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Judge rules Senate GOP subpoena of 2.1 million ballots is valid, enforceable

By Ben Giles
Published: Friday, February 26, 2021 - 11:35am
Updated: Wednesday, February 9, 2022 - 3:40pm

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A judge ruled that Arizona Senate Republicans can have access to 2.1 million ballots cast in Maricopa County during the 2020 general election.

The ruling by Maricopa County Superior Court Judge Timothy Thomanson sides with the senators, who claimed they have legislative authority to issue subpoenas for ballots and other voting records that the county Board of Supervisors had refused to hand over.

Attorneys for Maricopa County argued the Senate’s multiple subpoenas weren’t issued for a valid purpose and conflicted with state laws protecting the confidentiality of ballots. Attorneys argued that Senate President Karen Fann (R-Prescott) was trying to “perform a private recount” of the 2020 presidential election and cited her own comments as evidence that a recount, not an audit, was the true purpose of the subpoenas.

Thomanson avoided weighing in on Senate Republicans’ motivations, though he lamented that county supervisors and senators had not worked together to find a compromise, and instead had fallen into a political dispute ripe with “name calling” and “threats.”

That feud came to a head with a Senate vote on a resolution to hold the supervisors in contempt — a resolution that came with a threat to arrest the supervisors and prosecute them for failing to comply with the subpoena. The resolution failed to pass by one vote.

“This Court is not in a position to determine if the ‘real’ purpose of the subpoenas is to try to ‘overturn’ the result of the election,” the judge wrote. “Even if one of the original purposes of the 2020 subpoenas was to see if the election could somehow be challenged, there still is a perfectly valid legislative purpose for the subpoenas”

Thomanson cited Senate Republicans’ stated purpose — using data from an audit to evaluate the accuracy and efficacy of Maricopa County’s vote-counting process, with an eye towards changing laws to improve the election system — as that “valid legislative purpose.”

The judge also dismissed concerns that handing over the ballots would violate a state law requiring county officials to keep them under seal following the election. 

That statute doesn’t immunize the ballots from subpoena as county attorneys claimed, Thomanson wrote.

“Confidentiality statutes do not prevent ballots and associated materials from being provided to government officials. Rather, these statutes are intended to prevent disclosure of information to the public,” he wrote. “All government officials are obligated to follow the law and comply with confidentiality statutes. This, of course, includes the Senators.”

While Thomanson’s ruling makes it clear the subpoenas were valid and enforceable, the judge also stated he won’t be the one doing the enforcing.

“This Court has serious concerns about whether it has jurisdiction to enforce the subpoenas and the senators have not asked the Court to issue an order enforcing the subpoenas,” Thomanson wrote.

Sen. Warren Petersen (R-Gilbert) tweeted that the judge’s order should settle the matter and result in the county handing over voting records.

“County said they needed a court order to comply with the subpoena. They got it,” Petersen wrote. “If they appeal the ruling they show the world they are pathological liars.”

However, it appears the county won’t put up a fight anymore.

Supervisors have repeatedly stated they would comply with the subpoena’s demand for ballots under court order. After meeting with county attorneys, Chairman Jack Sellers announced the supervisors would keep their word. In a statement, Sellers said the ruling “brings clarity” on the application of a state law meant to keep ballots private following the election.

“We respect his legal opinion and will immediately start working to provide the Arizona Senate with the ballots and other materials,” Sellers said.

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