AG sides with lawmakers in bid for election materials

AG sides with lawmakers in bid for election materials

In this Nov. 4, 2020, file photo, Maricopa County elections officials count ballots in Phoenix.  (AP Photo/Matt York, File)
In this Nov. 4, 2020, file photo, Maricopa County elections officials count ballots in Phoenix. (AP Photo/Matt York, File)

The state’s top prosecutor is siding with Republican legislators in their legal bid to demand access to election materials from Maricopa County.

In legal papers filed Wednesday, a top aide to Attorney General Mark Brnovich is urging Maricopa County Superior Court Judge Timothy Thomason to enforce the subpoena issued by Senate President Karen Fann and Sen. Eddie Farnsworth. Michael Catlett, a deputy solicitor general, told the judge that he “should recognize the Arizona Legislature’s broad authority to issue and enforce legislative subpoenas.”

But even with Brnovich’s backing, that may not be enough to convince Thomason that he should — or has the authority to — order Maricopa County to turn over a host of materials related to the election, from information on voters and duplicates of ballots to access to the counting equipment.

Attorneys for the county are not necessarily denying that the legislature has subpoena power.

Only thing is, the subpoena was not issued by a vote of the full legislature, something that is covered and specifically authorized in a specific section of Arizona laws. Instead, it was issued by Fann and Farnsworth as part of the latter’s effort to have the Senate Judiciary Committee, which he chairs, look into what happened in the last election.

Farnsworth said what the committee discovers could form the basis for changes in state law designed to tighten up procedures.

But he also acknowledged that if there is evidence of fraud or misconduct, those findings could be used by others who are trying to get the courts — or Congress — to void the election results in Arizona and hand the state’s 11 electoral votes to Donald Trump despite the already certified popular vote.

Catlett, in his legal papers, is hoping to convince Thomason that he should recognize the broad powers of the legislature and order the county to provide Farnsworth what he wants.

“The legislature is presumed to have all power not granted to another branch of government or expressly prohibited in the constitution,” he wrote. And in this case, Catlett said, no other branch of government can issue legislative subpoenas “and legislative subpoenas are not expressly prohibited.”

More specifically, Catlett said that Thomason should not closely examine why Farnsworth wants the information but instead should give the legislature wide berth in determining what lawmakers believe they need.

“A legislative subpoena is valid even if one of the several objectives for the subpoena is alleged to be unlawful,” he wrote.

“In other words, so long as the subpoena can be construed to be related to a subject upon which legislation might be had, the subpoena is valid,” Catlett continued. “The legislature need not include an express avowal about the purpose for the subpoena and it need not point to actual legislation that it plans to enact.”

Beyond that, he said that lawmakers can issue subpoenas for any “authorized investigation.”

Catlett also pointed out to Thomason that the powers of the county to run elections exist only because they were delegated to it by the legislature.

“The Arizona Legislature should be permitted to issue subpoenas to determine whether government officials who have been delegated authority to administer elections have faithfully discharged those duties and to determine whether current law regarding election administration should remain the same or be amended,” he wrote. “The Arizona Legislature has the power to keep election laws the same or to change those laws, and the court should recognize that the Arizona Legislature has the authority to issue subpoenas to obtain information to help it choose the best path forward for Arizona.”

An earlier bid by the Senate to get an order to enforce its subpoenas was rejected by a different judge.

Judge Randall Warner said he finds nothing in the Arizona Constitution that specifically allows him to enforce such a subpoena. And Warner rejected arguments that lawmakers have “implicit” power to ask a court to enforce their demand.

Thomason has not yet scheduled a hearing on the latest bid.