PHOENIX — Maricopa County is taking the first steps toward a possible lawsuit against the Senate over its audit of the 2020 election results.
In a letter Friday, County Attorney Allister Adel demanded that state Senate President Karen Fann preserve all communications related to the audit. These range from internal memos within the Senate, to social media posts.
Adel said this is part of a legal maneuver that allows attorneys contemplating a lawsuit to demand that a prospective defendant not destroy materials that could help prove a case.
It puts prospective defendants on notice they have a duty to preserve evidence that they know or should know is relevant, or face court sanctions.
Adel's letter suggests, at the least, the possibility of a libel suit against senators and those involved in the audit, whom she said put out false statements that county officials had deleted an entire database directory from the election equipment.
A post on the Senate audit's official Twitter account said the directory was deleted days before the election equipment was delivered for the audit. "This is spoliation of evidence!'' the post said.
However, auditors later backtracked from that allegation. Ben Cotton, founder of CyFIR, one of the audit subcontractors, told lawmakers on May 18 he was able to locate files in election equipment that the auditors initially claimed the county deleted. He said it turns out there were duplicates in the system.
Adel's letter also said, "We have reason to believe that this audit is not being done in accordance with Arizona law."
She did not spell out exactly what the county officials believe is illegal. But such a claim would lead to another lawsuit between the county and the state.
Earlier litigation concerned whether the Senate had a right to subpoena the ballots and voting equipment. A judge eventually concluded that the Legislature has broad powers to demand pretty much whatever it wants.
But a claim of impropriety or illegality in how all this is being conducted would require a judge to take a closer look at exactly how the Senate — and its hired contractors — have been handling the ballots and equipment.
There also could be a financial component to any litigation. Secretary of State Katie Hobbs said last week that the decision by the Senate to turn the county's voting equipment over to the outside contractors makes those machines unusable for future elections.
Fann had only a brief comment on the Adel's demand letter. "Boy, they really don't want us to finish this audit,'' she said.
Adel wrote that she wants "all communications and correspondence, whether paper or electronic, including but not limited to written correspondence, voice mails, emails, calendar invites, text messages, instant messages, third-party message systems/applications, messages and data chat/chat strings, video files, audio files, and social media posts and messages, whether designated as public or private.''
She also told Fann to have the Senate and its contractors preserve all cell phones, tablets and computers used by the Senate president, agents, clients and contractors for the audit. She wants these devices "preserved in their entirety for forensic imaging and electronically stored information.''
She cited case law that she said empowers judges "to impose significant sanctions against parties who fail to preserve evidence.''