By Howard Fischer
Capitol Media Services
PHOENIX -- A judge has refused to order Maricopa County supervisors to comply with a legislative subpoena demanding access to various voting records and equipment.
In a ruling late Wednesday, Judge Randall Warner said he finds nothing in the Arizona Constitution which specifically allows him to enforce such a subpoena. And the judge rejected arguments by attorney Kory Langhofer that lawmakers have "implicit'' power to ask a court to enforce their demand.
"Whatever implied power the Constitution might confer on the legislature, neither the federal cases cited, nor any provision of the Arizona Constitution cited, supports a grant of such implied power to individual legislators or legislative leadership,'' he wrote following legal arguments that afternoon.
Clint Hickman, who chairs the supervisors, immediately issued a press release saying that the decision backs the board's decision to refuse to comply with the subpoenas "to protect both voter privacy and the integrity of our elections.''
But Hickman's victory statement may prove premature.
While rejecting Langhofer's arguments about the right of lawmakers to seek judicial intervention, the judge said another of his legal theories may have merit. That, said Warner, is based on a separate state law which says when a public officer is authorized to issue a subpoena, that person can ask a judge to enforce.
"This is a plausible argument,'' the judge said.
Only thing is that Langhofer never mentioned that statute in his legal pleadings, meaning Warner could not rule on it.
But the judge told Langhofer he is free to file a new legal complaint, this time making that argument, at which point he will consider it -- with no guarantee he will rule in his favor.
The legal fight is over a pair of subpoenas issued by Sen. Eddie Farnsworth, R-Gilbert, who chairs the Senate Judiciary Committee which is looking into complaints about how the election was conducted in Maricopa County, whether the Dominion Voting Systems equipment used gave a proper count and whether there are any indications of fraud or misconduct.
One seeks copies of all mail-in and absentee ballots and related logs and tapes of the ballot scanning and tabulation equipment.
The other demands that the county give access to a yet-to-be-chosen analyst to the ballot tabulation equipment as well as the software used. There also is a command for the county to turn over daily and cumulative voter records which include the name, address and date of birth of each voter, where and when they voted, their party affiliation and any information about when they requested an early ballot, when it was sent, when it was voted and, if applicable, when it was canceled.
The supervisors balked, arguing that much, if not all, that information was confidential.
Even if Warner subsequently says the legislature can ask him to enforce a subpoena, that still doesn't guarantee that he will agree to do it. That goes to another legal question: Who, exactly, can issue a subpoena?
"It's an absurd notion that any committee chair can seize all the documents they want,'' attorney Steve Tully who represents the board told the judge on Wednesday. And he pointed out to Warner that this isn't just about producing records.
"It's that they allow some agent of theirs to go in and physically examine some of the machinery,'' Tully said. "So the idea that any chair, out of session, can demand this type of access and give it to whoever they want as an agent and then turn it over to whoever they want and then review it on their own is something that I'm quite certain that the courts would soundly reject.''
Langhofer countered that state laws allow the legislature can issue subpoenas.
In fact, he argued, that lawmakers don't even need a specific reason and could go on a "fishing expedition.''
"Like a grand jury, it can do that,'' Langhofer said, though he said Farnsworth had reason based on calls of concern from constituents to inquire into the election process. And he said that lawmakers need to find out what, if anything, went wrong this year so they can craft changes to state election laws when the new session starts.
But even if Warner agrees, he still has to decide if the statute dealing with refusing a legislative subpoena is as broad as Langhofer claims.
It says if a someone does not comply, "the Senate or the House may, by resolution entered into the journal, commit him for contempt.'' There is, however, no such resolution, with the Senate not in session, but only the permission to issue the subpoena granted to Farnsworth by Senate President Karen Fann, R-Prescott.
The law also says that the sergeant at arms can arrest someone for refusing to obey. But here, too, the statute appears to require a signed Senate-passed resolution.
Once Langhofer files the new legal papers Warner will schedule a new hearing.
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