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Judge isn't ordering election materials turned over to Arizona senators, at least for now
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Judge isn't ordering election materials turned over to Arizona senators, at least for now

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Jack Sellers, left, chairman of the Maricopa County Board of Supervisors, and Deputy Maricopa County Attorney Tom Liddy showed up at the state Senate on Wednesday in response to a new subpoena demanding a trove of election documents. They brought none of the materials with them.

PHOENIX — A judge declined Wednesday to order Maricopa County to give state senators the trove of election materials they’re demanding, saying he’s not convinced he has the authority to do so.

Maricopa County Superior Court Judge Timothy Thomason said it appears the original subpoenas issued by Senate President Karen Fann and then-Sen. Eddie Farnsworth are probably moot.

That’s because they were issued in December as part of the 54th legislative session, which technically ceased to exist on Monday, Jan. 11.

In fact, Farnsworth is no longer a state senator.

But Fann and Sen. Warren Petersen, who succeeded Farnsworth as chair of the Judiciary Committee in the new 55th legislative session, issued a new subpoena on Tuesday afternoon. It demands not just the same documents from Maricopa County but more, including access to “all original paper ballots.” It also seeks access to the county’s voting equipment and software.

Jack Sellers, the new chairman of the Maricopa County Board of Supervisors, did show up Wednesday at 9 a.m. at the state Senate, as the new subpoena ordered. So did newly elected County Recorder Stephen Richer and new County Treasurer John Allen.

But they brought none of the materials with them.

Thomason said that new subpoena likely requires the county to file new legal briefs. He set a hearing for Wednesday, Jan. 20, to consider the matter, saying he hopes the two sides can work things out.

The big problem for the Senate could be convincing the judge he has the authority to, and should, order the county to comply.

“If timing is an issue, why can’t the senators simply enforce their own subpoenas?” Thomason asked. “They have the statutory power to do that.”

“They can,” conceded attorney Kory Langhofer, who is representing the Senate. “And I will tell you, there’s a real possibility of that.”

That, however, raises different legal and practical issues.

State law empowers either the House or Senate to hold someone in contempt. But that requires a vote of the full chamber, meaning it would take all 16 Republican senators to go along if Democrats refuse to support the move.

If the Republicans can get a contempt vote, the law allows the Senate president to send out the sergeant-at-arms to physically arrest the person who has refused to comply. Disobeying a subpoena is a crime.

But even that still wouldn’t guarantee the Senate would get what it wants. That’s why the senators want the judge to order the county to comply.

Thomason, however, notes that Langhofer is relying on a section of Arizona law that allows a public officer “authorized by law” to issue subpoenas and demand production of evidence. The same law allows the official to then ask a judge to intercede to compel compliance.

The judge said he’s not necessarily convinced that applies to legislative subpoenas or that he has the power to enforce them.

Legal authority aside, attorney Steve Tully, who represents the Maricopa County supervisors, told Thomason they still believe there is no “valid legislative purpose” behind the subpoenas and the Senate inquiry.

Langhofer acknowledged that one reason for the two original subpoenas was to audit the equipment to send information to Congress ahead of its Jan. 6 vote on whether to certify the results from Arizona that President-elect Joe Biden won the state’s 11 electoral votes.

“That’s water under the bridge,” he said, given that Congress did accept the Arizona results and Biden will be sworn in this coming Wednesday.

But Langhofer said that’s not the end of the discussion for the GOP senators.

“Always, separate from that, was an independent reason of performing their oversight function to see how elections in the state were run and whether additional legislation is necessary,” he told Thomason.

Langhofer said lawmakers want to see what happened to determine if there are changes needed in state election laws, which is strictly the purview of the Legislature. For example, he said lawmakers want to know if there were tabulation errors, unlawful ballots cast or security vulnerabilities in voting devices.

Tully, however, said the Legislature tipped its hand when it admitted it wanted the materials and access to the equipment to see if it could affect the outcome of the 2020 vote.

“He issued those subpoenas to audit the election,” he said of Farnsworth. “And that is not a legal power that is granted to the chairman.”

There are other legal questions, as well.

Deputy Maricopa County Attorney Tom Liddy said one deals with the security of the 2.1 million original paper ballots. He told the judge they can’t simply be turned over to senators as there are legal constraints on who has access to them.

There also is the issue of who would conduct an examination of the voting equipment.

The new subpoena, served on the supervisors, the county recorder and the county treasurer at 4:10 p.m. Tuesday, “commanded” that they appear at the Senate by 9 a.m. Wednesday and provide the materials sought as well as provide testimony to the Judiciary Committee.

The 9 a.m. deadline also was the time the hearing before Thomason began two miles away.

“That’s bush league,” said Liddy.

Also, there was no meeting of the committee on Wednesday.

“Either they don’t know what they’re doing or somebody’s playing games,” said Liddy. But he said the officials showed up because “we respect the power of the Senate.”

What resulted, Liddy said, was a brief meeting with Senate staffers, and no questions.

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