Maricopa County Lawyers Say Politics Motivate Election Subpoenas

By Howard Fischer, Capitol Media Services
Published: Monday, January 4, 2021 - 6:35pm
Updated: Tuesday, January 5, 2021 - 9:53am

The attorney for Maricopa County is accusing state senators of demanding access to voting equipment and records to turn them over to an attorney for President Trump.

At a hearing Monday, Steve Tully pointed out that Kelli Ward, chair of the Arizona Republican Party, sent out a Twitter message last month saying that the materials sought by the Senate were going to be given to Rudy Giuliani. Tully said that would include ballots and passwords and other materials in the two subpoenas issued by Senate President Karen Fann and Sen. Eddie Farnsworth who chairs the Senate Judiciary Committee.

Giuliani, in turn, is quoted as saying he wants to "start forensically examining the voting machines in Arizona," part of his efforts to question the Biden victory and deny the Democrat Arizona's 11 electoral votes.

Tully told Maricopa County Superior Court Judge Timothy Thomason said if that is the plan, it provides yet another reason for his client to refuse to turn over the requested information. He said it would violate both the state and federal constitutions and be an "improper legislative purpose." Tully also said the county has questions about whether the review the senators want of the equipment and voting materials will be conducted by people who are legally certified.

But attorney Kory Langhofer who is representing the senators, told Thomason to ignore those objections as "legally irrelevant."

"That is not the county's concern," he said.

Langhofer said the only issue for the judge to decide is whether the legislature is entitled to demand the documents and whether Thomason will enforce that subpoena. What happens once the materials are in the hands of lawmakers — lawfully, Langhofer contends — is strictly a legislative concern.

Farnsworth, who was not at Monday's hearing, later told Capitol Media Services that the whole purpose of the subpoenas is so legislators, who he said have absolute authority over elections, can examine the materials and determine if the results reported were accurate. He also said what lawmakers learn from their review can form the basis for proposed changes in state laws on how future elections are conducted.

"This issue that's in court is not being coordinated at all with anybody on the outside, AZGOP, the Trump campaign or anyone else," Farnsworth said

But the senator acknowledged that the Trump campaign — and in fact, everyone else — will be entitled to whatever final report is issued by the committee as that likely will be a public record

It won't, however, be Farnsworth who presides over issuing that report. His term as a legislator ends at noon this coming Monday. At that point, current Rep. Warren Petersen moves to the Senate and becomes chair of the Judiciary Committee. And Thomason has scheduled the next hearing for the middle of next week.

But even with a revamped panel, the legal fight over the legislature's access remains.

The subpoenas issued last month demand access to copies of all of the early ballots cast in Maricopa County in the Nov. 3 general election, and for access to the equipment used to tabulate those ballots and the software that runs the equipment.

The county chose to sue rather than comply amid stated concerns that what was being demanded would expose private information on voters. They also raised questions about whether the county has the legal right to give that information to outsiders. On Monday, Langhofer told Thomason there's no reason the Senate should still be fighting for the materials.

"This lawsuit is an effort to delay compliance with a validly issued subpoena," he said. Even now, Langhofer said, Tully wants another week to respond to the legal briefs.

"Meanwhile, they know the clock is ticking," he said. And Langhofer said Tully, a former lawmaker himself, is aware that the new session begins Monday and that there already are multiple bills filed seeking to make changes in election laws and procedures.

On top of that is the fact that Congress meets on Wednesday to count the electoral votes with the threat by some federal lawmakers of not including the votes from Arizona amid questions of accuracy. And both state GOP legislators as well as Ward herself have tried to get what they say is evidence of misconduct and fraud in Arizona before Congress to fuel those efforts.

"They have already succeeded in running out the clock," Langhofer said.

"It's impossible for the legislature to issue a report to Congress saying 'the results are, in fact, reliable' or 'we have concerns about them based on our audit,'" he said. "They've made that impossible already."

And Langhofer told Thomason that if he orders the county to comply with the subpoenas the case will end up going to the state Court of Appeals and, ultimately, to the Arizona Supreme Court.

"This could drag on for many weeks, if not months," he said.

Thomason said he is aware of the time constraints. But he also said that Tully is entitled to time not only to respond to the Senate's latest filings but also to efforts by other parties to intervene in the case.