By Howard Fischer
Capitol Media Services
PHOENIX -- A bid by Senate Republicans to hold Maricopa County supervisors in contempt faltered Monday as one GOP lawmaker refused to go along.
Sen. Paul Boyer of Glendale said he believes the Senate does have the power to use its subpoena power to demand access to the voting machines and ballots from the last election.
"That authority is clear and it will be used if necessary,'' he said. But Boyer said he believes that power should be used "sparingly and reluctantly.''
More to the point, Boyer said he believes the county is willing to conduct an additional audit of the results of the Nov. 3 election to answer questions about whether the reported results giving the edge to Joe Biden were accurate.
What's needed, he said, is a judge to issue an order clearing the way for the access that senators seek rather than a contempt citation.
"I believe the board genuinely seeks the confidence and clarity of a court order to legally proceed,'' Boyer said. And once that happens, he said, there will be no legal reason for the supervisors to claim that giving the Senate what it wants would violate the law.
That drew derision from Sen. Warren Petersen, R-Phoenix, who walked colleagues through a timeline of what he said has been an ever-changing stance by the supervisors over whether there would or would not be an audit, who has access to the ballots and even some apparently conflicting arguments about whether courts have authority over the enforcement of legislative subpoenas.
Senate President Karen Fann, R-Prescott, detailed for colleagues her own attempts to resolve the issue with the supevisors. In fact, Fann said she originally had planned a contempt vote for 2 1/2 weeks ago but held off in hopes it wouldn't come to that.
Yet every effort to get a resolution, she said, was met with objections from the board.
"So I'm sorry to say, this is why we're at where we're at right now,'' Fann said.
Sen. J.D. Mesnard, R-Chandler, was more pronounced in his belief that the only way to get the issue resolved is to bring contempt charges.
He said claims by the supervisors they want this resolved ring hollow, citing a filing Monday morning which actually sought a court order to block the Senate from even voting on the contempt resolution.
In that filing, board attorney John Doran told Maricopa County Superior Court Judge Joseph Mikitish the move was part of "politically charged paranoia'' and a bid by the Senaste to "press ahead with a false narrative belied by the actual facts and evidence.''
"That is beyond outrageous,'' Mesnard said. "Their actions show they are dripping with contempt.''
With the 30-member Senate having just 16 Republicans and the Democrats opposed, Boyer's decision left the majority one vote short of what was needed to approve the contempt resolution.
What happens next is unclear.
Contempt citation or not, there is still a subpoena demanding access to the machines and the ballots.
The county has a pending lawsuit asking a judge to void the subpoena as invalid, saying state law prohibits the county from surrendering access to them. But that lawsuit could be used to adjudicate the dispute about whether that also applies to the legislature.
Much of the dispute is over a section of state law which says that after the post-election canvass, an envelope with the ballots is placed in a secure facility managed by the county treasurer "who shall keep it unopened and unaltered for 24 months for elections for a federal office.'' Tully contends the only exception is when there is a legal challenge by a candidate or a recount, neither of which is at play here.
Petersen said he doesn't read the law as precluding the supervisors from allowing legislators -- or their designated agents -- from looking at the ballots. But even if that were true, he said, another section of Arizona law says that any evidence produced to comply with a legislative subpoena cannot be used against anyone to prosecute them.
"And just think about it practically,'' Petersen told colleagues.
"Who's going to prosecute them?'' he continued. "The county attorney? I doubt it.''
But the bottom line is about who ultimately is in charge.
"We issued a subpoena and they have given us the finger,'' Petersen said. He said that undermines the authority of lawmakers to issue subpoenas, presumably backed by the power to enforce them.
"When we were given the authority under the state constitution to be lawmakers, we need to be able to collect facts, we need to be able to investigate,'' he said.
"Otherwise, how are we going to know how to change the laws,'' Petersen continued. "How are we going to know how to make a law to fix something if we can never know what to fix?''
That presumes something went wrong with the election.
Fann said she's not starting from that premise. But she said there are enough questions by constituents to require an inquiry.
The Senate president also said supervisors promised to do two independent audits of their own. But what they ended up doing instead, she said, is hiring firms that certify machines, not companies capable of doing the kind of "forensic audit'' senators want.
"I've gotten tens of thousands of emails from people, voters in our county, that don't believe the system is working,'' said Sen. Rick Gray, R-Sun City. "I think it's egregious that we just blow them off.''
And Sen. Kelly Townsend, R-Mesa, questioned why the supervisors are expending so much energy trying to deny that the Senate has absolute power to demand an audit and access to the equipment and ballots.
"It leads the public to believe they are hiding something,'' she said.
The issue of the subpoena aside, the next bit of fallout could be political.
Townsend said she presumes that voters will try to recall the supervisors.
Closer to home, there could be repercussions for Boyer. Fann made it clear she would not have brought the resolution up for a vote had he told her ahead of time he would not balk.
"I think all my bills are now dead,'' Boyer told Capitol Media Services, as his GOP colleagues who control both the Senate and House won't provide the votes. Townsend all but confirmed that.
"If you say you're going to vote along with your caucus and then you do not, your word is never going to be trusted again,'' she said.
Then there the 2022 election.
"I'm sure there will be political ramifications as well,'' Boyer said.
Petersen said Boyer played into the hands of the supervisors who kept citing reasons why they could not comply.
"Why?'' he asked. "They thought they could peel off one of our Republican senators.''
A spokesman for the board said late Monday there would be no comment.