By Howard Fischer
Capitol Media Services
PHOENIX -- Maricopa County supervisors won't say just yet what they intend to do about the latest subpoenas dealing with the audit despite a 1 p.m. Monday deadline.
And Secretary of State Katie Hobbs said she's already preparing a "prebuttal'' of whatever is produced by the Senate's contractors, calling the process so flawed that anything that comes out of the yet-to-be-produced report will be meaningless.
All this comes as the auditors wrapped up the last bit of counting and are preparing to send the ballots and the equipment back to Maricopa County on Thursday. Senate President Karen Fann has said she is hoping for a report about what was found -- and any recommendations for changes in state law -- by the middle of next month.
But new subpoenas and new requests for public records from Fann brings that deadline into question. And things are not proceeding smoothly.
Ken Bennett is unhappy with what's going on at the Senate's audit of the 2020 election and threatened Wednesday to quit, though he's now staying on.
The latest dust-up came Wednesday when Bennett, whom she had tapped as her liaison with the audit, said he was no longer interested in being part of the effort.
That followed a move by Fann last week to permanently ban him from Veterans Memorial Coliseum where the counting was taking place. She said he violated trust by sharing some information with outsiders before any report had been finished, a charge he has not denied.
But what appears to have particularly bothered Bennett was Fann's statement late Tuesday that while his access was permanently cut off, she expected him to be part of the final report.
"I won't pretend to be part of a process, or pretend to be the liaison, when I'm not,'' he told KFYI radio talk show host James T. Harris on Wednesday morning. Bennett, a former secretary of state, said he's essentially being asked to put his credibility on the line to tell people that the audit is something "they can trust and believe in.''
"I can't be locked out until the last moment,'' he said.
But Fann and Bennett talked Wednesday about what happened -- and his future role. And both said he will remain a part of the audit.
Meanwhile the U.S. Department of Justice on Wednesday released a briefing on federal law constraints on post-election "audits,'' with the agency putting that last word in quotes.
Strictly speaking, the memo is not aimed at Arizona, though there is a mention about plans by Cyber Ninjas to contact individuals to see whether they actually cast ballots.
"This sort of activity raises concerns regarding potential intimidation of voters,'' the memo states, especially if it is designed in a way -- or even perceived to be designed -- to be directed at minority voters.
The agency has raised that issue before. And Fann has promised that any such canvass will be done in a non-discriminatory way.
But what's new is a warning that the loss of control of the ballots by government agencies itself could violate federal law. And that presents questions given that Fann and the Senate, using the power of a subpoena, forced Maricopa County to surrender the ballots to Cyber Ninjas.
"Where election records are no longer under the control of election officials, this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed,'' the memo states. And it says that risk is greater "if the election records are given to private actors who have neither experience nor expertise in handling such records and who are unfamiliar with the obligations imposed by federal law.''
Fann had no immediate response to the memo.
Meanwhile, Maricopa supervisors met Wednesday behind closed doors with their attorneys to consider how to respond to the latest subpoenas. Fann wants production of everything from the routers used to direct traffic on the county's computer network to passwords for tallying equipment and either the originals or copies of envelopes that contained early ballots.
Board Chairman Jack Sellers, commenting after the meeting, provided no clues on whether the county will comply or, as it did unsuccessfully earlier this year, fight the demands in court.
"Board members had a good discussion about the most recent subpoena and public records request from the Arizona Senate,'' he said in a prepared statement.
"We discussed various options without our legal counsel and will take the coming days to do our research,'' he continued. "I expect the board to revisit this matter in the next week.''
Sellers made no mention of that Monday deadline set by Fann and a county spokesman said he had no comment.
While there is no firm date for release of the audit, Hobbs apparently intends to try to get out her own conclusions first.
Speaking earlier this week to the Democrats of Greater Tucson, the secretary of state and gubernatorial hopeful noted that her office had sent in observers of its own to watch the process. She said they have reached some conclusions.
"We are going to be coming out with a report that encapsulates all of that,'' Hobbs said. "We're really looking at that report as a prebuttal report to say, 'No matter what they come up with, this isn't a real audit, the results can't be credible and here's why.' ''
Hobbs has been a critic of the process started by Fann and the Republican-controlled Senate from the start. She said it's designed to at least "lay the groundwork to steal a future election'' but also "potentially inciting another insurrection on the government.''
The Department of Justice is sending warnings of possible violations of federal laws with ballots winding up in the hands of private and inexperienced auditors.