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Judge reschedules arguments due to new subpoena in election audit fight

By: - January 13, 2021 5:14 pm

Ballots are pulled aside for a hand audit by Maricopa County Elections Department on Oct. 31, 2020. Early voting lasted from Oct. 7 through Oct. 30. Nearly 92% of the county’s voters in the 2020 general election cast early ballots. Photo by Courtney Pedroza | Getty Images

The new legislative subpoena isn’t the same as the old subpoena, at least in terms of deciding whether the Arizona Senate can demand ballots, registration records, voting machines and other materials from the 2020 election, a Maricopa County judge said Wednesday.

Superior Court Judge Timothy Thomason scheduled a new hearing for Jan. 20, though he said he hoped that the Senate and the county could resolve the issue outside the courtroom.

Senate President Karen Fann and Sen. Warren Petersen, who chairs the Senate Judiciary Committee, issued a new subpoena on Tuesday to the Maricopa County Board of Supervisors, as well as newly elected county Treasurer John Allen and county Recorder Stephen Richer. The subpoena was intended to negate an argument the county’s attorneys made in court: that previous subpoenas for election materials would become invalid when Eddie Farnsworth, Petersen’s predecessor as Judiciary Committee chairman, left office, which officially happened on Monday.

Thomason convened a hearing on Wednesday to hear arguments in the ongoing legal dispute over the subpoenas, which the county argues is overreach beyond the legislature’s authority. But the judge said the case needs to effectively restart because the old subpoenas are now moot.

The subpoenas are part of the ongoing fight over bogus election fraud claims that President Donald Trump and many of his supporters, including some members of the Arizona legislature, have repeatedly made since the president’s defeat in the general election. Fann and Farnsworth issued the subpoenas last month after a day-long judiciary committee hearing on the general election in Maricopa County, even though the hearing uncovered no evidence of found or other improprieties.

Attorney Kory Langhofer, who represents Fann and Petersen, said there was no need for more delay because the new subpoena is substantively identical to the old ones. And Fann, whose name is on every subpoena, is still Senate president.

“We don’t think it’s necessary to push this off. It will accomplish nothing but delay,” Langhofer said.

But Thomason said the county may have different arguments. He also noted that one of the Senate’s rationales for opposing the subpoenas was that the legislature wanted to present its findings to Congress in time for it to decide whether to refuse certification to Arizona’s electoral votes on Jan. 6.

“That ship has clearly sailed,” Thomason said.

Langhofer said there is still a timeliness issue, even without the Jan. 6 deadline. He said the findings of the forensic audit that the Judiciary Committee wants to conduct could help instruct election-related legislation. The deadline for new bills in the Senate is Feb. 1.

Steve Tully, an attorney for the county supervisors, agreed with Thomason, saying the new circumstances warranted a new hearing. Tom Liddy, another attorney representing the county, also noted that the addition of Allen and Richer brings new parties to the case.

Liddy also said that if the judge rules in favor of the Senate, the county will ask him to appoint a special master to oversee the election materials and help navigate issues such as how the county will handle the 2.1 million paper ballots that are currently under lock and key. Thomason was supportive of the idea.

The new subpoena sparked a war of words between the county and the Senate. Jack Sellers, the chairman of the Board of Supervisors, said in a press statement that he, Allen and Richer arrived at the Senate at 9 a.m., as the subpoena commanded, but it was clear that Fann and Petersen had no actual intention of meeting with them.

“We came in good faith, as we have in the past, to work with the Senate and move forward with an independent audit of the County’s election machines and processes. We were ready to have serious discussions, we did not see the same from the Senate,” Sellers said.

In response, Fann criticized the supervisors for their refusal to comply with the subpoenas, noting that Sellers did not bring the materials that she and Petersen requested when he came to the Senate on Wednesday morning. She also pointed out that Thomason said the desire to use the materials and a subsequent audit to determine whether election laws need to be changed is a “valid legislative purpose.”

“It is disheartening that the Board continues to thwart our attempt to gain access to vital information in order to further legally valid legislative purposes, confirming the results of the election and investigating whether we need to modify statutes regarding the voting process,” Fann said in a press statement.

Despite nine lawsuits and myriad other allegations, Trump and his allies have yet to produce any evidence of election fraud or misconduct in Maricopa County.

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Jeremy Duda
Jeremy Duda

Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. 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.”

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