PHOENIX โ A judge declined Wednesday to order Maricopa County to give state senators the trove of election materials theyโre demanding, saying heโs not convinced he has the authority to do so.
Maricopa County Superior Court Judge Timothy Thomason said it appears the original subpoenas issued by Senate President Karen Fann and then-Sen. Eddie Farnsworth are probably moot.
Thatโs because they were issued in December as part of the 54th legislative session, which technically ceased to exist on Monday, Jan. 11.
In fact, Farnsworth is no longer a state senator.
Arizona officials have certified Joe Bidenโs narrow victory over President Donald Trump in the state. Democratic Secretary of State Katie Hobbs and Republican Gov. Doug Ducey stood up for the integrity of the election even as lawyers for Trump were across town Monday arguing without evidence to nine Republican lawmakers that the election was marred by fraud.
But Fann and Sen. Warren Petersen, who succeeded Farnsworth as chair of the Judiciary Committee in the new 55th legislative session, issued a new subpoena on Tuesday afternoon. It demands not just the same documents from Maricopa County but more, including access to โall original paper ballots.โ It also seeks access to the countyโs voting equipment and software.
Jack Sellers, the new chairman of the Maricopa County Board of Supervisors, did show up Wednesday at 9 a.m. at the state Senate, as the new subpoena ordered. So did newly elected County Recorder Stephen Richer and new County Treasurer John Allen.
But they brought none of the materials with them.
Thomason said that new subpoena likely requires the county to file new legal briefs. He set a hearing for Wednesday, Jan. 20, to consider the matter, saying he hopes the two sides can work things out.
The big problem for the Senate could be convincing the judge he has the authority to, and should, order the county to comply.
โIf timing is an issue, why canโt the senators simply enforce their own subpoenas?โ Thomason asked. โThey have the statutory power to do that.โ
โThey can,โ conceded attorney Kory Langhofer, who is representing the Senate. โAnd I will tell you, thereโs a real possibility of that.โ
That, however, raises different legal and practical issues.
State law empowers either the House or Senate to hold someone in contempt. But that requires a vote of the full chamber, meaning it would take all 16 Republican senators to go along if Democrats refuse to support the move.
If the Republicans can get a contempt vote, the law allows the Senate president to send out the sergeant-at-arms to physically arrest the person who has refused to comply. Disobeying a subpoena is a crime.
But even that still wouldnโt guarantee the Senate would get what it wants. Thatโs why the senators want the judge to order the county to comply.
Thomason, however, notes that Langhofer is relying on a section of Arizona law that allows a public officer โauthorized by lawโ to issue subpoenas and demand production of evidence. The same law allows the official to then ask a judge to intercede to compel compliance.
The judge said heโs not necessarily convinced that applies to legislative subpoenas or that he has the power to enforce them.
Legal authority aside, attorney Steve Tully, who represents the Maricopa County supervisors, told Thomason they still believe there is no โvalid legislative purposeโ behind the subpoenas and the Senate inquiry.
Langhofer acknowledged that one reason for the two original subpoenas was to audit the equipment to send information to Congress ahead of its Jan. 6 vote on whether to certify the results from Arizona that President-elect Joe Biden won the stateโs 11 electoral votes.
โThatโs water under the bridge,โ he said, given that Congress did accept the Arizona results and Biden will be sworn in this coming Wednesday.
But Langhofer said thatโs not the end of the discussion for the GOP senators.
โAlways, separate from that, was an independent reason of performing their oversight function to see how elections in the state were run and whether additional legislation is necessary,โ he told Thomason.
Langhofer said lawmakers want to see what happened to determine if there are changes needed in state election laws, which is strictly the purview of the Legislature. For example, he said lawmakers want to know if there were tabulation errors, unlawful ballots cast or security vulnerabilities in voting devices.
Tully, however, said the Legislature tipped its hand when it admitted it wanted the materials and access to the equipment to see if it could affect the outcome of the 2020 vote.
โHe issued those subpoenas to audit the election,โ he said of Farnsworth. โAnd that is not a legal power that is granted to the chairman.โ
There are other legal questions, as well.
Deputy Maricopa County Attorney Tom Liddy said one deals with the security of the 2.1 million original paper ballots. He told the judge they canโt simply be turned over to senators as there are legal constraints on who has access to them.
There also is the issue of who would conduct an examination of the voting equipment.
The new subpoena, served on the supervisors, the county recorder and the county treasurer at 4:10 p.m. Tuesday, โcommandedโ that they appear at the Senate by 9 a.m. Wednesday and provide the materials sought as well as provide testimony to the Judiciary Committee.
The 9 a.m. deadline also was the time the hearing before Thomason began two miles away.
โThatโs bush league,โ said Liddy.
Also, there was no meeting of the committee on Wednesday.
โEither they donโt know what theyโre doing or somebodyโs playing games,โ said Liddy. But he said the officials showed up because โwe respect the power of the Senate.โ
What resulted, Liddy said, was a brief meeting with Senate staffers, and no questions.
Photos: Election protests in Phoenix
Election protests in Phoenix
Updated
EDS NOTE: OBSCENITY - A Trump supporter stands outside the Maricopa County Recorder's Office, where votes in the general election are being counted, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
A supporter of President Donald Trump yells at a counter-protester outside the Maricopa County Recorder's Office, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Maricopa County sheriff's officers clear a street outside the Maricopa County Recorder's Office, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Counter protesters engage with pro Trump supporters in the street outside the Maricopa County Recorders Office, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Counter-protesters, let, engage with supporters of President Donald Trump, right, outside the Maricopa County Recorder's Office, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Supporters of President Donald Trump mix with opponents outside the Maricopa County Recorder's Office, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Far right radio host Alex Jones rallies pro Trump supporters outside the Maricopa County Recorder's Office, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Far right radio host Alex Jones walks through the rally of pro Trump supporters outside the Maricopa County Recorder's Office, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Trump supporters listen to a speaker as they gather outside of the Maricopa County Recorders Office where votes in the general election are being counted in Phoenix, Thursday, Nov. 5, 2020. (AP Photo/Dario Lopez-MIlls)
Election protests in Phoenix
Updated
A Qanon believer speaks to a crowd of President Donald Trump supporters outside of the Maricopa County Recorder's Office where votes in the general election are being counted, in Phoenix, Thursday, Nov. 5, 2020. (AP Photo/Dario Lopez-MIlls)
Election protests in Phoenix
Updated
Maricopa County Sheriff's clear the street outside the Maricopa County Recorder's Office after Pro Trump supporters and counter protesters spilled into the street, Thursday, Nov. 5, 2020, in Phoenix. (AP Photo/Matt York)
Election protests in Phoenix
Updated
Armed supporters of President Donald Trump stand outside of Maricopa County Recorder's Office where votes in the general election are being counted, in Phoenix on Thursday, Nov. 5, 2020. (AP Photo/Dario Lopez-MIlls)
Trump campaign files suit in Arizona as vote gap narrows
UpdatedPHOENIX โ Arizona Republicans are still hoping to pull out a โwinโ for President Trump, even if it doesnโt end up mattering on the national level โ and even if it takes going to court.
The Trump reelection committee and the state and national Republican parties filed suit Saturday contending that procedures used in Maricopa County resulted in some votersโ ballots not being tallied. They want a judge to bar the election results from being certified until certain disputed ballots are reviewed.
The lawsuit comes as the latest tallies Saturday added 32,478 new votes in Arizona for the president over Friday nightโs figures, compared to 23,835 for Democrat Joe Biden.
That put Trump within about 21,000 votes of taking the lead.
More to the point for Republicans, the daily spread gives the president about 57.7% of the votes between him and Biden. That is close to a rate that, if it continues, is enough to make up the difference by the time all the votes are counted, GOP officials contend.
But itโs going to be close.
There were only about 118,000 votes yet to be tallied.
If Trump continues at that 57.7% rate, he would get about 68,170 of those votes. That would bring his total to slightly more than 1.674 million.
Conversely, Biden getting 42.3% of whatโs left would add about 49,974 to his total and put him over 1.677 million โ about a 2,000-vote edge.
And that doesnโt account for the fact that Libertarian Jo Jorgensen has been pulling in about 1.5% of all the votes cast in the state.
Arizona GOP spokesman Zach Henry said Saturday that, as far as the party is concerned, nothing has changed from Thursday or Friday when party Chair Kelli Ward argued there is a path to victory for the president. In fact, he said, the Saturday numbers only โreinforce it.โ
But that didnโt stop the party from filing suit.
The litigation concerns what happens when automated equipment at polling locations rejects a ballot due to defects, stray marks or other problems.
Voters have an option to cast a new ballot. They also can deposit it into a separate drawer within the device, with the idea that people working at the counting center will review it and determine the voterโs intent.
But Republicansโ attorney Kory Langhofer said what has happened is that some voters, based on advice from poll workers, simply chose to have the problematic ballots submitted as is, meaning no further review.
What that means, he said, is that if a field on the ballot contains what the machinery considers a defect or irregularity, the voterโs intended selections will not be tabulated โeven if the voterโs intent could be discerned by a visual review of the ballot.โ
Langhofer wants a judge to order a visual review of those ballots once they are identified.
There was no immediate response from Maricopa County Recorder Adrian Fontes.
Democrats declare Arizona for Biden
Democrats, for their part, were more than anxious to declare victory.
โArizona has delivered its 11 Electoral College votes to now President-elect Joe Biden,โ said state Democratic Party Chair Felecia Rotellini in a prepared statement Saturday.
Election department employees process and verify ballots from the 2020 General Election at the Pima County Election Center in Tucson on Nov. 2…
โWe are a part of the broadest coalition ever assembled by a Democratic presidential nominee in Arizona,โ she said. โWe built the kind of team we needed to succeed.โ
A Biden win in Arizona would be a Democratโs first in a presidential race in 24 years.
Rotellini also celebrated that Arizona will have two Democratic U.S. senators, something that hasnโt occurred in more than half a century โ when Harry Truman was president. Mark Kelly halted Martha McSallyโs bid to keep the Senate seat she got last year from Gov. Doug Ducey that used to belong to John McCain.
Kelly, however, gets just the last two years of McCainโs original term before he has to seek reelection in 2022.
The presidential and Senate races were in many ways linked in Arizona.
McSally banked on her loyalty to Trump to carry her over the top. But as it ended up, she got fewer votes in Arizona than the president.
Ducey defended his 2018 decision to name McSally to the vacant post on the heels of her having just lost that yearโs Senate election to Democrat Kyrsten Sinema.
โThe governor is very proud of his appointment,โ Ducey press aide Patrick Ptak told Capitol Media Services. He called McSally โan exceptional public servant who has delivered again and again for her constituents.โ
Mixed results in down-ticket races
Neither Democrats nor Republicans managed to flip any U.S. House seats in Arizona, with the five incumbent Democrats and four Republicans winning reelection.
Democrats had high hopes of unseating Rep. David Schweikert, who was fined $50,000 for multiple ethics violations.
His win was an example of how Arizona Democratsโ overall goals for the election were less successful down-ticket than at the top of the ballot.
Their hopes of taking control of the Arizona House โ or even picking up a single seat to get a 30-30 tie with Republicans โ quickly faded.
In the state Senate, meanwhile, one close race in north-central Phoenix and Paradise Valley remains to be decided. But even if Democrat Christine Marsh defeats incumbent Republican Kate Brophy McGee there, it would still leave Republicans with a 16-14 edge in the Senate.
Further down the ticket, Maricopa County Recorder Fontes, a Democrat, was running about 2,500 votes behind Republican challenger Stephen Richer.
Rotellini said she was not discouraged by the results. โI think we held our own,โ she said Saturday.
โI will agree that we werenโt as successful as we thought we would be,โ she said. โAnd that means we need to go back and recalibrate, study the data and see where we excelled and where we could have had opportunities but didnโt.โ
Why Arizona might still matter for Trump
One reason that Republicans are continuing to fight in the Arizona presidential race is that the results here could become meaningful if there is litigation in Pennsylvania that wipes out the 20 electoral votes that apparently went to Biden on Saturday.
An order by Justice Samuel Alito required election officials in Pennsylvania to separate out the ballots that came in after Election Day.
The Pennsylvania Supreme Court had earlier ruled that any ballot postmarked by the deadline should be counted. But the Trump campaign contends the U.S. Constitution empowers only the state legislature to make such decisions.
Alito did not forbid the state from counting those late-arriving ballots. But it opens the door for them being removed from the totals should the full high court side with the Republicans.
Also still in play as of Saturday were the 16 electoral votes from Georgia, where Biden was last leading, and 15 in North Carolina, where Trump was ahead.
PHOENIX โ With President Donald Trump's reelection hopes looking worse by the hour, pro-Trump demonstrators held rallies in critical battlegro…
