Those who thought all the voter-integrity drama in Arizona was put to rest this week when Congress certified the U.S. Electoral College votes may be surprised to learn there is still one election lawsuit pending in a Maricopa County court.
Next Monday the Arizona Legislature will be back in session, and several legislators will have a chance to propose changes to Arizona’s election laws.
But what they won’t have on Monday is any of Maricopa County’s election records, data files, or voting machines demanded last month by the Senate Judiciary Committee of the state’s 54th Legislative session.
In fact, if a judge agrees with county officials that the Dec. 15 subpoenas signed by Senators Karen Fann and Eddie Farnsworth are not lawful it might be some time before Arizona legislators get to conduct any audit of Maricopa County’s election protocols.
“All the Parties agree that the Arizona Legislature and its Committees have power to issue subpoenas, and that lawful subpoenas must be obeyed,” according to a pleading filed Friday by attorneys for Maricopa County. “The Legislature’s authority to serve and enforce lawful subpoenas is not at issue in this litigation. What is at issue is whether two particular subpoenas, which the two Senators served on the County…are lawful. And because they are not lawful, the County has no obligation to comply with them.”
On Dec. 18, the Maricopa County Board of Supervisors authorized a lawsuit challenging the lawfulness of the subpoenas. Fann and Farnsworth filed their own lawsuit against the county soon after, but it was dismissed by a judge within days.
Which left the Maricopa County challenge as the only case pending. The senators filed a counterclaim within that case and asked Judge Timothy Thomason to declare the subpoenas lawful and to order county officials to comply immediately.
Thomason will hear arguments on the senators’ positions Jan. 13, but first he must rule on a motion filed Friday by Maricopa County’s BOS to dismiss Fann and Farnsworth’s counterclaim. The county’s basis for the dismissal is that what the Republican senators really want to do is obtain all of Maricopa County’s election records and equipment in order to conduct an election contest in violation of state law.
“The Subpoenas do not serve a valid legislative purpose, as required for lawful legislative subpoenas,” according to the county’s motion to dismiss. “Rather, the purpose for the Subpoenas—to conduct an audit of the November 3, 2020 election, in order to adjudicate a quasi-election contest and so overturn the election—is not a proper function of the Legislature, but rather unconstitutionally infringes the lawful authority of the Executive and Judicial Branches.”
County officials also contend the subpoenas themselves are deficient under the law, including an alleged lack of reasonable notice as Senators Fann and Farnsworth allowed the board of supervisors only three days for compliance, despite asking for dozens of items including all voting equipment, data, and 2.1 million ballots.
Another argument made by attorneys for Maricopa County in support of dismissal is that Fann, as Senate President, is only authorized to issue subpoenas “by order of the Senate.” But even if she was authorized, the subpoenas are unenforceable because they ask for production of items that the Legislature has passed laws to keep secret, the motion to dismiss argues.
“The Subpoenas demand the County to produce all ballots cast in the Election, and also give access to digital copies of at least some of those ballots,” the motion for dismissal states. “That, however, would be unlawful. The Constitution commands that ballots be kept secret, and provides that Arizonans have a constitutional right to a secret ballot. In furtherance of that constitutional guarantee, the Legislature has enacted laws protecting the secrecy of voted ballots.”
Attorneys for Fann and Farnsworth will be able to file a response with Thomason to the county’s motion before next week’s hearing. One issue they will have to address is whether the subpoenas and the senators’ counterclaim become moot on Jan. 11 when the 55th Legislative session begins.