Legislative Subpoenas Rejected By Maricopa County Officials

COURT IS ASKED TO CLARIFY AUTHORITY

A dispute about whether Maricopa County’s election process was flawed, and if so, who should undertake a detailed audit of the system moved to the courthouse Friday.

The county’s Republican-controlled Board of Supervisors and its Republican county attorney are in a standoff with several Republican state senators over two subpoenas issued Tuesday which demand county officials make available nearly every voter record, ballot, and voting equipment connected to the 2020 General Election.

The subpoenas were signed by Senate President Karen Fann and Sen. Eddie Farnsworth, who chairs the Senate Judiciary Committee. They gave the Maricopa County board until 5 p.m. Friday to comply, but the demand was met instead with a lawsuit naming Fann, Farnsworth, and six other members of the Senate Judiciary Committee as defendants.

“The Board believes the scope of the subpoenas presents multiple legal concerns that necessitate a court ruling,” according to county statement.

The complaint notes initiating legal proceedings now prevents a contempt allegation against Maricopa County that would normally result in rushed court action.

“Rather than wait for the possibility of the Senate holding the County in contempt and then on an emergency basis asking the Court to rule on the legality of the subpoenas and any contempt order, the County is asking the Court for a declaration that the subpoenas are unlawful and to quash them,” the complaint states.

In a letter notifying Fann and Farnsworth of the legal action, Attorney Stephen Tully of Hinshaw & Culbertson noted there are “many areas of disagreement with respect to these subpoenas,” which Tully characterized as “extraordinarily broad and improper.”

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Among the information county officials contend would have to be turned over to the senate committee is “personally identifying information for every registered voter in Maricopa County” including addresses and dates of birth.

Concerns have been raised not only with the legitimacy of the legislative subpoenas, but also whether honoring the demand would violate state law. Other concerns have been brought up about protecting the integrity and security of the ballots and the county’s election servers and databases.

“It seeks all election log files, all usernames and passwords, all encryption passwords and all security tokens,” the lawsuit states. “It requests a data base of the voter rolls. And it requests much more. Essentially it requests full access to the entire voting system.”

Maricopa County’s decision to have a judge sort out the dispute will undoubtedly lead to questions of whether the legislative subpoenas violate the separation of powers provision of the Arizona Constitution, and then whether the subpoenas were legitimately issued.

“A legislative subpoena is proper only if it, first, is authorized by ordinance or similar enactment, second, serves a valid legislative purpose, and third, the witnesses or material subpoenaed are pertinent to the subject matter of the investigation,” the lawsuit contends.

The subpoenas were issued hours after several Maricopa County officials voluntarily appeared at a Senate Judiciary Committee meeting.  Although Sen. Michele Ugenti-Rita took part in that meeting, she is not an official member of the committee and thus is not named as a defendant in the lawsuit.

“Not complying to the subpoena is a slap in the face to the voters of Maricopa County,” she tweeted. Meanwhile, Leo Biasicci (LD5) tweeted that Maricopa County’s supervisors “literally just told every voter who wants transparency, you don’t matter.”

The Maricopa County board voted 4-1 to support the lawsuit. The lone dissenter, Steve Chucri, explained he voted against initiating the civil complaint not because he disagreed with the action -as some have reported- but because he believed it should have included assurance that “an independent certified election auditor is available” to start preparation for an audit.

“I will not be supporting this measure today because of those issues, and primarily because I think it should be coupled…with an audit,” Chucri said during the vote.

Another alleged deficiency noted in the county’s lawsuit is the fact that a county recorder is invested with specific duties under the Arizona Constitution in addition to other statutory duties. Many of those duties involve elections, but neither Maricopa County Recorder Adrian Fontes nor his offices were named in the subpoenas.

Nor was Maricopa County Treasurer Royce Flora, another Republican, who by law takes possession of the ballots and any images of ballots after an election.

Secretary of State Katie Hobbs, a Democrat, also supported Maricopa County’s effort to have a judge address what she called a “drastic overreach of authority by the Legislature” and “an alarming abuse of power” that needed to be challenged.

“The Maricopa County Board of Supervisors is right to question the constitutionality of the legislative committee’s recent subpoena” Hobbs said Friday. “The implications of the precedent it would set are dangerous.”

Friday night the Arizona Republican Party issued a statement reacting to Maricopa County’s effort to quash the legislative subpoenas. “That can only mean one thing—we’re over the target, patriots,” the statement reads.