PHOENIX — Fearing an end-run around the courts, two top state officials are telling Arizona counties to refuse to comply with any grand jury subpoenas for private voter records.
In a joint letter to all 14 county recorders, Democratic Attorney General Kris Mayes and Secretary of State Adrian Fontes remind them there is already a lawsuit in federal court over whether the U.S. Department of Justice is entitled to a full, unredacted list of voter information. There is no date set for a court hearing.
But what has changed since the lawsuit was filed, they said, is that Republican state Senate President Warren Petersen, responding to a grand jury subpoena, turned over records to DOJ related to the Senate's audit of the conduct and results of the 2020 presidential election in Arizona. They warned that appears to be part of an end-run around federal court for the Trump administration to get the documents it wants — regardless of what a federal judge rules.
That's not all. It also comes as the U.S. Department of Homeland Security, apparently conducting its own probe, has asked Mayes' office for some documents it has related to the 2020 election.
The Attorney General's Office surrendered both a report that was done reviewing the audit by Mayes' predecessor, Republican Mark Brnovich, as well as some documents Brnovich did not make public before he left office at the end of 2022, said a spokesman for Mayes, Richie Taylor.
Taylor said there was no subpoena, as all those documents are public records. But he said nothing else has been provided to Homeland Security.
Mayes and Fontes said all of this leads them to believe federal agencies will use the grand jury process — and the ability of prosecutors to subpoena documents — to circumvent the question before the federal judge of whether the agencies have a legal right to receive what they are seeking. The two Arizona officials said they want to be sure county recorders do not play a role in letting that happen.
Arizona Attorney General Kris Mayes
"We reiterate our offices' position here just in case you may be contemplating disclosure,'' Mayes and Fontes wrote. "We write to inform you that doing so would violate both federal and state law.''
The disclosure of the Homeland Security inquiry drew a sharp response from Democratic Gov. Katie Hobbs, who was Arizona's secretary of state in 2020.
"Arizona's 2020 election has been investigated and verified in Republican-led audits,'' she said in a comment Tuesday night posted on social media. "Pulling agents off serious work like combating human trafficking to chase debunked election conspiracies is irresponsible and a threat to public safety," Hobbs said.
Administration's renewed interest
This all comes as the Trump administration has shown renewed interest in revisiting the 2020 election, particularly in states where Republican Donald Trump lost to Democrat Joe Biden. That occurred in enough states, including Arizona, to deny Trump the electoral votes needed at that time for a second term.
Now back in office, Trump has expressed frustration that U.S. Attorney General Pam Bondi has not done more to investigate his claim the election was stolen, a claim rejected as unfounded by numerous judges.
Arizona is among 29 states and the District of Columbia where the Department of Justice has filed suit to demand full voter files after state officials refused to comply. The demand includes not just records that are public, such as name and party registration, but also what Fontes said is legally protected private information including birth dates, driver's license numbers, signatures and the last four digits of Social Security numbers.
DOJ, however, has said it is not investigating any particular violations of law but simply fulfilling its mission to be sure states are keeping voter rolls updated.
But Fontes told a federal judge it appears the real goal is that the federal government wants to amass a national centralized database on millions of Americans. He said that appears to be part of a plan to check the immigration status of those on the voter rolls.
Arizona Secretary of State Adrian Fontes
Public reports turned over to DHS
And now there is the request by Homeland Security to Mayes for information about the 2020 election.
Taylor said Mayes did turn over some findings released in 2022 by Brnovich in which he claimed his office had "uncovered instances of election fraud by individuals who have been or will be prosecuted for various election crimes.''
Taylor said Homeland Security also got a follow-up report Mayes released after taking office in 2023, a report that included evidence Brnovich and his top aide had been told by their own staffers, even before releasing the 2022 report, that there was no basis for such claims of fraud.
And, in response to further requests from Homeland Security, the Attorney General's Office prepared a Power Point presentation last week, Taylor said. But he said that there has been no further cooperation with Homeland Security since then.
Now Mayes and Fontes want to be sure county recorders aren't providing anything that is not already a public record — even if they are served with a subpoena.
"I implore you to fulfill your oath by declining any such illegal demands,'' the letter to the recorders says.
"If your office receives a federal grand jury subpoena demanding that you turn over voters' private data, we urge you to notify our offices immediately,'' they wrote. "The grand jury should not serve to circumvent Arizona's ongoing lawsuit, and our offices will pursue all legal actions available to prevent the Department of Justice from misusing the grand jury process.''
Two views of 2020
The information Mayes turned over to Homeland Security is significant because it represents two different views of what did and did not happen in the 2020 election — views that Homeland Security could choose to use or ignore as it pursues any investigation.
Brnovich, a Republican, was running in 2022 for U.S. Senate. His report included various allegations that signatures may not have been properly verified on early ballot envelopes and that "there are problematic systemwide issues that related to early ballot handling and verification.''
But Mayes, a Democrat who won her 2022 election to replace Brnovich, disclosed in her 2023 report information she said Brnovich had withheld from the public, including a memo from the office's Special Investigations Section — information she said showed that her predecessor knew there was no basis for what he was reporting in 2022.
That 2022 memo said attorney general's agents and support staff had spent more than 10,000 hours investigating and reviewing alleged instances of illegal voting submitted by various private parties. Those parties included Cyber Ninjas, the private firm without any election auditing experience hired by then-Senate President Karen Fann to conduct the audit, but also True the Vote, which has been at the forefront of denying the results of the 2020 election.
"In each instance and in each matter, the aforementioned parties did not provide any evidence to support their allegations,'' that memo stated. "The information that was provided was speculated in many instances and when investigated by our agents and support staff, was found to be inaccurate.''
The memo also said there were elected officials who had made public statements asserting that voting fraud had occurred and that fraud was a factor in the outcome of the 2020 election.
Yet when actually questioned by investigators — under circumstances where they were told they could be prosecuted for making false reports to law enforcement agencies — "the elected officials did not repeat or make such assertions.''
Those officials included Republican Mark Finchem, at the time a state representative from Oro Valley and now a state senator from Prescott. Finchem had publicly stated he had a source reporting that more than 30,000 fraudulent or fictitious votes were registered in Pima County during the 2020 general election. Investigators then requested to speak with him.
"During that meeting, Mr. Finchem did not repeat those allegations, specifically stating he did not have any evidence of fraud and he did not wish to take up our time,'' the investigators reported.
What he did provide were four ballots he said were evidence of a flawed process for mailing and counting ballots. The investigators, however, said they found the ballots had been mailed to prior residents of the address on file, the residents had moved, the ballots could not be forwarded, and they were unopened and not counted.
They also said that Sen. Wendy Rogers, R-Flagstaff, who had alleged widespread fraud in the 2020 election, "refused to meet with us."
