By Howard Fischer
Capitol Media Services
PHOENIX -- Senate Republican leaders are setting the stage for a new legal fight with Maricopa County.
Kory Langhofer, the attorney for the Senate, said he will be issuing subpoenas Monday for all five Maricopa County supervisors, demanding they appear to explain why they won't surrender certain equipment and information for review as part of the audit of the 2020 General Election returns.
Langhofer also said the Senate wants to hear from Scott Jarrett, the county's director of election day and emergency voting.
But that may just be part of it.
The Senate also may subpoena Maricopa County Sheriff Paul Penzone. That's because it is Penzone who is telling the supervisors they shouldn't surrender the county's computer routers because it would result in "horrendous consequences'' for law enforcement personnel.
Those subpoenas will set a date and time for the county officials to appear. And that hearing, in turn, could turn into a debate of not just the legal issues involved but a venue for a very public airing of the merits -- and potentially the politics -- of the Senate audit.
Potentially more significant is what happens if the senators won't accept the explanation and the county won't budge.
That would send the case back to court. And then a judge would have to decide whether prior rulings requiring the county to surrender the ballots and election equipment applies to what senators now insist is necessary.
Senate President Karen Fann said she remains adamant that what the Senate wants is essential to completing the audit. And she told Capitol Media Services that the reticence to produce it makes her desire it even more.
"What are they hiding?'' she asked, saying they may not have the confidence in the results they claim. Those results gave Democrat Joe Biden 45,109 more votes in the county than Republican Donald Trump. And that edge was enough to have Biden defeat Trump by 10,457 votes statewider.
The county already has surrendered all nearly 2.1 million ballots as well as the tallying machines and other election equipment. All of that has wound up at the Veterans Memorial Coliseum where the Florida firm of Cyber Ninjas is conducting the review.
But Fann said the company she hired needs two other things to complete its work.
One is a list of passwords to some of the counting equipment that was located at polling centers. County officials have said they don't have those in their possession because they belong to Dominion Voting Systems, from whom the county leases the equipment.
Fann said she is skeptical, given that the county has claimed to have done its own forensic audits. She questioned how that could have been done without being able to look at everything, including the source code.
A bigger fight, however, surrounds the routers. These are the devices the county uses to funnel computer traffic among its computers.
The routers themselves contain no information on what was transmitted or received.
But what they would show are the unique IP -- for internet protocol -- addresses of any traffic, both sent and received. And that could answer the allegation that someone, somehow, electronically injected extra votes for Joe Biden into the results.
It is that new request by the Senate that has angered Penzone and caused the supervisors to balk.
"Its most recent demands jeopardize the entire mission of the Maricopa County Sheriff's Office,'' he said in a prepared statement.
"We are talking about confidential, sensitive and highly classified law enforcement data and equipment that will be permanently compromised,'' the sheriff said. "The current course is mind-numbingly reckless and irresponsible.''
Penzone provided no details on how review of the computer traffic from computers used by the sheriff's office would compromise any investigation or the safety of any officer. But he hinted he would be willing to provide specifics if asked -- or subpoenaed.
"It is my hope that additional education of the exposure of this data and equipment will compel the Senate Republican caucus to take a more responsible course of action,'' he wrote.
Jack Sellers, who chairs the supervisors, said there's a separate problem.
"We have learned providing the physical routers will cripple county operations and cost as much as $6 million if we must replace the routers while the Cyber Ninjas have them,'' he said. And Sellers said providing "virtual images'' of the routers, while dealing with the technical issue of removing them, is not more acceptable because that still leaves the security issues cited by Penzone.
If senators are not satisfied with the explanation, the next step would be for them to ask a judge to declare that they are entitled to the additional information and access.
There is precedent for that -- or at least the basic premise.
In February Maricopa County Superior Court Judge Timothy Thomasson swatted down a series of arguments by county officials who argued the lawmakers have no legal basis for the subpoena they issued. And Thomasson brushed aside claims by county officials that the real purpose of the subpoena is not to use the information gathered to review existing election laws but instead to try to overturn the results of the 2020 election.
"Granted, Fann has made public comments about concerns of 'many voters' regarding the accuracy of the presidential election and the need to 'audit' the election,'' he wrote.
"The court is not in a position to determine if the 'real' purpose of the subpoenas is to try to 'overturn' the result of the election,'' Thomasson wrote. Anyway, he said, such a move "would clearly be futile'' given that the Electoral College has voted, Congress has confirmed the results, and President Biden has been sworn in.
Anyway, the judge said, is even if the election could somehow be challenged, "there is still a perfectly valid legislative purpose for the subpoenas,'' meaning the oversight that the legislature has of elections.
