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Maricopa County Board Challenges Senate To Enforce Its Latest Election Subpoena, If They Can

Published: Monday, August 2, 2021 - 5:34pm
Updated: Tuesday, August 3, 2021 - 11:33am
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The Maricopa County Board of Supervisors rejected the latest subpoena of election-related materials made by two top Arizona state senators, in part because the Republicans in charge of the Senate don’t have enough votes to enforce the subpoena anyway.

Senate President Karen Fann and Judiciary Chairman Warren Petersen issued the latest demand for records — the third subpoena of Maricopa County since the November 2020 election — one week ago, on July 26. 

Supervisor Bill Gates, a Republican, criticized the latest subpoena as “political theater” designed to distract the public from the problems plaguing the Senate’s audit, from mismatched counts of the number of ballots cast in Maricopa County to the near-resignation of the Senate’s designated liaison to the audit.

“Certainly their focus is not on giving people confidence, giving the voters of Maricopa County and the state of Arizona confidence in their electoral system,” Gates told reporters Monday afternoon. “So it seems to again, be about scoring political points, and driving the conspiracy theories held by many of the members, unfortunately, of the state Senate.”

There’s also the political reality that a majority of state senators don’t support the audit.

Most Senate Republicans back the effort by Fann and Petersen to review the election. But at least two GOP senators have spoken out against the audit, and none of the chamber’s 14 Democrats have ever backed it.

There’s also the logistics of holding Maricopa County in contempt for ignoring the subpoena — lawmakers must be in session to vote on a contempt resolution, which carries the threat of arresting and jailing the five county supervisors. But lawmakers adjourned their legislative session in June, and likely won’t return to the Capitol until January.

Even if they could organize a vote, given the overall lack of support for the audit, it’d likely fail, as did a similar vote in February.

“So they don't have the votes to hold us in contempt. And secondly, they're not even in session. They have to be in session to vote,” Gates said.

In a point-by-point response, attorneys for the county wrote they would not immediately comply with any of the senators’ demands, though they are treating some as public records requests. That includes an ask for physical copies of all early ballot envelopes returned during the general election. The county already provided digital images of those envelopes to the Senate contractors conducting the audit.

Other records will be provided by the Maricopa County Recorder’s office, which maintains the county’s voter registration database. Recorder Stephen Richer confirmed his office will work to fulfill that request, and county officials noted they’ve already provided registration files to the Senate in January and April.

In a statement, Fann, R-Prescott, described those developments as “progress, and the final audit report will be better because of it.”

Other demands made on July 26 simply repeated demands of previous subpoenas, such as administrator level access to the county’s ballot tabulation devices. County attorneys once again explained they’ve already provided “every responsive record in [the county’s] custody and control.”

As for the Maricopa County’s routers and digital logs — long demanded by the senators who believe they’ll show evidence county voting equipment and systems were susceptible to cyber attacks — county attorneys again refused the Senate’s demands. The county’s election system is “air-gapped,” meaning it’s permanently disconnected from the internet, and multiple audits performed by certified election experts have already confirmed the machines weren’t ever connected to the web..

“We have responded to every item that we can legally, legitimately respond to,” said Board Chairman Jack Sellers.

The Senate issued a similar subpoena, as well as a public records request, to Dominion. In letters to the Senate’s private attorney, Dominion executives and attorneys ignored both requests. Since Dominion is a private company, not a public body, it’s under no obligation to comply with a public records request, and Dominion attorneys argued the Senate’s subpoena of the company is “illegal and unenforceable.”

The county and Dominion’s responses leaves the future of the audit in doubt. 

Contractors led by Cyber Ninjas, a cybersecurity firm with no previous election-related experience, vacated the Arizona State Fairgrounds, the site where much of the election review has taken place since late April. Nearly 2.1 million ballots from the 2020 general election have been returned to Maricopa County officials, as have the hundreds of remaining voting machines. 

Fann said she and Petersen were weighing their options to obtain the county’s routers and Dominion passwords, and accused both county and company officials of delaying the election review’s results and sowing distrust.

“We remain committed to ensuring election integrity as voter confidence is at the heart of what we set out to achieve in this endeavor,” Fann said in a statement. “Our constituents deserve no less.”

Meanwhile, another GOP senator was tweeting threats to arrest the supervisors and Dominion executives and place them in solitary confinement.

A spokesman for the audit said it could take weeks for Cyber Ninjas to issue a report on its findings to the state Senate, but the latest subpoena — as well as a recommendation by Cyber Ninjas CEO Doug Logan for a door-to-door canvassing effort to ask county residents about their votes — leaves open the possibility that Senate’s election review is far from over.

In a statement, Sellers repeated a challenge to Fann and Petersen, while lamenting that they may never believe the election was “free, fair and accurate.”

“Release your report and be prepared to defend any accusations of misdeeds in court,” Sellers stated. “It’s time to move on.”

For more on the board's response to state Senate subpoenas, Supervisor Gates joined The Show. The Show also spoke with Howard Fischer from Capitol Media Services.

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