PHOENIX — The game of political chicken between the Arizona Senate and Maricopa County supervisors comes to a head Monday as lawmakers weigh holding board members in contempt, opening the door for the apparently unprecedented possibility of county officials being charged with a crime or even immediately locked up.
Senate President Karen Fann says she remains hopeful the supervisors will realize they are obligated to provide what lawmakers are demanding, including access to voting equipment and ballots. Beyond that, Fann said in an interview Friday, it makes sense for them to cooperate in what the Prescott Republican says is an attempt to answer questions from constituents about the accuracy of the results of the Nov. 3 election.
But Fann got her answer as board attorney Steve Tully filed suit late Friday asking a judge to dismiss what he called a “sham subpoena.”
People are also reading…
Tully noted the senators are not asking board members to appear to answer questions. In fact, he said, there isn’t a hearing even scheduled.
Instead, he said, the subpoena demands the county give access to the companies they hire to the voting equipment and the 2.1 million ballots cast.
And then there’s the fact that the one firm that Fann has said she is considering, Allied Security Operations Group, was involved in efforts by the Trump campaign to overturn election results in Michigan.
“You don’t just hire a bunch of clowns that run around for Trump,” Tully charged.
Hanging in the balance is the extent of the power of state lawmakers to issue subpoenas to poke around into whatever they want.
The supervisors are trying to be careful in what legal fight they pick.
Tully said they acknowledge the Senate does have subpoena power. In fact, he said, the county already has turned over 11 gigabytes of data ranging from the voter registration database to computer logs and ballot tabulation reports associated with the November election.
What they don’t have, Tully said, is the authority to now say they want the auditor they hire to go out and poke around to see what the company can find. He now wants Maricopa County Superior Court Judge Joseph Mikitish to rule in the county’s favor.
Fann bristled at questions about whether this all amounts to a fishing expedition.
“A fishing expedition is someone that’s going out there purposely looking for something,” she said, something that is not the case here.
“We are trying to dispel any of the allegations that are out there,” the Senate president said. “We are trying to answer the constituents’ questions about why they think something went wrong here or didn’t go wrong.”
That, however, still leaves the question of whether those questions are due to actual evidence of fraud or the fact that Trump told backers before the election the only way he would lose is if there was cheating and the voting machines were rigged, a theme he continues to repeat.
All that has had an effect. Some 26% of Arizonans and 54% of Republicans believe Trump won the election, a new OH Predictive Insights poll finds.
Fann said the posturing by Trump and his allies is irrelevant.
“With all due respect, four years ago it was a lot of Democrats who were questioning these machines,” she said, with some national reports suggesting that Dominion Voting Systems equipment could be hacked. And Fann said perhaps if there were audits done at that time — like the kind she and senators now want — questions about the vulnerability of those machines would have been answered before the 2020 election.
“I’m not saying there was any fraud,” she said of this year’s results. And Fann said people keep asking questions because “we haven’t had an audit.”
That’s not entirely true.
There were “logic and accuracy” tests both before and after the election, using premarked ballots to see whether the machines recorded the votes that were cast. Those tests, Tully said, came up with a 100% match.
Then, as required by state law, officials from both major parties selected ballots from random voting centers for a hand count. According to the audit report, a review of more than 47,000 ballots showed not a single difference between what the machines recorded and what the hand count revealed.
Separately, a judge let state GOP Chair Kelli Ward, who had filed suit, get a review of several thousand ballots which had to be duplicated by hand after the originals could not be read by machines. While there were some discrepancies, the judge found — and the state Supreme Court affirmed — that if the error rate were extrapolated out over all the duplicated ballots, it would have gained Trump no more than 153 votes, far short of the 10,457 vote margin of Biden over the former president.
And Ward’s own expert witness was unable to find a single instance of a clearly forged signature on the envelopes of early ballots she reviewed.
Fann was unimpressed, saying if the supervisors have nothing to hide “why are they refusing to let us do this.”
“We’ve offered to pay for this ourselves,” she said. Instead the county has hired two firms for its own review, one of which Fann said is not really qualified to do the kind of audit the Senate believes is necessary.
Anyway, she said, the Senate is not asking for the county to physically deliver the ballots or the machines to the Capitol but simply to give access to an auditor the Senate finds acceptable.
That, however, still leaves the question about Allied Security Operations Group and its link to trying to overturn Michigan voting results.
Fann insisted that firm has not yet been hired despite the fact that her attorney, Kory Langhofer, sent the supervisors a copy of a “scope of work” plan from Allied. Fann said she sent that because it was the only proposal she had at the time and that she continues to speak with other companies.
Still, she conceded that the firm’s reputation of trying to help overturn election results for Trump does raise questions.
“My intention at this point is not to hire them,” Fann said.
“I do believe that they are qualified, they do have the experience,” she continued. “But the mere fact that the perception is out there that they have ties with Trump or they would be less than totally independent, then it would be very difficult for us to hire them.”
All that comes back to the question of what happens Monday assuming all 16 Republicans vote to hold the board in contempt.
That would empower Fann to send out the sergeant-at-arms to arrest board members.
Only thing is, what the Senate wants now is not testimony from board members but access to those ballots and equipment. Tully said he is prepared to go to court to prevent board members from being arrested.
Another option is for Fann to ask Attorney General Mark Brnovich to file criminal charges against board members.
Disobeying a subpoena is a Class 2 misdemeanor, subject to four months in county jail.
That, however, could result in months of litigation and appeal.
What that could leave Fann is what Tully already started: taking the matter to a judge.
Mikitish has not set a hearing on that matter.
Photos: 2020 General Election in Pima County and Arizona
Ballot processing in Pima County
Ballot processing in Pima County
Ballot processing in Pima County
Ballot processing in Pima County
Ballot processing in PIma County
Ballot processing in PIma County
Ballot processing in PIma County
Ballot processing in PIma County
Ballot processing, Pima County
Ballot processing, Pima County
Ballot processing, Pima County
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election 2020 Senate Kelly
Election 2020 Senate Kelly
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election 2020 Arizona Voting
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Election Day, Pima County and Arizona, 2020
Judge throws out lawsuit, finds no fraud or misconduct in Arizona election
PHOENIX — A judge tossed out a bid by the head of the Arizona Republican Party to void the election results that awarded the state’s 11 electoral votes to Democrat Joe Biden.
The two days of testimony produced in the case brought by GOP Chairwoman Kelli Ward produced no evidence of fraud or misconduct in how the vote was conducted in Maricopa County, said Maricopa County Superior Court Judge Randall Warner in his Friday ruling.
Warner acknowledged that there were some human errors made when ballots that could not be read by machines due to marks or other problems were duplicated by hand.
But he said that a random sample of those duplicated ballots showed an accuracy rate of 99.45%.
Warner said there was no evidence that the error rate, even if extrapolated to all the 27,869 duplicated ballots, would change the fact that Biden beat President Trump.
The judge also threw out charges that there were illegal votes based on claims that the signatures on the envelopes containing early ballots were not properly compared with those already on file.
He pointed out that a forensic document examiner hired by Ward’s attorney reviewed 100 of those envelopes.
And at best, Warner said, that examiner found six signatures to be “inconclusive,” meaning she could not testify that they were a match to the signature on file.
But the judge said this witness found no signs of forgery.
Finally, Warner said, there was no evidence that the vote count was erroneous. So he issued an order confirming the Arizona election, which Biden won with a 10,457-vote edge over Trump.
Federal court case remains to be heard
Friday’s ruling, however, is not the last word.
Ward, in anticipation of the case going against her, already had announced she plans to seek review by the Arizona Supreme Court.
And a separate lawsuit is playing out in federal court, which includes some of the same claims made here along with allegations of fraud and conspiracy.
That case, set for a hearing Tuesday, also seeks to void the results of the presidential contest.
It includes allegations that the Dominion Software voting equipment used by Maricopa County is unreliable and was programmed to register more votes for Biden than he actually got.
Legislative leaders call for audit but not to change election results
Along the same lines, Senate President Karen Fann and House Speaker Rusty Bowers on Friday called for an independent audit of the software and equipment used by Maricopa County in the just-completed election.
“There have been questions,” Fann said.
But she told Capitol Media Services it is not their intent to use whatever is found to overturn the results of the Nov. 3 election.
In fact, she said nothing in the Republican legislative leaders’ request for the inquiry alleges there are any “irregularities” in the way the election was conducted.
“At the very least, the confidence in our electoral system has been shaken because of a lot of claims and allegations,” Fann said. “So our No. 1 goal is to restore the confidence of our voters.”
Bowers specifically rejected calls by the Trump legal team that the Legislature come into session to void the election results, which were formally certified on Monday.
“The rule of law forbids us to do that,” he said.
In fact, Bowers pointed out, it was the Republican-controlled Legislature that enacted a law three years ago specifically requiring the state’s electors “to cast their votes for the candidates who received the most votes in the official statewide canvass.”
He said that was done because Hillary Clinton had won the popular vote nationwide in 2016 and some lawmakers feared that electors would refuse to cast the state’s 11 electoral votes for Trump, who won Arizona’s race that year.
“As a conservative Republican, I don’t like the results of the presidential election,” Bowers said in a prepared statement. “But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.”
Photos of the 2020 General Election voting, election night and ballot processing in Pima County, Maricopa County and throughout Arizona.