Maricopa County challenges Senate subpoenas for voting equipment

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Maricopa County supervisors decided to challenge the Senate subpoenas for election materials, describing them as “out of bounds” and potentially unconstitutional.

Sen. Eddie Farnsworth, the chair of the Senate Judiciary Committee, issued subpoenas Tuesday for electronic ballot images and access to all election equipment and software for a full forensic audit of election equipment. Maricopa County had until 5 p.m. today to respond. 

After discussing the subpoenas in closed-door meetings throughout the week, county supervisors voted 4-1 this afternoon to challenge the subpoenas in Maricopa County Superior Court. They will also send a letter to Senate President Karen Fann. 

The supervisors reiterated they plan on conducting an audit of election equipment, but they need to wait until ongoing lawsuits over election results are concluded. The equipment is considered evidence, and a court-ordered audit arising from at least one lawsuit is plausible.

Supervisor Steve Gallardo, a former lawmaker and the sole Democrat on the county board, said he is disappointed in Farnsworth for indulging in what he considers to be election conspiracies. The two served together in the state House, including on the House Judiciary Committee. 

“He is one of the smartest members of the Legislature, and he knows better,” Gallardo said.

Maricopa County elected officials repeatedly sought to build public faith in the electoral system. Board chair Clint Hickman, attorney Tom Liddy and Scott Jarrett, the county employee in charge of Election Day, spent hours answering questions from lawmakers during a hearing before Farnsworth’s Senate panel on Monday, and Hickman said he responded to multiple other requests from lawmakers.

“To be slapped with two subpoenas – I feel that was a slap in the face,” Hickman said. 

Some in the Capitol and in legal circles question whether Farnsworth, in fact, has the authority to demand ballot images or access to voting equipment. State statutes governing the Legislature’s subpoena power primarily refer to witnesses appearing before a committee and producing papers and documents. The Senate maintains it has that authority. 

“The U.S. Supreme Court has repeatedly held since the 1700s that the legislative power to conduct investigations is inherent in the legislative process and that the power is very broad,” Senate GOP spokesman Mike Philipsen said in an email earlier this week.

Philipsen didn’t answer questions about how the Legislature plans to audit machines if it gained access to them. 

A Senate GOP spokeswoman said Fann has not yet received a response from the county supervisors.

Images of ballots, meanwhile, must be kept secure and private under a law passed just a few years ago by the Legislature. The 2017 law authored by Rep. Gail Griffin, R-Hereford, dictates that electronic images of ballots be kept just as secure as paper ballots. 

The law boosted a pre-existing clause in the Arizona Constitution that mandates secrecy in voting. Except during a statutory or court-ordered recount or audit, paper ballots and electronic images or data must be kept under physical or digital lock and key after counting – until they’re destroyed six months to two years later. In Arizona, ballots are exempt from public records requests.

Election officials have pushed to keep ballot images private, pointing out that they could contain identifying marks that would violate a voter’s constitutional right to privacy.

Cochise County Elections Director Lisa Marra said she’s seen voters sign their ballots, leave their initials next to corrected errors and write in their names or their spouses’ names on spots for write-in candidates. 

“So many people write letters on their ballots. They write notes. They sign them,” she said. “And we saw more of that this year because people kept calling to say, ‘When did you count my ballot? I need to know exactly when you counted my ballot.’”