By Howard Fischer
Capitol Media Services
PHOENIX -- State senators won't get the trove of election materials they are demanding, at least not yet -- if ever.
Maricopa County Superior Court Judge Timothy Thomason said Wednesday that it appears the original subpoenas issued by Senate President Karen Fann and Sen. Eddie Farnsworth, R-Gilbert, are probably moot.
That's because they were issued in December as part of the 54th legislative session which technically ceased to exist on Monday.
In fact, Farnsworth is no longer a state senator.
But Thomason noted that Fann and Sen. Warren Petersen, who succeeded Farnsworth as chair of the Judiciary Committee in the new 55th legislative session, issued a new subpoena on Tuesday afternoon demanding not just the same documents but even more, including access to "all original paper ballots.'' And the subpoena wants access to the county's voting equipment and software.
Jack Sellers, the new chairman of the Board of Supervisors, did show up Wednesday morning at 9 a.m. at the Senate, as the new subpoena ordered. So did newly elected County Recorder Stephen Richer and new County Treasurer John Allen.
But they brought none of the materials with them.
Thomason said that new subpoena likely requires the county to file new legal briefs. And he set a hearing for this coming Wednesday to consider the matter, saying he hopes the two sides can work things out.
But the prospects of that happening are unclear.
The big problem for the Senate could be convincing the judge he actually has the authority -- and should -- order the county to comply.
"If timing is an issue, why can't the senators simply enforce their own subpoenas?'' Thomason asked. "They have the statutory power to do that.''
"They can,'' conceded Kory Langhofer who is representing the Senate. "And I will tell you, there's a real possibility of that.''
That, however, raises different legal and practical issues.
State law empowers either the House or Senate to hold someone in contempt. But that requires a vote of the full chamber, meaning that it would take all 16 Republican senators to go along if Democrats refuse to support the move.
If they can get a contempt vote, the law allows the Senate president to send out the sergeant-at-arms to physically arrest the person who has refused to comply.
In fact, disobeying a subpoena is as crime.
But even with that, it still doesn't guarantee the Senate actually would get what it wants, even if someone is jailed. That's why Langhofer wants Thomason to order the county to comply.
Thomason, however, notes that Langhofer is relying on a section of Arizona law that allows a public officer "authorized by law'' to issue subpoenas and demand production of evidence. That same law allows the official to then ask a judge to intercede to compel compliance.
Only thing is, Thomason said he's not necessarily convinced that applies to legislative subpoenas or that he has the power to enforce them.
Legal authority aside, Steve Tully, who represents the county supervisors, told Thomason they still believe there is no "valid legislative purpose'' behind the subpoenas and the whole Senate inquiry.
Langhofer acknowledged that one reason for the original subpoenas -- there were two at the time -- was to audit the equipment to send information to Congress ahead of its Jan. 6 vote on whether to certify the results from Arizona giving the state's 11 electoral votes to Joe Biden.
"That's water under the bridge,'' he said, given that Congress did accept the Arizona results and Biden will be sworn in this coming Wednesday.
But Langhofer said that's not the end of the discussion.
"Always, separate from that, was an independent reason of performing their oversight function to see how elections in the state were run and whether additional legislation is necessary,'' he told Thomason.
Langhofer said lawmakers want to see what happened to determine if there are changes needed in state election laws, something that is strictly the purview of the legislature.
For example, he said lawmakers want to know if there were tabulation errors, unlawful ballots cast or security vulnerabilities in voting devices.
"Could legislative reforms decrease the risk of mistakes or anomalies in future elections?'' Langhofer asked in a separate legal filing. "Is the Maricopa County Board of Supervisors a competent of administrator of elections in Arizona's most populous county, or should the legislature consider assigning these vital responsibilities to a more qualified regulatory authority?''
Tully, however, said the legislature tipped its hand when it admitted it wanted the materials and access to the equipment to see if it could affect the outcome of the vote.
"He issued those subpoenas to audit the election,'' he said of Farnsworth. "And that is not a legal power that is granted to the chairman.''
Beyond that, there are legal questions.
Deputy County Attorney Tom Liddy said one of these deals with the security of hose 2.1 million actual original paper ballots. He told the judge they can't simply be turned over to senators as there are legal constraints on who has access to them.
There also is the issue of who will be doing the examination of the voting equipment.
The new subpoena, served on the supervisors, the county recorder and the county treasurer at 4:10 p.m. on Tuesday, "commanded'' that they appear at the Senate by 9 a.m. Wednesday and provide the materials sought as well as provide testimony to the Judiciary Committee.
That 9 a.m. deadline also was the time that the hearing before Thomason began two miles away.
"That's bush league,'' said Liddy.
Only thing is, there was no meeting of the committee on Wednesday.
"Either they don't know what they're doing or somebody's playing games,'' said Liddy. But he said the officials showed up because "we respect the power of the Senate.''
What resulted, Liddy said, was a brief meeting with Senate staffers -- and no questions.
