Arizona Republicans File Amicus Brief In Libertarians’ Fight For Access To Maricopa County Audit

audit
{Photo via Maricopa County social media]

The Arizona Republican Party has filed an amicus brief in the case brought by the Libertarian Party against Maricopa County officials due to their denial of access to the current cursory audit of ballot tabulation equipment.

“… blocking political parties from exercising their statutory rights to conduct oversight on behalf of their members aggravates the atmosphere of distrust that the County has fostered over the past year through their own misconduct and lack of transparency.” ~ AZGOP amicus brief

Unlike the audit sought by the Arizona State Senate, the audit currently underway by Maricopa County involves only the voting and tabulating equipment. As a result, it is expected to find none of the issues raised during the 2020 election cycle, but it should not alter evidence from that cycle.

While members of the Board of Supervisors claim that their audit will not interfere with the audit sought by the Senate, the AZGOP contends that “what little Republican activists have been able to observe from the livestream of the audit gives cause for concern, with reports of data appearing to be imported and exported to and from the tabulation machines.”

In their brief, the Republican Party refers to the audit sought by the Senate and explains that the filing in the matter is intended “to voice both concern over the County’s refusal to comply with the laws governing this oversight function and support for the Libertarian Party’s request for relief.”

“Republicans and Libertarians are rivals in the field of electoral politics but stand united in their belief that government transparency is essential to a functioning society. Like the Libertarian Party, we believe that political parties have an important role to play when it comes to overseeing those who administer our elections,” writes Alex Kolodin, attorney for the Arizona Republican Party.

A Team Of Rivals

As previously reported by the Arizona Daily Independent, the Maricopa County Libertarian Party filed an election complaint on Tuesday, February 9, alleging its party representative has been illegally prohibited from observing the audit approved by the county’s Board of Supervisors (BOS). The lawsuit seeks a court order for all three recognized political parties in Maricopa County to be immediately allowed access to the audit. [RELATED ARTICLE: Libertarian Party Hits Maricopa County With Lawsuit For Denying Access To Audits] 

A show-cause hearing is scheduled for Feb. 17 in Maricopa County Superior Court.

Although Arizona law provides for the oversight function, Maricopa County officials denied access to both the Libertarian and Republican parties claiming “limited space, COVID-19, and to avoid disruptions to the audit process.” Statute does not recognize the League of Women Voters yet members of that organization and Deputy Registrars are welcome.

“The County’s audits are taking place at Maricopa County’s “counting center” (“MCTEC”). The law could not be more clear: “All proceedings” at the counting center “shall” be conducted under the observation of representatives of each political party. A.R.S. § 16-621(A).

While “up to three additional people” representing other groups or candidates may be selected by lottery to “have representatives participate in the observation at the counting center[,]” “each” political party is entitled to send its own representatives. Id; see also Elections Procedures Manual (“EPM”) Ch. 8(III) (“Political party representatives are permitted to observe at voting locations and central counting places[.]”).”

Kolodin argues that party oversight would go a long way to restore a modicum of trust.

“While elected officials may be expected to be primarily concerned with the outcome of their own elections and those of their allies, political parties are more generally concerned with protecting the voting rights of their members. Because political parties are partisan organizations governed by their most dedicated, grassroots, members, their respective partisans have confidence that their party is “on their side” and will make use of their privileges, resources, and expertise to guard and advocate for the interests of their members. Just as our court system gains a reputation for fairness among all litigants from the participation of attorneys who serve as advocates in an adversarial process, so too does political party participation in the elections process have the potential to foster increased confidence in that system. Conversely, blocking political parties from exercising their statutory rights to conduct oversight on behalf of their members aggravates the atmosphere of distrust that the County has fostered over the past year through their own misconduct and lack of transparency.”

Justified Distrust

Kolodin notes that the County’s “recent conduct with respect to elections has certainly been sufficient to justify public concern justifying scrupulous adherence to the laws governing third party oversight.”

Kolodin cites the fact that the Arizona Supreme Court “had to step in to prevent Maricopa County from conducting its general election in an illegal and unconstitutional manner. In that instance, the Court found Kolodin had shown that the Recorder had “acted unlawfully and exceeded his constitutional and statutory authority…”

In another case the Arizona Attorney General brought against then County Recorder Adrian Fontes, Fontes “illegally printed thousands of extra early ballots and had to be restrained from unlawfully mailing them to registered voters who had not requested one.”

In yet another case brought by Kolodin, a Maricopa County Superior Court judge found that “there was credible testimony that [witnesses] saw errors in which the duplicated ballot did not accurately reflect the voter’s apparent intent as reflected on the original ballot.” In other words, in some cases the candidate selected by county-trained and approved officials on duplicated ballots were not the candidates the voters chose.

Senate Shutdown

Attorneys for the AZGOP cite the ongoing battle between the County and the Arizona State Senate as evidence of the County’s recalcitrance and willingness to politicize the matter while shutting out the parties and other politicians.
In that case, Maricopa County officials continue to rack up legal fees fighting a subpoena authorized by the Senate Judiciary Committee. They continue to resist transparency despite the fact that a Maricopa County judge told the Senate to exercise its legal authority over the County and serve its officials with subpoenas for all of the equipment and ballots involved in the 2020 election cycle.

Perhaps the County’s most concerning behavior is its conduct concerning the instant audits.

On December 15, 2020, the Arizona State Senate (“Senate”) issued a subpoena to Maricopa County for various election-related documents, documents, and equipment so that the Senate could conduct an audit of the 2020 election. Thereafter, the County having refused to produce any of the subpoenaed documents, the Senate brought an action in Superior Court to enforce its subpoena.

Nearly simultaneously, the County brought an action to quash the Senate’s subpoena, claiming that the Senate lacked the legal authority to issue the subpoena. Oddly enough for a party that had just availed itself of the Court’s jurisdiction over the matter by filing its own action, the County defended against the Senate’s action by claiming that the Court lacked jurisdiction. In addition, the County claimed that the Senate was not entitled to the items sought in the subpoena even though it had just defended against a prior action by Republican Party officials seeking production of many of the same items by claiming the County had to have those materials available to produce to the Legislature.

The Senate’s case was subsequently dismissed and refiled in slightly modified form as a counterclaim in a consolidated action. The Attorney General’s office then filed an amicus brief arguing that the subpoena should be enforced. Subsequently, the Court ruled that that the issue was moot as a new legislative session had begun and the original subpoena had been issued by the previous legislature – it noted that a new subpoena had been issued by the current legislature and that the parties owed it to the people of Arizona to attempt to work the matter out before coming back to Court over the new subpoena. Thereafter, the parties appeared to be on the path to reach a resolution, with the County expressly acknowledging in a press release that its authority was derived from the Legislature and that the Legislature had the power to issue the subpoena.

Any glimmer of cooperation ended when the County “learned that one of the auditors the Senate was considering using employed a subcontractor that the County did not like (because it viewed the subcontractor as too favorable to Republicans), the County ceased negotiations with the Senate and began the instant audit, the first of two it plans to conduct, using its own preferred auditors,” according to the brief.

The Standoff

The matter was complicated last week, when after promising Sen. President Karen Fann that he would vote to approve a resolution to serve the supervisors with the subpoena, Sen. Paul Boyer, reneged and voted with the democrats to block it. Boyer claimed he was voting against the members of his party because his friendship with certain supervisors was more important than justice for the public.

As it stands, the County and the Senate are in a standoff. As noted in the brief, the County “then shifted positions once again and availed itself of the Court’s jurisdiction, filing a new complaint asking the Court to prevent the Senate from holding it in contempt.”

When the standoff will end is anybody’s guess, however it will likely end in the courts. As for the court of public opinion, recall petitions are being circulated against Boyer, and Supervisors Bill Gates, Clint Hickman, Jack Sellers, and Steve Chucri.

[READ BRIEF HERE]

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