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Brnovich: County must comply with Senate's election subpoena
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Brnovich: County must comply with Senate's election subpoena

Attorney General Mark Brnovich

Arizona Attorney General Mark Brnovich

PHOENIX — Maricopa County is breaking the law by refusing to provide the materials demanded by the state Senate, Attorney General Mark Brnovich concluded Thursday.

In a formal finding, Brnovich says that the county is required to comply with Senate subpoenas to provide its routers, which direct computer traffic among computers.

Brnovich said the county also broke the law by failing to provide user names, passwords, PINS and security keys or token to gain access to the tabulation devices used in the 2020 general election.

All those were sought after Senate President Karen Fann said the items are needed by Cyber Ninjas, the private firm she hired to review the conduct of the election, to complete its audit. While the county has turned over 2.1 million ballots and voting equipment, Fann said what has not yet been delivered is necessary to determine whether the equipment was in any way affected by outside forces, including whether the tabulators were connected to the internet at any time.

The attorney general's conclusion is more than an academic exercise: Under Arizona law, his finding that the county government has violated state law means it can lose its allocation of state shared revenues — more than $676 million this budget year — if it does not come into compliance by Sept. 27.

And that amounts to close to a quarter of the county's total operating budget.

"At the end of the day, the supervisors may not like the audit," Brnovich press aide Katie Conner said. "But they don't get to pick and choose which Senate subpoenas they want to comply with."

The official word so far from the county is wait and see.

"The members of the Maricopa County Board of Supervisors are aware of the investigative report issued by the Arizona attorney general," Fields Moseley, the county communications director, said in a prepared statement. "Board members will meet with their legal counsel and determine an appropriate path forward."

But don't expect the county to simply hand over the demanded materials — or accept the loss of revenues. It is likely to exercise its legal right to seek Supreme Court review of Brnovich's conclusion.

Tom Liddy, the chief civil deputy county attorney, made it clear in a letter earlier this month to Fann why he believes at least some of what the Prescott Republican has subpoenaed can't be turned over.

"Providing these routers puts sensitive, confidential data belonging to Maricopa County citizens — including social security numbers and protected health information — at risk," Liddy wrote. And he pointed out that Sheriff Paul Penzone believes that producing the routers "would render MCSO internal law enforcement communication infrastructure extremely vulnerable to hackers, be they criminal cartels, terrorists, or foreign powers."

That argument, however, holds no water with Brnovich.

"The subpoenas are, in essence, the equivalent of a court order, requiring production of certain information," Assistant Attorney General Beau Roysden wrote Thursday on behalf of his boss. "The county cannot avoid a subpoena based on statutes that require that the materials being subpoenaed be kept confidential."

Less clear is the demand for the password and security keys.

Liddy said the county doesn't have them, saying they belong to Dominion Voting Systems for its own administrative access to the equipment. He said the county doesn't need them to conduct elections.

Roysden, in his findings, does not address that contention.

But the supervisors have another argument they believe absolves them of the need to respond, an argument they contend makes Brnovich's findings moot. Attorney Edward Novak, hired by the county to respond to the complaint, said the county isn't breaking any law even if it didn't produce what the Senate wants.

The issue, he said, is one of timing.

The way Novak said he sees it, the subpoena is valid only while the legislature is in session. And he pointed out that the latest subpoena — the one that the county is accused of illegally ignoring — was issued on July 26. That's 26 days after the legislature adjourned.

Novak said that the law cited in the complaint makes a contempt charge the only remedy. But with the legislature not in session, he said, there is no authority to file such charges.

Brnovich, however, said that isn't the case.

He pointed out that there were prior subpoenas for some of the same materials, including one set issued in January when lawmakers were in session. And Brnovich noted that a trial judge rejected arguments at that point from the county that the subpoenas were not valid, concluding that the Senate has the right to what it determines is necessary for its own investigations.

"Assessing electoral integrity, examining potential legislative reforms to the electoral process, confirming the accuracy and efficacy of vote tabulation systems, investigating whether to modify or improve powers delegated to a county, and evaluating the competence of county officials in performing their election duties each constitute a valid legislative purpose," Brnovich wrote, quoting from the trial judge. And he said that is true even if one of the original purposes of subpoenas issued as far back as December were to see if the election results could be challenged.

"Our findings today and our report today is about the rule of law," Conner said. "General Brnovich has said, and the court has previously affirmed, that the Arizona Senate has the authority to conduct this audit and to issue subpoenas."

The Senate-audit review has been called both unnecessary and a political exercise undertaken after Joe Biden outpolled Donald Trump in Maricopa County. That margin of victory was enough to overcome Trump support elsewhere and give Biden the state's 11 electoral votes.

There also has been criticism of Fann's choice of Cyber Ninjas, both because it has no experience in auditing elections and because Doug Logan, its CEO, had made statements even before the audit started questioning the election results.

Preliminary findings were supposed to be given to senators this week but were delayed after Logan and some others from his team contracted COVID-19.


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