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County supervisors defy Senate subpoenas

Maricopa County Supervisor Bill Gates answers questions Monday about the board's decision not to respond to the latest Senate subpoena. With him is Chairman Jack Sellers (Capitol Media Services photo by Howard Fischer)

Maricopa County Supervisor Bill Gates answers questions Monday about the board’s decision not to respond to the latest Senate subpoena. With him is Chairman Jack Sellers (Capitol Media Services photo by Howard Fischer)

Maricopa County won’t surrender the latest batch of documents and equipment the Senate demands.

At least, not most of what was subpoenaed.

County officials did not show up at the Senate at 1 p.m. on Monday as commanded by President Karen Fann with the items in tow. In fact, they didn’t show up at all.

Instead, board Chairman Jack Sellers sent a letter to Fann and the other senators blasting the “audit” — the quotes are as he stated it — and telling them to get on with it.

“The board has real work to do and little time to entertain this adventure in never-never land,” he wrote, saying that the 2020 election was run as required by state and federal law.

“There was no fraud, there wasn’t an injection of ballots from Asia nor was there a satellite that beamed votes into our election equipment,” Sellers said. “It’s time for all elected officials to tell the truth and stop encouraging conspiracies.”

And Sellers told the senators to release whatever report they’re going to produce “and be prepared to defend any accusations of misdeeds in court.”

At a separate press conference explaining the board’s decision, Sellers took a slap at the Senate — and Cyber Ninjas, the firm that Fann hired.

“A lot of the questions that have been raised in the current subpoena are because the unqualified, inexperienced people they hired to do this audit don’t know what they’re looking at,” he said. “So they keep asking us to verify things or explain things that if they knew what they were doing they would already know the answers.”

Senate President Karen Fann (Photo by Kyra Haas/Arizona Capitol Times)

Senate President Karen Fann (Photo by Kyra Haas/Arizona Capitol Times)

The Senate had no better luck with a separate subpoena — and that 1 p.m. Monday deadline — for Dominion Voting Systems to produce various passwords, tokens and other ways to get into the programming of the equipment it leased to the county for the election.

Attorney Eric Spencer, in a written response to the Senate, said the demand violates his client’s constitutional rights against unreasonable search and seizure. And he said while the Senate has the power to conduct investigations, there is no “valid legislative purpose” to what Fann wants.

Both denials now shift the burden to the Senate which has to decide whether to pursue the matter.

“We are weighing our options,” said Fann in a prepared statement. But she said that it is the fault of both that the audit of the November election is not yet complete.

“It is unfortunate the noncompliance by the county and Dominion continues to delay the results and breeds distrust,” Fann said. And she accused the county of doing a “slow walk” of a separate public records request for documents about a possible breach of the voter registration database.

Supervisor Bill Gates, a Republican like Sellers, said that a vote by the Republican-controlled Senate to hold board members or officials from Dominion in contempt and potentially jail them is unlikely.

“We all know from public statements now that they have even fewer than 15 senators who are in support of this operation,” he said, noting the earlier objection from Sen. Paul Boyer, R-Glendale and the more recent conclusion by Sen. Michelle Ugenti-Rita, R-Scottsdale, that “the audit has been botched.” Anyway, Gates said, the Senate would have to be in session to even consider a contempt resolution.

Doug Logan, CEO of Cyber Ninjas, answers questions Tuesday at a hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns.

Doug Logan, CEO of Cyber Ninjas, answers questions May 18, 2021, at a hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns.

But it does not preclude Fann from seeking a court order as she did after the supervisors balked at earlier subpoenas.

In that case, Maricopa County Superior Court Judge Timothy Thomasson said the lawmakers have a “valid legislative purpose” in seeking the 2.1 million ballots and the election equipment.

He pointed out that the Arizona Constitution gives legislators the power to enact “laws to secure the purity of elections and guard against abuses of the elective franchise.” And Thomasson accepted the Senate’s explanation that it needed the ballots and equipment to determine if changes are needed in state election laws.

County officials ended up complying at that time. In fact, the ballots and equipment that were produced now have all been returned to the county.

But it now appears the supervisors are ready for a new fight over what more the Senate and Cyber Ninjas insist they need.

In a separate letter to Fann, County Attorney Allister Adel ticked off objections she has to what the Senate requested.

For example, she said there is no need for the actual envelopes in which early ballots were mailed since the county provided images. Anyway, Adel said, the Senate has provided no assurance it could actually protect those items.

But beyond that, the county attorney said the latest subpoena is “an abuse of process or designed merely to harass.”

Still, Adel said the county might provide some information — and on its own schedule.

For example, she said that the county might provide details about a breach of a voter registration web site last year operated by the County Recorder’s Office even though she said it was never connected to election tabulation equipment and is irrelevant to the audit. But Adel said that county officials are busy and they will respond to a parallel public records request for the same information when they have the time.

But the supervisors called the whole investigation little more than “political theater.”

“They’re not acting seriously,” said Gates, saying that the Senate is not doing anything to make voters confident about the electoral system.

“They’re focused on tearing it down, he continued. “They’re focused on raising all sorts of doubts that are going to do nothing but erode at our democracy.”

And then there’s the timing of this, the third subpoena issued by the Senate in its self-proclaimed inquiry into whether the results of the 2020 election — the one that saw Joe Biden outpoll Donald Trump in both the county and the state — were accurate.

All that goes to Gates’ conclusion that this is a political versus a legal issue.

Exhibit No. 1 is the demand in that third subpoena for the county’s routers, essentially equipment that directs computer traffic between the county’s own computers as well as the internet.

Auditors have claimed, without any proof, that election computers were somehow hacked and the results altered. And they have not been convinced by two separate investigations conducted for the county which found the election system is air-gapped and was never connected to the internet.

Yet he said the conspiracy theories remain.

More to the point, Gates said, is the timing of this new subpoena and the demand for those routers.

“They waited for former President Trump to come to town, talk about routers 10 times, and then issue a third subpoena,” he said. “This isn’t serious.”

And Gates said the people behind the audit are “more interested in scoring political points and driving the conspiracy theories held by many of the members of the state Senate.”

Editor’s note: This story has been revised to include comment from Senate President Karen Fann. 

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