecessary, prompted by conspiracy theories and conducted by unqualified, biased individuals. 

“We aren’t dealing with rational people here, we really aren’t,” Supervisor Steve Gallardo, the lone Democrat on the board, said before the vote on the agreement. “We are dealing with bullies.” 

Gallardo was the sole vote against the agreement, saying that the board will be back in the same place down the road. 

“I think that is a misguided policy,” Gallardo said. “We’re not turning over the routers today, but that doesn’t mean there will not be another chance at the apple.”

Audit team leader Doug Logan, the CEO Cyber Ninjas, will present his long-delayed report from his election review to the Senate on Sept. 24. 

“We are certainly not giving up our right to take action when the audit report is released next week,” Sellers said before voting yes on the agreement Friday. 

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Jerod MacDonald-Evoy
Jerod MacDonald-Evoy

Reporter Jerod MacDonald-Evoy joins the Arizona Mirror from the Arizona Republic, where he spent 4 years covering everything from dark money in politics to Catholic priest sexual abuse scandals. Jerod has also won awards for his documentary films which have covered issues such as religious tolerance and surveillance technology used by police. He brings strong watchdog sensibilities and creative storytelling skills to the Arizona Mirror.

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