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Maricopa County supervisors sue rather than comply with senator's subpoenas for election materials
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Maricopa County supervisors sue rather than comply with senator's subpoenas for election materials

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PHOENIX — Maricopa County supervisors voted Friday to not comply with subpoenas for election materials issued by the chairman of the state Senate Judiciary Committee.

The subpoenas demanded access to copies of the more than 2 million ballots cast by Maricopa County voters in the Nov. 3 election, and for access to the equipment used to tabulate those ballots and the software that ran the equipment.

The 4-1 vote to refuse, following a nearly three-hour executive session with attorneys, came amid concerns that at least some of what is being demanded by Sen. Eddie Farnsworth, R-Gilbert, would expose private information on voters.

There also were questions about whether the county has the legal right to give that information to outsiders.

Instead, the board members in the majority on the vote — three Republicans and one Democrat — directed their attorneys to file suit and have a judge determine whether the subpoenas are legally valid.

The legal papers, filed late Friday, said the subpoenas are not authorized by any law.

Legislative panels can subpoena people to testify, but these seek actual materials, said attorney Steve Tully, hired by the county, who is himself a former lawmaker.

More significant, Tully said the subpoenas “serve no valid legislative purpose.”

“There is no legislative authority to audit election results,” he said. Nor is there authority to examine ballots or conduct forensic audits of election equipment, he said.

That paves the way for what could be a legal showdown over the rights of state lawmakers to make such demands, and the rights of county supervisors, who have the information they want, to refuse.

Board Chairman Clint Hickman also suggested that Farnsworth and lawmakers are not really interested in hearing how the election was conducted.

Hickman pointed out that he, county Elections Director Scott Jarrett and deputy Maricopa County Attorney Tom Liddy testified earlier this week for about six hours, answering all the questions from the Judiciary Committee. That, he said, included questions about the machinery and the software.

“And then to be slapped with the two subpoenas,” Hickman said. “That could be viewed as a slap in the face.”

In fact, he said, the subpoenas are asking for information that was never part of the questions that he and the other county officials were asked.

“I had to then feel those subpoenas were predetermined, no matter what I went there to say ... and no matter what Mr. Jarrett had to say,” Hickman said. “To me, that’s kind of telling.”

Supervisor Steve Chucri cast the lone dissenting vote.

But Chucri said it wasn’t that he agrees the information should be surrendered. Instead, he wanted the refusal to be tied with an immediate vote by his colleagues to conduct their own election audit.

Hickman said there will be such a review — but not until all the outstanding lawsuits challenging the election are resolved. There are still three active cases.

One subpoena seeks copies of all mail-in and absentee ballots — and in multiple digital formats — along with various reports and logs and tapes of the ballot scanning and tabulation equipment.

The other demands were that the county give access to a yet-to-be-chosen analyst to the ballot tabulation equipment from both the individual voting centers and the central counting system as well as the software used.

Farnsworth also wants a report on rejected ballots, audit trail logs, usernames and passwords of anyone who has access to the system and anyone from Dominion Voting Systems who could get into the system.

The subpoena also commands the county to turn over daily and cumulative voter records which include the name, address and birthdate of each voter, where and when they voted, their party affiliation and any information about when they requested an early ballot, when it was sent, when it was voted and, if applicable, when it was canceled.

All that angered Supervisor Bill Gates.

“Let’s be clear: These subpoenas that have been issued and are before this body are truly extraordinary in the breadth of information that they’re looking for,” he said.

“As a conservative, I feel strongly about individual private information, of individuals, of voters,” Gates said. “I’m going to fight to protect that information before we turn it over.”

Farnsworth said none of the information sought would be made public but that it’s part of providing an outside auditor the means to verify the election results.

Tully, in his legal papers, said there is no legitimate legislative purpose for the subpoenas. Instead, he said, they are “to provide the information for counsel for the losing candidate so that he might attempt to use it to overturn the election results.”

Farnsworth denied that the subpoenas are designed to affect the outcome of the election or the pending lawsuits.

“This has nothing to do with the Trump campaign,” he said. “This has to do with the concern by the Legislature that there are enough allegations of inappropriateness or not being able to engage in the process or anomalies that exist.”

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