PHOENIX — The state’s top prosecutor is siding with Republican legislators in their demand for access to election materials from Maricopa County.

In legal papers filed Wednesday, a top aide to Republican Attorney General Mark Brnovich urges a judge to enforce the subpoenas issued by Senate President Karen Fann and Sen. Eddie Farnsworth.

The judge “should recognize the Arizona Legislature’s broad authority to issue and enforce legislative subpoenas,” wrote the aide, Michael Catlett, a deputy solicitor general.

But even Brnovich’s backing may not be enough to convince Maricopa County Superior Court Judge Timothy Thomason that he should — or has the authority to — order Maricopa County to turn over a host of materials related to the election. These include information on voters and duplicates of ballots, as well as access to the counting equipment.

Attorneys for the county are not necessarily denying that the Legislature has subpoena power.

But the two subpoenas were not issued by a vote of the full Legislature, which is authorized in a section of Arizona laws. Instead, they were issued by Fann and Farnsworth, the Senate Judiciary Committee chairman.

The committee is looking into the handling of the Nov. 3 election, and Farnsworth said its work could form the basis for changes in state law to tighten up procedures.

In an act to remember the lives lost to the Coronavirus disease (COVID-19), the Cathedral of Saint Augustine's bell rang for 30 minutes just after noon, on Dec. 30, 2020. In a media advisory released on Tuesday (Dec. 29), The Archdiocese of New York announced their churches would be ringing bells the following day to remember the 335,000 lives lost to COVID-19 pandemic in the United States. Many other diocese and religious institutions followed suit in taking part including the Diocese of Tucson. The bell that rang in Tucson's Cathedral of Saint Augustine is the only remaining physical bell in the church and is used for funerals. It rang for 30 minutes just after noon. (Josh Galemore / Arizona Daily Star)

But he acknowledged that if the committee finds evidence of fraud or misconduct, that could be used by others who are trying to get the courts — or Congress — to void the election results in Arizona and hand the state’s 11 electoral votes to President Trump despite Joe Biden’s win in the certified popular vote.

Catlett, in his legal papers on behalf of Brnovich, wrote: “The Legislature is presumed to have all power not granted to another branch of government or expressly prohibited in the constitution.”

And in this case, he said, no other branch of government can issue legislative subpoenas “and legislative subpoenas are not expressly prohibited.”

More specifically, Catlett said Thomason should not closely examine why Farnsworth wants the information, but instead should give the Legislature wide berth.

“A legislative subpoena is valid even if one of the several objectives for the subpoena is alleged to be unlawful,” he wrote.

“In other words, so long as the subpoena can be construed to relate to a subject upon which legislation might be had, the subpoena is valid,” Catlett continued. “The Legislature need not include an express avowal about the purpose for the subpoena and it need not point to actual legislation that it plans to enact.”

Beyond that, he said lawmakers can issue subpoenas for any “authorized investigation.”

Catlett also pointed out that the county’s powers to run elections exist only because they were delegated by the Legislature.

“The Arizona Legislature should be permitted to issue subpoenas to determine whether government officials who have been delegated authority to administer elections have faithfully discharged those duties and to determine whether current law regarding election administration should remain the same or be amended,” he wrote.

“The Arizona Legislature has the power to keep election laws the same or to change those laws, and the court should recognize that the Arizona Legislature has the authority to issue subpoenas to obtain information to help it choose the best path forward for Arizona.”

An earlier bid by the Senate to get an order to enforce its subpoenas was rejected by a different judge.

Judge Randall Warner said he found nothing in the Arizona Constitution that specifically allows him to enforce such subpoenas. He rejected arguments that lawmakers have “implicit” power to ask a court to enforce their demand.

Thomason has not yet scheduled a hearing on the latest bid.

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