AG says county breaking law by withholding election materials

AG says county breaking law by withholding election materials

Mark Brnovich (Photo by Gage Skidmore/Flickr)
Mark Brnovich (Photo by Gage Skidmore/Flickr)

Maricopa County is breaking the law by refusing to provide the materials demanded by the state Senate, Attorney General Mark Brnovich concluded August 26. 

In a formal finding, Brnovich determined that the county is required to comply with Senate subpoenas to provide its routers, which direct computer traffic among computers. 

Brnovich said the county also broke the law by failing to provide user names, passwords, PINS and security keys or tokens to gain access to the tabulation devices used in the 2020 general election. 

All those were sought after Senate President Karen Fann said the items are needed by Cyber Ninjas, the private firm she hired to review the conduct of the election, to complete its audit. While the county has turned over 2.1 million ballots and voting equipment, Fann said what has not yet been delivered is necessary to determine whether the equipment was in any way affected by outside forces, including whether the tabulators were connected to the internet at any time. 

The attorney general’s conclusion is more than an academic exercise. Under Arizona law, his finding that the county government has violated state law means it can lose up to its entire allocation of state-shared revenues, a figure that for this budget year exceeds $676 million – if it does not come into compliance by September 27. 

And that amounts to close to a quarter of its total operating budget. 

Brnovich press aide Katie Conner said the conclusions in the report are justified. 

“At the end of the day, the supervisors may not like the audit,” she said. “But they don’t get to pick and choose which Senate subpoenas they want to comply with.” 

The official word so far from the county is wait and see. 

“The members of the Maricopa County Board of Supervisors are aware of the investigative report issued by the Arizona attorney general,” Fields Moseley, the county communications director, said in a prepared statement. “Board members will meet with their legal counsel and determine an appropriate path forward.” 

But don’t expect the county to simply hand over the demanded materials – or accept the loss of revenues. It is likely to exercise its legal right to seek Supreme Court review of Brnovich’s conclusion. 

Tom Liddy, the chief civil deputy county attorney, made it clear in a letter earlier this month to Fann why he believes at least some of what the Prescott Republican has subpoenaed can’t be turned over. 

“Providing these routers puts sensitive, confidential data belonging to Maricopa County citizens – including social security numbers and protected health information – at risk,” Liddy wrote. And he pointed out that Sheriff Paul Penzone believes that producing the routers “would render MCSO internal law enforcement communication infrastructure extremely vulnerable to hackers, be they criminal cartels, terrorists, or foreign powers.” 

That argument, however, holds no water with Brnovich. 

“The subpoenas are, in essence, the equivalent of a court order, requiring production of certain information,” Assistant Attorney General Beau Roysden wrote August 26 on behalf of his boss. “The county cannot avoid a subpoena based on statutes that require that the materials being subpoenaed be kept confidential.” 

Less clear is the demand for the password and security keys. 

Liddy said the county doesn’t have them, saying they belong to Dominion Voting Systems for its own administrative access to the equipment. He said the county doesn’t need them to conduct elections. 

Roysden, in his findings, does not address that contention. 

But the supervisors have another argument they contend absolves them of the need to respond, an argument they say makes Brnovich’s findings moot. Attorney Edward Novak, hired by the county to respond to the complaint, said the county isn’t breaking any law even if it didn’t produce what the Senate wants. 

The issue, he said, is one of timing. 

The way Novak said he sees it, the subpoena is valid only while the Legislature is in session. And he pointed out that the latest subpoena – the one that the county is accused of illegally ignoring – was issued on July 26, 26 days after the Legislature adjourned. 

More to the point, Novak said that the law cited in the complaint makes a contempt charge the only remedy. But with the Legislature not in session, he said, there is no authority to file such charges. 

Brnovich, however, said that isn’t the case. 

He pointed out that there were prior subpoenas for some of the same materials, including one set issued in January when lawmakers were in session. And Brnovich noted that a trial judge rejected arguments at that point from the county that the subpoenas were not valid, concluding that the Senate has the right to what it determines is necessary for its own investigations. 

“Assessing electoral integrity, examining potential legislative reforms to the electoral process, confirming the accuracy and efficacy of vote tabulation systems, investigating whether to modify or improve powers delegated to a county, and evaluating the competence of county officials in performing their election duties each constitute a valid legislative purpose,” Brnovich wrote, quoting from the trial judge. And he said that is true even if one of the original purposes of subpoenas issued as far back as December were to see if the election results could be challenged. 

“Our findings today and our report today is about the rule of law,” Conner, the AG’s press aide, said. “General Brnovich has said, and the court has previously affirmed, that the Arizona Senate has the authority to conduct this audit and to issue subpoenas.” 

The Senate-audit review has been called both unnecessary and a political exercise undertaken after Joe Biden outpolled Donald Trump in Maricopa County. That margin of victory was enough to overcome Trump support elsewhere and give Biden the state’s 11 electoral votes. 

There also has been criticism of Fann’s choice of Cyber Ninjas, both because it has no experience in auditing elections and because Doug Logan, its CEO, had made statements even before the audit started questioning the election results. 

Preliminary findings were supposed to be given to senators this week but were delayed after Logan and some others from his team contracted Covid. 

Editor’s note: This story has been revised to include more information.