By Howard Fischer
Capitol Media Services
PHOENIX -- Facing a contempt vote in the Senate and a possible adverse court ruling, Maricopa County supervisors agreed Wednesday to give lawmakers pretty much everything they are demanding in election materials and access to voting equipment.
The deal guarantees that the Senate Judiciary Committee will get copies of every ballot cast in the Nov. 3 general election. While the subpoena had asked for the original ballots, Senate President Karen Fann told Capitol Media Services this will suffice.
"We don't want to break any rules,'' she said. Fann said the duplicates will allow for a full audit of the returns, comparing the duplicate paper ballots with the official machine tally.
Potentially more significant, the deal as outlined by Fann gives the Senate access to the equipment used by Maricopa County to perform a "logic and accuracy'' test on a random sample of tabulation machines as well as a review of the "source codes.'' And there will be access to desktop servers and routers as needed by an auditor.
All that paves the way for a deep dive into what happened in the state's largest county and whether the vote tallies reported were accurate. Democrat Joe Biden bested incumbent Donald Trump by 10,457 votes statewide, with a 45,109 edge for Biden in Maricopa County offsetting results elsewhere where Trump outpolled the Democrat.
Most significant, it also provides an opportunity to have an independent check into various allegations fueled by Trump and his allies that the Dominion Voting Systems software and equipment were deliberately rigged to give more votes to Biden than were actually cast for him.
In turn, however, the Senate has agreed to have all the examinations performed by an auditor who is certified by the U.S. Election Assistance Commission. And the documents and equipment produced will be accessible only to those authorized.
That is a crucial point as county officials had been concerned that at least one purpose behind the subpoenas issued last month, before the election results were certified by Congress, was to turn information over to Trump attorney Rudy Giuliani or others associated with the Trump reelection campaign.
There was a basis for that conclusion.
In a Dec. 29 court filing on behalf of the Senate, attorney Kory Langhofer wrote that one of the desires of his client was "to potentially transmit its findings to the United States Congress in advance of its consideration of the Electoral College returns on Jan. 6.'' And that could have provided fuel to convince federal lawmakers not to accept the results giving the state's 11 electoral votes to Biden.
All that is purely academic, with the deal coming just hours before Biden was formally sworn in as president.
Fann said there were two main goals of the subpoenas.
"This was all about reinstilling the confidence in the electoral system with the voters to ensure there wasn't any problem with the machines,'' she said. And if there are irregularities, intended or not, Fann said the review will enable lawmakers to decide whether changes are needed in state election laws to prevent future problems.
With the compliance, Fann said she hopes an auditor can be selected within days. And the Senate president said she wants the examination completed within a matter of days or weeks, and not months.
Any findings by the Judiciary Committee are expected to be publicly reported. More to the point, Fann said she wants to see what, if anything, went wrong.
"I am hoping there were no errors,'' she said. But Fann said there might be some "minor'' ones, like someone who cast a ballot who was not entitled to vote.
"If we find those irregularities, how do we fix that,'' she said. All that, Fann said, goes to having the legislature make whatever changes are necessary in state laws to make elections more secure.
Still, Fann said, it is possible that the audit will come up with something more serious.
"If, for some reason, we actually did uncover some major problems that would have affected the outcome of the election, it's our duty to send that information on to the Congress or whomever,'' she said.
"We can't just stay silent on that,'' Fann continued. "We have to provide that information to the federal authorities'' who are in a position to deal with it, "whether it's criminal action, whether it's cartel, whatever.''
None of this, she said, will affect the fact that Joe Biden was sworn in on Wednesday.
"He is the president,'' she said.
The deal is about more than Senate access to the equipment and materials. As part of the pact, county officials have agreed to acknowledge the legislature's authority to issue investigatory subpoenas, something they had fought in court.
Maricopa County Superior Court Judge Timothy Thomason had scheduled a hearing for Wednesday on the legal dispute. The judge suggested he was ready to rule in favor of the Senate, saying at a previous hearing he believes the subpoena served a legitimate legislative purpose.
And there was something else hanging over the supervisors.
Fann conceded her staff already had prepared a resolution to hold the county officials in contempt. Such a vote would have allowed the Senate president to send the sergeant-at-arms to actually arrest someone -- presumably supervisors Chairman Jack Sellers -- for refusing to comply.
This, Fann said, is a much better solution. And she thanked the supervisors for agreeing to the deal.
Legal authority aside, Fann said concerns of the county about the security of the equipment had no basis.
"We've said from Day One we certainly did not expect them to bring the machines down to the state Capitol or to hand over any information to anyone who is not authorized to do it,'' she said. And Fann said the deal ensures future cooperation as the auditor begins a review.
