PHOENIX — State senators are entitled to access to voting equipment, related materials and all 2.1 million ballots used by Maricopa County in the November election to conduct their own audit and review, a judge concluded Friday.
In a 16-page ruling, Maricopa County Superior Court Judge Timothy Thomasson swatted down a series of arguments by county officials who argued the lawmakers have no legal basis for the subpoena they issued.
The judge was no more impressed by claims that the senators did not follow the proper procedures for issuing the subpoena.
Most significantly, Thomasson brushed aside claims by county officials that the real purpose of the subpoena is not to use the information gathered to review existing election laws but instead to try to overturn the results of the 2020 election.
“Granted, (Senate President Karen) Fann has made public comments about concerns of ‘many voters’ regarding the accuracy of the presidential election and the need to ‘audit’ the election,” he wrote.
“The court is not in a position to determine if the ‘real’ purpose of the subpoenas is to try to ‘overturn’ the result of the election,” Thomasson wrote.
Anyway, he said, such a move “would clearly be futile” given that the Electoral College has voted, Congress has confirmed the results and President Biden has been sworn in.
“There clearly will be no ‘overturning’ of the 2020 election,” Thomasson said.
But the bottom line, the judge said, is even if the election could somehow be challenged, “there is still a perfectly valid legislative purpose for the subpoenas,” meaning the oversight that the legislature has of elections.
In a prepared statement, supervisors Chairman Jack Sellers said the board met with its attorneys Friday afternoon and has decided not to appeal.
He said Thomasson’s ruling “brings clarity’’ to the issue of the ability of lawmakers to subpoena documents like ballots that otherwise are considered confidential.
“We respect his legal opinion and will immediately start working to provide the Arizona Senate with the ballots and other materials,” he said.
Steve Gallardo, the sole Democrat on the board, had a different take on the ruling.
He said the end game here is new “voter suppression” laws, saying the subpoena is being pursued by “the same group of senators pushing legislation right now to make it more difficult for our citizens, especially low-income individuals and people of color, to vote.”
Fann, who said audits done by the county itself were insufficient, praised the decision.
“Hopefully, with a proper, independent and detailed audit, we will start to restore voter confidence in election integrity,” she said, saying the decision means “we can begin that process.”
The fight began last year when the Senate Judiciary Committee served two subpoenas on the county. One sought documents necessary to perform a “full forensic audit” on the 2020 election returns; the second sought access to perform a hand count of the ballots cast.
Maricopa County Superior Court Judge Randall Warner refused to order the county to surrender the materials. Warner said he finds nothing in the Arizona Constitution which specifically allows him to enforce such a subpoena.
On Jan. 12, with a new legislative session came a new subpoena. All that sent the case to Thomasson to rule on the broader question of the power of lawmakers to issue these kinds of demands, and in what circumstances.
The judge said he is not addressing the wisdom of the subpoenas.
“The statutes of this state give the senators the right to issue subpoenas and to enforce those subpoenas,” Thomasson wrote. “This court must follow the law.”
It starts, he said with a state law that authorizing the presiding officer of either chamber or the chairman of any committee to issue a subpoena.
Attorneys for the county, however, argued that such subpoenas “must be tethered to a hearing” and cannot be simply a demand by a single legislator for information. Thomasson said there is no such requirement in statute.
The judge had no more patience for the county’s argument that the Senate can subpoena only things like books, papers or documents and not electronically stored information or tangible objects like voting machines.
“In modern parlance, ‘documents’ include electronically stored information,” Thomasson wrote. “It is absurd to think that information that happens to be electronically stored and not kept on a piece of paper is not a ‘document’ that can be subpoenaed.”
The bigger argument by the county, however, is the contention that the subpoenas were not issued for a “valid legislative purpose.”
That goes to the argument that the Republicans who control the Senate really have been looking for information all along that could be used in legal arguments by supporters of President Trump that the Arizona election returns were invalid and Biden should be denied the state’s 11 electoral votes.
That argument was buttressed by a Twitter message from Kelli Ward, chair of the Arizona Republican Party, who said the materials were going to be given to Rudy Giuliani, Trump’s attorney.
Then there were the statements by Fann about wanting to address the concern of voters about the accuracy of the reported returns.
Thomasson said even if that is true — and even if there actually were a way now to overturn the results — it doesn’t matter because there was a legitimate legislative purpose.
He pointed out that the Arizona Constitution gives lawmakers the power to enact “laws to secure the purity of elections and guard against abuses of the elective franchise.”
In this case, he said, senators say they want to use the subpoenaed information to evaluate the accuracy and efficiency of existing vote tabulation systems and the competence of county officials in performing their election duties. That could include possible reforms to the process.
“This is a valid legislative purpose,” Thomasson wrote. And he said it’s irrelevant that there was no specific legislation pending or being examined by the Senate when the first subpoenas were issued.
The judge also rejected arguments by the county that the ballots and some of the materials are considered confidential under state laws. But he said that doesn’t preclude disclosure to other government officials.
“These statutes are intended to prevent disclosure of information to the public,” Thomasson said. He said that, absent some unusual circumstance, there would be no way to link a specific ballot to a specific voter.
And Thomasson also said that senators “certainly are obligated to maintain confidentiality of the subpoenaed materials here.”
The judge made it clear that this is a fight that could have been avoided had both sides worked to find a mutually agreeable solution.
“The citizens expect their governmental officials to work cooperatively for the common good,” he wrote.
“It is highly unfortunate that that has not happened here,” Thomasson continued. “When government officials resort to ‘name calling’ and threats, something has gone terribly wrong.”
