By Howard Fischer
Capitol Media Services
PHOENIX -- Republican state senators are going on the legal offensive in their bid to get access to Maricopa County voting equipment and materials -- and do so ahead of the date Congress is set to ratify awarding Arizona's electoral votes going to Joe Biden..
A new lawsuit asks Maricopa County Superior Court Judge Randall Warner to order the county to produce everything in the Senate subpoena no later than Dec. 29.
The date is not arbitrary.
Attorney Kory Langhofer figures that whoever loses in front of Warner is likely to seek review by the Arizona Supreme Court. And that could take at least a day or two at best.
The real goal, however, is having the case fully resolved -- and, if Langhofer gets his way, the documents and equipment reviewed and audited -- before Jan. 6.
That's the day Congress is set to review the Electoral College vote on Jan. 6. If federal lawmakers follow the state's official and certified election returns, Biden gets Arizona's 11 votes.
But all that potentially changes if the Republican-controlled Judiciary Committee concludes that there was something amiss in the ballot counting in Maricopa County. That could provide fodder for either legislative action or a move in Congress by some supporters of President Trump to reject the official Arizona tally and instead award the state's electoral votes to the incumbent.
Those Maricopa results are crucial.
The official tally -- the one that was certified and is in the message to Congress about the electoral votes -- shows that Biden won Arizona by 10,457 votes. In Maricopa County, he bested the president by about 45,000 votes.
The new lawsuit comes as Sen. Eddie Farnsworth, R-Gilbert, continues to say that the purpose of the two subpoenas is not to influence the outcome of the election.
He said the committee just wants to get to the bottom of various rumors and reports that the ballots were not properly counted, whether through human error or problems with the Dominion Voting Systems hardware or software. That, said Farnsworth, is one of the oversight roles the legislature plays.
Farnsworth also said what the audit finds could form the basis for changes in state election laws and procedures for future years.
And what of changing the election results?
"It's not designed to do that,'' he told Capitol Media Services. "But I told you all along if it comes out that there's fraud, then this election somebody might use that.''
That leaves the question of what "somebody'' might use that and for whose benefit the audit is being conducted, given that there still are at least three lawsuits seeking to overturn the official returns.
"It's the benefit of the legislature, it's the benefit of the state of Arizona,'' Farnsworth said.
"If there's been fraud, at that point the legislature can decide what to do.''
Nor does Farnsworth believe there would be some restrictions on what someone could do with the audit results, as he presumes they would be public.
"There are multiple purposes here,'' he said. "But the main one is to reinstill and ensure that we have confidence in the system.''
But not everyone involved in the litigation is simply looking for clarity.
Attorneys for the 11 Republicans who would have served as Trump's electors have filed their own legal papers asking Warner to uphold the subpoena and order the county to produce what the Judiciary Committee has demanded. And their issues are strictly political.
"The Republican electors have an obvious interest in any investigation into whether they were improperly deprived of recognition as Arizona's true electors,'' wrote attorney Alexander Kolodin who is representing them. And he left no doubt about their interest in using what is discovered to overturn the official election results, saying that the audit "may lead to further legislative action on their behalf at either the state or federal level.''
Kolodin put an even finer point on it.
He noted that the electors have a separate lawsuit pending before the U.S. Supreme Court asking that the justices allow the Republican-controlled legislature to designate who are the state's 11 electors "instead of merely accepting the slate certified by (Secretary of State Katie) Hobbs.'' And he pointed out that any action by the legislature to supplant the Democrat electors would have to be done ahead of that Jan. 6 meeting of Congress to count the electoral votes.
"Intervenors have a keen interest in any attempts by the legislature to obtain the information it needs to make an informed decision as to what electors are most appropriate for it to pick,'' Kolodin wrote.
Farnsworth, for his part, said he's not working with the electors, the Arizona Republican Party or Ward. But the senator said he presumes that the results of the audit would be a public record, meaning anyone would then be free to use them in any fashion.
At a hearing Tuesday, Warner said he has questions about whether he even has the authority to order the county to produce what the lawmakers are demanding.
He pointed out that state law already gives the legislature the power not only to issue subpoenas but also to find people in contempt for failing to comply. And the remedy in that statute allows for someone who refuses to be arrested and jailed.
"That's nothing more than the court can do,'' he told the attorneys.