By Howard Fischer
Capitol Media Services
PHOENIX -- Maricopa County supervisors voted Friday to refuse to comply with subpoenas issued by the head of the Senate Judiciary Committee.
The 4-1 vote following a nearly three-hour executive session with attorneys came amid concerns that at least some of what is being demanded by Sen. Eddie Farnsworth, R-Gilbert, would expose private information about voters. There also were questions about whether the county even has the legal right to give that information to outsiders.
Instead, board members supporting the motion -- three Republicans and one Democrat -- voted to direct their attorneys to file suit and have a judge determine whether the subpoenas are legally valid.
The legal papers, filed late Friday, said the subpoenas are not authorized by any law.
Attorney Steve Tully, hired by the county -- and himself a former lawmaker -- said legislative panels can subpoena people to testify. This seeks actual materials.
More significant, Tully said the subpoenas "serve no valid legislative purpose.''
"There is no legislative authority to audit election results,'' he said. Noris there authority to examine ballots or conduct forensic audits of election equipment.
That paves the way for what could be a legal showdown over the rights of state lawmakers to make such demands and the rights of the supervisors, who have the information they want, to refuse.
Board Chairman Clint Hickman also took a shot at Farnsworth and the lawmakers who are demanding a laundry list of data and access to voting equipment, suggesting they are not really interested in hearing about how the election was conducted.
Hickman pointed out that he, county Elections Director Scott Jarrett and deputy Maricopa County Attorney Tom Liddy testified at the Judiciary Committee earlier this week for about six hours, answering all the questions from panel members. That, he said, included queries about the machinery and the software.
"And then to be slapped with the two subpoenas,'' Hickman said. "That could be viewed as a slap in the face.''
In fact, he said, the subpoenas are asking for information that was never part of the questions that he and the other county officials were asked.
"I had to then feel those subpoenas were predetermined, no matter what I went there to say ... and no matter what Mr. Jarrett had to say,'' Hickman said. "To me, that's kind of telling.''
Farnsworth conceded at least part of that, saying he told Hickman even before the meeting that subpoenas were being considered.
Supervisor Steve Chucri cast the lone dissenting vote.
But Chucri said it wasn't that he believes the information should be surrendered. Instead, he wanted the refusal to be tied to an immediate vote by his colleagues to conduct their own audit.
Hickman said there will be such a review -- but not until all the outstanding lawsuits challenging the election are resolved amid concerns that doing anything to the machines in the middle of litigation could be considered tampering with evidence. There are still three active cases.
One subpoena seeks copies of all mail-in and absentee ballots -- and in multiple digital formats -- along with various reports and logs and tapes of the ballot scanning and tabulation equipment.
The other is even broader.
First, it demands that the county give access to a yet-to-be-chosen analyst to the ballot tabulation equipment from both the individual voting centers and the central counting system as well as the software used. Farnsworth also wants a report on rejected ballots, audit trail logs, usernames and passwords of anyone who has access to the system and anyone from Dominion Voting Systems who could get into the system.
And then there is a command for the county to turn over daily and cumulative voter records which include the name, address and date of birth of each voter, where and when they voted, their party affiliation and any information about when they requested an early ballot, when it was sent, when it was voted and, if applicable, when it was canceled.
That mirrors claims by attorneys for the president's reelection campaign that hundreds of thousands of early ballots may be fraudulent, voted not by the people whose names were on the list but by someone else.
All that angered Supervisor Bill Gates.
"Let's be clear: These subpoenas that have been issued and are before this body are truly extraordinary in the breadth of information that they're looking for,'' he said.
"As a conservative, I feel strongly about individual private information, of individuals, of voters,'' Gates said. "I'm going to fight to protect that information before we turn it over.''
But that, he said, is only part of his concern about surrendering all sorts of information to Farnsworth and his committee.
"I don't know what they're going to do with it,'' Gates said.
"They've not made it clear to me,'' he continued. "And until we have a court step in and say very specifically how this information might be utilized I will be supporting filing this (legal) complaint in Superior Court to get some clarity on how we move forward.''
Farnsworth told Capitol Media Services none of this information will be made public but is simply part of providing what an outside auditor needs to verify the results.
"So this isn't something that's going to be handed out and put out on YouTube or out on any social media sites,'' he said. "I mean, that's just an absurdity.''
Tully, in his legal papers, also told the judge there is no legitimate legislative purpose for the subpoenas. Instead, he said, it is "to provide the information for counsel for the losing candidate so that he might attempt to use it to overturn the election results.''
Farnsworth denied that subpoenas are designed to affect the outcome of the election or the pending lawsuits.
"This has nothing to do with the Trump campaign,'' he said. "This has to do with the concern by the legislature that there are enough allegations of inappropriateness or not being able to engage in the process or anomalies that exist.''
For example, there are people who said they were assigned to observe things like opening envelopes, reviewing ballots with flaws and counting them but really didn't get a chance to see the process. Farnsworth said this audit will determine if their concerns are valid or everything was done correctly.
"The legislature has thultimate authority and responsibility, plenary authority with regards to elections,'' he said. And Farnsworth said any concerns can be put to rest by doing an audit.
"I don't know why that's so difficult for people to understand,'' he said.
Some of the strongest comments came from Steve Gallardo who called the subpoenas "a sideshow coming from the legislature'' and a "circus.''
He said while he is the lone Democrat on the board that everything about this election was done in a bipartisan fashion.
Gallardo also pointed out that there were no complaints about how the election was conducted until after the vote when it became obvious that Joe Biden had outpolled Donald Trump, not just in the state but also in Maricopa County.
"I expect that there will always be criticism from folks that do not like the outcome of elections,'' he said.
"But yet, at the end of the day, we had a safe, secure election,'' Gallardo said, even with the highest turnout ever.
"And everyone had the opportunity to cast their ballot,'' he continued. "And everyone's ballot was tabulated.''