Borrelli wants AG to take action against supervisors over subpoena defiance

State Sen. Sonny Borrelli is asking the attorney general to punish the Maricopa County Board of Supervisors for refusing to comply with a recent subpoena related to the Senate’s ongoing “audit” of the 2020 general election. 

Borrelli, a Republican from Lake Havasu City, filed a complaint with the Attorney General’s Office under a 2016 law known as SB1487, which allows any lawmaker to ask the attorney general to investigate a city or county for adopting policies that violate state law. If the attorney general finds that the city or county did violate the law, they must either change the disputed policy or forfeit the shared tax revenue they receive from the state.

The complaint that Borrelli filed on Tuesday argues that the supervisors violated state law in defying Senate President Karen Fann’s subpoena demanding routers and related digital logs used by the county elections department. A judge ruled in February that the Senate’s subpoena extended to ballots, tabulation machines and other election materials that Fann demanded — but he didn’t order the county to comply, leaving enforcement to the Senate. Under state law, refusal to comply with legislative subpoenas is a class two misdemeanor. 

“The supervisors are acting as if they are above the law, and it is an insult to the citizens of our state,” Borrelli said in a press release. “President Fann has handled this process professionally and she has tried to be diplomatic while dealing with the attacks and insults from the Board. Enough is enough! The level of disrespect and contempt from the supervisors toward Senate leadership and Arizona voters is appalling.”

Through a spokesman, the Board of Supervisors declined to comment. 

The Attorney General’s Office has 30 days to issue a finding about whether the county violated state law. If the office concludes that the supervisors may have broken state law, the case goes directly to the Arizona Supreme Court. 

Borrelli’s complaint is a novel use of SB1487 and it’s unclear whether the law would apply to such a situation. GOP lawmakers and Gov. Doug Ducey passed the law to punish cities that enacted ordinances or policies that contradicted state law, such as Bisbee’s attempt to ban plastic bags or Tucson’s move to destroy firearms confiscated by police. 

But the text of the law doesn’t limit SB1487 to policies and ordinances. It authorizes the attorney general to investigate “any ordinance, regulation, order or other official action” taken by the governing body of a city or town. 

The supervisors have argued that it would be irresponsible to hand over the routers because they contain sensitive information, would hamper the operations of not just the elections department but other county agencies that use them, such as the sheriff’s office, and that it would cost millions of dollars to replace them. However, the county’s response to Fann on Monday didn’t provide a legal rationale for rejecting the subpoena. 

Supervisor Bill Gates, the board’s vice chairman, didn’t question Fann’s legal authority to demand the routers, focusing instead on her perceived inability to enforce the subpoena. The only enforcement mechanism in state law is for the Senate to hold the supervisor in contempt, and Fann lacks the votes to do so.

The case could be politically tricky for Attorney General Mark Brnovich, who is currently seeking the Republican nomination for next year’s U.S. Senate race. 

Numerous polls have shown strong support for the audit among Republican voters, the majority of whom believe baseless allegations that the 2020 election was rigged against former President Donald Trump. But the audit is largely unpopular among independents whose support Brnovich will need if he reaches the general election. Some Republicans are already unhappy with Brnovich for his previous statements that the election wasn’t affected by fraud, and Trump has publicly criticized him for failing to investigate or prosecute the alleged fraud.

Correction: A previous version of this story  misstated the amount of shared revenue cities, towns and counties could lose under Senate Bill 1487.