Judge to rule on fight between Arizona Senate, Maricopa County by Friday

Feb 25, 2021, 9:00 AM | Updated: 1:50 pm
An official with the Maricopa County Recorder's Office fills out paperwork after ballots were count...
An official with the Maricopa County Recorder's Office fills out paperwork after ballots were counted for the primary election Tuesday, Aug. 4, 2020, in Phoenix. (AP Photo/Ross D. Franklin)
(AP Photo/Ross D. Franklin)

PHOENIX (AP) — A judge is promising to rule quickly after he heard brief arguments Thursday in a fight between Arizona Senate Republicans and the Maricopa County Board of Supervisors over access to ballots and voting machines used in November’s election.

The GOP-dominated county board asked Maricopa County Superior Court Judge Timothy Thomason to quash the subpoena issued by the Senate. They argue that the ballots are sealed under laws the Legislature passed and the Senate does not have a right to access them.

“The question before the court is really very straightforward in that will this court uphold a subpoena in which one branch of government orders or wishes to compel another branch of government to violate the law?” said Thomas Liddy, the county’s top election attorney. “It’s clear that no such subpoena is enforceable and is unlawful and should be invalid.”

The county’s court filings also say Republican Senate President Karen Fann and other GOP lawmakers are trying to conduct an illegal recount under the guise of an election audit.

Fann’s lawyers want the judge to order 2.1 million ballots that were cast turned over and allow Senate-hired auditors to examine vote-counting machines and related computer software. They say the laws cited by the county are intended as limits on public access, not access demanded by the same Legislature that made the rules on ballot secrecy.

Thomason focused on the laws either side cited, asking whether they would or should prevent other government officials from accessing the records or whether they clearly disallowed that.

The specific law the county cites requires ballots to be sealed and locked up for two years, and says that they can only be opened in the case of an election contest or a recount.

But the Senate’s lawyer, Kory Langhofer, urged Thomason to go beyond that simple reading, saying that since elections are essentially over once a short contest period ends there would be no logical reason for retaining ballots for two years if not for circumstances like now exist. He noted that the Arizona Constitution directs the Legislature to maintain the purity of elections and make sure voter integrity is protected, and said that’s what the Senate is trying to do.

“There must be some purpose of that statute beyond the purpose as the county reads it,” Langhofer told the judge. “And our view is those are there so the Legislature can understand what happened. It is constitutionally responsible for overseeing public policy, specifically elections in the state.”

The county released the results of two independent audits of their equipment on Tuesday that showed no malicious software or incorrect counting equipment and that none of the computers or equipment were connected to the internet. Previous reviews and a hand recount of a sample of ballots also found no issues. The board says the election was fair and the county accurate.

The state Senate wants its own forensic audit. The Senate fell one vote short of finding the five-member board in contempt earlier this month.

Thomason promised a ruling by Friday.

The county Board of Supervisors previously turned over reams of data but balked at handing over the actual ballots or the tabulation machines, saying the ballots were by law secret and the machines would be compromised.

Fann says she wants the audit to prove one way or another whether the victory of President Joe Biden was legitimate. Court challenges in Arizona and other battleground states where former President Donald Trump lost found no evidence of fraud, miscounts or other problems.

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Judge to rule on fight between Arizona Senate, Maricopa County by Friday