The game of political chicken between the Arizona Senate and Maricopa County supervisors comes to a head Monday as lawmakers weigh holding board members in contempt, opening the door for the apparently unprecedented possibility of county officials being charged with a crime or even immediately locked up.
Senate President Karen Fann told Capitol Media Services on Friday she remains hopeful the supervisors will realize they are obligated to provide what lawmakers are demanding, including access to voting equipment and ballots. Beyond that, she said it makes sense for them to cooperate in what the Prescott Republican says is an attempt to answer questions from constituents about the accuracy of the results of the Nov. 3 election.
But Fann got her answer as board attorney Steve Tully filed suit late Friday asking a judge to dismiss what he called a “sham subpoena.”
Tully noted the senators are not asking board members to appear to answer questions. In fact, he said, there isn’t a hearing even scheduled.
Instead, he said, the subpoena demands the county give access to the companies they hire to the voting equipment and the 2.1 million ballots cast.
And then there’s the fact that the one firm that Fann has said she is considering, Allied Security Operations Group, was involved in efforts by the Trump campaign to overturn election results in Michigan.
“You don’t just hire a bunch of clowns that run around for Trump,” Tully charged.
Hanging in the balance is the extent of the power of state lawmakers to issue subpoenas to poke around into whatever they want.
The supervisors are trying to be careful in what legal fight they pick.
Tully said they acknowledge the Senate does have subpoena power. In fact, he said, the county already has turned over 11 gigabytes of data ranging from the voter registration database to computer logs and ballot tabulation reports associated with the November election.
What they don’t have, Tully said is the authority to now say they want the auditor they hire to go out and poke around to see what the company can find. He now wants Maricopa County Superior Court Judge Joseph Mikitish to rule in the county’s favor.
Fann bristled at questions about whether this all amounts to a fishing expedition.
“A fishing expedition is someone that’s going out there purposely looking for something,” she said, something that is not the case here.
“We are trying to dispel any of the allegations that are out there,” the Senate president said. “We are trying to answer the constituents’ questions about why they think something went wrong here or didn’t go wrong.”
That, however, still leaves the question of whether those questions are due to actual evidence of fraud or the fact that Trump told backers before the election the only way he would lose is if there was cheating and the voting machines were rigged, a theme he continues to repeat.
All that has had an effect. A new OH Predictive Insights poll finds that 26% of Arizonans and 54% of Republicans believe Trump won the election.
Fann said the posturing by Trump and his allies is irrelevant.
“With all due respect, four years ago it was a lot of Democrats who were questioning these machines,” she said, with some national reports suggesting that Dominion Voting Systems equipment could be hacked. And Fann said perhaps if there were audits done at that time — like the kind she and senators now want — questions about the vulnerability of those machines would have been answered before the 2020 election.
“I’m not saying there was any fraud,” she said of this year’s results. And Fann said people keep asking questions because “we haven’t had an audit.”
That could depend on how one defines an “audit.”
There were “logic and accuracy” tests before and after the election, using pre-marked ballots to see whether the machines recorded the votes that were cast. Those tests, Tully said, came up with a 100% match.
Then, as required by state law, officials from both major parties selected ballots from random voting centers for a hand count. According to the audit report, a review of more than 47,000 ballots showed not a single difference between what the machines recorded and what the hand count revealed.
Separately, a judge let state GOP Chair Kelli Ward, who had filed suit, get a review of several thousand ballots which had to be duplicated by hand after the originals could not be read by machines. While there were some discrepancies, the judge found — and the state Supreme Court affirmed — that if the error rate were extrapolated out over all the duplicated ballots it would have gained Trump no more than 153 votes, far short of the 10,457 vote margin of Biden over the now-former president.
And Ward’s own expert witness was unable to find a single instance of a clearly forged signature on the envelopes of early ballots she reviewed.
Fann was unimpressed, saying if the supervisors have nothing to hide “why are they refusing to let us do this.”
“We’ve offered to pay for this ourselves,” she said. Instead the county has hired two firms for its own review, one of which Fann said is not really qualified to do the kind of audit the Senate believes is necessary.
Anyway, she said, the Senate is not asking for the county to physically deliver the ballots or the machines to the Capitol but simply to give access to an auditor the Senate finds acceptable.
That, however, still leaves the question about Allied Security Operations Group and its link to trying to overturn Michigan voting results.
Fann insisted that firm has not yet been hired despite the fact that her attorney, Kory Langhofer, sent the supervisors a copy of a “scope of work” plan from Allied. Fann said she sent that because it was the only proposal she had at the time and that she continues to speak with other companies.
Still, she conceded that the firm’s reputation of trying to help overturn election results for Trump does raise questions.
“My intention at this point is not to hire them,” Fann said.
“I do believe that they are qualified, they do have the experience,” she continued. “But the mere fact that the perception is out there that they have ties with Trump or they would be less than totally independent, then it would be very difficult for us to hire them.”
All that comes back to the question of what happens Monday assuming all 16 Republicans vote to hold the board in contempt.
That would empower Fann to send out the sergeant-at-arms to arrest board members.
Only thing is, what the Senate wants now is not testimony from board members but access to those ballots and equipment. Tully said he is prepared to go to court to prevent board members from being arrested.
Option 2 is for Fann to ask Attorney General Mark Brnovich to file criminal charges against board members, as it is a Class 2 misdemeanor, subject to four months in county jail, to disobey a legislative subpoena. That, however, could result in months of litigation and appeal.
What that could leave Fann is what Tully already started: taking the matter to a judge.
Mikitish has not set a hearing on that matter.