There is a saying in courthouses that a good resolution to a lawsuit is one in which all parties believe they won something even if it wasn’t what they wanted.
That is far from what happened Wednesday morning in Judge Timothy Thomason’s courtroom during a hearing on whether the Maricopa County’s Board of Supervisors must comply with two legislative subpoenas issued last month in connection to the 2020 General Election.
Two state senators did not get the court order they wanted from the judge who was asked to force Maricopa County’s board to turn over voting system records and equipment, as well as more than 2 million ballots cast by voters.
Maricopa County’s five supervisors didn’t get the dismissal order they wanted from Thomason, who is keeping the case open for at least a few more days so the senators can file a new motion that would replace the Dec. 15 subpoenas with two just issued Jan. 12.
And several leaders of the Arizona Republican Party got shot down on their request to intervene in the case on the chance the Republican-controlled Senate Judiciary Committee goes soft on the subpoena issue.
Even Thomason admitted he is in a bit of a quandary on how to proceed in a case that appears to be the first of its kind in Arizona jurisprudence, noting at one point that it may be necessary for him to appoint a special master to ensure the election-integrity audit the legislature wants to conduct is done so in a lawful manner.
On Dec. 18, the Maricopa County Board of Supervisors initiated the legal challenge to the two legislative subpoenas signed by Sen. Karen Fann and Sen. Eddie Farnsworth. The senators filed their own lawsuit against the county soon after, but it was dismissed by a judge within days. Fann and Farnsworth then filed a counterclaim within the Maricopa County case
Attorneys spent much of Wednesday’s hearing posturing over whether the legal challenge is moot given that the subpoenas were issued as part of the 54th legislative session. Farnsworth is now gone, replaced by Sen. Warren Petersen when the 55th session opened on Jan. 11.
The new session also prompted the replacement subpoenas, which Kory Langhofer, the senators’ attorney, says should be able to be slipped into the current legal proceeding. The parties were encouraged by Thomason to work out as many details of the new subpoenas themselves, noting it’s in the public interest to have the matter resolved without litigation if possible.
Another hearing is scheduled for Jan. 20. One issue the judge will likely address then is whether he even has the authority to get involved in the dispute, given that Arizona law empowers the legislative to enforce their own subpoenas under threat of criminal prosecution.
Therefore, Thomason stated it is unclear whether he should -or could- get involved.