Maricopa County is taking the first steps to what could be a lawsuit against the Senate.
In a letter Friday, County Attorney Allister Adel demanded that Senate President Karen Fann preserve all communications related to the audit. These range from internal memos within the Senate all the way to social media posts.
All that, she said, is part of a legal maneuver known as a “litigation hold notice and document preservation request.” That allows attorneys contemplating a lawsuit to demand that a prospective defendant does not destroy materials that could help prove their case.
More to the point, it puts prospective defendants on notice they have a duty to preserve evidence that they know or should know is relevant or face court sanctions.
Strictly speaking, Adel does not explain her legal theory.
But her letter suggests, at the very least, a libel suit against senators and those involved in the audit who put out what Adel said were false statements that the county had deleted an entire database directory from the election equipment. That even included a post on the Senate audit’s official Twitter account saying the directory was deleted days before the election equipment was delivered.
“This is spoliation of evidence!” the post reads.
And there’s something else.
“We have reason to believe that this audit is not being done in accordance with Arizona law,” Adel wrote.
She did not spell out exactly what the county believes is illegal. But such a claim would lead to yet another lawsuit between the county and the state.
Earlier litigation concerned whether the Senate had a right to subpoena the ballots and voting equipment. A judge eventually concluded that the legislature has broad powers to demand pretty much whatever it wants.
But a claim of impropriety or illegality in how all this is being conducted would require a judge to take a closer look at exactly how the Senate — and its hired contractors — have been handling everything they have.
There also could be a financial component to any litigation. That follows a statement earlier in the week by Secretary of State Katie Hobbs that the decision by the Senate to turn the county’s voting equipment over to the outside contractors it hired makes those machines unusable for future elections.
Fann had only a brief comment on the letter.
“Boy, they really don’t want us to finish this audit,” she told Capitol Media Services.
Adel, in her demand letter, was quite comprehensive.
For example, she wants “all communications and correspondence, whether paper or electronic, including but not limited to written correspondence, voice mails, emails, calendar invites, text messages, instant messages, third-party message systems/applications, messages and data chat/chat strings, video files, audio files, and social media posts and messages, whether designated as public or private.”
Adel also is telling Fann to have the Senate and its contractors preserve all cell phones, tablets and computers used by her, agents, clients and contractors for the audit. And she wants these devices “preserved in their entirety for forensic imaging and electronically stored information.”
And if Fann did not get the significance of the message, Adel cited case law which she said empowers judges “to impose significant sanctions against parties who fail to preserve evidence.”