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Maricopa County: defying subpoena not illegal without Senate contempt resolution

By: - August 18, 2021 4:58 pm
Arizona audit laptop

Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona Senate in an audit at the Veterans Memorial Coliseum in Phoenix on May 24, 2021. Photo by David Wallace | Arizona Republic/pool photo

The Maricopa County Board of Supervisors is arguing that its refusal to comply with the Arizona Senate’s demand for routers used by the county’s elections department essentially isn’t illegal because the Senate lacks the ability to enforce its subpoena while it’s not in session.

In the county’s response to a complaint that Sen. Sonny Borrelli, R-Lake Havasu City, filed with the Attorney General’s Office, an attorney representing the supervisors emphasized that the Senate’s only recourse in enforcing the latest subpoena from Senate President Karen Fann and Senate Judiciary Committee Chairman Warren Petersen is to pass a resolution finding the supervisors in contempt. 

But the Senate must be in session to introduce and pass a contempt resolution, and Fann didn’t even issue the subpoena until 26 days after the 2021 legislative session adjourned, attorney Edward Novak wrote. And the penalty the Senate can impose for contempt is to arrest the people defying the subpoena and imprison them until the end of the legislative session, which occurred on June 30.

Since the Senate hasn’t passed a contempt resolution, and currently lacks the ability to do so, Novak told the Attorney General’s Office that actions taken by the board in relation to the subpoena can’t violate state law, since the Senate’s authority to hold the county in contempt ended when the legislative session adjourned.

Novak also noted that a Maricopa County Superior Court judge who settled a previous subpoena dispute has already cast doubt on whether the court actually has the authority to enforce such legislative subpoenas.

Borrelli rejected the county’s argument.

“The Legislature’s investigative authority does not end at sine die,” Borrelli said, referring to the final adjournment of a legislative session.

Borrelli filed the complaint under a law allowing any legislator to ask the attorney general to investigate whether a policy, ordinance, regulation or other official action by a city or county violates state law. The law was enacted in 2016 to punish cities that enact policies that contravene state law, such as regulations on firearms or bans on plastic bags.

The Attorney General’s Office now has until Sept. 2 to determine whether the county did, in fact, break the law. If the office sides with Borrelli, the case will go directly to the Arizona Supreme Court, and if the high court takes the same position, the county will have to either comply with the subpoena or risk losing all of the shared income tax revenue it receives from the state. According to the county, that would be a fiscal hit of nearly $700 million.

Fann and Petersen subpoenaed the routers — their second such request — so they can be turned over to the contractors running the self-styled audit they ordered of the 2020 general election in Maricopa County. Though two audits commissioned by the county earlier this year concluded that ballot tabulation machines used in the election were never connected to the internet, and despite the fact that Fann’s audit team has also examined those machines, they want to inspect the routers to determine whether they were connected to the machines. 

Many conspiracy theories alleging widespread fraud caused Donald Trump to lose the 2020 election center on voting machines being connected to the internet. In Maricopa County, those machines are “air-gapped,” meaning they are networked together on a system that does not connect to the actual internet.

When the supervisors announced they wouldn’t comply with the July subpoena, they didn’t necessarily dispute that the Senate has the authority to demand the routers. Instead, they reiterated their arguments that handing over the routers would be costly and disruptive to county operations, and would potentially jeopardize sensitive information. 

Novak cited those arguments in his letter to the Attorney General’s Office on Wednesday, noting that the county has provided other material and data “which sufficiently enables the Senate’s auditor to determine whether the tabulation equipment connected to the internet at any point during the election.”

Fann’s election review team has concluded its work and will submit its draft report to the Senate by Friday. A spokesman said the team could write an addendum to that report if it receives the routers or other materials requested in the subpoenas Fann issued last month to the county and to Dominion Voting Systems, the vendor that provides the tabulation machines.

Even if the Senate were in session, it wouldn’t have the ability to pass a contempt resolution against the county. A resolution to hold the supervisors in contempt — which would have authorized Fann to have them arrested — failed on a 15-15 tie in February after Sen. Paul Boyer, R-Glendale, broke with his GOP colleagues. Boyer’s opposition to the audit has grown since then, and last month a second Republican senator, Michelle Ugenti-Rita, has also become a fierce critic of the election review.

***CORRECTION: An earlier version of this story incorrectly said the county could lose 10% of tax revenue shared by the state, totaling about $70 million. In fact, the county faces losing all of its shared revenue, estimated at nearly $700 million in the current fiscal year.

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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.”