A judge in Arizona threw out a lawsuit Wednesday filed by the Senate lawmakers aimed at forcing the Maricopa County Board of Supervisors to comply with a subpoena demanding access to voting machines, copies of all mail ballots and other materials from the presidential election for a full forensic audit.
Superior Court Judge Randall Warner said they did not follow the appropriate procedures to enforce a legislative subpoena, but he invited them to refile their case.
The lawsuit was filed by Senate President Karen Fann and Sen. Eddie Farnsworth, who chairs the Senate Judiciary Committee. They requested that the judge issue a writ of mandamus, which requires public officers to perform an official act required of their positions.
The ruling could thwart their efforts to access materials in time to audit them and send a report to Congress before Electoral College votes are counted on Jan. 6.
In his ruling Warner said the senators’ request was not appropriate because the supervisors’ duty to comply with the subpoenas stems from the subpoenas themselves, not from their elected positions.
“There is no basis in Arizona statute for treating the subject of a subpoena differently because they are a public official,” Warner wrote.
“They are allowed to investigate and see what the facts are and make a decision, just like a grand jury,” said Kory Langhofer, a lawyer for Fann and Farnsworth.
Stephen Tully, a former Republican lawmaker representing the Board of Supervisors, said the lawmakers are not entitled to a writ of mandamus or to send an unknown auditor to interfere with voting machines.
“What they’re trying to do is unconstitutional. It’s illegal,” Tully said.
Warner said the senators could amend their original complaint to include a new argument that their attorney raised in court filings on Wednesday arguing that the court has the authority to force compliance under a statute pertaining to subpoenas issued by a “public officer.”
“This is a plausible argument,” Warner wrote, but Fann and Farnsworth only made it on Wednesday in a memorandum regarding jurisdictional issues in the case, and the supervisors have not yet had an opportunity to respond to it. Fann said they will amend the complaint to include the new arguments.
The Republican-controlled board voted 4-1 to file a lawsuit in Maricopa County Superior Court last Friday, claiming the subpoenas are unlawful, with one lone supervisor, Steve Chucri, casting the opposing vote.
Senate Republicans served subpoenas to the supervisors earlier this month demanding access to copies of the more than 2 million ballots cast by Maricopa County voters during the 2020 general election and other election-related records logs and reports.
The subpoenas also call for access to the equipment used to tabulate those ballots and the software that ran the equipment for “forensic analysis.”
The subpoenas were issued after a six-hour hearing of the Judiciary Committee on Monday, Dec. 14, where lawmakers raised concerns about the conduct of the election.
County officials were told to deliver the requested information to Farnsworth before 5 p.m. on Friday, Dec. 18.
Board of Supervisors Chairman Clint Hickman, a Republican, alleged that the state Legislature’s demands were too broad; violate voters’ privacy by contravening Arizona laws for ballot secrecy and access to ballots and did not provide sufficient time for them to comply.
The supervisors also dispute the Senate Judiciary Committee’s right to issue them and asked the court to throw them out. They complained that the subpoenas are “a draconian abuse of power.”