By Howard Fischer
Capitol Media Services
PHOENIX -- The question of whether state senators get access to Maricopa County's voting equipment and ballots could turn on the question of whether they dotted their i's and crossed their t's.
At a court hearing Thursday, Deputy Maricopa County Attorney Tom Liddy did not dispute that Arizona law gives legislators the power to issue subpoenas.
But he told Maricopa County Superior Court Judge Timothy Thomasson that there are procedures outlined in law for what has to happen. And Liddy said that didn't happen here.
Even if it did, Liddy hopes to convince the judge that lawmakers are not entitled to at least some of what they are demanding. He cited a provision in state law that says voted ballots have to remain locked up for 24 months, with the only exception being a legal challenge to the election, which this is not.
"They can only be opened by a court order,'' Liddy told the judge, including a legally issued judicial subpoenas.
"This is not a judicial subpoena,'' he continued. "So this is not a court order.'''
Attorney Kory Langhofer who represents Senate President Karen Fann said that's not true.
He said lawmakers are entitled to the ballots as part of a legitimate inquiry into how the election was conducted. That, he said, is part of their legislative duty of both oversight of elections as well as their obligation to determine if changes are needed in state laws.
"There is a constitutional provision directing the state legislature to maintain the purity of elections and make sure that voter integrity is protected,'' Langhofer said.
Liddy, however, said the county supervisors believe that the real reason for the subpoena is that Fann and other Republican lawmakers are seeking to undermine the results of the Nov. 3 election -- the one where Joe Biden beat Donald Trump in Arizona.
Fann denies that, saying her only interest is answering the questions that many Arizonans have about whether something went wrong. She said the inquiry could just as easily find there were no improprieties and that should reassure most voters about the integrity of the system.
Thomasson said he hopes to have a ruling no later than Friday.
It all could turn on the procedures the Senate followed.
Liddy said the Senate president or whoever chairs as committee has the power to compel a witness to attend a hearing.
Only thing is, there was -- and still is -- no hearing scheduled.
Beyond that, Liddy said it is clear that lawmakers don't want testimony, to which they are entitled, but access to equipment and the ballots.
"But that is not how legislative subpoenas work,'' he said.
Even if the procedures were followed, the county contends there are limits to legislative subpoena powers. That includes that it "serves a valid legislative purpose'' and that the witnesses or materials sought "are pertinent to the subject matter of the investigation.''
The subpoena, Liddy said, fails on both accounts.
Langhofer, for this part, contends there are no such limits on the authority of lawmakers to issue subpoenas. To contend otherwise, he said, would be to say that the subpoena power of lawmakers is no greater that any other citizen has under the Public Records Law.
As to the issue of voted ballots being confidential, Langhofer reassured Thomasson that the Senate will consider itself bound by those rules and will not make them public.
